IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,
A172950
v.
KENNETH ADRIAN FULLER, (Sonoma County
Super. Ct. No. 25CR01184)
Defendant and Appellant.

At a parole revocation hearing, the prosecution failed to introduce any
evidence that defendant and appellant Kenneth Adrian Fuller was actually
on parole at the time he allegedly committed a parole violation. Nonetheless,
the trial court found that he violated parole. Fuller now contends that there
is insufficient evidence to support this finding. After briefing was complete,
we asked the parties to submit supplemental briefs addressing “[w]hether
under People v. Perez (1994) 30 Cal.App.4th 900 [(Perez)], the prosecutor had
to prove that [Fuller] was on parole at the time of the alleged violation to
establish a parole violation where, as here, [Fuller] did not raise the issue
below?” We now conclude that Perez is distinguishable and that the
prosecutor did have to prove that Fuller was on parole at the time of the
alleged violation at his parole revocation hearing. Because the prosecution
failed to do so here, we reverse.

1
 BACKGROUND
On January 11, 2022, Fuller was convicted of arson (Pen. Code, § 451,
subd. (c)) and sentenced to two years in prison.
On February 13, 2025, the Sonoma County District Attorney filed a
“Petition for Revocation” (petition) against Fuller based on his arrest for
violating Vehicle Code section 14601.2, subdivision (a) (section 14601.2). The
petition did not, however, specify what the petition sought to revoke. But at
a hearing the next day, the trial court explained that Fuller was “on parole”
and that “[t]his is a parole matter.” The court proceeded to “[s]ummarily
[r]evoke[ ]” Fuller’s “[p]arole [s]upervision” and declined to release him from
custody.
At a hearing on February 27, 2025, the trial court granted Fuller’s
request to represent himself. Fuller then denied the parole violation but
stated that he would plead guilty to the misdemeanor violation of section
14601.2. Five days later, Fuller’s request for a private investigator for “both
the parole violation and the misdemeanor” was denied.
The trial court held a hearing on the petition on March 12, 2025. After
Fuller admitted that he was found guilty of violating section 14601.2 and
sentenced on that violation on March 10, the court found him “in violation of
[his] parole by operation of law based upon [that] finding of guilt” without
asking him if he wanted to be heard on the matter. The court did, however,
ask Fuller if he wanted “to be heard on” the “term of confinement.” After
hearing from Fuller on that issue, the court revoked and reinstated his parole
supervision under “the same terms and conditions” and sentenced him to 120
days in county jail with credit for 57 days.
Fuller timely appealed.

2
 DISCUSSION
To establish a parole violation, the prosecution must establish by a
preponderance of the evidence that the defendant was on parole at the time
of the violation.1 (See People v. Belche (2020) 53 Cal.App.5th 956, 963
[demurrer to petition for revocation should have been sustained because the
defendant’s probation had been terminated at the time of the violation];
Rodriguez, supra, 51 Cal.3d at p. 447 [“proof of facts supporting the
revocation of probation . . . may be made by a preponderance of the
evidence”].) The People do not dispute that the prosecutor failed to present
any evidence that Fuller was on parole at the time he allegedly violated the
terms of his parole at his parole revocation hearing. Nonetheless, the People
contend that there is sufficient evidence to uphold Fuller’s parole violation.
Reviewing the trial court’s order revoking Fuller’s parole for abuse of
discretion and the court’s factual findings for substantial evidence (People v.
Butcher (2016) 247 Cal.App.4th 310, 318), we disagree.
As a threshold matter, we decline to consider the records in the People’s
request for judicial notice, none of which were before the trial court, in
determining the sufficiency of the evidence. “It is elementary that an
appellate court, in passing on the sufficiency of the evidence, cannot consider
evidence not before the trial court.” (Brodie v. Barnes (1942) 56 Cal.App.2d
315, 319.) We therefore deny the request.2 (See Johnston-Rossi v. Rossi
(2023) 88 Cal.App.5th 1081, 1089 [denying request for judicial notice of
records that were “not relevant to [the] decision”].)

1 “Parole and probation revocation hearings are equivalent in terms of

the requirements of due process.” (People v. Rodriguez (1990) 51 Cal.3d 437,
441 (Rodriguez).)
2 We grant the People’s application for leave to file a reply.

3
 We also reject the People’s argument that references in the record “to
the proceedings as parole revocation proceedings” constitute substantial
evidence that Fuller was, in fact, on parole at the time of the alleged
violation. That the proceeding was labeled a “parole revocation” proceeding
has no bearing on Fuller’s parole status. Otherwise, labeling a proceeding a
“criminal” proceeding would be relevant in determining whether a defendant
is a criminal. Similarly, Fuller’s “verbal acknowledge[ment] that the matter
was on for a parole violation hearing” cannot be construed as an admission of
any allegations in the petition. Indeed, he expressly denied those allegations
at his arraignment.
Finally, we conclude that the prosecution cannot be excused from
proving that Fuller was on parole at the time of the alleged violation under
Perez, supra, 30 Cal.App.4th 900. In Perez, the defendant was placed on
probation under the name “Jesus Palafox Huerto.” (Id. at p. 902.) During
the probation revocation hearing, however, the trial court referenced an
additional name for the defendant, “Miguel Morales Perez.” (Ibid.) Rather
than ask the defendant whether he went by both names, the court only asked
him for his “ ‘true name.’ ” (Id. at p. 903.) In response, the defendant replied
“ ‘Miguel Perez.’ ” (Ibid.) After the close of evidence, the defendant argued
that “ ‘[i]dentity wasn’t proven on the probationer.’ ” (Ibid.) The court
rejected the argument and found that the defendant violated probation, using
the name “Miguel Morales Perez” for the defendant. (Ibid.)
The Court of Appeal affirmed. (Perez, supra, 30 Cal.App.4th at p. 908.)
In explaining why, the court began by recognizing the limited due process
protections afforded defendants in probation revocation hearings. As the
Court of Appeal explained, “[t]he only rubrics prescribed for such a hearing”
by the United States Supreme Court are “that it provide the alleged violator

4
written notice of the claimed violations, disclosure of the evidence against
him, opportunity to be heard in person and to present witnesses and
documents, confrontation of adverse witnesses (unless the hearing officer
specifically finds good cause for denial of confrontation), a neutral factfinder,
and a written statement of the evidence relied upon and reasons for
revocation.” (Id. at p. 904.) And in determining the “form of these ‘informal
hearings’ ” in light of these rubrics, courts have balanced the probationers’
“ ‘conditional liberty’ ” interest—which does “not require a full-blown
adversarial deployment”—with “the obligation of the criminal justice system
to provide fairness even to those citizens who have transgressed.” (Ibid.)
After balancing “the probationer’s limited rights, the state’s limited
resources, and the judicial imperative of a fair hearing,” the Court of Appeal
held that a trial court may “dispense with” proof that “the person who
appears in court, steps forward when the case is called, and sits next to
defense counsel throughout the hearing is in fact the probationer” “unless
that person somehow indicates it is at issue” before the hearing. (Perez,
supra, 30 Cal.App.4th at pp. 904–905.) In support of this holding, the court
observed that “there is almost never any issue regarding the identity of the
person at the counsel table.” (Id. at p. 905.) And in the rare instances when
the probationer’s identity is an issue, “it should be possible to determine with
a fair amount of certainty whether the person before the court denies being
the probationer” at the arraignment. (Ibid.) Thus, “requiring the
probationer to notify the court of an identity challenge at the arraignment
stage” would “reduce the likelihood of holding the wrong person until the
hearing.” (Id. at p. 906.) On the other hand, requiring the prosecution to
prove the identity of the probationer at every hearing would result in “chaos,
backlog, and expense neither intended by the Legislature nor required by the

