Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV-246435
Haerle, J.
I. INTRODUCTION
Appellants, the Director of the Department of Motor Vehicles, the Department itself, and a Hearing Officer (hereafter collectively DMV) appeal from an order of the Sonoma County Superior Court which, after a hearing on a petition for a writ of mandate filed by respondent Meyer (Meyer), remanded the DMV’s order suspending Meyer’s driver’s license for reconsideration in light of alleged “newly discovered evidence” relating to the circumstances of Meyer’s traffic stop and subsequent arrest. Because we find the trial court’s order legally incorrect for two separate and distinct reasons, we shall reverse its order of remand.
II. FACTUAL AND PROCEDURAL BACKGROUND
According to a police report included in the record before us, at 11:42 p.m. on July 23, 2009, Officer Neal Mackenzie of the Sonoma State University Police Services “observed a silver Toyota heading northbound on Petaluma Hill Road traveling at a very high rate of speed.” That road is posted with a 45 miles per hour speed limit but, according to Mackenzie’s report, “[t]he Toyota was traveling at such a speed that when I reached 100 MPH I was still not catching up to it.... I called out to dispatch that I was following a vehicle at a very high rate of speed and that I was surpassing 100 MPH. I activated my emergency lighting w/siren (code-3) and reached a speed of 120 MPH in order to get closer to the Toyota. [It] did not pull over and I did not see brake lights or any indication that the Toyota intended to stop. I followed it with code-3 lighting for approximately one mile. As I gained on the Toyota, it slowed down and made a right turn onto Crane Canyon Road. The Toyota did not stop until it had gone about 1/4 mile near Inverness Road, ” where it pulled over. The driver was respondent Meyer.
Upon approaching the Toyota, Officer Mackenzie smelled a “strong odor of alcohol” in the vehicle and on Meyer’s breath, and also noted that Meyer had bloodshot and watery eyes and was slurring his speech. Mackenzie asked Meyer to exit the Toyota; Meyer initially declined, but then did so and, in the process, seemed to lose his balance; he had to grab onto to the police car “to steady himself.” Mackenzie asked Meyer how much he had had to drink, and the latter responded that he had “some” alcohol the previous afternoon (it now being after midnight on the night in question). Meyer also explained that he was going to his home on East Cotati Avenue. When Mackenzie advised him that he had passed the junction to that road about two miles previously, Meyer changed his response to be that he was headed to “his boss’ [sic] house in Santa Rosa.”
When Mackenzie, then supported by another Sonoma State University Officer, John Mentz, attempted to administer field sobriety tests, Meyer was “initially uncooperative... constantly moving around, looking away, moving his arms around and stating he needed to go to the bathroom.” When the Preliminary Alcohol Screening Test (PAS) was finally administered at 12:13 a..m. on July 24, 2009, it registered a.116 percent blood alcohol content.
The record also recites that, according to Officer Mentz, a woman passenger in the car also exuded both a “strong odor of alcoholic beverage” and “an odor of marijuana.” She declined to produce any identification, and was then (1) arrested, (2) found to be carrying 3.3 grams of marijuana and a glass pipe full of marijuana in her purse, (3) cited for several Penal Code and Vehicle Code violations, and (4) also taken to the Rohnert Park police station for booking.
The officers then placed Meyer under arrest, although such was accomplished with Meyer continuing to be “physically and verbally uncooperative, ” and took him to the Rohnert Park police station. A few minutes after the PAS test, the officers advised Meyer of his obligation to submit to further tests and explained the options available to him; according to the officer, Meyer indicated that he would take a breath test. However, once the officers and Meyer had arrived at the station, Meyer refused to provide a breath sample and, instead, insisted he be given a blood test.
An administrative hearing regarding the suspension of Meyer’s driver’s license was held before Hearing Officer Claudia Holaday on September 22, 2009. On November 4, 2009, she issued an administrative order suspending Meyer’s driving privilege.
