Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BS104448, James C. Chalfant, Judge.
Oldman, Cooley, Sallus, Gold, Birnberg & Coleman, LLP, Ronald Gold and Julie Berkus, for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Alicia M. B. Fowler, Senior Assistant Attorney General, Celine Cooper and Dana T. Cartozian, Deputy Attorneys General, for Defendant and Respondent.
MANELLA, J.
The trial court denied appellant Stuart Neil Silver’s petition for writ of mandate, which challenged a decision by respondent Department of Motor Vehicles (DMV) to deny Silver’s application for a vehicle salesperson’s license. We affirm.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
In 2001, Silver held a vehicle salesperson’s license. On March 28, 2001, a 10-count information was filed in Orange County, charging Silver with felony and misdemeanor grand theft and other offenses related to his activities as a salesperson. On May 5, 2001, pursuant to a plea bargain agreement, Silver pled no contest to a single count of misdemeanor grand theft. As the factual basis for the plea, Silver stated that he “willfully and unlawfully took” more than $400 from two individuals. The trial court suspended imposition of Silver’s sentence, placed him on informal probation for three years, and dismissed the remaining nine counts.
DMV learned that Silver had a conviction for grand theft and initiated administrative proceedings to revoke his salesperson’s license. On September 24, 2002, an administrative law judge (ALJ) ordered the license revoked. Regarding the charge to which Silver had pleaded no contest, the ALJ found that Silver, in selling a vehicle, had falsely represented that its odometer accurately stated the vehicle’s mileage. The ALJ also found that Silver had engaged in fraud and other misconduct regarding the sale of other vehicles.
Silver unsuccessfully sought administrative mandamus in Orange County Superior Court. In March 2004, the Third Division of the Fourth Appellate District affirmed the denial of administrative mandamus and dissolved a stay of the order revoking Silver’s license (Silver v. Gutierrez (Mar. 1, 2004, G032317) [nonpub. opn.]).
In June 2004, Silver filed a petition under Penal Code section 1203.4, which permits the trial court to expunge a conviction after the defendant successfully completes probation. On June 28, 2004, the Orange County Superior Court set aside Silver’s conviction for grand theft, entered a plea of not guilty, and dismissed the charge. In February 2005, Silver submitted an application for a vehicle salesperson’s license. When DMV advised Silver that it intended to deny the application, he initiated an administrative action to obtain the license.
During the administrative proceedings, DMV asserted two principal grounds for its refusal to grant Silver’s application for a salesperson’s license: first, that he had been convicted of grand theft; and second, he had acted as a vehicle dealer without a dealer’s license (which is distinct from a salesperson’s license) (Veh. Code, §§ 285, 286, subd. (c), 675). Following an evidentiary hearing, the ALJ declined to grant the license on both grounds. Silver sought relief from the denial by petition for writ of mandate, which the trial court denied on March 28, 2008. This appeal followed.
DISCUSSION
Silver contends that the trial court erred in denying his petition for writ of mandate. We disagree.
A. Standard of Review
Code of Civil Procedure section 1094.5, which provides for administrative mandamus, authorizes the trial court to determine “the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer....” (Code Civ. Proc., § 1094.5, subd. (a).) The trial court’s standard of review hinges on whether the administrative decision implicates a vested right. (Clerici v. Department of Motor Vehicles (1990) 224 Cal.App.3d 1016, 1023 (Clerici).) Although Silver once had a salesperson’s license, it had been revoked, and thus he lacked a license when he filed his application. Under these circumstances -- as the trial court correctly determined -- Silver had no vested right in the license he sought. (See Foster v. McConnell (1958) 162 Cal.App.2d 701, 704 [denial of restoration of revoked license is subject to same review as denial of application for license]; Housman v. Board of Medical Examiners (1948) 84 Cal.App.2d 308, 312 [“[A] person seeking restoration of a revoked license has no greater rights than a person seeking an original license.”].)
Although Silver’s petition relied on Code of Civil Procedure section 1085, which governs ordinary or traditional mandamus, the trial court concluded that it was properly viewed as seeking relief under Code of Civil Procedure section 1094.5, which governs administrative mandamus. We agree with this ruling, which Silver does not dispute on appeal. Generally, “ordinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing. [Citation.]” (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.) In contrast, administrative mandamus is applicable when “the decision resulted from a ‘proceeding in which by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency. [Citations.]’ [Citation.]” (Weary v. Civil Service Com. (1983) 140 Cal.App.3d 189, 194-195, italics omitted.) As DMV was obliged to accord Silver an evidentiary hearing in connection with its decision to deny his application (Veh. Code, § 11806), his petition for writ of mandate is subject to the standards governing administrative mandamus.
