Corkery v. Superior Court CA1/3

Filed 8/26/21 Corkery v. Superior Court CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

PATRICK CORKERY,
Plaintiff and Appellant,
v.
THE SUPERIOR COURT OF THE A159463
CITY AND COUNTY OF SAN
FRANCISCO,
Defendant and Respondent; (City & County of San Francisco
STEVE GORDON, as Director, etc., Super. Ct. No. CPF-19-516688)

Real Party in Interest and
Respondent.

This is an appeal from final judgment after the trial court denied the
petition for a writ of administrative mandamus (petition) filed by plaintiff
Patrick Corkery against real party in interest Jean Shiomoto, in her capacity
as Director of the Department of Motor Vehicles (DMV).1 Corkery sought by
writ to have the court set aside the DMV’s suspension of his license for
driving with a blood-alcohol level of .08 percent or higher (Veh. Code,

Since the time this petition was filed, Steve Gordon has replaced Jean
1

Shiomoto as Director of the DMV.

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§ 23152)2 (hereinafter, driving under the influence or DUI). The trial court
denied his petition after finding the weight of the evidence, including sworn
and unsworn police documents, supported the DMV’s suspension order. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 13, 2018, about 6:41 p.m., on Folsom Street in San Francisco,
Corkery was detained on suspicion of driving under the influence. San
Francisco Police Officer Hoang and Field Training Officer Tsang responded to
a report of a collision involving a drunk driver in front of a restaurant.
There, the officers found a Toyota Prius with front-end damage parked
behind a Land Rover parked at an angle in a passenger loading zone, almost
obstructing the bike lane. A witness described the Land Rover reversing into
the Prius while its driver attempted to park. Without leaving a note, the
driver of the Land Rover, identified as Corkery, staggered into the
restaurant, where the officers later found him seated at a table.
Corkery, found in possession of the Land Rover key, had bloodshot
eyes, drooping eyelids, slurred speech and a strong alcohol odor. After
Corkery denied being drunk or driving and provided evasive information
about the accident, the officers tried to administer field sobriety tests. These
tests ended prematurely for safety reasons after Corkery nearly fell. Officer
Hoang gave Corkery the option of a blood or breath test, but he refused both.
Based on his objective signs of drunkenness, Corkery was arrested for driving
under the influence about 7:04 p.m. and transported to the San Francisco
Police Department Mission Station.

2Unless otherwise stated, all statutory citations herein are to the
Vehicle Code.

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 At the station, Officer Tsang read the formal chemical test admonitions
to Corkery from a preprinted DS-367 form, which is a sworn document that
must be submitted to the DMV by the arresting/responding officer following a
DUI arrest. After receiving the admonitions, Corkery responded no to his
options of taking a blood or breath test and continued to deny driving the
Land Rover. Officer Hoang served Corkery an administrative per se
suspension/revocation order notifying him that the DMV was suspending his
driver’s license based on his refusal to submit to chemical testing and that he
was entitled to request a hearing to challenge his suspension.
Officer Hoang later prepared and signed the DS-367, which begins on
page 2, “I admonished the driver,” and requires information as to the date,
time and location of the incident. While Officer Hoang provided this
information, he left blank another section of the form that reads, “If the
above Chemical Test Admonition was read to arrestee by another officer,
indicate that officer’s: Name _____, Badge/ID No. _____, Agency _____, Phone
Number ( ) .”
In addition to the DS-367 form, Officer Hoang prepared an unsworn
traffic collision report (unsworn report) that documented his and Officer
Tsang’s investigation of Corkery’s collision while driving under the influence.
The unsworn report identifies both Officer Hoang and Officer Tsang as the
reporting/arresting officers and states in relevant part: “At Mission Station,
FTO Tsang read the chemical test admonition from the DMV 367 Form to
[Corkery].”
Corkery timely requested an administrative hearing to challenge his
suspension, which was held on March 11, 2019. After considering the
evidence, the DMV found: (1) there was probable cause to arrest Corkery
based on his objective signs of intoxication; (2) Corkery thereafter refused to