5
Constitution. And to no legitimate end, since, in the overwhelming majority
of cases, this input would be wholly unnecessary.” (Ibid.)
The same is not true for the issue in this case: whether Fuller was on
parole at the time of the alleged violation. Unlike the issue of identity, the
issue of parole or probation status does arise in revocation proceedings with
some frequency. (See, e.g., People v. Faial (2025) 18 Cal.5th 199, 205
[considering whether the defendant was entitled to have his probation
reduced to two years pursuant to a change in the law; thereby, granting him
“relief from the consequences of acts occurring beyond the two-year period”];
People v. Leiva (2013) 56 Cal.4th 498, 502 [considering whether the
defendant’s probation term had been tolled and whether the alleged violation
occurred while he was still on probation].) And the existence of that issue is
not always obvious at the arraignment—even to attorneys. Finally, unlike
proof of identity, which would require subpoenaing “judges,” “probation
officers,” “fingerprint experts,” or “booking records with photographs” (Perez,
supra, 30 Cal.App.4th at pp. 905–906), proof of parole status may be
accomplished in most, if not all, cases through judicial notice of the relevant
court file. Indeed, the prosecutor in Perez did just that. (Id. at p. 903.)
Thus, disputes over the parole status of a defendant are not so rare
that the burden should be shifted to the defendant to raise it. And requiring
a defendant to raise the issue of his parole status at the arraignment stage
would not be fair because neither the defendant nor defense counsel may be
aware of it at that time. Finally, proving when a defendant was on parole
should not be unduly burdensome for the prosecutor in most cases.
Accordingly, balancing the interests identified in Perez—a defendant’s
limited due process rights, the burden on the state, and the defendant’s right
to a fair hearing—leads to only one conclusion: that the prosecutor must

6
prove that the defendant was actually on parole at the time of the alleged
violation even if the defendant does not raise the issue before the parole
revocation hearing.3 As the People appear to concede, the prosecution did not
present any evidence at the hearing that Fuller was on parole at the time of
the alleged violation. We therefore reverse.
DISPOSITION
The order revoking parole, reinstating parole, and imposing jail time is
reversed.

CHOU, J.

WE CONCUR.

SIMONS, Acting P. J.
BURNS, J.

3 Although the People’s supplemental brief is somewhat hard to

decipher, it appears that they concede that a challenge to the sufficiency of
the evidence cannot be forfeited. In any event, the People did not argue that
Fuller forfeited the issue.

7
A172950/ P. v. Fuller

Trial Court: Superior Court of the County of Sonoma

Trial Judge: Laura Passaglia

Counsel: Micah Reyner, under appointment by the Court of
Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland
and Jeffrey M. Laurence, Assistant Attorneys
General, Catherine A. Rivlin and Ashley Harlan,
Deputy Attorneys General, for Plaintiff and
Respondent.

8


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ACE AMERICAN INSURANCE COMPANY, E088415
Petitioner,
(Super.Ct.No. CIVSB2200819)
v.
OPINION
THE SUPERIOR COURT OF SAN
BERNARDINO COUNTY,
Respondent;

MICHELLE GOUIN,
Real Party in Interest.

ORIGINAL PROCEEDINGS; petition for writ of mandate. Winston Keh, Judge.

Petition granted.

Clyde & Co US, Lindsay J. Bowman, Shain Wasser, and Yvonne M. Schulte for

Petitioner.

No response by Respondent.

Shernoff Bidart Echeverria, Ricardo Echeverria, Reid Ehrlich; Jeffrey E. Estes and

Associates, And Jeffrey E. Estes for Real Party in Interest.

1
 Defendant Ace American Insurance Co. (Ace) filed a petition for writ of mandate

seeking review of an order denying its motion for summary judgment. We grant the

petition.

BACKGROUND

I. The car rental and collision

On February 2, 2016, Theresa Kendall rented a car in California from Avis Rent-

a-Car System LLC. The parent company of Avis Rent-a-Car System LLC is Avis Budget

Car Rental LLC. We refer to the entities collectively as Avis.

As part of the rental, Kendall selected optional insurance coverage from Avis

through its additional liability insurance program. Ace provided the additional liability

coverage. Kendall drove the rental car while under the influence of alcohol and was

involved in a collision with Michael Gouin, causing his death. In November 2016,

Kendall was convicted of vehicular manslaughter while intoxicated.

II. The wrongful death action

In April 2016, Michael’s parents filed a wrongful death action against Kendall and

Avis.1 In 2020, Michael’s mother (his father had passed away) secured a default

judgment against Kendall in the amount of approximately $1.9 million. Michael’s

1 We refer to the Gouins by their first names to avoid confusion. No disrespect is
intended.

2
mother subsequently assigned her rights in the judgment to Michael’s sister, Michelle

Gouin. Kendall assigned her rights against Ace and Avis to Michelle.2

III. The insurance coverage action

A. The operative pleading

In 2022, Michelle filed suit against Ace and Avis. The first amended complaint

contained five causes of action: (1) breach of the implied covenant of good faith and fair

dealing (as assignee and judgment creditor), (2) breach of contract (as assignee and

judgment creditor), and (3) recovery of a judgment under Insurance Code section 11580.

The causes of action against Ace are predicated on the allegation that “the ACE Policy

provided primary automobile liability insurance to Kendall.”

B. The parties’ cross-motions for summary adjudication

Ace moved for summary judgment or, in the alternative, summary adjudication on

the grounds that the Ace policy contains an intoxication exclusion and such an exclusion

is valid in an excess insurance policy (i.e., a policy that provides coverage for damages

that exceed the legally required minimum coverage). Michelle filed a cross-motion for

summary adjudication as to Ace’s affirmative defense that the intoxication exclusion

contained in the Ace policy was enforceable. She argued that the exclusion was

2 In the captions and bodies of the first amended complaint and other filings by both
parties in the superior court and in this court, Michelle’s name is spelled “Michelle.” In
the agreement in which Kendall assigned her rights to Michelle, Michelle signed the
document as “Michele.” We refer to petitioner as Michelle to conform to the spelling
used by all sides throughout the proceedings, including in Michelle’s own operative
pleading.
3
unenforceable because the Ace policy operated as a primary policy and not an excess

policy.

C. The rental agreement

It is undisputed that Kendall cannot recall the exact version of the rental

agreement that Avis gave to her, and she did not retain the agreement. In the first

amended complaint, Michelle alleged that the rental agreement containing the terms and

conditions that governed Kendall’s rental was the version that Ace had attached to its

answer to the original complaint. Ace alleged in its answer that the terms of the Ace

policy issued to Kendall “are governed by the Rental Agreement Jacket” that it attached

to the answer. For purposes of its summary judgment motion, Ace assumed that Kendall

had been provided that version of the rental agreement.3 For simplicity, all further

references to the “rental agreement” are to the version attached to Ace’s answer to the

original complaint.