“There are two tests for judicial review of the evidentiary basis for the agency’s decision. The ‘independent judgment’ rule applies if the decision of an administrative agency will substantially affect a fundamental vested right. The trial court must not only examine the administrative record for errors of law, but also must exercise its independent judgment upon the evidence disclosed in a limited trial de novo. [Citation.] The ‘substantial evidence’ rule applies when the administrative decision neither involves nor substantially affects a vested right. The trial court must then review the entire administrative record to determine whether the findings are supported by substantial evidence and whether the agency committed any errors of law, but need not look beyond the record of the administrative proceedings. [Citation.] Which standard is to be utilized depends on whether the administrative action affects a fundamental vested right.” (Clerici, supra, 224 Cal.App.3d at p. 1023.)
As the ALJ’s decision did not implicate a vested right, the trial court’s inquiry was limited to “a determination of whether substantial evidence support[ed] the agency’s action” and whether “‘the agency committed any errors of law.’” (Clerici, supra, 224 Cal.App.3d at p. 1024.) Under this standard of review, “[t]he agency’s decision is usually upheld unless it lacks substantial evidentiary support or infringes on the applicant’s statutory or constitutional rights. [Citation.]” (Ibid.) Here, the trial court reviewed the available administrative record and determined that it supported the ALJ’s decision.
Although the original exhibits submitted to the ALJ were destroyed, DMV was able to reconstruct most of the administrative record in response to Silver’s petition for writ of mandate. Silver does not suggest that he has suffered prejudice as a result of the incomplete record submitted to the trial court.
Our review on appeal “from such a judgment is identical to that of the trial court.” (Clerici, supra, 224 Cal.App.3d at p. 1024.) We “look to the entire administrative record not only to determine whether the [ALJ’s] findings are supported by substantial evidence, but also to determine ‘whether the [ALJ] committed any errors of law.’” (Ibid., quoting Bixby v. Pierno (1971) 4 Cal.3d 130, 144.)
B. Governing Statutes
The key issues concern whether the ALJ properly declined to issue a salesperson’s license to Silver due to his conviction for grand theft and his activity as an unlicensed vehicle dealer. The Vehicle Code distinguishes dealers from salespersons. A dealer is defined as a person who “[f]or commission, money, or other thing of value, sells, exchanges, buys, or offers for sale, negotiates or attempts to negotiate, a sale or exchange of an interest in, a vehicle subject to registration” and who “[i]s engaged wholly or in part in the business of selling vehicles or buying or taking in trade, vehicles for the purpose of resale, selling, or offering for sale, or consigned to be sold, or otherwise dealing in vehicles.” (Veh. Code, § 285.) Exempted from this definition are salespersons, that is, anyone who, as the employee of a dealer, “sells, exchanges, buys, or offers for sale, negotiates, or attempts to negotiate a sale, or exchange of an interest in a vehicle.” (Veh. Code, § 675, subd. (a)(1).) Under the Vehicle Code, the term “dealer” does not include “[p]ersons regularly employed as salespersons by [licensed] vehicle dealers... while acting within the scope of that employment.” (Veh. Code, § 286, subd. (c).)
Vehicle Code section 11806 provides that DMV, “after notice and hearing, may refuse to issue, or may suspend or revoke, a vehicle salesperson’s license when it makes any of the following findings and determinations: [¶]... [¶] (d) A cause for refusal, suspension, or revocation exists under any provision of Sections 11302 to 11909, inclusive.” Under subdivision (d) of Vehicle Code section 11703, DMV may refuse to issue a salesperson’s license to an applicant who “has been convicted of a crime or committed an act or engaged in conduct involving moral turpitude which is substantially related to the qualifications, functions, or duties of the licensed activity.” (Clerici, supra, 224 Cal.App.3d at pp. 1025-1027.) Subdivision (d) of this section further provides: “A conviction after a plea of nolo contendere is a conviction within the meaning of this section.”
Generally, moral turpitude is “an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man” (In re Craig (1938) 12 Cal.2d 93, 97), including “any dishonest or immoral act” (Chadwick v. State Bar (1989) 49 Cal.3d 103, 110). “The meaning and test is the same whether the dishonest or immoral act is a felony, misdemeanor, or no crime at all.” (Ibid.) In the context of licensing statutes -- including those before us -- a person who engages in an act of moral turpitude may be denied a license, provided there is “a substantial or rational connection between the committed offense and the particular occupation.” (Brewer v. Department of Motor Vehicles (1979) 93 Cal.App.3d 358, 365; accord, Clerici, supra, 221 Cal.App.3d at p. 1029.)