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submit to chemical testing after receiving proper admonitions by Officer
Tsang and Officer Hoang; and (3) based on his refusal to test, the one-year
suspension of Corkery’s driving privilege was appropriate.
On May 30, 2019, Corkery filed the petition in superior court
challenging the DMV’s suspension of his license. On September 9, 2019,
Corkery filed a motion for the court to grant the petition that attached the
administrative record. On the same day, the DMV filed its answer.
On October 3, 2019, the court denied Corkery’s petition after finding
the weight of the evidence supported the DMV’s suspension decision.
Judgment was entered in the DMV’s favor on October 16, 2019.
On October 31, 2019, Corkery moved for a new trial, which the court
denied after a hearing on December 30, 2019. This timely appeal followed.
DISCUSSION
Corkery challenges the trial court’s denial of his petition for relief from
the DMV’s suspension order on three primary grounds: (1) the court
improperly admitted Officer Hoang’s sworn DS-367 form, which was
incomplete and irreconcilably inconsistent with his unsworn traffic collision
report; (2) the evidence was insufficient to prove he was properly admonished
regarding his right to refuse chemical testing; and (3) the court erroneously
rejected his argument that, as a penalty for the DMV’s late-filed answer, the
DMV should be deemed to have admitted all facts alleged in his petition. We
address these issues after setting forth the legal framework.
I. License Suspension: The Implied Consent Law.
A. Suspension.
In California, “ ‘[a] person who drives a motor vehicle is deemed to have
given his or her consent to chemical testing of his or her blood or breath for
the purpose of determining the alcoholic content of his or her blood, if

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lawfully arrested for’ a driving-under-the influence offense (§ 23612, subd.
(a)(1)(A)), and that such testing ‘shall be . . . administered at the direction of
a peace officer having reasonable cause to believe’ the person was driving
while under the influence of alcohol or a drug. (§ 23612, subd. (a)(1)(C).)”
(Troppman v. Valverde (2007) 40 Cal.4th 1121, 1129–1130 (Troppman).)
The DMV is authorized to suspend or revoke the driver’s license of “a
person [who] refuses [a law enforcement] officer’s request to submit to, or
fails to complete, a chemical test or tests pursuant to Section 23612, upon
receipt of the officer’s sworn statement that the officer had reasonable cause
to believe the person had been driving a motor vehicle” while under the
influence of alcohol or a drug. (§ 13353, subd. (a).)
There are four elements of an implied consent suspension: (1) the
officer had reasonable cause to believe the driver drove under the influence of
alcohol in violation of section 23152 or 23153; (2) the driver was lawfully
detained; (3) the driver refused to submit to or failed to complete a chemical
test requested by the officer; and (4) the driver was admonished that his or
her driving privilege would be suspended or revoked if he or she refused to
submit to or complete a chemical test. (Troppman, supra, 40 Cal.4th at p.
1131.) Corkery’s challenge relates to the fourth element, whether there was
evidence supporting the DMV’s finding that he was properly admonished.
B. Administrative & Court Review.
A driver subject to an implied consent suspension may request an
administrative hearing with the DMV. (§ 13353, subd. (e).) “In an internal
administrative review, the DMV must consider ‘the [arresting officer’s] sworn
report . . . and any other evidence accompanying the report,’ while in an
administrative hearing the DMV is required to consider its official records,
but may also receive sworn testimony as a basis for making its

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determination. (§§ 13557, subd. (a), 14104.7; see also § 13558, subd. (b).) The
officer’s report is admissible under the public employee business records
exception to the hearsay rule and will suffice to support the necessary
findings, provided the statement is based on the officer’s firsthand
observations and is made near the time of the event.” (Morgenstern v.
Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 372
(Morgenstern).)
The DMV’s decision to uphold a driver’s implied consent suspension is
subject to judicial review by administrative mandamus. (Code Civ. Proc.,
§ 1094.5; Veh. Code, § 13559, subd. (a).) When, as here, a suspended driver
petitions for a writ of administrative mandate, “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. (Lake v. Reed
[(1997)] 16 Cal.4th [448,] 456; Code Civ. Proc., § 1094.5, subd. (c).) In
reviewing the administrative record, the court makes its own determination
about the credibility of the witnesses.” (Morgenstern, supra, 111 Cal.App.4th
at p. 372.)
“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. (Lake v. Reed, supra, 16 Cal.4th at p. 457.) We exercise
de novo review, however, of the trial court’s legal determinations. (Id. at pp.
456–457.)” (Morgenstern, supra, 111 Cal.App.4th at p. 372.) We reverse the
court’s evidentiary rulings “ ‘ “ ‘ “only upon a clear showing of abuse.” ’ ” ’ ”
(Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210,
1218.)

