Filed 8/25/26 Amini v. Dept. of Motor Vehicles CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MEHDI AMINI, D085964

Plaintiff and Respondent,
(San Diego Super. Ct. No.
v. 37-2024-00009445-CU-WM-CTL)

DEPARTMENT OF MOTOR
VEHICLES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Wendy M. Behan, Judge. Request for judicial notice is granted in part and
denied in part. Reversed with directions.
Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney
General, Alice Quinton and Rebecca M. O’Grady, Deputy Attorneys General,
for Defendant and Appellant.
Middlebrook & Associates, Richard O. Middlebrook and Gabrielle
Barnett, for Plaintiff and Respondent.
 When a driver is lawfully arrested on suspicion of driving under the
influence (DUI) and refuses to consent to chemical testing of their blood or
breath pursuant to California’s implied consent law, the Department of Motor

Vehicles (DMV) may suspend the driver’s license for one year. (Veh. Code,1
§ 13353, subd. (a)(1).) If the DMV proposes to impose such a suspension,
the driver is entitled to an “administrative per se” (APS) hearing. (§ 13558,
subd. (a); see generally Lake v. Reed (1997) 16 Cal.4th 448, 462.)
Four years ago in California DUI Lawyers Association v. Department
of Motor Vehicles (2022) 77 Cal.App.5th 517 (DUI Lawyers), the plaintiff
challenged the procedure by which the DMV conducted APS hearings,
seeking both declaratory and injunctive relief by contending that the hearing
officer’s dual role as advocate and adjudicator violated state and federal due
process requirements. (Id. at p. 530; see Romane v. Department of Motor

Vehicles (2025) 110 Cal.App.5th 1002, 10142 (Romane) [“DUI Lawyers was
a taxpayer action challenging the DMV’s policies and procedures in the
abstract”].) The Court of Appeal agreed, holding that because the procedure
permitted the hearing officer to both “advocat[e] on behalf of the DMV and

1 All statutory references are to the Vehicle Code unless otherwise
indicated.
2 The Supreme Court granted review in Romane on August 13, 2025
(S291093). The court’s order limited review to the question “[u]nder what
circumstances does an administrative per se hearing officer’s relationship
with the Department of Motor Vehicles (DMV) violate a driver’s due process
right to an impartial adjudicator by creating an unacceptable risk of bias
during a DMV driver’s license suspension hearing?” (Romane, S291093,
Supreme Ct. Mins., Aug. 13, 2025.) The order also provided that the Court
of Appeal opinion remained citable “for its persuasive value” and “for the
limited purpose of establishing the existence of a conflict in authority.”
(Ibid.)
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act[] as fact finder” (DUI Lawyers, at p. 532), it created an unacceptable risk
of bias that was inconsistent with due process guarantees.
DUI Lawyers did not involve a license suspension, but in the years
since it was decided other courts have been required to address whether
and when the “ ‘ “unacceptable risk of bias” ’ ” created by the procedure
requires invalidation of a suspension order applicable to a particular driver.
(DUI Lawyers, supra, 77 Cal.App.5th at p. 532.) This is another in that line
of cases, one of which was this court’s decision in Romane, where we upheld a
license suspension after concluding on the particular facts of the case that the
hearing officer did not act as an advocate for the DMV. (Romane, supra, 110
Cal.App.5th at pp. 1009, 1018–1019, review granted.)
Petitioner Amini candidly concedes that the facts of this case are
indistinguishable from Romane. Pending guidance from the Supreme Court,
we see no reason to depart from our reasoning in that case. Accordingly,
we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Amini was arrested on suspicion of DUI in September 2023. He
refused the arresting officer’s request to voluntarily provide a blood or breath
sample. Ultimately a warrant was issued and Amini was subject to a forcible
blood draw.

