Opinion
As Modified March 17, 1982.
Opinions on pages 682-709 omitted.
HEARINGS GRANTED [*]
For Opinion on Hearing, see 189 CalRptr. 518, 658 P.2d 1319.
[181 Cal.Rptr. 420]James Gaus, Los Angeles, for petitioner and appellant.
George Deukmejian, Atty. Gen., and Martin H. Milas, Deputy Atty. Gen., for respondent.
BEACH, Associate Justice.
NATURE OF APPEAL:
Appellant's license was ordered suspended by the Department of Motor Vehicles (DMV). She obtained review in superior court by petition for writ of mandate (Code of Civ.Proc., § 1094.5). She appeals from judgment denying her petition and in favor of DMV.
BACKGROUND:
We recite the evidence and all reasonable inferences therefrom which support the judgment of the trial court and which was produced before the hearing officer and the superior court. (Lacy v. California Unemployment Ins. Appeals Bd. (1971) 17 Cal.App.3d 1128, 1134, 95 Cal.Rptr. 566.) The beginning of proceedings and the source of information was the receipt by DMV of an accident report dated February 8, 1980 executed by a Mrs. Frankel, the driver of an automobile with which appellant collided. The report was executed as required by Vehicle Code section 16000 and under penalty of perjury. The accident report form is commonly called the "SR-1" form. The report disclosed that on February 5, 1980 in Los Angeles County, appellant was the driver of an automobile involved in a collision with the automobile being driven by Mrs. Frankel, causing bodily injury to Mrs. Frankel and to appellant's daughter.
After receipt of the information of the accident, DMV on July 17, 1980 notified appellant that her driver's license was to be suspended effective August 10, 1980 for the following reasons: (1) DMV did not receive from appellant a report of the accident (required by Vehicle Code, §§ 16000 and 16004, subd. (a)), and (2) failure to submit proof of ability to respond in damages (as required by Vehicle Code, §§ 16021, et seq. and § 16070). Pursuant to appellant's demand, a hearing was conducted by DMV on October 1, 1980. Appellant did not personally attend the hearing. Thereafter, DMV issued its order suspending appellant's license.
At the hearing the DMV hearing officer introduced into evidence the SR-1 report form. No other evidence was introduced. Appellant's counsel lodged several written arguments with points and authorities as "exhibits." Appellant states that on appeal we are presented and should determine 24 separate and listed issues. Nonetheless, we consolidate and re-state her basic contentions in five general categories as follows: (1) The SR-1 form should not have been received into evidence. (2) The hearing which DMV held was a formal administrative hearing and therefore the more detailed and formal provisions of the Government Code regarding administrative hearings rather than the Vehicle Code hearing provisions should have applied. (3) Under the Government Code provisions such hearsay as the SR-1 report is sufficient as evidence if admitted over objection only if it would be admissible in a regular civil action. (4) Whether or not several procedures and provisions of the Vehicle Code sufficiently designate and describe the methods of notice, burden of proof, weight and sufficiency of evidence, qualifications of the hearing officer. (5) There was insufficient evidence before the trial court to sustain the judgment and that the trial court therefore abused its discretion.
We reject appellant's primary contentions and we affirm. We decline appellant's invitation to address all of the issues claimed to exist by reason of her wholesale attack on the entire license suspension procedures provided for under the Vehicle Code.
DISCUSSION:
1. The Statutory Framework
The California financial responsibility law (Veh.Code, §§ 16000, et seq.) as applicable [181 Cal.Rptr. 421] here requires operators of motor vehicles to have insurance or be financially responsible for damages caused by accidents. (Veh.Code, §§ 16020, 16021.) A driver involved in an accident with more than $500 in property damage or injury or death must report it to the DMV on an approved form. (Veh.Code, § 16000.) If not insured, the driver is required to prove the existence of financial responsibility. (Veh.Code, § 16022.) The burden of proving such financial responsibility is upon the owner or operator of such vehicle involved in an accident. (Veh.Code, §§ 16050, et seq.; see also, §§ 16430, et seq.) Such driver's failure to establish proof requires that the DMV suspend the driver's privilege. (Veh.Code, §§ 16070 and 16072.) The DMV will set aside the suspension if the party can establish that the DMV acted on wrong information or mistake. (Veh.Code, § 16074.)
