Powell v. DMV
Filed 3/15/06 Powell v. DMV CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| MARGARET POWELL, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent. | G035557 (Super. Ct. No. 04CC07939) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, James M. Brooks, Judge. Motion to augment record. Judgment affirmed. Motion granted.
Law Offices of John W. Powell and John W. Powell for Plaintiff and Appellant.
Bill Lockyer, Attorney General, Jim Schiavenza, Senior Assistant Attorney General, Richard J. Rojo, Supervising Deputy Attorney General, Jung D. Shin, Deputy Attorney General, for Defendant and Respondent.
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The court sustained the Department of Motor Vehicles' (DMV) demurrer to Margaret Powell's complaint without leave to amend, and dismissed the action. Powell appeals from the dismissal. We affirm.
FACTS
Powell's complaint alleged, inter alia, that (1) DMV's order revoked her driver's license on short notice pursuant to Vehicle Code section 13953,[1] (2) Powell petitioned for a writ of mandate, (3) DMV proposed a settlement whereby DMV would rescind the license revocation order and grant a hearing in exchange for dismissal of Powell's writ petition, and (4) Powell accepted the settlement offer, but DMV breached the contract when it refused to rescind the license revocation order. The complaint sought specific performance of the settlement agreement and damages for its breach.
DMV demurred on the basis, inter alia, the complaint failed to state a cause of action because the settlement agreement was illegal, and alternatively, because Powell's action was barred by res judicata. DMV asked the court to take judicial notice of documents in court records of the mandate proceeding.
The court sustained the demurrer without leave to amend. Its tentative decision, explaining the rationale for the final ruling, stated the action would be barred by res judicata once judgment was rendered in the mandate proceeding, and Powell was not entitled to split into separate proceedings a single claim regarding one primary right. We affirm on the alternate ground: the alleged settlement agreement was unlawful.
DISCUSSION
The matter comes to us for review of a judgment of dismissal following an order sustaining DMV's demurrer to the complaint without leave to amend. In conducting such a review, â€