On December 8, 2009, Meyer filed a petition for a writ of mandate in Sonoma County Superior Court, together with a supporting memorandum of points and authorities and a declaration of his counsel, with attached exhibits. The DMV filed opposition to this petition and a memorandum of points and authorities in support of that opposition on February 18, 2010. Meyer filed a reply in support of his petition on February 24.
All further dates noted are in 2010.
A hearing was held on the petition on March 3. At that hearing, Meyer’s counsel argued, for the first time according to the record before us, that he was in possession of “newly discovered” evidence in the form of an audio tape of the dialogue and interaction between Meyer and Mackenzie on the night in question.
The trial court took no evidence at the March 3 hearing but, after hearing argument from both counsel, requested further briefing on the “new evidence” issue. In its brief responsive to the trial court’s request, DMV’s counsel pointed out that the audio recording in question had been specifically referenced in Officer Mackenzie’s DMV report, which noted that “I transferred my audio recording of the incident to a CD and booked it into evidence.”
On April 22, the trial court issued the order appealed from here, i.e., an order remanding the case to the Hearing Officer. The order stated that “it was not a lack of due diligence that resulted in Petitioner not having a copy of this recording” and that the DMV should have produced a copy of it in response to Meyer’s counsel’s discovery request letter. Relying on Code of Civil Procedure section 1094.5, subdivision (e) (section 1094.5(e)), the trial court remanded the matter to the Hearing Officer to allow the introduction of further evidence.
On May 14, the DMV filed a notice of appeal.
III. DISCUSSION
A. Introduction and our Standard of Review.
Although normally our review of a trial court’s action on a petition for a writ of mandate is to determine if substantial evidence supports the trial court’s findings (see Lake v. Reed (1997) 16 Cal.4th 448, 457), where the issue involved is one of law, we can and do review the trial court’s actions de novo. “Where the trial court decides the case by employing an incorrect legal analysis, reversal is required regardless of whether substantial evidence supports the judgment.” (Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th 161, 174; see also Paterno v. State of California (1999) 74 Cal.App.4th 68, 85.)
We believe the trial court employed two incorrect legal analyses in its order remanding the matter for further evidence in the administrative proceeding.
B. Vehicle Code Section 13559 Controls Over Section 1094.5(e).
First of all, we agree with the DMV that this case is controlled by Vehicle Code section 13559, subdivision (a) (section 13559(a)), and not by section 1094.5(e). The former provides: “Notwithstanding Section 14400 or 14401, within 30 days of the issuance of the notice of determination of the department sustaining an order of suspension or revocation of the person’s privilege to operate a motor vehicle after the hearing pursuant to Section 13558, the person may file a petition for review of the order in the court of competent jurisdiction in the person’s county of residence. The filing of a petition for judicial review shall not stay the order of suspension or revocation. The review shall be on the record of the hearing and the court shall not consider other evidence. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is not supported by the evidence in the record, the court may order the department to rescind the order of suspension or revocation and return, or reissue a new license to, the person.” (§ 13559(a), emphasis supplied.)
By way of contrast to this provision, the language of section 1094.5(e) includes this language: “Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment... remanding the case to be reconsidered in light of that evidence....” The trial court expressly relied on this latter statutory provision in its order remanding the case to the DMV Hearing Officer. We believe it was incorrect in so doing.
The law is clear, and has been for some time, that when there is a conflict in statutory provisions, the more specific statute controls over a more general one. This court has, indeed three times, articulated this principle in published decisions. Thus, in Natural Resources Defense Council, Inc. v. Arcata Nat. Corp. (1976) 59 Cal.App.3d 959, 965, we held: “Broadly speaking, a specific provision relating to a particular subject will govern in respect to that subject as against the general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provisions relate. [Citation.]”
We held to the same effect in Louisiana-Pacific Corp. v. Humboldt Bay Mun. Water Dist. (1982) 137 Cal.App.3d 152, 156, and Pettus v. Cole (1996) 49 Cal.App.4th 402, 434-435. Indeed, there is a statute providing very similarly, Code of Civil Procedure section 1859, which states: “In the construction of a statute... when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.” (See also, to the same effect: San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 577; Das v. Bank of America N.A. (2010) 186 Cal.App.4th 727, 738.)
