Opinion
D073365
10-19-2018
JOSE DE JESUS AVILA, Plaintiff and Respondent, v. DIRECTOR, DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.
Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Celine M. Cooper and Jodi L. Cleesattle Deputy Attorneys General, for Defendant and Appellant. Jose de Jesus Avila, in pro. per., for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. ECU09609) APPEAL from an order of the Superior Court of Imperial County, L. Brooks Anderholt, Judge. Affirmed. Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Celine M. Cooper and Jodi L. Cleesattle Deputy Attorneys General, for Defendant and Appellant. Jose de Jesus Avila, in pro. per., for Plaintiff and Respondent.
I
INTRODUCTION
In this appeal, the Department of Motor Vehicles (the Department) asks this court to consider whether the trial court erred in granting a petition for writ of administrative mandamus filed by respondent Jose De Jesus Avila to set aside the suspension of his driver's license due to the Department's finding that he refused to submit to testing under the implied consent law after his arrest for driving under the influence. The Department generally contends that "[b]ecause the evidence overwhelmingly supported each of the elements of the implied-consent violation, the trial court should have denied the writ petition and upheld the license suspension."
A central tenet of appellate review is that an order or judgment of the trial court is presumed to be correct and, accordingly, the appellant bears the burden of demonstrating prejudicial error. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) To meet this burden of demonstrating error, the appellant must provide this court with an adequate record on appeal. Here, the Department failed to do so. As the appellant, the Department elected to not designate the administrative record for transmittal to this court for review. Instead, it improperly placed only portions of the administrative record in its appendix in violation of the applicable rules of court, while leaving out critical portions of the record. Even if we were to consider these portions of the record, the omissions preclude our review. Without an adequate record to review, we must affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
Given the limited record provided to us, as discussed post, our recitation of the facts surrounding the underlying incident is necessarily brief and generally limited to the verified allegations made in Avila's petition for writ of administrative mandate.
In January 2016, an officer of the City of Imperial Police Department detained and arrested Avila following a traffic stop. The officer filed a sworn statement of his belief that Avila was driving under the influence in violation of Vehicle Code section 23152 and that Avila subsequently would not complete a chemical test.
The Department issued an order suspending Avila's driver's license. Avila requested an administrative hearing in order to challenge the suspension. An administrative hearing officer held a hearing, reviewed the evidence, and issued a decision upholding the suspension.
Avila then filed a petition for writ of administrative mandate against the director of the Department, requesting that the superior court issue a writ of mandate directing the Department to set aside its order and reinstate Avila's license. Following briefing and a hearing, the trial court considered the administrative record and granted the writ petition. The court reviewed both the officer's written statements and videos of the traffic stop, finding that Avila was arrested "following a felony-type stop with guns drawn" and was not interviewed or tested until after he was placed in the police officer's patrol car. The trial court believed the videos of the incident revealed that Avila exhibited no signs of intoxication, belying the statements of the officer to the contrary. Considering the totality of the evidence, the court concluded "that there was no probable cause . . . to arrest Petitioner for driving under the influence . . . such that there is no basis for suspension of Petitioner's license for failure to submit to a chemical test, specifically because such chemical test was not warranted under the circumstances then present."
The Department appeals from the trial court's order granting Avila's writ petition and setting aside the suspension of his driver's license.
III
DISCUSSION
As the Department acknowledges, the central focus of any judicial review of a license suspension is the administrative record. " 'Where, as here, the driver petitions for a writ of administrative mandate following an order of suspension, the superior court is required to determine, based on the exercise of its independent judgment, whether the weight of the evidence supports the administrative decision. [Citation.] In reviewing the administrative record, the court makes its own determination about the credibility of the witnesses. [Citation.] [¶] 'On appeal, we review the record to determine whether the trial court's findings are supported by substantial evidence, resolving all evidentiary conflicts and drawing all legitimate and reasonable inferences in favor of the trial court's decision.' " (Murphey v. Shiomoto (2017) 13 Cal.App.5th 1052, 1068-1069.)
As framed by the Department itself in its opening brief, "[t]he question here then is whether substantial evidence establishes that the administrative record is insufficient to support the license suspension." (Citing Grundy v. Gourley (2003) 110 Cal.App.4th 20, 24.)