Under these standards, grand theft related to a vehicle sale is an act of moral turpitude within the meaning of Vehicle Code section 11703, subdivision (d). (Mann v. Department of Motor Vehicles (1999) 76 Cal.App.4th 312, 322.) Moreover, as our Supreme Court explained in Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918-919, the Vehicle Code provision also encompasses fraud and other misconduct in connection with a dealer’s license.
C. Showings and Decision
Aside from receiving materials regarding Silver’s 2001 conviction for grand theft and DMV’s revocation of his salesperson’s license, the ALJ heard testimony about Silver’s alleged activities as an unlicensed vehicle dealer in 2002 and 2003. Tony Cox, a DMV investigator, testified as follows: In 2003, he received several complaints about a used car dealership named “Specialty Motors.” One complainant told him that Silver sold her a car, identified himself as the owner of Specialty Motors, and gave her a business card that stated “Stuart Silver – OWNER.”
In investigating the complaints, Cox found DMV records stating that in May 2002, Stanley Morris, a licensed dealer, had started Specialty Motors, which Morris identified as his “d.b.a.” Cox also obtained Silver’s July 2002 application for a tax license from the City of Los Angeles, in which Silver identified Specialty Motors as his “d.b.a.”; in addition, Cox obtained a certified record that tax registration certificates had been issued to Silver “dba: Specialty Motors.” A Web site for Specialty Motors represented Silver as the business’s president. Cox visited the business, where he photographed several large signs stating, “Stuart Silver’s Specialty Motors.” Cox spoke to Silver, who said that he was the business’s “money backer” and that he “control[ed]” it. Cox concluded that Silver was “the owner of the dealership” and that he ran it on a day-to-day basis.
Silver testified as follows: During the pertinent period, Morris was the dealer at Specialty Motors. Silver had an ownership interest in the business but no dealer’s license. Morris employed him and controlled his salary. At Morris’s direction, he submitted applications for business licenses for Specialty Motors. The business cards identifying Silver as the owner of Specialty Motors were printed in July 2002, when Silver planned to act as the business’s dealer. Although his plan “never transpired,” he used some of the cards.
Finally, Mark Thompson testified that he was Specialty Motors’s financial controller for three years. According to Thompson, Morris held a valid dealer license and operated the business. Silver acted only as a salesperson under Morris’s direction.
Following the presentation of evidence, Silver contended that he was entitled to the salesperson’s license because his conviction for grand theft had been dismissed. In addition, he argued that he was entitled to act as a salesperson within the scope of his employment at Specialty Motors until March 2004, when the revocation of his salesperson’s license became final. In denying the salesperson’s license, the ALJ found (1) that Silver had committed and been convicted of grand theft, an offense involving moral turpitude; (2) that he had acted as an unlicensed vehicle dealer, which was also conduct involving moral turpitude; and (3) that he had not been rehabilitated.
D. Grand Theft Conviction
Silver challenges each of the ALJ’s findings. We begin with his contention that the ALJ improperly denied him a salesperson’s license on the basis of his conviction for grand theft. He argues that pursuant to Penal Code section 1203.4, his plea of no contest to grand theft has been changed to one of not guilty, and his conviction for grand theft has been dismissed. He thus asserts that his conviction, so expunged, “does not exist” for purposes of the licensing of salespersons under the Vehicle Code. We disagree.
Subdivision (a) of Penal Code section 1203.4 provides in pertinent part: “In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation..., the defendant shall... be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty...; and... the court shall thereupon dismiss the accusations or information against the defendant....” Absent qualifications not relevant here, the provision further states that upon the change of plea and dismissal, the defendant “shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.”
