Petitioner’s Dilatory Request For Subpoena Enforcement Before The DMV Hearing Officer Did Not Warrant Fees Under Government Code Section 800.
Government Code section 800 requires an award of attorney’s fees to a prevailing complainant in a civil action to review a ruling in an administrative proceeding, but only if the award, finding, or determination was the result of arbitrary or capricious action by a hearing officer or administrative judge. However, the “arbitrary and capricious action” language was the key, and it was not met by prevailing petitioner in Cox v. Gordon (DMV Director), Case No. D083386 (4th Dist., Div. 1 Aug. 8, 2025) (unpublished).
After an administrative per se (APS) hearing, the DMV upheld the license suspension of petitioner based on a DUI arrest. Later, petitioner obtained a rescission of the suspension based on a Second District decision holding that a hearing officer could not be both an advocate and adjudicator for the DMV. In the actual APS hearing, petitioner attempted to enforce a subpoena request to the Sheriff’s Department for certain information, but the Department objected to the request months before the hearing and petitioner only raised it on the day of the hearing before the DMV hearing officer, who refused to address the discovery dispute in the middle of the defense case. Given this record, section 800 did not justify an award of fees to petitioner based on the discovery dispute chronology—the hearing officer was not arbitrary in choosing not to get entangled in the discovery dispute. However, the appellate court did note that if the DMV wanted to conduct a new APS hearing, petitioner could renew a request for production of the previously sought-out information on remand.