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II. Writ relief was properly denied.
A. The DS-367 form was admissible.
Corkery contends the trial court abused its discretion in admitting the
DS-367 form because Officer Hoang, the arresting officer who submitted the
sworn document, was not truthful and omitted necessary information. We
disagree.
Section 13380, subdivision (a) requires the arresting officer to
“immediately forward to the department a sworn report of all information
relevant to the enforcement action,” including, as Corkery notes, information
regarding “the circumstances constituting a refusal to submit to or complete
the chemical testing . . . .” (Italics omitted.)
Here, Officer Hoang failed to complete the section of the DS-367 form
requiring information regarding the identity of the officer (Tsang) who
admonished Corkery. However, in Officer Hoang’s unsworn report, prepared
the same day, he unequivocally identified Officer Tsang as the admonishing
officer. Corkery contends based on this inconsistency that the DS-367 form
was “ ‘wholly devoid of relevant information’ ” and, thus, inadmissible.
The trial court rejected Corkery’s challenge to the sworn DS-367 form,
reasoning (1) the hearing officer could reasonably conclude that the proper
admonition was given and that any inconsistencies between the DS-367 form
and the unsworn report “were the result of sloppy paperwork, not perjury,”
and (2) in administrative hearings such as in this case the rules of evidence
are more relaxed than in court hearings.
The trial court acted within its discretion in admitting the sworn DS-
367 form on these grounds. In MacDonald v. Gutierrez (2004) 32 Cal.4th 150,
159, the Supreme Court held: “Section 13380 provides the arresting officer’s
sworn report will contain ‘all information relevant to the enforcement action.’

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Therefore, the Legislature clearly anticipates the sworn report will contain
all or nearly all of the information necessary to remove the offender’s license.
In light of this legislative intent, the sworn report cannot be wholly devoid of
relevant information. However, so long as a sworn report is filed, it is
consistent with the relaxed evidentiary standards of an administrative per se
hearing that technical omissions of proof can be corrected by an unsworn
report filed by the arresting officer.” (Accord, Gov. Code, § 11513, subd. (c) [in
administrative hearings, “[a]ny relevant evidence shall be admitted if it is the
sort of evidence on which responsible persons are accustomed to rely in the
conduct of serious affairs, regardless of the existence of any common law or
statutory rule which might make improper the admission of the evidence over
objection in civil actions”].)
Applying MacDonald to our facts, we conclude that notwithstanding
the missing information, the sworn DS-367 form was admissible and relevant
(along with Officer Hoang’s unsworn report) as to whether the DMV had
grounds to suspend Corkery’s license. Any inconsistency relating to the
identity of the admonishing officer impacted the weight of this evidence, not
its admissibility. Moreover, contrary to Corkery’s claim, the two reports are
not irreconcilable.3 The DMV hearing officer reasonably found, based on both
the sworn DS-367 form and the unsworn report, that Officers Hoang and
Tsang worked together to arrest Corkery for a DUI and transport him to the
police station, where Officer Tsang read him the appropriate admonishments

3 Corkery relies on case law holding that irreconcilable verdicts must be
reversed, citing Oxford v. Foster Wheeler LLC (2009) 177 Cal.App.4th 700,
716. The rule governing inconsistent evidence differs. Any inconsistency
goes to the weight and credibility of the evidence, an issue reserved for the
trier of fact, not the appellate court. (See People v. Tompkins (2010) 185
Cal.App.4th 1253, 1261.)

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while Officer Hoang observed and documented the incident. (See Murphey v.
Shiomoto (2017) 13 Cal.App.5th 1052, 1066–1067 [notwithstanding an error
in the arrest report regarding the time of arrest, it was reasonable to find
based on the record that defendant was tested within three hours of driving].)
There is no basis on this record to disturb the court’s admission of this
evidence or its finding that the weight of the evidence supported the DMV’s
decision.
B. Substantial evidence proved Corkery was properly
admonished.
Corkery next contends that even if the sworn DS-367 form and Officer
Hoang’s unsworn report were admissible, nothing in those reports or the
other evidence proved Officer Tsang gave him each of the requisite
admonishments under section 23612, subdivision (a)(1)(D).4 This argument
also fails.

4 This provision states: “The person shall be told that his or her failure
to submit to, or the failure to complete, the required breath or urine testing
will result in a fine and mandatory imprisonment if the person is convicted of
a violation of Section 23152 or 23153. The person shall also be told that his
or her failure to submit to, or the failure to complete, the required breath,
blood, or urine tests will result in (i) the administrative suspension by the
department of the person’s privilege to operate a motor vehicle for a period of
one year, (ii) the administrative revocation by the department of the person’s
privilege to operate a motor vehicle for a period of two years if the refusal
occurs within 10 years of a separate violation of Section 23103 as specified in
Section 23103.5, or of Section 23140, 23152, or 23153 of this code, or of
Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code that
resulted in a conviction, or if the person’s privilege to operate a motor vehicle
has been suspended or revoked pursuant to Section 13353, 13353.1, or
13353.2 for an offense that occurred on a separate occasion, or (iii) the
administrative revocation by the department of the person’s privilege to
operate a motor vehicle for a period of three years if the refusal occurs within
10 years of two or more separate violations of Section 23103 as specified in
Section 23103.5, or of Section 23140, 23152, or 23153 of this code, or of
Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, or any