Paragraph 22 of the rental agreement is entitled “Liability Protection” and

provides: “With respect to rentals commencing in California, this agreement does not

afford you or any other driver of the car any insurance or protection against liability.”

(Boldface & underlining omitted.) The next paragraph is entitled “Additional Liability

3 In its opposition to Michelle’s motion for summary adjudication, Ace submitted a
different version of Avis’s rental agreement, which Ace stated that Michelle produced in
response to a request for production of documents as the rental agreement that governed
Kendall’s rental. Michelle does not deny that she produced that version of the rental
agreement, but she contends that her production of that document is irrelevant because
Ace admitted in its answer that the other version of the rental agreement was the one
actually provided to Kendall. The terms of the rental agreement that Michelle produced
in discovery are more favorable to Ace’s claim that its policy is an excess policy.
4
Insurance (ALI) & Exclusions” and provides: “If you elect to purchase ALI, coverage

will be provided to you and any authorized driver under an excess automobile policy

issued to Avis. ALI provides protection for third party automobile claims for the

difference between the minimum financial responsibility limits provided under paragraph

22 above and a maximum combined single limit of liability of $1,000,000 or $2,000,000

of liability depending on the jurisdiction of rental for bodily injury, death, or property

damage for each accident. This coverage is provided under a policy of excess liability

insurance more fully described in the available brochure and is subject to all of the

conditions and limitations described in paragraph 22 above, except that notwithstanding

anything contained in this agreement, the terms of the policy will at all times control.

ALI does not apply to bodily injury or property damage arising out of any ‘prohibited use

of the car’ as described in paragraph 14 of this rental agreement, all of which are

exclusions to ALI.”

Paragraph 14 of the rental agreement sets forth numerous prohibited uses of the

car and states: “A violation of this paragraph, will automatically terminate your rental

and is an exclusion to and voids all liability protection and any optional products services

that you have accepted, including but not limited to additional liability insurance ....”

(Capitalization & boldfacing omitted.) The prohibited uses of the car include driving it

“while the driver is under the influence of alcohol or a controlled substance” and using

the car “for conduct that could properly be charged as a felony or misdemeanor.”

5
 D. The Ace policy

The Ace policy that Kendall purchased as additional liability insurance was

effective between January 1, 2016, and July 1, 2016. The policy incorporates the

coverage exclusions contained in the rental agreement.

The declarations page of the Ace policy states that the policy is an “Excess Rental

Liability Policy.” (Boldfacing omitted; all further quoted language from the Ace policy

omits any boldfacing included in the policy.) The named insured in Item 1 of the

declarations page is Avis, with the following individuals also identified as insureds:

“[T]hose persons renting an Automobile from the Named Insured who have agreed in

writing to accept Liability Insurance Supplement for an additional daily charge as shown

in the Rental Agreement.” Item 5 of the declarations page is entitled “Schedule of

Underlying Protection” and provides: “Limits of Protection as shown in the Rental

Agreement.” (Capitalization omitted.) Item 6 of the declarations page is entitled “Limits

of Liability” and includes a subsection for “Bodily Injury and Property Damage

Combined Single Limit” that provides: “The difference between the Limits of Protection

shown in Rental Agreement in the s[t]ate in which the accident occurs and a combined

single limit of $2,000,000 each occurrence for Bodily Injury (including death) and

Property Damage.” (Underlining omitted.)

The Ace policy provides definitions of the terms “‘Authorized Driver,’”

“‘Insured,’” and “‘Underlying Protection.’” “‘Authorized Driver’ means only those

persons authorized by the terms of a Rental Agreement to operate the Named Insured’s

6
Automobile.” “‘Insured’” includes anyone defined as an insured in the excess liability

coverage section of the insuring agreements. “‘Underlying Protection’” means “a

standard policy of automobile liability insurance or an approved program of self-

insurance of substantially similar scope, that meets or exceeds minimum motor vehicle

liability requirements for a rental vehicle to which this insurance applies.”

The “Insuring Agreements” section of the Ace policy includes a section entitled

“Excess Liability Coverage,” and it provides: Ace “will pay all sums in excess of those

payable under the terms of the Underlying Protection, up to the limit of liability identified

in the Declarations, that the insured is legally obligated to pay as damages” arising out of

an authorized driver’s use of the covered car. (Capitalization omitted.) An “Insured” is

defined in this section as including “[t]he Named Insured described in Item 3 of the

Declarations” and “[t]he Authorized Driver of the Automobile.”

One provision of the “Limits of Liability” section in the policy provides: “This is

excess insurance and only applies to those coverages for which Underlying Protection are

shown in the Declarations of this Policy.” Another provision in that section provides: “It

is expressly agreed that liability for any loss shall attach to [Ace] only after the

Underlying Protection has admitted liability or shall have been held liable to pay the full

of amount of its liability and [Ace] shall then be liable to pay only such additional

amounts up the applicable Limit of Liability described in Item 6 of the Declarations.”

7
 E. Avis’s program of self-insurance

It is undisputed that Avis “was an authorized self-insurer under the California

Compulsory Financial Responsibility Law and was assigned self-insurance #77 pursuant

to Section 16053 of the California Vehicle Code for the applicable period.” The

Department of Motor Vehicles issued a certificate of self-insurance to Avis for the period

between July 1, 2015, and June 30, 2016.

In support of its motion, Ace identified as undisputed material facts: (1) The

additional liability insurance “coverage purchased by Kendall operated by Avis supplying

the underlying primary protection up to the California’s minimum required limits, with

the Ace Excess Policy supplying coverage above the primary protection”; and (2) in

2016, its self-insurance provided primary level insurance coverage “to all California

renters who purchased ALI.” Ace cited a declaration by Avis’s regional risk manager,

Jeanne Motosko, in support of those facts. Automobile claims in California under Avis’s

self-insurance were handled by a third-party claims administrator called Sedgwick, and

Motosko has oversight responsibility over Sedgwick. She attested that in 2016 Avis’s

self-insurance provided primary coverage of $15,000 per person and $30,000 per

collision (the legally required minimum) to all California renters who purchased

additional liability insurance.

Michelle disputed those material facts on the following grounds: “Kendall was

never provided any document stating that she was covered by any insurance protection

supplied by Avis. She received a Rental Agreement stating that it did not provide any

8
insurance, and the ACE Policy stated that it was excess to the insurance provided in the

Rental Agreement.” Michelle also asserted that “Avis never made any payments on

Kendall’s behalf—it paid $15,000 to settle its own liability under California Vehicle

Code section 17150.”4 In support of the last assertion, Michelle cited both the offer to

compromise under Code of Civil Procedure section 998 made by Avis to Michelle’s

parents in the underlying wrongful death action and the settlement agreement in that

action.