Two specific cases, both discussed in the parties’ briefs to us, apply this principle to the statutes at issue here, sections 13559(a) and 1094.5(e). Those cases are Coombs v. Pierce (1991) 1 Cal.App.4th 568 (Coombs) and Armondo v. Department of Motor Vehicles (1993) 15 Cal.App.4th 1174 (Armondo).
In Coombs, the positions’ of the parties was the reverse of that here: the appellant was an individual whose license had been suspended and the respondent the DMV. In that case, the lower court had refused to issue a writ of mandate requiring the DMV to vacate a hearing officer’s decision to affirm suspension of the driver’s license. Our colleagues in the Fifth District reversed this ruling on the basis that the DMV had failed to establish that the blood-alcohol testing device used in that case had received the necessary state authorization or approval. In coming to that conclusion, the court held that the controlling statutory provision in a case such as the one before it (and also here) was section 13559: “If that section clashes with the more general provisions of Code of Civil Procedure section 1094.5, the specialized provisions of section 13559 control; if section 13559 is silent on some particular procedure, the general provisions for administrative mandamus apply. [Citation.]” (Coombs, supra, 1 Cal.App.4th at p. 575.)
The Coombs court then used this principle to rejectthe DMV’s argument (which had prevailed in the trial court) that both courts could and should take judicial notice of certain evidence which, it contended, would have validated the testing mechanics used by and relied upon in the administrative proceedings. In so doing, it held: “Respondent argues that section 13559 does not preclude judicial notice under these circumstances, saying: ‘If the legislature intended this extraordinary effect, then it would have expressly included a bar against judicial notice.’ The Legislature provided that the court ‘shall not consider other evidence.’ We determine this to be a categorical statement, disallowing evidence to be judicially noticed as well as other forms of evidence. [¶] Nor could the court here have properly allowed this evidence under traditional mandamus procedure. Code of Civil Procedure section 1094.5, subdivision (e) provides that the court may admit evidence at the hearing without remanding the case where the court finds that there is relevant evidence which ‘in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing before respondent.’ Respondent failed to show that the matter requested to be judicially noticed was not available at the time of the administrative hearing or that it was improperly excluded.” (Coombs, supra, 1 Cal.App.4th at p. 578, emphasis supplied.)
In Armondo, our colleagues in Division Three of this court cited Coombs and held essentially to the same effect in an opinion authored by now Supreme Court Justice Werdegar. In that case, the appellant asked that the trial court’s denial of her mandamus petition asking for the vacation of the DMV’s suspension of her license be reversed. One of the bases of appellant’s argument was that the trial court had erred in denying her motion to admit new evidence, specifically evidence that “the Alameda County Crime Lab, in contravention of state regulations, was not licensed by the State Department of Health Services to use the particular breathalyzer model used to test her blood-alcohol content.” The trial court had “denied appellant leave to present the documents, in part on the ground the evidence was not, in fact, ‘newly discovered’ and could have been presented at the administrative hearing.” (Armondo, supra, 15 Cal.App.4th at p. 1180.)
The Armondo court affirmed the trial court’s ruling on two separate bases. The first was: “The hearing on the petition was governed by section 13559, which specifically provides: ‘The review shall be on the record of the [administrative] hearing and the court shall not consider other evidence.’ ([§ 13559(a)]; see [Coombs[, supra, ]1 Cal.App.4th [at p.] 578. For this reason alone, appellant's new evidence was properly excluded.” (Armondo, supra, 15 Cal.App.4th at p. 1180, emphasis supplied.)