A. The APS Hearing

Amini’s APS hearing was conducted in January 2024 before a DMV
hearing officer. At the beginning of the hearing, the hearing officer
announced that he would be “acting as a neutral fact finder and [was]
prohibited from and will not act as an advocate for the DMV or law
enforcement.” His role was “to review the evidence provided, ask any

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clarifying questions if necessary, and make legal rulings and determinations
under the relevant statutes.” He then identified six documents he would
consider “on behalf of this Department,” including a DS-367 form, a traffic
collision report, an arrest report, a police incident report, a body worn camera
(BWC) recording, and Amini’s current driving record.
Amini’s counsel objected, claiming that the APS hearing procedure
violated the holding in DUI Lawyers. In his view, when the hearing officer
“presented evidence on behalf of the [DMV]” to further the goal of denying
Amini his driving privileges, he was acting as both an advocate for the DMV
and as an adjudicator, which violated Amini’s due process rights.
The hearing officer saw the matter differently. He first rejected
Amini’s objection to the overall procedure, believing that he was not
advocating for the DMV. Merely identifying the six pieces of seemingly
relevant evidence did not mean he would substantively consider them.
Rather, he indicated he would decide whether to consider them, and
he offered Amini’s counsel the opportunity to explain “why it shouldn’t be
considered.” Counsel offered no specific objection to any of the documents,
but he reiterated his general objection that the hearing officer was
advocating for the DMV. “[I]f you are not their advocate,” counsel argued,
“then there is no proper person or entity that is submitting [the evidence]
for consideration.” Noting that he understood Amini’s position, the hearing
officer nonetheless admitted the six documents into evidence. At that point,
Amini’s counsel indicated, “I have nothing further,” and the matter was
taken under submission. Less than a month later, the hearing officer issued
a written ruling upholding the suspension of Amini’s license.

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B. The Writ Proceeding in the Superior Court

Amini filed a petition for writ of mandate in the superior court to
challenge the hearing officer’s decision. As he argued at the APS hearing,
Amini maintained his due process rights were violated because the hearing
officer acted as both an advocate for the DMV and the decision maker,
contrary to the holding in DUI Lawyers.
The superior court agreed with Amini, directing the DMV to vacate its
decision and conduct a new hearing with separate individuals serving as the
advocate and the hearing officer. Relying on the then-recent decision in
Knudsen v. Department of Motor Vehicles (2024) 101 Cal.App.5th 186, the
DMV had argued that the court should examine the specific behavior of
the hearing officer to determine whether he “actually acted as both an
adjudicator and an advocate, or merely acted as an adjudicator and a
collector and developer of evidence.” (Id. at p. 193.) But the superior court
rejected this approach, terming it “problematic and unworkable.”
The court’s ruling in the form of a minute order was filed on June 17,
2024. A judgment granting a writ of mandate was ultimately entered on
January 9, 2025, from which the DMV now appeals.

DISCUSSION

A. Timeliness of the Appeal

Before we consider the due process issue that lies at the heart of this
appeal, we must first address a preliminary procedural argument raised by
Amini. He contends the DMV’s appeal is untimely and must be dismissed.
The superior court’s June 17, 2024 minute order directed the DMV “to
vacate its decision and to conduct a new APS hearing before a new hearing
officer with a separate individual serving as an independent advocate.”

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No formal judgment was entered. On August 13, the DMV filed a notice of
appeal, purporting to appeal from the June 17 order in case No. D084736.
Roughly one month later, on September 11, this court issued an order citing
the Supreme Court’s then-recent decision in Meinhardt v. City of Sunnyvale
(2024) 16 Cal.5th 643 (Meinhardt), which held that in administrative
mandate proceedings, the time to appeal the grant or denial of relief runs
from the entry of a formal “judgment,” and not from the filing of an order that
disposes of all issues in the case. (Id. at p. 650.) Based on Meinhardt, we
directed the DMV to obtain a judgment nunc pro tunc on the petition for writ
of mandate within 30 days. The DMV attempted to do so by filing a Notice of
Submission of [Proposed] Judgment in the superior court on September 26.
When the superior court did not promptly respond, the DMV obtained two 30-
day extensions of this court’s deadline. Finally, on December 11, 2024,
having received no judgment or additional status update from the DMV,
this court dismissed the appeal in case No. D084736. A remittitur issued
on February 18, 2025.
In the meantime, on January 9, 2025, the superior court issued the
judgment that had been requested by the DMV four months earlier. As had
been directed by this court on September 11, 2024 and initially sought by the
DMV, this judgment indicated it was being entered “nunc pro tunc to June
17, 2024.” Notice of entry of judgment was served on February 11, 2025. One
month later, on March 11, the DMV filed a new notice of appeal from the new
judgment, initiating this appeal.
“The time for appealing a judgment is jurisdictional; once the deadline
expires, the appellate court has no power to entertain the appeal.” (Van
Beurden Ins. Servs. v. Customized Worldwide Weather Ins. Agency, Inc.
(1997) 15 Cal.4th 51, 56.) The specific time limitations are set forth in