Generally, a release from conviction-related “penalties and disabilities” under Penal Code section 1203.4, subdivision (a), does not encompass the requirements of licensing statutes. (Stephens v. Toomey (1959) 51 Cal.2d 864, 872 [regarding “the regulation of certain professions through the issuance of licenses by duly authorized public officers, boards and commissions,... the law will not permit the dismissal of the proceeding in the criminal case to automatically restore or terminate the suspension of the license.”].) Accordingly, California courts have “consistently upheld denial of a license or the right to pursue a particular profession on the basis of an expunged conviction” under Penal Code section 1203.4. (Adams v. County of Sacramento (1991) 235 Cal.App.3d 872, 880 (Adams); see Meyer v. Board of Medical Examiners (1949) 34 Cal.2d 62, 63-67 [physician’s license properly suspended after conviction expunged]; In re Phillips (1941) 17 Cal.2d 55, 61 (Phillips) [attorney properly disbarred, despite expunged conviction]; Ready v. Grady (1966) 243 Cal.App.2d 113, 114-117 [insurance agent’s license properly revoked after conviction expunged]; Copeland v. Dept. of Alcholic Bev. Control (1966) 241 Cal.App.2d 186, 187-189 (Copeland) [alcohol sales license properly revoked after holder’s convictions expunged]; Epstein v. California Horse Racing Board (1963) 222 Cal.App.2d 831, 836 [person properly excluded from horse racing venues despite expunged conviction for illegal bookmaking].)
The rationale underlying several of these decisions is that “expungement under Penal Code section 1203.4 does not eradicate a conviction or purge a defendant of the guilt established thereby.” (Adams, supra, 235 Cal.App.3d at p. 877.) Expungement frees the convicted individual from penalties and disabilities “of a criminal or like nature,” but does not “obliterate the fact that the defendant has been ‘finally adjudged guilty of a crime.’” (Ibid., quoting Phillips, supra, 17 Cal.2d at p. 61.) Thus, when “‘the disciplining of licensees... is for the protection of the public... and not for the purpose of punishing any licensee[,]... proceedings to suspend or revoke business or professional licenses are not included among the penalties and disabilities that are released by a dismissal pursuant to section 1203.4.’” (Adams, supra, 235 Cal.App.3d at pp. 880-881, quoting Copeland, supra, 241 Cal.App.2d at p. 188; see also Ready v. Grady, supra, 243 Cal.App.2d at pp. 117-118; Epstein v. California Horse Racing Board, supra, 222 Cal.App.2d at pp. 840-841.)
Here, Vehicle Code sections 11703, subdivision (d), and 11806, subdivision (d), which govern the issuance, suspension, and revocation of salesperson’s licenses, are intended “to protect the public, not to administer punishment to individual licensees.” (Mann v. Department of Motor Vehicles, supra, 76 Cal.App.4th at p. 319.) Accordingly, the ALJ properly determined that “the fact” of Silver’s prior conviction supported the denial of a salesperson’s license. (Adams, supra, 235 Cal.App.3d at pp. 877-878, 880-881.)
Silver’s reliance upon People v. Field (1995) 31 Cal.App.4th 1778 is misplaced. There, the court held that a witness in a criminal prosecution whose prior conviction had been expunged could not be impeached with the conviction. (Id. at pp. 1784-1787.) In so concluding, however, the court noted that expungement under Penal Code section 1203.4 “does not obliterate a conviction for all purposes,” and that a conviction so expunged “may be considered by licensing authorities.” (People v. Field, at p. 1787.)
Silver also contends there was insufficient evidence that he had committed an act of moral turpitude. He is mistaken. The ALJ was presented with ample documentary evidence that Silver was convicted of grand theft related to a vehicle sale after he entered a plea of no contest. Because “[a] conviction after a plea of nolo contendere is a conviction” within the meaning of the licensing provisions of the Vehicle Code (Veh. Code, § 11703, subd. (d)), the ALJ properly found that Silver had suffered a conviction for a crime of moral turpitude. (See Mann v. Department of Motor Vehicles, supra, 76 Cal.App.4th at p. 322.) As we have explained, the ALJ was authorized to rely on the conviction, notwithstanding its expungement. Moreover, the ALJ was presented with Silver’s admission -- made as the factual basis for his “no contest” plea -- and other evidence that he had taken $400 from two individuals involved in a vehicle sale. Accordingly, the ALJ also had sufficient evidence that Silver had, in fact, committed an act of moral turpitude.
In addition, the ALJ noted that other findings about additional fraudulent conduct by Silver had been made in the 2002 revocation proceeding. Silver is precluded from challenging the 2002 findings under the doctrine of collateral estoppel, which is ordinarily applicable within successive administrative actions. (7 Witkin, Cal. Procedure (2008) Judgment, § 359, pp. 975-977.) Collateral estoppel, an aspect of res judicata, bars the relitigation of an issue decided at a previous proceeding “‘if (1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated; (2) the previous [proceeding] resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior [proceeding].’ [Citation.]” (People v. Sims (1982) 32 Cal.3d 468, 484, fn. omitted.) Here, the record discloses that the 2002 findings were made after an evidentiary hearing in which Silver participated; in addition, the findings were final by the time of the underlying administrative action, as they were affirmed on appeal in 2004. For the reasons discussed above, the expungement of Silver’s grand theft conviction did not preclude the ALJ from relying upon the 2002 findings.
