Fernando’s Auto Repair v. Bureau of
Auto. Repair





















Filed 2/7/13 Fernando’s Auto Repair v. Bureau of Auto.
Repair CA1/3

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.









IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
THREE




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FERNANDO’S AUTO REPAIR, Plaintiff and Appellant, v. BUREAU OF AUTOMOTIVE REPAIR et al., Defendants and Respondents.

A134771 (Marin County Super. Ct. No. CIV-1105965)

Fernando’s
Auto Repair (Fernando)href="#_ftn1"
name="_ftnref1" title="">[1]
appeals from the denial of its petition for a writ of mandate against the
Bureau of Automotive Repair and Sherry Mehl as the chief of the Bureau
(collectively, the Bureau). Having requested and received supplemental briefs
from the parties concerning the potential mootness of the appeal, we shall now
dismiss the appeal as moot.

Fernando’s
petition seeks to set aside the Bureau’s revocation of its Gold Shield
certificate, a certification issued pursuant to Health and Safety Code section 44014.2
authorizing a licensed smog check station such as Fernando to perform
additional repair work on vehicles failing an emissions test. Fernando alleges
that the certificate was improperly revoked without a href="http://www.fearnotlaw.com/">formal administrative hearing, although a
formal hearing had previously been conducted sustaining the two citations for
improper smog inspections upon which the revocation was based. Fernando prayed
for a writ of mandate vacating the revocation order, thereby reinstating his
Gold Shield certificate. The trial court order denying the petition was entered
on February 15, 2012.

During
the pendency of this appeal, on December
31, 2012, the Gold Shield Program expired. (Cal.
Code Regs., tit. 16, § 3392.1.) As of January 1, 2013, the Bureau adopted a new smog check
certification program, referred to as the STAR program. (Cal.
Code Regs., tit. 16, § 3392.3.1.) Previous certification under
the former Gold Star Program is no longer of any significance. Licensed smog
check stations must submit a new application for admission to the STAR program,
which operates under new and different rules and regulations. Thus, were
Fernando to prevail on this appeal by establishing that its Gold Shield
certification was improperly revoked, the court could grant no effective relief
because the Gold Shield program no longer exists and reinstating his
certification under that program is now an impossibility. As Fernando itself
acknowledges, “the actual Gold Shield Certificate is, at this date, worthless.”

It
is well established that “an action that originally was based on a justiciable
controversy cannot be maintained on appeal if all the questions have become
moot by subsequent acts or events. A reversal would be without practical effect,
and the appeal will therefore be dismissed.” (9 Witkin, Cal. Procedure (5th ed.
2008) Appeal, § 749, p. 814; MHC
Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th
204, 214.) This rule is fully applicable if the issue on appeal has been
rendered moot by intervening repeal or modification of legislation or
administrative regulations. (9 Witkin, supra,
Appeal, § 754, 820-821; Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 133-134.)

Fernando
suggests that the matter is not moot because it might be entitled to the
recovery of costs or “damages” were it to establish that its certificate was
wrongly revoked. (See Gov. Code, § 800; Code Civ. Proc., §§ 1028.5,
1095.) That possibility, however, does not render the otherwise moot claim justiciable.
“[I]t is settled that an appeal will not be retained solely to decide the
question of liability for costs.” (Paul v. Milk Depots, Inc., supra,
62 Cal.2d at p. 134.) Indeed, as provided in Government Code
section 800, which Fernando cites, “This section is ancillary only, and
shall not be construed to create a new cause of action.” (Gov. Code,
§ 800, subd. (b).)

Nor
is there merit in Fernando’s suggestion that despite mootness we nonetheless
decide the issue “because it is likely that the very same controversy between
the parties is likely to occur in the nuances of arguments about the rights
afforded in re the STAR certification.” The regulatory provisions governing the
STAR program, specifically including those governing the right to an administrative
hearing, are significantly different from those that applied to the Gold Shield
program. Resolution of the issue raised in this appeal would not be likely to
have any significance in future situations.

For
these reasons, the appeal is hereby dismissed.
Parties are to bear their respective href="http://www.mcmillanlaw.com/">costs on appeal.





_________________________

Pollak,
J.





We concur:





_________________________

McGuiness, P. J.





_________________________

Siggins, J.