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California Rules of Court, rule 8.104 (undesigned rule references are to the
Cal. Rules of Court). For our purposes, it is sufficient to note that no appeal
is timely if filed more than 180 days after entry of judgment. (Id., subd.
(a)(1)(C).)
The question for us to decide is when was the judgment entered? The
DMV contends the judgment was entered on January 9, 2025. Amini agrees
that if January 9 is the operative date, the appeal is timely. But in his view,
the superior court’s notation that judgment was being entered “nunc pro tunc
to June 17, 2024” means the judgment was effectively entered more than six
months before it was filed. To be timely, he believes the notice of appeal
should have been filed no later than mid-December, 2024 and, by his
calculation, the DMV’s notice of appeal filed in March 2025 was nearly
three months late.
To decide when the judgment was entered, we start with the general
rule set forth in rule 8.104(c)(1): “The entry date of a judgment is the date
the judgment is filed under Code of Civil Procedure section 668.5 ... .” The
reference to Code of Civil Procedure section 668.5 indicates the judgment is
filed when it “is entered in the register of actions,” and here the record
reflects that occurred on January 9, 2025.
Amini asserts the general rule does not apply based on the nunc pro
tunc notation on the judgment. “A nunc pro tunc order or judgment is one
entered as of a time prior to the actual entry, so that it is treated as effective
at the earlier date. This retroactive entry is an exercise of the inherent power
of the court, the object being to do justice to a litigant whose rights are
threatened by a delay that is not the litigant’s fault.” (7 Witkin, Cal.
Procedure (6th ed. 2026) Judgment, § 60.) It is a power to be exercised so
as to preserve a party’s rights, not to impair or destroy them. (Osmont v.

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All Persons (1913) 165 Cal. 587, 592; Scalice v. Performance Cleaning Sys.
(1996) 50 Cal.App.4th 221, 239; see also Phillips v. Phillips (1953) 41 Cal.2d
869, 875 [courts will “enter judgments nunc pro tunc ... only to avoid
injustice”].)
There are several reasons why the entry of judgment nunc pro tunc in
this case was improper. Most fundamentally, it did not preserve the rights
of any party. Rather, it served to eliminate the DMV’s right to appeal the
judgment. Filed on January 9, 2025, the nunc pro tunc notation purported
to backdate the judgment by 206 days. In other words, the time for the DMV
to appeal (180 days after the judgment) had already run even before the
judgment was filed. As the Supreme Court explained in Alan v. American
Honda Motor Co., Inc. (2007) 40 Cal.4th 894, “Certainly the desire to cut off
a litigant’s right to appeal cannot justify creating an exception to [a] general
rule. Such an exception would directly contravene ‘the well-established
policy, based on the remedial character of the right of appeal, of according
that right in doubtful cases “when such can be accomplished without doing
violence to applicable rules.” ’ ” (Id. at p. 901.)
To permit entry of a judgment nunc pro tunc under these
circumstances would also be inconsistent with the logic of Meinhardt.
In rejecting the idea that a final order in an administrative mandate
proceeding should always be treated as a judgment, Justice Jenkins’s
opinion distinguished earlier cases in which an order had been treated as a
judgment “in the context of preserving the right to appeal.” (16 Cal.5th at
p. 657.) The Supreme Court went on to emphasize, however, that none of its
prior cases had “constru[ed] a court’s ruling to be a judgment for the purpose
of dismissing an appeal as untimely” and it “decline[d] to do so here.” (Ibid.)