Upon notice of suspension, the driver may request a hearing. The hearing is conducted pursuant to Article 3, Chapter 3, Division 6 commencing with section 14100 of the Vehicle Code. (Veh.Code, § 16075.) The Vehicle Code specifically provides that "[t]he department may consider any of the records or reports referred to in Section 14108" (Veh.Code, § 14104 relating to informal hearings and Veh.Code, § 14107 relating to formal hearings). Vehicle Code section 14108 provides that at such hearings "... the department shall consider its official records and may receive sworn testimony...."
2. The Receipt of the SR-1 Report was Proper
In a later part of her brief on appeal, appellant somewhat equivocally concedes that the SR-1 accident report filed by the person with whom she had the traffic collision is admissible evidence. Appellant claims, however, that it alone cannot support the findings made by the DMV. She relies upon Government Code section 11513, subdivision (c), claiming that the California Administrative Procedure Act applies. That provision provides that "[h]earsay evidence ... shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." That section is inapplicable to support appellant. Insofar as appellant's argument on that particular point is concerned, it matters not whether the hearing is formal or informal. If informal, the Government Code provisions do not apply. Even if the hearing had been a formal hearing requiring more formality, Vehicle Code section 14112 provides that "[a]ll matters in a formal hearing not covered by this chapter shall be governed, as far as applicable, by the provisions of the Government Code relating to administrative hearings...." (Emphasis added.) As indicated above, the Vehicle Code specifically provides that the DMV shall consider its official records and may receive sworn testimony. In thus receiving the SR-1 and the value to be given to it, the Vehicle Code itself covered the matter and hence the provisions of the Government Code do not apply. Therefore DMV could consider the SR-1 report as well as the notice given to appellant that the license was to be revoked. The notice and the basis of that notice, i.e. the evidence contained through the SR-1 accident report is sufficient to support the DMV's finding.
At oral hearing appellant's counsel unequivocally conceded the admissibility of the SR-1 report.
Though the evidence was received in hearsay form, the receipt of the report was proper and the evidence contained therein support the DMV's findings. The report indicates that appellant was the driver of an automobile involved in an accident resulting in injury and the DMV's own record established that there was on file with the DMV no evidence of appellant's financial responsibility. Clearly a prima facie case was thus established. The fact that the SR-1 report was hearsay in form is of no significance as far as admitting the evidence of the facts contained therein. (Burkhart v. Department of Motor Vehicles (1981) 124 Cal.App.3d 99, 177 Cal.Rptr. 175.) [181 Cal.Rptr. 422] If the licensee wishes to attack the evidence presented in the report, she may do so. Moreover, the licensee has an absolute right to compel the attendance of the witness who prepared the report if she requests a subpoena, has it served and pays a statutory fee. (Veh.Code, § 14104.5 and Gov.Code, § 68097.2.) In the event the licensee deems the witness' (the person making the report) presence critical to her defense, the burden is properly placed on her to insure the witness' attendance. (Burkhart v. Department of Motor Vehicles, supra, at p. 110, 177 Cal.Rptr. 175.) As the court in Burkhart stated: "As discussed above, our Legislature has provided for the admission of hearsay by statute in the type of hearings under consideration. The provision is not unique. For instance, reports of attending or examining physicians and other forms of hearsay are routinely received in workers' compensation proceedings.... Such hearsay evidence is sufficient in itself to sustain an award." (Id. at p. 112, 177 Cal.Rptr. 175.)