The holdings of both Coombs and Armondo thus provide the first basis for our reversal of the trial court in this case: we conclude that the directive in section 13559 that “the court shall not consider other evidence” means that a court should not remand a case to the administrative hearing officer to allow that officer to receive and consider other allegedly “new” evidence. Put another way, if the trial court in Coombs erred in taking judicial notice of evidence, clearly the even more time-consuming process of remand to the administrative tribunal would violate section 13559.
Meyer cites no contrary authority; the only cases he cites relevant to the interpretation of section 13559 are easily distinguishable. Thus, in Curtin v. Department of Motor Vehicles (1981) 123 Cal.App.3d 481, 484-485, the court held that the trial court was correct in considering a petitioner’s request for credit for five months of an earlier, admittedly erroneous, license suspension by the DMV. “Manifestly, ” the court held, “evidence of the belated conclusion of the Department that it had erred ‘could not have been produced... at [its] hearing’ on the instant suspension.” (Id. at p. 485.) And in Frase v. Gourley (2000) 85 Cal.App.4th 762, 765-767, the court affirmed a grant of a writ of mandate in a case in which the DMV had lost a portion of the administrative record and then declined to pay for reconstructing it for use in the trial court’s hearing on the mandate petition. Thus, neither case is remotely pertinent to the meaning of the “shall not consider other evidence” clause in section 13559.
C. Meyer Demonstrated No “Reasonable Diligence” Regarding the Audio Recording.
The Armondo decision also provides a second, independent reason why the trial court’s ruling here was incorrect: the standard required by section 1094.5(e) was not met by Meyer. The Armondo court explained: “Augmentation of the administrative record is permitted only within the strict limits set forth in the statute. [Citations.] Before the court may properly consider evidence that was not presented at the administrative hearing, the petitioner must show the evidence could not have been produced below had reasonable diligence been exercised. [Citation.] Determination of the question is within the discretion of the trial court; we will not disturb the exercise of that discretion unless it is manifestly abused. [Citation.] [¶] Here, appellant made no showing the critical evidence she first proffered in the trial court, a January 16, 1992, letter from the State Department of Health Services to the Alameda County Crime Laboratory, was not available prior to the administrative hearing. Given that appellant’s attorney did not even think to investigate the licensing issue until more than two months after the administrative hearing, that it took eleven days to obtain the documents once he commenced his investigation avails him little. As the trial court noted, if counsel had needed more time to obtain evidence prior to the administrative hearing, he could have requested a continuance.” (Armondo, supra, 15 Cal.App.4th at pp. 1180-1181.)
The principle thus articulated in Armondo, i.e., that, under section 1094.5(e), a petitioner “must show the evidence could not have been produced below had reasonable diligence been exercised” is based on substantial precedent. (Armondo, supra, 15 Cal.App.4th at p. 1180.) Perhaps the leading case on this point is Toyota of Visalia, Inc. v. New Motor Bd. (1987) 188 Cal.App.3d 872, 881. There, after quoting the critical provision of section 1094.5(e), that court held: “The decisions discussing [section 1094.5(e)], have indicated that the section operates as a limitation upon the court’s authority to admit new evidence. The general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency. [Citation.] Section 1094.5 contains limited exceptions to this rule. ‘It is error for the court to permit the record to be augmented, in the absence of a proper preliminary foundation... showing that one of these exceptions applies.’ [Citation.] [¶] As this court stated in Windigo Mills v. Unemployment Ins. Appeals Bd. (1979) 92 Cal.App.3d 586, 595-597 ‘ “It is not contemplated by the code provision that there should be a trial de novo before the court reviewing the administrative agency's action even under the independent review test.” [Citations.] Public policy requires a litigant to produce all existing evidence on his behalf at the administrative hearing [citation]. Only where the record is augmented within the strict limits set forth in the statute is evidence on the main issues ever received in the superior court. [Citation.]... [¶] When the Legislature granted the superior court the discretion to receive “relevant evidence which, in the exercise of reasonable diligence, could not have been produced at the administrative hearing, ” it reasonably may be inferred that it meant to authorize the receipt of evidence of events which took place after the administrative hearing.... We conclude that the superior court is authorized under [section 1094.5(e)] to receive relevant evidence of events which transpired after the date of the agency’s decision.’ ” (Toyota, supra, 188 Cal.App.3d at pp. 881-882, fn. omitted.)