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By parallel logic, the power to enter a judgment nunc pro tunc should not be
used to deprive a party of the right to appeal.
Amini argues that dismissal of the appeal is not an unfair result
because the DMV (1) asked for the entry of the judgment nunc pro tunc,
(2) failed to request an additional extension from this court before the first
appeal (No. D084736) was dismissed, and (3) once that appeal was dismissed,
failed submit a revised proposed judgment to the superior court that omitted
the nunc pro tunc notation. We appreciate that it is, on some level, unfair to
characterize the superior court as having “erred” in entering a nunc pro tunc
judgment that the DMV proposed and submitted, and we find no fault in
what the court did. But Amini’s argument highlights another reason why we
believe dismissal of the appeal would not be proper, for we must acknowledge
our role in contributing to the underlying problem. In conjunction with the
first appeal, there was no reason for us to order the DMV to obtain a
judgment nunc pro tunc. What was necessary for the appeal to proceed,
according to Meinhardt, was simply a judgment. Had a judgment been
entered before dismissal of the first appeal, we could have treated the
prematurely filed notice of appeal as valid pursuant to rule 8.104(d).

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There was no need for the judgment to be entered nunc pro tunc to June 17,

2024, the date of the original minute order.3
We accordingly conclude there was no proper basis for the superior

court to enter a judgment nunc pro tunc.4 We could, in theory, reverse the
judgment with directions to enter a new judgment, minus the nunc pro tunc
notation, allowing the DMV to file a new and timely appeal. But that would
be an utterly unnecessary waste of everyone’s time and resources—the
DMV’s and Amini’s alike, not to mention this court’s. (Cf. Flores v.
Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 204

3 Citing Meinhardt, supra, 16 Cal.5th at p. 658, footnote 9, Amini
suggests that in the first appeal, this court merely did what other courts have
done—“ ‘instruct the trial court to enter judgment nunc pro tunc as of the
date of the ruling from which the appeal has been taken so that the notice of
appeal is deemed to have been filed after entry of judgment.’ ” But that is not
an accurate characterization of our order. We did not instruct the trial court
to do anything. Rather, we directed the DMV to take action and, ultimately,
when it failed to successfully complete the requested action, we dismissed the
appeal. Had we instructed the trial court to do something it did not complete,
we would not have dismissed the appeal.
4 Relying on Estate of Sapp (2019) 36 Cal.App.5th 86, 101 and Code of
Civil Procedure section 913, Amini contends that even if the appeal is deemed
timely, the dismissal of the first appeal had the effect of affirming the
judgment and barring the attempt to file a second appeal. But there was no
judgment when we dismissed the first appeal. Code of Civil Procedure
section 913 generally provides that unless a dismissal is expressly made
without prejudice, “[t]he dismissal of an appeal shall be with prejudice to the
right to file another appeal within the time permitted ... .” As Witkin
explains, however, this general rule is subject to a well-recognized and
“obvious” exception that where “the appeal is void ... because taken
prematurely, it ... does not give the appellate court jurisdiction to affirm
it.” (9 Witkin, Cal. Procedure (6th ed. 2026) Appeal § 790, citing In re
Kennedy’s Estate (1900) 129 Cal. 384, 385 [dismissal of premature appeal
“did not operate as an affirmance of the judgment”].)
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[ordering the trial court to enter a judgment nunc pro tunc “to avoid the
useless waste of judicial and litigant time that would result from dismissing
the appeal merely to have a judgment formally entered in the trial court
and a new appeal filed”].) We instead choose to strike the “nunc pro tunc”
notation from the judgment entered on January 9, 2025 and, with that
modification, deem to appeal timely and permit it to proceed.