To consider this question, however, this court requires an adequate record. The reason for this follows from the cardinal rule of appellate review that a judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court. 'If any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.' " (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) This general principle of appellate practice is an aspect of the constitutional doctrine of reversible error. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) " 'A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.' " (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) "Consequently, [appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant]." (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
The California Rules of Court discuss the straightforward procedures for designating the record on appeal. As stated in rule 8.120, "If an appellant intends to raise any issue that requires consideration of the record of an administrative proceeding that was admitted in evidence, refused, or lodged in the superior court, the record on appeal must include that administrative record, transmitted under rule 8.123." As discussed in rule 8.123, an appellant's notice designating the record on appeal pursuant to rule 8.121 may request the administrative record be transmitted to the appellate court. Here, the Department utilized the standard Judicial Council of California form to designate the record on appeal. The form includes a section to request transmittal of the administrative record pursuant to rule 8.123, but the Department elected to not request transmittal.
Instead, the Department elected to prepare an appellant's appendix pursuant to rule 8.124. The Department's appendix includes portions of the administrative record lodged in the superior court. However, the California Rules of Court expressly state that an appendix "must not . . . contain the record of an administrative proceeding that was admitted in evidence, refused, or lodged in the trial court. Any such administrative record must be transmitted to the reviewing court as specified in rule 8.123." Because the appendix fails to comply with the Rules of Court, we strike the portions of the appendix that contain the record of the Department's administrative proceeding. (Cal. Rules of Court, rule 8.124(g); Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 877; The Termo Co. v. Luther (2008) 169 Cal.App.4th 394, 404.)
With the improper materials stricken from the appendix, and in light of the Department's election to not request transmittal of the record, we are left with no evidence to allow for any meaningful review of the superior court's order.
No party to this appeal has subsequently sought to augment the record on appeal. Although this court has discretion to augment the record on its own motion, "it is not the responsibility of this court to obtain the documents necessary to consider the parties' arguments on appeal." (State Comp. Ins. Fund v. WallDesign, Inc. (2011) 199 Cal.App.4th 1525, 1528, fn. 1; see World Business Academy v. California State Lands Commission (2018) 24 Cal.App.5th 476, 493 ["This court has no obligation to perfect an inadequate record."].) "[T]he augmentation procedure is not to be regarded as a cure-all," and should not be used to avoid harmful results caused by the appellant committing errors in designation of the record. (Russi v. Bank of America National Trust & Savings Assn. (1945) 69 Cal.App.2d 100, 102.)
Although the Department may consider this result to be unduly severe, it is not caused by this court applying a hyper-technical distinction between an appellant's appendix and a properly transmitted administrative record. Even if we were to consider the portions of the administrative record improperly included in the appendix, the record would not be adequate for our review.
As discussed ante, we must review the trial court's factual findings to determine whether they are supported by substantial evidence. (Murphey v. Shiomoto, supra, 13 Cal.App.5th at pp. 1068-1069.) Under this standard of review, we must review the entire record to determine whether there is substantial evidence, contradicted or uncontradicted, to support the superior court's factual findings. (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1245-1246.)
Here, the superior court's order granting Avila's writ petition relies heavily on the court's review of the "MVARS" videos of Avila's arrest. The order includes a factual finding by the court that the videos undermine the credibility of the officer's statements about Avila's demonstrated symptoms of intoxication. The court found, based on its entire review of the record, that Avila did not appear intoxicated at the time of this arrest. This finding relied heavily on the content of these videos, but the Department elected to not provide this court with these critical portions of the administrative record. Instead, the Department offers only counsel's brief representations of what the videos depict and asks this court to instead rely on the officer's statements about Avila's apparent signs of intoxication. The Department contends that the officer's statements are "substantial evidence supporting the hearing officer's finding of probable cause for Mr. Avila's arrest."
Although not defined in the court's order, the Department suggests in its opening brief that MVARS is an acronym for "Mobile Video/Audio Recording System," a recording system in the police officer's patrol vehicle.
This contention directly conflicts with the substantial evidence standard of review. We do not review the evidence to determine if there is substantial evidence to support the Department's version of events, but only to determine if substantial evidence exists to support the trial court's factual findings in support of its order. (See, e.g., Pope v. Babick, supra, 229 Cal.App.4th at p. 1245.) By not providing us with the videos that the superior court relied upon, the Department precludes this review. Moreover, the inability to review the superior court's factual findings prevents us from considering the legal questions raised on appeal, which are necessarily premised on these factual findings. Thus, even if we were to overlook the Department's violation of rule 8.124(b)(3) by including portions of the administrative record in its appendix, the omission of critical portions of the administrative record requires us to resolve these determinations against the Department.
DISPOSITION
The judgment is affirmed. Avila is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. GUERRERO, J.