3. Government Code Section 11513, Subdivision (c), Does Not Govern the DMV Hearing; But Even Under That Rule the Evidence Is Sufficient to Support the Findings
As indicated earlier, that section provides that hearsay evidence shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. Under Evidence Code sections 1270 and 1271, the report at bench would be admissible. The trial court was entitled to presume that lawful duty has been performed. It is the lawful duty of a person involved in an accident to make out and submit such SR-1 report to DMV. Mrs. Frankel did so. The report became an official government document. It was kept by the appropriate official at DMV and as such was included within the provisions of Evidence Code section 1270. Evidence Code section 1271 when applied to the report indicates its admissibility because: (a) The writing was made in the regular course of "business" as defined by Evidence Code section 1270. The driver is duty bound by law to make the report. The very making of the report indicates an attempt to comply with that obligation. (b) The writing was made at or near the time of the act, condition or event--Mrs. Frankel made the report on February 8 and the accident occurred on February 5. (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation--here the custodian who received it and knows its method of preparation is represented by the hearing officer himself who placed the documents into evidence. The facts contained in the report kept by the DMV are admissible and may constitute proper evidence. Vehicle Code section 1806 provides in pertinent part: "The department shall file all accident reports ... received under this code ... the recorded facts from any ... storage device maintained by the department shall constitute evidence of such facts in any administrative actions instituted by the department."
Under Evidence Code section 1270 the business-records-as-evidence rule includes government records.
The evidence established a prima facie case which was unrefuted. Appellant produced no evidence on her own behalf and refuted none of the evidence in the possession of and presented by respondent DMV. The only evidence relating to the merits is the SR-1 form and the DMV's record of the notice sent by the DMV to appellant which was received in evidence and properly taken into consideration. The DMV notice to appellant disclosed that she was involved in an accident, had failed to make a report and did not have filed with DMV evidence of financial responsibility.
The DMV records serve two purposes: (1) A prima facie record of the facts which [181 Cal.Rptr. 423] support the suspension and (2) a form of notice. This notice advised appellant of a complaint or form of allegation against appellant, which if true warranted suspension. Appellant was served with this notice. It constituted an allegation of the facts upon which the DMV would rely. Appellant was given ample time to object, request hearing and prepare her defense. The procedure in effect was a form of an order to show cause; when appellant requested the hearing she in effect asked that she be permitted to show cause. Thus the burden of disproving the prima facie case was hers.
In a case with formalized pleadings, any undenied assertion or allegation of fact in the complaint is deemed to be true. (Code of Civ.Proc., § 430.20, subd. (a); Perales v. Department of Human Resources Dev. (1973) 32 Cal.App.3d 332, 341, 108 Cal.Rptr. 167.) Where facts are alleged but not controverted, evidence is not needed to prove the existence of uncontroverted facts. (Rembold v. City & County of S. F. (1952) 113 Cal.App.2d 795, 249 P.2d 58; Razzano v. Kent (1947) 78 Cal.App.2d 254, 259, 177 P.2d 612.) At bench, however, there is more than the mere uncontroverted allegation. There was prima facie proof from evidence produced, i.e. the facts set forth in the SR-1 executed by and received from a percipient witness to the accident, and in the DMV's own record as indicated in its letter of July 17. This is sufficient to constitute a prima facie case. (Fallis v. Dept. of Motor Vehicles (1968) 264 Cal.App.2d 373, 379, 70 Cal.Rptr. 595; Szmaciarz v. State Personnel Bd. (1978) 79 Cal.App.3d 904, 918-919, 145 Cal.Rptr. 396.)
With reference to the several other issues claimed to exist by appellant, our discussion above indicates that they are without foundation or need not be discussed in any further or greater detail than is included in our discussion. In brief summary, it has been repeatedly held that the provisions of the Administrative Procedure Act of the Government Code sections 11500, et seq., are general in nature and must yield to the more specific provisions of the Vehicle Code, including sections 14100, et seq. which provide for the hearing in this type of case. (Veh.Code, §§ 14104, 14107; Anderson v. Cozens (1976) 60 Cal.App.3d 130, 131 Cal.Rptr. 256; Cameron v. Cozens (1973) 30 Cal.App.3d 887, 106 Cal.Rptr. 537; Lacy v. Orr (1969) 276 Cal.App.2d 198, 81 Cal.Rptr. 276.)
The judgment is affirmed.
ROTH, P. J., and COMPTON, J., concur.
[*] See 33 Cal.3d 542 for Supreme Court opinion in Himelspach v. Department of Motor Vehicles.
Evidence Code section 1271 permits into evidence written governmental records when "(a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."