B. Romane Requires the Judgment Be Reversed

In Romane, supra, 110 Cal.App.5th 1002 (review granted), this court
began by noting the settled principle that “the combination of investigative,
prosecutorial, and adjudicatory functions within a single administrative
agency does not create an unacceptable risk of bias and thus does not
violate the due process rights of individuals who are subjected to agency
prosecutions.” (Id. at pp. 1012–1013, internal quotation marks omitted.)
We went on to hold that a license suspension following an APS hearing was
not necessarily invalid as a violation of due process simply because there
was no separately designated DMV employee at the hearing acting as the
prosecutor. Although due process precluded hearing officers from acting as
an advocate for the DMV, the mere fact that they identify standard items of
evidence provided by law enforcement that will be considered at the hearing
does not cross the line between permissible adjudication and prohibited
advocacy. (Id. at p. 1018 [where a hearing officer “introduces the documents
that law enforcement duly forwarded to the DMV, which are routinely
admitted into evidence at APS hearings, the officer is merely collecting and
developing evidence, not advocating for the DMV”].)
Our opinion in Romane relied on several recent cases that reviewed
license suspensions following DUI Lawyers. These decisions uniformly

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adopted a case-by-case approach in reviewing the record of the APS hearing
to determine whether the hearing officer’s conduct actually amounted to
advocacy on behalf of the DMV. (See Knudsen v. Department of Motor
Vehicles (2024) 101 Cal.App.5th 186; Clarke v. Gordon (2024) 104
Cal.App.5th 1267; Kazelka v. Department of Motor Vehicles (2025) 109
Cal.App.5th 1239.) More recently, the court in Chi v. Department of Motor
Vehicles (2026) 119 Cal.App.5th 473 (Chi) affirmed a license suspension

despite the fact that no separate advocate appeared on behalf of the DMV.5
(Chi, at sp. 483.) None of the cases have indicated that a hearing officer’s
identification of standard documents to be admitted into evidence amounts
to prohibited advocacy.
As we have already noted, the Supreme Court has granted review of
our decision in Romane, allowing it to remain citable for its persuasive value
in the interim. (See ante, fn. 1.) Amini candidly concedes that “[t]his case is
for all intents and purposes identical to [Romane]” and that if we “choose[] to
stand by [our] [Romane] decision” then the trial court ruling invalidating his

5 Chi concluded that while due process precludes combining advocacy
and adjudicatory functions in the same individual, nothing prevents
an administrative agency from adopting a process that tasks the same
person with acting as both adjudicator and investigator. (Chi, supra, 119
Cal.App.5th at p. 482.) In part for this reason, the Chi court disagreed with
the conclusion reached by majority in Clarke that the hearing officer in that
case improperly acted as an advocate for the DMV.
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suspension “must be reversed.”6 Apart from arguments we already
addressed in Romane, he offers no compelling justification why we should
depart from our prior decision. Thus, until we receive further guidance from
the Supreme Court, we will continue to rely on its reasoning.

DISPOSITION

The judgment is reversed with directions to vacate the order granting
Amini’s petition for writ of mandate and instead enter a new order denying
it. Appellant is entitled to costs on appeal.

DATO, Acting P. J.

WE CONCUR:

BUCHANAN, J.

RUBIN, J.

6 Amini filed a request seeking judicial notice of various documents.
We grant the request as to exhibits 1 and 2, but deny it as to the remainder.
Most of those (exhs. 4–9) are legislative history materials pertaining to 1995’s
Senate Bill No. 523 (Stats. 1995, ch. 938), which added sections 11425.10
and 11425.30 to the Government Code. In light of Amini’s concession, these
materials are unnecessary to our decision. (See Pacific Merchant Shipping
Assn. v. Newsom (2021) 67 Cal.App.5th 711, 720, fn. 4.) Amini fails to
explain the relevance of exhibit 3, a California State Personnel Board
specification for a DMV hearing officer, which is nowhere cited in the briefs
and likewise seems unnecessary to resolve this appeal.
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