I.e., the language—quoted above—that permits a trial court to remand a matter to the administrative tribunal if, as and when it “finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced... at the hearing....” (§ 1094.5(e).)
Citing Toyota, our colleagues in the Third District held to the same effect in Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th 958, 977 (Evans), where they stated: “In an administrative mandamus action, judicial review is limited to matters in the administrative record. Additional evidence is admissible only if it was not available at the time of the administrative hearing or was excluded improperly from the record; Evans did not establish that either circumstance was present in this case. [Citations.]” (Emphasis supplied.)
Another similar holding is Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347 (Zolin), where the appellate court reversed a trial court’s judgment which, under section 1094.5(e), had set aside a DMV order suspending a driver’s license. The court held that the trial court had erred because (1) the petitioner had presented inadequate evidence at the DMV suspension hearing and (2) the trial court erroneously took into consideration evidence which was available at the time of the administrative hearing, but not presented by the petitioner at that hearing. The appellate court held: “The court stated in Windigo Mills v. Unemployment Ins. Appeals Bd.[, supra, ] 92 Cal.App.3d [at pp.] 596-597 that ‘[w]hen the Legislature granted the superior court the discretion to receive “relevant evidence which, in the exercise of reasonable diligence, could not have been produced at the administrative hearing, ” it reasonably may be inferred that it meant to authorize the receipt of evidence of events which took place after the administrative hearing.... We conclude that the superior court is authorized under [section 1094.5(e) ] to receive relevant evidence of events which transpired after the date of the agency’s decision. [Citations.]’ ” (Zolin, supra, 21 Cal.App.4th at p. 356, emphasis supplied.) On that basis, the Zolin court held that the trial court had erred in considering some or all of three declarations proffered by the petitioner, i.e., those portions which involved aspects of the medical history of the petitioner at or before the time of the administrative hearing. Those matters were, the appellate court held, inadmissible because they were “not new evidence, and... could have been presented at the administrative hearing.” (Ibid.)
Similarly, in Ashford v. Culver City Unified School Dist. (2005) 130 Cal.App.4th 344 (Ashford), the same appellate court that decided Zolin held that a trial court had erred in remanding proceedings involving the termination of a school district employee to the administrative tribunal for the taking of further evidence. It stated: “[S]ubdivision (e) of section 1094.5 only permits a remand for reconsideration in light of new evidence if such new evidence (1) was improperly excluded at the initial administrative hearing or (2) could not, with reasonable diligence, have been produced at that time. While it is true that the videotapes themselves are not new evidence, the foundation evidence required to authenticate the videotapes would be new evidence. The appellate record does not indicate that the Board improperly excluded foundation evidence for the videotapes; indeed, there is no indication that, in spite of petitioner’s repeated objections, it was even offered by the District. Nor is there anything in the record to explain why such foundation evidence could not, with reasonable diligence, have been presented by the District at the original administrative hearing. Further, the District has not presented any such explanation in its brief on appeal or at oral argument. [¶] We read section 1094.5, subdivision (e) as providing the only two circumstances when an administrative matter may be remanded for the purpose of receiving new evidence. If we did not regard that subdivision as providing a specific limitation on the power of a court to remand an administrative matter for a new hearing, then the more general provisions of subdivision (f) of section 1094.5 would effectively render subdivision (e) superfluous. This conclusion is consistent with a line of cases recognizing that a writ of administrative mandamus is a writ ‘made available to “inquir[e] into the validity of [a] final administrative decision, ” rendered on the basis of “evidence taken” (Code Civ. Proc., § 1094.5, subd. (a)), that is, evidence in the administrative record. Subdivision (e) opens a narrow, discretionary window for additional evidence newly discovered after the hearing (or improperly excluded at it).’ (Fn. omitted.).” (Ashford, supra, 130 Cal.App.4th at pp. 350-351; see also Fort Mojave Indian Tribe v. Department of Health Care Services (1995) 38 Cal.App.4th 1574, 1595 [“[Section 1094.5(e)] opens a narrow, discretionary window for additional evidence, newly discovered after the hearing (or improperly excluded at it)]”); Cooper v. Kizer (1991) 230 Cal.App.3d 1291, 1300; Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 624-625, fn. 9 [“Additional evidence is admissible only where it was unavailable at the time of the administrative hearing, or improperly excluded from the record.”]; Laupheimer v. State of California (1988) 200 Cal.App.3d 440, 463; Alford v. Department of Education (1970) 13 Cal.App.3d 884, 890.)