It is undisputed that in April 2016 Sedgwick sent two letters to Kendall confirming

“that underlying primary protection was available to Kendall from Avis in the amount of

$15,000 per person and $30,000 per accident.” Both letters state: “At the time of above

referenced accident [on February 16, 2016], you had rented a vehicle from Avis. Under

the terms of the rental contract we afford liability bodily injury protection in the amount

of $15,000/$30,000 and liability property damage protection in the amount of $5,000.”5
F. Communications with Kendall about coverage for the wrongful death
action

On April 20, 2018, Sedgwick sent Kendall a letter informing her that with respect

to the wrongful death action, Kendall had been denied coverage under the additional

4 Vehicle Code section 17150 provides: “Every owner of a motor vehicle is liable
and responsible for death or injury to person or property resulting from a negligent or
wrongful act or omission in the operation of the motor vehicle, in the business of the
owner or otherwise, by any person using or operating the same with the permission,
express or implied, of the owner.”

5 “Return to sender” is written on the envelope of the first letter. The second letter
was sent to Kendall at a different address.
9
liability insurance policy for numerous reasons, including that Kendall operated the car

while under the influence of alcohol. That letter also stated: “The only coverage even

potentially applicable under these circumstances is the minimum statutory liability

coverage underlying the excess policy. [¶] As to that underlying insurance, [Avis] has

agreed to pay $15,000.00 to the claimant(s) thereby exhausting its only policy limits by

payment of settlement.” It is also undisputed that in that letter “Avis also offered to

provide a defense to Kendall pursuant to the underlying primary coverage provided by

Avis if Kendall elected to have a defense.”

It is undisputed that “Kendall did not open key mail while incarcerated and did not

communicate with Avis or ACE, including as to major litigation developments.”

G. The Cerda litigation

In February 2018, Gina Cerda filed a lawsuit against Kendall for damages

allegedly caused by the February 2016 incident. In August 2018, Cerda accepted

$15,000 in exchange for a general release of all claims against Kendall and Avis resulting

from the February 2016 incident. Sedgwick issued a check to Cerda for $15,000 in

September 2018.

On April 17, 2018, Michelle’s mother accepted $15,000 in exchange for a general

release of claims against Avis arising out of the collision. Michelle contends that Avis

made the payment not on Kendall’s behalf but on the basis of Avis’s status as the owner

of the car under Vehicle Code section 17150.

10
 H. The trial court’s ruling

The trial court denied both parties’ motions. It denied Ace’s motion on the

grounds that “triable issues of fact exist as to whether or not (1) which rental agreement

Kendal[l] signed; (2) whether or not Avis provided any underlying insurance coverage;

(3) whether or not the Ace policy was primary or secondary; (4) whether or not the ...

[Ace policy’s] drunk driver exclusion was enforceable or prohibited by law; (5) whether

or not Avis Certificate of Self-Insurance also provided coverage for Kendall or just

provide[d] for coverage for Avis; and (6) whether or not Avis’ settlement in the

underlying action was paid on its own behave [sic] pursuant to liability imposed by

California Vehicle Code section 17150.” The trial court denied Michelle’s motion for

summary adjudication for the same reasons and also because of disputes about “whether

or not the Ace policy must ‘drop down’ and render Ace the primary insurer” and

“whether or not Ace’s interpretation of its policy would render coverage illusory.”

STANDARD OF REVIEW

The trial court may grant summary judgment if there is no triable issue of material

fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ.

Proc., § 437c, subds. (c), (f)(2); Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807,

813.) A moving defendant must show that one or more elements of the challenged cause

of action cannot be established or that there is a complete defense to the cause of action.

(Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th

826, 849 (Aguilar).)

11
 Once the moving defendant has carried its initial burden, the burden shifts to the

plaintiff to show a triable issue of material fact with respect to the cause of action or

defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.)

The court must consider all of the evidence and the reasonable inferences from it in the

light most favorable to the nonmoving party. (Aguilar, at p. 843.) “There is a triable

issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to

find the underlying fact in favor of the party opposing the motion in accordance with the

applicable standard of proof.” (Id. at p. 850.)

We independently review summary judgment orders and apply the same legal

standard as the trial court. (Miller v. Department of Corrections (2005) 36 Cal.4th 446,

460.) We independently examine the record to determine whether there are triable issues

of material fact and whether the moving party is entitled to judgment as a matter of law.

(Ibid.)

DISCUSSION

Ace contends that the trial court erred by denying its motion for summary

judgment on the ground that there are disputed issues of material fact as to whether the

Ace policy constituted a primary or an excess insurance policy. We agree.

Interpretation of an insurance policy is generally “a question of law that is decided

under settled rules of contract interpretation.” (State of California v. Continental Ins. Co.

(2012) 55 Cal.4th 186, 194 (Continental).) The parties’ mutual intention “at the time the

contract is formed governs interpretation. (Civ. Code, § 1636.) Such intent is to be

12
inferred, if possible, solely from the written provisions of the contract. (Id., § 1639.) The

‘clear and explicit’ meaning of these provisions, interpreted in their ‘ordinary and popular

sense,’ unless ‘used by the parties in a technical sense or a special meaning is given to

them by usage’ (id., § 1644), controls judicial interpretation. (Id., § 1638.) Thus, if the

meaning a layperson would ascribe to contract language is not ambiguous, we apply that

meaning.” (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 821-822.) If the policy

“‘language is clear and explicit, it governs.’” (Continental, at p. 195.)

“‘A policy provision will be considered ambiguous when it is capable of two or

more constructions, both of which are reasonable.’” (Continental, supra, 55 Cal.4th at

p. 195.) Language in an insurance policy “‘must be construed in the context of that

instrument as a whole, and in the circumstances of that case, and cannot be found to be

ambiguous in the abstract.’” (Ibid.) ‘“If an asserted ambiguity is not eliminated by the

language and context of the policy, courts then invoke the principle that ambiguities are

generally construed against the party who caused the uncertainty to exist (i.e., the insurer)

in order to protect the insured’s reasonable expectation of coverage.’” (Ibid.)

“Insurance is sometimes procured in a series of layers, with an insured acquiring a

primary insurance policy that provides an initial layer of coverage for loss or liability and

an excess insurance policy or policies that provide additional coverage in the event the

underlying coverage is exhausted.” (Fox Paine & Co., LLC v. Twin City Fire Ins. Co.

(July 27, 2026, S287404) __ Cal.5th __ [2026 Cal. LEXIS 3943, *2].) With the primary

level of coverage, “‘liability attaches immediately upon the happening of the occurrence

13
that gives rise to liability.’” (Montrose Chemical Corp. of California v. Superior Court

(2020) 9 Cal.5th 215, 222.) “Liability under an excess policy attaches only after all

primary coverage has been exhausted.” (North River Ins. Co. v. American Home

Assurance Co. (1989) 210 Cal.App.3d 108, 112.)

Vehicle Code section 16056 requires minimum automobile liability coverage of at

least $15,000 for bodily injury or death to one person and $30,000 for bodily injury or

death to two or more persons. (Id., § 16056, subd. (a); former Veh. Code, § 16056, subd.