E. Activity As Unlicensed Dealer
We turn to Silver’s challenge to the ALJ’s determination that he acted as an unlicensed vehicle dealer in and after 2002. He contends that neither his ownership interest in Specialty Motors nor his sales activities at Specialty Motors rendered him a dealer. He argues that Morris acted as the dealer, exercised full control over the business, and employed him as a salesperson; moreover, he argues that because he held a valid salesperson’s license and limited his sales activity to the scope of his employment with Morris, he fell outside the statutory definition of a dealer.
We find guidance on this contention from Valiyee v. Department of Motor Vehicles (1999) 74 Cal.App.4th 1026. There, a licensed vehicle dealer and another individual who lacked a dealer’s license entered into an agreement regarding a used car business. (Id. at p. 1029.) Under the agreement, the unlicensed individual purportedly rented a portion of the business’s premises and sold cars as the dealer’s independent contractor. (Ibid.) DMV initiated an administrative proceeding to revoke the dealer’s license, and presented evidence that although the licensed dealer occasionally visited the business, the other individual operated it. (Valiyee v. Department of Motor Vehicles, supra, 74 Cal.App.4th at pp. 1030, 1033.) In affirming the revocation, the appellate court concluded that the unlicensed individual had acted as a dealer because he “purchased all the inventory, conducted and documented all sales, filed all necessary reports with [] DMV, and otherwise performed all the essential functions of a vehicle dealer.” (Valiyee v. Department of Motor Vehicles, at p. 1033.)
In the present case, the ALJ found that Silver had acted as an unlicensed dealer. Our examination of this finding is governed by “‘the substantial evidence rule applicable to appellate review, i.e., the function of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which supports the conclusion reached, disregarding any evidence in the record contrary to the trier’s finding. [Citations.]’” (Peradotto v. State Personnel Board (1972) 25 Cal.App.3d 30, 33, quoting Lorimore v. State Personnel Board (1965) 232 Cal.App.2d 183, 186.) Under this rule, we will affirm the finding unless it is “devoid of evidentiary support or [is] based upon inferences arbitrarily drawn and without reasonable foundation.” (Clerici, supra, 224 Cal.App.3d at p. 1024.)
Substantial evidence supports the ALJ’s conclusion that Silver had acted as a dealer. Cox testified that despite Morris’s presence at Specialty Motors, Silver submitted applications for tax certificates that identified the business as his “d.b.a.”; held himself out as its owner, financial backer and president; ran it on a day-to-day basis; and sold cars. Generally, the designation “d.b.a.” in connection with an individual indicates that the individual operates a business and is liable for its obligations. (See Providence Washington Ins. Co. v. Valley Forge Ins. Co. (1996) 42 Cal.App.4th 1194, 1200; Pinkerton’s, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348-1349 and cases cited therein.) Accordingly, in view of the evidence, the ALJ properly concluded that Silver had exercised the pervasive control over the business characteristic of a dealer, and that in selling cars, Silver had not acted as Morris’s employee, but was essentially self-employed.
F. Insufficient Showing of Rehabilitation
Finally, Silver contends that the ALJ erred in determining that he presented insufficient evidence of rehabilitation. We disagree. In assessing Silver’s suitability for a salesperson’s license, the ALJ was obliged to consider a specified set of guidelines. (Cal. Code Regs, tit. 13, §440.04.) When, as here, an applicant’s license has been suspended or revoked, the guidelines establish criteria for rehabilitation, including whether the applicant has participated in programs that aim at self-improvement or provide social benefits; established stable family relationships and new business relationships; corrected injurious business practices; and demonstrated a change of attitude.
On these matters, Silver testified that he had attempted to deal respectfully with people who bought vehicles and diligently checked odometers for accuracy. He also testified that he had sold vehicles solely within the scope of his employment with Morris, and that the denial of a license would threaten his ability to support his family. The ALJ concluded that Silver’s showing of rehabilitation was inadequate, reasoning that Silver had neither participated in beneficial programs nor changed his business relationships, and had, in fact, acted as an unlicensed dealer. As the evidence before the ALJ amply supports this determination, we find no error. In sum, the petition for writ of mandate was properly denied.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
We concur: EPSTEIN, P. J., WILLHITE, J.