Our Supreme Court has also summarized this rule similarly. In Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 578, that court reversed an appellate court ruling which, by granting a petition for a writ of mandate, allowed the admission of substantially more evidence than had been admitted at a prior administrative hearing. In so doing, the court summarized the proper application of the “reasonable diligence” provision of section 1094.5(e): “Extra-record evidence is admissible under this exception only in those rare instances in which (1) the evidence in question existed before the agency made its decision, and (2) it was not possible in the exercise of reasonable diligence to present this evidence to the agency before the decision was made so that it could be considered and included in the administrative record.”
In our view, the administrative record in this case establishes that the standard articulated by these cases was not met here because the “new evidence” sought to be admitted on remand was indeed “available at the time of the administrative hearing” (Evans, supra, 21 Cal.App.4th at p. 977) and could “ ‘have been produced at the administrative hearing.’ ” (Toyota, supra, 188 Cal.App.3d at p.881.) That evidence was, of course, Officer Mackenzie’s audio recording of the events of the night of July 23-24, 2009. On page 4 of the Sonoma State University Police Services report, marked as exhibit 2 at the administrative hearing, Officer Mackenzie recited: “I transferred my audio recording of the incident to a CD and booked it into evidence.” According to another document in the administrative record, this “Arrest/Incident Report” as well as the “Officer’s Statement, DS 367” and the “Chemical Test Results” were all provided to Meyer’s counsel several months prior to the September 22, 2009, administrative hearing “as discovery in compliance with § 11507.6 of the Government Code.” Thus, Meyer should have been well aware of the existence of the audio recording of the stop and subsequent detention and arrest of Meyer.
Our review of the reporters’ transcript portion of the administrative hearing establishes that, at that hearing (at which Meyer was the only witness called), his counsel concentrated almost entirely on what transpired, after the stop of the vehicle, regarding the tests to which Meyer wanted to be subject. Indeed, at the beginning of that hearing, that counsel stated: “With respect to the issues for the hearing, we’re prepared to essentially either stipulate to the reasonable cause for the stop, the probable cause for the arrest, and really focus in on the primary issue in a refusal hearing being whether Mr. Meyer refused to submit to a chemical test.” Indeed, that is precisely what he and his client did; almost all the remainder of the reporters’ transcript of the administrative proceeding involve Meyer’s testimony as to what transpired between him and Officer Mackenzie on the night in question involving the tests Meyer wanted to take after he had failed the PAS test.
Meyer’s position at that hearing was that he had consistently requested of Mackenzie that he be given a blood test and not another breath test, but that Mackenzie had taken the (incorrect, in Meyer’s view) position that he had agreed to submit to a further breath test, and that the Rohnert Park police came to the place he was first brought with just breath-testing equipment, which Meyer refused to be tested on, insisting that he had previously requested a blood test, not a breath test. Thus, at the administrative hearing, the gist of Meyer’s case involved verbal interchanges on the night in question between him and Mackenzie both at the place he was stopped and detained and while he and his female companion were being driven, handcuffed in the back seat of Mackenzie’s police car, to the Rohnert Park police station.