(a).) Insurance Code section 11580.1 contains an exhaustive list of the exclusions that

are permitted in a primary automobile insurance policy. (Ins. Code, § 11580.1, subd. (c);

Hertz Corp. v. Home Ins. Co. (1993) 14 Cal.App.4th 1071, 1078 (Hertz).) The list of

exclusions does not include driving while under the influence of alcohol or a controlled

substance. (Ins. Code, § 11580.1, subd. (c).) An excess insurance policy is not subject to

those same “limitations on permissible exclusions if the excess policy contains a

requirement for ‘underlying insurance’ or a retained limit of self-insurance equal to or

greater than the limits specified in Vehicle Code section 16056.” (Hertz, at p. 1078.)

The trial court erred by denying Ace’s motion for summary judgment on the

ground that there were disputed issues of material fact. All but one of the purported

factual disputes identified by the trial court are issues of policy interpretation and hence

are pure questions of law, e.g., whether the Ace policy operates as a primary or excess

policy or whether the exclusion for driving while intoxicated is enforceable.

14
 Of the putatively factual issues identified by the trial court as grounds for denying

Ace’s motion, only one is actually factual, namely, the issue of “which rental agreement

Kendal[l] signed.” But that issue was not disputed, because Ace assumed for the

purposes of its motion that the operative rental agreement is the version attached to Ace’s

answer. The trial court therefore erred by denying Ace’s motion on the ground that there

were disputed issues of material fact. (Code Civ. Proc., § 437c, subds. (c), (f)(2).) The

disputed issues presented by Ace’s motion were legal.

The error was prejudicial, because Ace was right about the dispositive legal issues.

It is undisputed that the Ace policy contains an exclusion that prohibits driving under the

influence of alcohol and that the exclusion is enforceable if and only if the Ace policy is

an excess policy. It is also undisputed that the $1.9 million judgment is based on

damages that Kendall caused by driving the rental car while under the influence of

alcohol. Thus, if the Ace policy is an excess policy, then the intoxication exclusion

would preclude coverage for the $1.9 million judgment. (Hertz, supra, 14 Cal.App.4th at

p. 1078; Harbor Ins. Co. v. KSCH, Inc. (1989) 208 Cal.App.3d 965, 968.)

To determine whether the Ace policy is a primary or excess policy, we analyze the

policy’s plain language. The policy is entitled, “Excess Rental Liability Policy.” The

terms of the policy show that the title is accurate. The insuring agreement provides, in a

section with the heading “excess liability coverage,” that Ace “will pay all sums in excess

of those payable under the terms of the Underlying Protection up to the limit of liability

identified in the Declarations.” (Italics added & capitalization omitted.) The limits of

15
liability section in the policy likewise provides: “This is excess insurance and only

applies to those coverages for which Underlying Protection are shown in the Declarations

of this Policy.” (Italics added.) That section also provides that the parties expressly

agree that “any loss shall attach to [Ace] only after the Underlying Protection has

admitted liability or shall have been held to pay the full amount of its liability.” (Italics

added.) The policy defines “‘Underlying Protection’” as including “a standard policy of

automobile liability insurance or an approved program of self-insurance of substantially

similar scope, that meets or exceeds minimum motor vehicle liability requirements for a

rental vehicle to which this insurance applies.” (Italics added.)

Under the plain language of those provisions, the Ace policy provides an excess

layer of coverage that attaches only after the underlying protection has been exhausted.

Thus, according to the policy’s plain language, the Ace policy covers only damages that

exceed the coverage of the primary insurance, i.e., the “Underlying Protection.” The

policy defines “Underlying Protection” as including qualifying programs of self-

insurance. In sum, the plain language of the Ace policy thus establishes that it provides

coverage in excess of primary coverage, which may be provided by self-insurance. And

it is undisputed that Avis had an approved program of self-insurance.

Michelle argues that despite the unambiguous language of those provisions of the

policy, the Ace policy is not an excess policy because (1) the policy “purports to be

excess to the insurance provided in the” rental agreement, and (2) the rental agreement

“does not provide any insurance.” According to Michelle, the Ace policy therefore “must

16
... be treated as a primary policy,” because otherwise “the coverage Kendall purchased

and paid for would be a nullity.” We are not persuaded.

It is true that the rental agreement states that it does not provide insurance. But

that does not end the analysis. Contrary to Michelle’s argument, the Ace policy does not

identify the rental agreement as the primary policy to which the Ace policy provides

excess coverage. Rather, the Ace policy states that it provides coverage that is excess to

the “Underlying Protection,” which may be an approved program of self-insurance. And

it is undisputed that Avis had an approved program of self-insurance.

Michelle’s arguments to the contrary are unavailing. To support her contention

that the Ace policy purports to be excess only to primary coverage provided by the rental

agreement, she points out that the limits of liability section in the Ace policy states that it

is an excess policy that “only applies to those coverages for which Underlying Protection

are shown in the Declarations of this Policy.” Michelle then points to items 5 and 6 in

the declarations page that respectively provide that the schedule of underlying protection

is the “[l]imits of protection as shown in the Rental Agreement” and that the limit of

liability for each accident is “[t]he difference between the Limits of Protection shown in

the Rental Agreement in the s[t]ate in which the accident occurs and a combined single

limit of $2,000,000.” (Underlining omitted.) But because “there are no ‘Limits of

Protection’ shown in the” rental agreement, Michelle concludes that “the only insurance

provided to Kendall through the [r]ental [a]greement was the” Ace policy itself.

17
 The argument lacks merit. Item 6 of the declarations states that the limit of

liability under the Ace policy is the difference between the limit of protection in the

rental agreement and $2,000,000. If there is no protection provided in the rental

agreement, then it follows that the Ace policy limit is $2,000,000. That establishes only

what the Ace policy limit is. It does not establish that the Ace policy is “excess to

nothing” and therefore must be treated as primary. Rather, other provisions of the Ace

policy establish that the Ace policy is excess to the “Underlying Protection,” which may

be provided by an approved program of self-insurance, which Avis undisputedly had.

The reference in item 5 of the declarations to the “[l]imits of protection as shown

in the Rental Agreement” is difficult to interpret, given that the rental agreement states

that it does not provide any insurance. But whatever it might mean, the language in item

5 does not change the fact that the Ace policy provides for liability coverage in excess of

the “Underlying Protection,” which is defined as including an approved program of self-

insurance.

In sum, the Ace policy provides that its excess liability coverage attaches after the

“Underlying Protection” has admitted liability or has been held liable to pay the limits of

its policy, and “Underlying Protection” is defined as including qualifying self-insurance.

Viewing the language of the Ace policy “‘“in the context of that instrument as a

whole,”’” we conclude that the policy provides liability coverage for damages in excess

of those covered by primary coverage that may be provided by an approved program of

self-insurance. (Continental, supra, 55 Cal.4th at p. 195.)

18
 Avis’s approved program of self-insurance provided primary coverage, so the Ace

policy was indeed an excess policy; it was not “excess to nothing.” And because it was

an excess policy, the intoxicated driver exclusion is enforceable. (Hertz, supra, 14

Cal.App.4th at p. 1078.) Kendall and Michelle as her assignee consequently were not

covered under Ace’s excess policy for any claims arising from the February 2016

collision. Because all of Michelle’s claims are based on the allegation that Kendall was

covered by the Ace policy, the trial court erred by denying Ace’s motion for summary

judgment.