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 As the DMV notes, the law presumes public officers properly discharge
their official duties. (Evid. Code, § 664.) Consistent with this presumption,
both the sworn DS-367 form and the unsworn report reflect that Officer
Tsang, accompanied by Officer Hoang, read Corkery the admonishments
required by Vehicle Code section 23612. Corkery points to no evidence that
he was not given the proper admonishments by one of these officers or that
he failed to understand the admonishments he received. This evidence
sufficed to support the DMV’s finding, upheld by the court, that Corkery was
properly admonished.
III. Corkery’s timeliness challenge to the DMV’s answer is waived
and meritless.
Corkery last contends the trial court erred when rejecting his argument
that the DMV’s untimely filing of an answer requires the facts alleged in the
petition to be deemed admitted as true. Not so.
Code of Civil Procedure section 1089.5 states in relevant part: “[W]here
a record of the proceeding to be reviewed has been requested pursuant to
Section 11523 of the Government Code, or otherwise, and has not been filed
with the petition, the party upon whom the petition has been served,
including any real party in interest, shall answer or otherwise respond within
30 days following receipt of a copy of the record.”

combination thereof, that resulted in convictions, or if the person’s privilege
to operate a motor vehicle has been suspended or revoked two or more times
pursuant to Section 13353, 13353.1, or 13353.2 for offenses that occurred on
separate occasions, or if there is any combination of those convictions,
administrative suspensions, or revocations.” (§ 23612, subd. (a)(1)(D).)

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 Here, the DMV certified its receipt of the administrative record on
August 6, 2019.5 The DMV filed its answer on September 9, 2019, 34 days
later.
Corkery did not challenge the DMV’s answer as untimely when he
moved the court to grant his petition on September 9, 2019 (the same day the
DMV filed its answer). However, Corkery did so for the first time in his reply
papers in the trial court, arguing that the DMV should be deemed to have
admitted all factual allegations in the petition due to its late-filed answer.
The trial court rejected Corkery’s challenge as forfeited because it was
first raised in reply. The court also rejected it on the merits because he cited
no authority for the proposition that a petition’s allegations should be taken
as true when an answer is filed late. Both grounds are correct.
First, a trial court has the inherent authority and responsibility to
fairly and efficiently manage the litigation before it. (Briggs v. Brown (2017)
3 Cal.5th 808, 852.) As such, the court here had discretion to, one, decline to
consider an issue raised by Corkery for the first time on reply and, two,
disregard the DMV’s four-day delay in filing a timely answer. (See Reichardt
v. Hoffman (1997) 52 Cal.App.4th 754, 764 [“ ‘Obvious reasons of fairness
militate against consideration of an issue raised initially in the reply brief of
an appellant’ ”]; see also Code Civ. Proc., § 475 [“The court must, in every
stage of an action, disregard any error, improper ruling, instruction, or defect,
in the pleadings or proceedings which, in the opinion of said court, does not
affect the substantial rights of the parties”].)

The trial court found, “It appears that respondent received the
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complete record by August 6, 2019, but the date of receipt is not entirely
clear.”

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 Moreover, Corkery has failed twice—before the trial court and this
court—to offer any legal authority for his extraordinary proposal to penalize
the DMV for filing an answer four days late by deeming the DMV to have
admitted all facts alleged in his petition. Lacking in both precedent and
wisdom, we, like the trial court, decline his proposal. (See Oliveros v. County
of Los Angeles (2004) 120 Cal.App.4th 1389, 1395 [“the strong public policy
favoring disposition on the merits outweighs the competing policy favoring
judicial efficiency”]; see also McAllister v. County of Monterey (2007) 147
Cal.App.4th 253, 281–282 [“ ‘There is no absolute right to have a pleading
stricken for lack of timeliness in filing where no question of jurisdiction is
involved, and where, as here, the late filing was a mere irregularity [citation];
the granting or denial of the motion is a matter which lies within the
discretion of the court’ ”].)
DISPOSITION
The judgment is affirmed.

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 _________________________
Jackson, J.

WE CONCUR:

_________________________
Petrou, Acting P. J.

_________________________
Chou, J.*

A159463/Corkery v. Superior Court

Judge of the Superior Court of San Mateo County, assigned by the
*

Chief Justice pursuant to article VI, section 6 of the California Constitution.

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