In short, at the administrative hearing, Meyer and his counsel made no mention of either the current location of the audio recording, much less its possible content. Nor did they request its production. Further, no mention of either it—or any need for it—was made in Meyer’s writ petition or the memorandum of points and authorities in support of that petition, both of which were filed in the trial court on December 8, 2009. Thus, the very first mention of the audio recording was apparently made by Meyer’s counsel in oral argument on the writ petition on March 3, 2010, i.e., eight months after the discovery document noting it was sent to his counsel and three months after the writ petition and supporting documents were filed.
In his letter brief to the trial court regarding the issue of whether section 13559 or 1094.5(e) was controlling as to the alleged “new evidence, ” appellant’s counsel conceded that “the audio recording’s existence preceded the [administrative] hearing” and that such was apparent from the police report’s reference to it. Regarding that reference, he attempted to justify his failure to request (or subpoena) Mackenzie’s audio recording of the events of that night by stating: “With respect to the Police Report’s ambiguous reference to an ‘audio recording of the incident, ’ the DMV did not indicate that it intended to use it and did not produce it.” He essentially repeats this argument in his brief to us.
That argument totally misses the point; it was not the DMV but Meyer that, well after both the administrative hearing and the filing of his writ petition, decided that he wanted the “new evidence, ” i.e., the audio recording. And the governing law discussed above, i.e., the law set forth in Toyota, Evans, Zolin, Ashford (and the similar cases cited) makes clear that the burden is on the party appearing before the administrative agency to secure any desired, available, and potentially relevant, material.
Further such can easily be done in a case like this pursuant to Vehicle Code section 14104.5, subdivision (a), which provides: “Before a hearing has commenced, the department, or the hearing officer or hearing board, shall issue subpoenas or subpoenas duces tecum, or both, at the request of any party, for attendance or production of documents at the hearing. After the hearing has commenced, the department, if it is hearing the case, or the hearing officer sitting alone, or the hearing board, may issue subpoenas or subpoenas duces tecum, or both.”
Perhaps even more importantly, in his brief to us Meyer concedes that he could have secured the audio recording via a subpoena but opted not to do so because of the possibility that the evidence on it might be more favorable to the DMV. Rather remarkably, he argues in that brief: “In hindsight, Respondent could have requested a continuance in order to subpoena the audio tape but believed he could prove his case by all of the inconsistencies in the record and with the testimony of the respondent. The officer’s vague notation in his report that he transferred his audio recording of the incident to a CD and booked it into evidence is not necessarily helpful to respondent’s case and respondent is under no obligation to subpoena evidence that may actually be more favorable to the department. [¶] For example, had Respondent issued a subpoena and the evidence appeared to be unfavorable, the department could turn around and use this evidence against him. Here, each party was aware of the existence of the tape but made strategy decisions and judgment calls about its usefulness and the necessity of introducing it into evidence.” (Emphasis supplied.)
We submit that this concession thoroughly undermines the rationale of the trial court in its mandamus order, where it stated that Meyer “did not have a copy of the audio recording at the time of the [administrative] hearing on September 22, 2009. The court believes that it was not a lack of due diligence that resulted in [Meyer] not having a copy of this recording.”
We also agree with the DMV that the trial court was incorrect in stating, in its mandamus order, that Meyer was entitled to the audio recording under Government Code section 11507.6. That section governs material “in the possession or custody or under control of the other party, ” which the audio recording was not—having apparently been booked into evidence with the Rohnert Park police. Even Meyer concedes, in the passage in his brief to us quoted above, that a “subpoena” was necessary to secure it.
Finally, even absent the concession that it was a purely tactical decision that governed Meyer’s inaction regarding the audio recording, we conclude that the abundant authority cited and discussed above (see ante pp. 8-12) is inconsistent with the trial court’s finding that there was no lack of due diligence on the part of Meyer and that, therefore, the case should be remanded to the administrative hearing officer for the receipt of “new evidence.”
IV. DISPOSITION
The order appealed from is reversed and vacated. Each party is to bear their own costs on appeal.
We concur: Kline, P.J., Lambden, J.