DISPOSITION

The amended petition for writ of mandate is granted. Let a peremptory writ of

mandate issue directing the trial court to vacate the order denying Ace’s motion for

summary judgment, to issue an order granting Ace’s motion for summary judgment, and

to enter judgment in favor of Ace. Ace shall recover its costs of this original proceeding.

(Cal. Rules of Court, rule 8.493(a)(1)(A).) The stay of proceedings in the trial court is

lifted.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ
J.

We concur:

MILLER
Acting P. J.

CODRINGTON
J.
19


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

FIFTH APPELLATE DISTRICT

ALEX BOCANEGRA,
F089990
Plaintiff and Appellant,
(Super. Ct. No. BCV-24-101487)
v.

DEPARTMENT OF MOTOR VEHICLES et al.,
OPINION
Defendants and Respondents.

APPEAL from an order of the Superior Court of Kern County. Gregory A.
Pulskamp, Judge.
Middlebrook & Associates, Richard O. Middlebrook and Gabrielle Burnett for
Plaintiff and Appellant.
Rob Bonta, Attorney General, Chris A. Knudsen and Kenneth C. Jones, Deputy
Attorneys General, for Defendants and Respondents.
-ooOoo-
 This appeal involves the suspension of appellant Alex Bocanegra’s driver’s license
following an administrative per se (APS) hearing. An administrative hearing officer
(AHO) for respondent Department of Motor Vehicles (DMV) concluded that suspension
was appropriate because Bocanegra had refused to voluntarily submit to a chemical test
to determine his blood-alcohol content (BAC). The AHO’s decision was subsequently
upheld by the Kern County Superior Court. In this appeal, Bocanegra contends that:
(1) the court erred by finding he had been properly admonished regarding the
consequences of refusing to submit to a BAC chemical test; and (2) his due process rights
were violated because the AHO acted as an advocate for the DMV and the adjudicator.
We affirm.
APS SYSTEM
In California, if a driver refuses to submit to chemical tests that determine BAC,
the DMV is required to suspend the driver’s license. (Veh. Code, 1 §§ 13353, subds. (a),
(d), 23140; Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 99.) However, drivers have
a right to an administrative hearing, that is an APS hearing, in order to challenge the
suspension. (§ 13558, subd. (a); Hall v. Superior Court (2016) 3 Cal.App.5th 792, 804
(Hall).) At the APS hearing, an AHO must determine whether: (1) the arresting officer
had reasonable cause to believe the driver was driving under the influence; (2) the driver
was lawfully arrested; (3) the driver was properly advised of the consequences of failing
to submit to or complete a BAC chemical test; and (4) the driver refused to submit to or
complete the BAC chemical test. (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1131;
Clarke v. Gordon (2024) 104 Cal.App.5th 1267, 1271, fn. 2 (Clarke); Hall, at p. 804.)
The Legislature crafted the APS laws to protect the public during the time lag that
often occurs between an arrest and a conviction for driving while intoxicated or with a
prohibited BAC. (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 155.) As a result,
APS hearings are intended to be expedited (Lake v. Reed (1997) 16 Cal.4th 448, 455,

1 Unless otherwise noted, all further statutory references are to the Vehicle Code.

2.
fn. 2 (Lake)), and the rules governing the admissibility of evidence are relaxed.
(McDonald, at p. 159.) The DMV bears the burden of demonstrating all facts necessary
to support a suspension. (Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532,
536; Burge v. Department of Motor Vehicles (1992) 5 Cal.App.4th 384, 388.)
Since April 2022, the DMV has been enjoined from requiring that AHO’s at APS
hearings act as both the adjudicator and the DMV’s advocate. (California DUI Lawyers
Association v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517, 530–533, 538
(CDLA).) The injunction was necessary because DMV policy mandated that AHO’s act
as both the adjudicator and the DMV’s advocate, which created a constitutionally
intolerable probability of bias and thus, deprived drivers of their due process right to a
constitutionally impartial adjudicator. (Id. at pp. 526, 532–533 & fn. 5.)
PROCEDURAL BACKGROUND
On January 2, 2024, at 11:15 p.m., Bocanegra was arrested for violation of
section 23152, subdivision (a) (driving under the influence of alcohol). Bocanegra
refused to submit to a BAC chemical test, which resulted in the suspension of his license
pursuant to section 13353.
On January 4, 2024, Bocanegra requested an APS hearing under section 13558.
On January 8, 2024, the DMV sent Bocanegra notice of the APS hearing date and
time. The notice also explained that the APS hearing would “be conducted by a Hearing
Officer [who] will develop the facts and render a final decision on your matter but does
not advocate on behalf of the [DMV]. The Hearing Officer will ensure that all relevant
evidence is considered. The Hearing Officer will examine and admit the DMV’s official
records, [as] well as the official records of the agency that arrested you.”
APS Hearing
On April 3, 2024, an APS hearing was conducted pursuant to section 13557. At
the hearing, the AHO explained the issues to be decided and that he would be “acting as a
neutral factfind[er],” he was “prohibited from and will not act as an advocate for the
DMV or law enforcement,” and his “role [was] to review the evidence provided, ask

3.
clarifying questions of witnesses if necessary, and make legal rulings and determinations
under the relevant statutes if necessary.” The AHO offered four exhibits: the DS-367
form, 2 the arrest report, the traffic collision report, and the DMV’s driver record printout.
Bocanegra’s counsel made an unspecified general “objection” to the arrest report and the
traffic collision report, which were overruled, and the AHO admitted all four documents.
Bocanegra’s counsel moved into evidence bodycam videos 3 of the encounter
between Bocanegra and law enforcement and then gave a closing statement. Counsel
argued in part that the bodycam videos showed the encounter was used by law
enforcement as part of a training exercise, but the videos never show a proper
admonishment regarding implied consent and the consequences of refusing to submit to a
chemical test. Instead, the videos show an officer interjecting himself into the
questioning of Bocanegra by giving an incomplete admonishment. Counsel averred that
because the bodycam videos revealed that Bocanegra was never properly admonished
regarding the consequences of refusing to submit to a BAC chemical test, his refusal was
uninformed and not an actual refusal for purposes of section 13353.
The matter was then submitted for decision.
AHO’s Decision
On April 10, 2024, the AHO issued a written decision that upheld the DMV’s
administrative suspension of Bocanegra’s license, which was to last from April 26, 2024,
to April 25, 2025. The AHO found that Bocanegra had been lawfully arrested, had been
properly admonished about the consequences of failing to consent to a BAC chemical

2 A DS-367 is a sworn DMV form that is used by law enforcement in connection with DUI
cases. (Doe v. Department of Motor Vehicles (2024) 102 Cal.App.5th 1004, 1014.)
3 Bocanegra’s attorney referred to the videos as being “MVARS” recordings. “MVARS”
means “mobile video and audio recording systems” (People v. Pickard (2017) 15 Cal.App.5th
Supp. 12, 14, fn. 1), and is generally associated with law enforcement videos (see King v. State
of California (2015) 242 Cal.App.4th 265, 270). The record in this appeal, however, contains
video footage from individual police officers’ body cameras, and the parties refer to this
evidence as “bodycam videos.” Given the record before us, we will follow the parties and
characterize the video footage as coming from the “bodycams” of individual officers.

4.
test, and had refused to consent to a BAC chemical test. With respect to whether
Bocanegra had been properly admonished as required by the implied consent law, the
AHO explained:

“The evidence submitted for review includes the DS-367 form and
Exhibit A, [the bodycam videos]. According to the DS-367 form, the
arresting officer attested that the full admonition, as stipulated by
California’s implied consent law, was read to [Bocanegra]. [Bocanegra]
explicitly declined to submit to a breath or blood test when asked.
Exhibit A, the video [footage], contains extensive dialogue with
[Bocanegra], however, critical portions of this dialogue are inaudible.
Notably, at the 23:10 mark of the video, an audible exchange occurs where
the officer explicitly asks [Bocanegra] if [he] refuse[d] to perform any test,
to which [Bocanegra] answers no. The officer then informs [Bocanegra]
that [his] license could be suspended for such refusal, yet [Bocanegra]
maintains [his] refusal.

“The evidence provided, specifically the DS-367 form and
Exhibit A, supports the conclusion that [Bocanegra] was made aware of the
refusal consequences. While the video’s inaudible portions introduce a
degree of ambiguity, the explicit question from the officer regarding refusal
and the subsequent clarification of potential license suspension sufficiently
demonstrates that [Bocanegra] was adequately informed.

“The claim presented by [Bocanegra’s counsel] is determined to be
without merit. [Bocanegra’s] refusal, despite being informed of the
consequences, substantiates the charges as presented.”
Post-Decision Events
On April 30, 2024, Bocanegra filed an administrative petition for writ of mandate
with the Kern County Superior Court to challenge the suspension determination.
On December 18, 2024, the trial court denied the writ. The court denied the writ
because “the hearing officer did not appear to engage in impermissible advocacy and
[Bocanegra] did not overcome the legal presumptions favoring [the DMV]. The
administrative findings were supported by the weight of the evidence.”
On May 19, 2025, the DMV issued an order of revocation. The order informed
Bocanegra that his license would be revoked from May 23, 2025, to May 2, 2027.

5.
 On June 13, 2025, Bocanegra filed a notice of appeal that challenged the trial
court’s denial of his writ of mandate.
FACTUAL BACKGROUND
On January 2, 2024, Bocanegra was on Pico Boulevard in Los Angeles when he
rear-ended a vehicle that was stopped at a red light. Several Los Angeles Police
Department officers responded to the collision, including officers Major and Miller. 4
When Major approached Bocanegra, he observed that Bocanegra’s eyes were red and
watery, Bocanegra was swaying back and forth, and Bocanegra’s speech was slurred.
Bodycam Footage 5
Bodycams captured the interactions with Bocanegra and the various police
officers. The bodycam videos end at the latest at 11:24 p.m. In general, the bodycams
capture officers attempting to speak with and ask Bocanegra questions, officers
handcuffing Bocanegra, and Bocanegra behaving in an uncooperative and often
belligerent manner. In part, Bocanegra refused to answer questions, refused to perform
tests, swore at the officers, and said he wanted to take a “swing” at an officer.
Bocanegra’s words sounded thick and somewhat slurred.
As relevant to this appeal, bodycam footage from Miller revealed that, at
approximately 11:10 p.m., Bocanegra was informed that the officers were conducting a
DUI investigation. Miller then asked Bocanegra, “Are you willing to answer his
questions or perform any tests?” After Bocanegra responded, “F[***] no,” Miller
replied, “Okay. You understand in the state of California if you refuse your license can
be automatically suspended. When you get your license, you agree to these tests at any
time.” Bocanegra gave an inaudible response, to which Miller asked whether Bocanegra

4 Bocanegra asserts without contradiction from the DMV that Miller was a training officer
and Major was in training.
5 The parties have submitted bodycam footage from several officers. We have reviewed all
the footage submitted. Because we find the bodycam footage from Miller to be the most
relevant, our opinion draws primarily from Miller’s bodycam.

6.
was lying when he got his license. After Bocanegra asked repeatedly whether Miller was
serious, Major attempted to ask Bocanegra additional questions from a checklist, and
Miller walked away to speak with another officer.
Miller commented to the other officer that Bocanegra was likely “going to be a
refusal,” Bocanegra had refused to submit to tests despite affirmations made in the
licensing process, and Bocanegra had very watery blood-shot eyes. The other officer
responded in part that there were new procedures for procuring a warrant before
obtaining a blood test. Miller and the other officer later commented on Bocanegra’s
behavior, and agreed that, for Bocanegra’s safety “and everything,” Bocanegra would be
taken to the station where officers could attempt to administer field sobriety tests.
Miller walked back to Bocanegra and several other officers. Bocanegra made a
comment about wanting “to take a swing” at one of the officers, which caused the
officers in the group to laugh and Bocanegra to become more agitated. Miller told
Bocanegra to calm down and then spoke to Major. Miller told Major that once a receipt
from the tow truck was obtained, Bocanegra would be taken to a patrol vehicle and, if
Bocanegra wanted to do tests at the police station, he could.
Bocanegra was placed in Miller’s patrol vehicle, and Miller and his partner began
to drive to the police station at 11:17 p.m. The bodycam video does not indicate that the
patrol vehicle’s lights or sirens were engaged. Miller told Bocanegra about being able to
prove that he was not drunk and being able to walk out of the police station, but then
changed the subject after Bocanegra made an inaudible response. The patrol vehicle
arrived at the police station, and Bocanegra entered the station at 11:22 p.m. The
bodycam video ended seconds later.
DISCUSSION
I. DUE PROCESS
A. Parties’ Arguments
Bocanegra contends in part that his due process rights were violated because the
AHO acted in the dual capacity of advocate for the DMV and adjudicator. Bocanegra

7.
argues that due process requires a separation of functions in administrative hearings like
the APS hearing in this case. Bocanegra also argues that the Administrative Procedures
Act forbids an AHO from acting in the dual roles of adjudicator and advocate. Despite
these constitutional and statutory prohibitions, Bocanegra avers that because the AHO is
the DMV’s representative at the APS hearing, introduces and admits evidence, and then
issues a decision on behalf of the DMV, it is apparent the AHO acts in the prohibited dual
capacity of advocate and adjudicator. 6
The DMV contends that Bocanegra’s due process rights were not violated. The
DMV argues that the APO is presumed to be impartial and there is no evidence to rebut
that presumption. The DMV asserts that the record shows Bocanegra’s counsel was
permitted to present her case without interruption and the AHO merely collected,
developed, and admitted evidence, which are not the acts of an advocate.
B. Legal Standard
Challenges to the procedural fairness of an administrative hearing present a
question of law that is reviewed de novo on appeal. (Romane v. Department of Motor
Vehicles (2025) 110 Cal.App.5th 1002, 1016, review granted Aug. 13, 2025, S291093

6 Bocanegra also spills a great deal of ink explaining why he thinks that our opinion in
Knudsen v. Department of Motor Vehicles (2024) 101 Cal.App.5th 186 (Knudsen), a case which
established the framework for determining whether a pre-CDLA APS hearing violated a driver’s
constitutional right to an impartial adjudicator, was wrongly decided. Specifically, Bocanegra
argues that Knudsen “perverted” the holding of CDLA, “turn[ed] black letter law upside down,”
improperly relied on a footnote in CDLA that was dicta, and failed to properly evaluate
controlling law on the issue of due process. Bocanegra then requests that we disavow Knudsen
and create a split of authority both with other appellate districts and within our own district.
Despite his obvious displeasure with Knudsen and its progeny, Bocanegra cites no appellate
court case that has accepted even one of his criticisms. Because we are unpersuaded by his
arguments, we decline Bocanegra’s invitation to disavow Knudsen.

8.
(Romane); 7 Knudsen, supra, 101 Cal.App.5th at p. 210.) An irreducible minimum of the
federal and California constitutional rights to due process is that an impartial adjudicator
must preside over a hearing. (Today’s Fresh Start, Inc. v. Los Angeles County Office of
Education (2013) 57 Cal.4th 197, 212 (Today’s Fresh Start); Knudsen, at pp. 197–198.)
The requirement of an impartial adjudicator is violated if the adjudicator is actually
biased or operates under a constitutionally intolerable probability of bias. (Morongo
Band of Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731,
737; Knudsen, at p. 198.) Combining the roles of adjudicator and advocate into a single
person is a violation of the due process right to an impartial adjudicator because it creates
a constitutionally intolerable probability of bias. (Kazelka v. Department of Motor
Vehicles (2025) 109 Cal.App.5th 1239, 1255 (Kazelka); Knudsen, at p. 199; CDLA,
supra, 77 Cal.App.5th at p. 532.) A violation of the due process right to an impartial
adjudicator is a structural error that is not subject to a harm analysis. (Clarke, supra, 104
Cal.App.5th at p. 1277; Knudsen, at p. 206.) The complaining party has the burden of
demonstrating a due process violation based on the absence of a constitutionally impartial
adjudicator by “com[ing] forward with ‘specific evidence demonstrating actual bias or a
particular combination of circumstances creating an unacceptable risk of bias.’ ”
(Today’s Fresh Start, at p. 221.)
C. Analysis
It is the driver’s burden to show through specific evidence and argument, and
without a presumption that an AHO followed a policy that required him or her to be the

7 Bocanegra asserts that our Supreme Court has determined Romane conflicts with CDLA
based on the grant of review in Romane. As part of the grant of review, the Supreme Court
stated: “Pending review, the opinion of the Court of Appeal … may be cited, not only for its
persuasive value, but also for the limited purpose of establishing the existence of a conflict in
authority that would in turn allow trial courts to exercise discretion … to choose between sides of
any such conflict.” (Romane v. Department of Motor Vehicles (2025) 335 Cal.Rptr.3d 275, 275–
276.) Notably, the plain language of this grant of review does not mention CDLA, does not state
that a conflict actually exists, and permits citation to Romane for its persuasive value only,
irrespective of any actual or potential conflict with published authority. We cannot agree that the
Supreme Court has determined Romane conflicts with CDLA.

9.
DMV’s advocate, 8 that an AHO was not constitutionally impartial. (See Today’s Fresh
Start, supra, 57 Cal.4th at p. 221; cf. Knudsen, supra, 101 Cal.App.5th at pp. 206–207.)
“Otherwise, the presumption that agency adjudicators are people of ‘ “conscience and
intellectual discipline, capable of judging a particular controversy fairly on the basis of its
own circumstances” ’ will stand unrebutted.” (Today’s Fresh Start, at pp. 221–222.)
Bocanegra has not met his burden.
At Bocanegra’s APS hearing, the AHO explained what issues would be decided
and explained that he would be “acting as a neutral factfind[er].” The AHO advised that
he was “prohibited from and will not act as an advocate for the DMV or law
enforcement,” and was to “review the evidence provided, ask clarifying questions of
witnesses if necessary, and make legal rulings and determinations under the relevant
statutes [as] necessary.” This was consistent with both the CDLA injunction and the
description of the AHO’s role in the DMV’s pre-hearing notice to Bocanegra. The AHO
then offered and admitted four records into evidence as exhibits, including the sworn
DS-367 form, and Bocanegra’s counsel objected to the arrest report and the traffic
collision report. However, because counsel merely stated she “objected” to the
two reports without specifying any grounds for her objection, the objection was properly
overruled. (People v. Jackson (2016) 1 Cal.5th 269, 366.) No witnesses were called or
examined. Bocanegra’s counsel was permitted to make her arguments without objection
or interruption and was able to successfully move the bodycam videos of the encounter

8 We note Knudsen placed the burden on the DMV to establish that an AHO did not act as
an advocate. (Knudsen, supra, 101 Cal.App.5th at p. 207.) Knudsen did so because, at the time
of the APS hearing at issue in that case, the DMV had a policy that expressly required AHOs to
act as the DMV’s advocate and it is presumed that a government agency follows its policies.
(Knudsen, at pp. 206–207; CDLA, supra, 77 Cal.App.5th at pp. 526, 532–533 & fn. 5.) Since the
CDLA injunction in 2022 that enjoined this policy had been in place for two years by the time of
Bocanegra’s APS hearing, the DMV was no longer operating under a policy that required AHOs
to act as advocates. (Chi v. Department of Motor Vehicles (2026) 119 Cal.App.5th 473, 478–
479, review granted May 13, 2026 S296201 (Chi).) Without the express policy requiring an
AHO to act as an advocate, there is no longer a basis to place a burden on the DMV to show its
AHOs did not act as advocates. (Cf. Knudsen, at pp. 206–207.)

10.
into evidence without objection. After Bocanegra’s counsel concluded her arguments,
the hearing ended. Further, there are no clear mischaracterizations of evidence in the
AHO’s decision that would indicate advocacy. (Cf. Knudsen, supra, 101 Cal.App.5th at
pp. 210–213 [explaining why the AHO’s actions demonstrated that the AHO had
unconstitutionally acted as the DMV’s advocate].) Accordingly, there are no acts of
advocacy discernable from this record.
Bocanegra argues that because the AHO is the only DMV representative at the
APS hearing, the AHO cannot be anything other than the DMV’s advocate. There are
two related and implied premises to this argument, both of which are infirm.
First, the argument assumes that an AHO cannot both adjudicate and collect and
develop evidence in a neutral fashion. However, it is well established that a government
agency may constitutionally permit a single person within that agency to act as both an
adjudicator and as a collector and developer of evidence in the same proceeding.
(Today’s Fresh Start, supra, 57 Cal.4th at p. 220; Romane, supra, 110 Cal.App.5th at
pp. 1014–1015; Kazelka, supra, 109 Cal.App.5th at p. 1255; Knudsen, supra, 101
Cal.App.5th at p. 199; CDLA, supra, 77 Cal.App.5th at p. 533, fn. 5.) That is precisely
what the AHO did in this case.
Second, Bocanegra’s argument implicitly posits that an APS hearing must follow
an adversarial trial model by having a separate designated prosecutor. However, it is well
established that administrative agencies are not required to import the full adversarial trial
model into all administrative contexts. (Today’s Fresh Start, supra, 57 Cal.4th at
pp. 214, 220; Chi, supra, 119 Cal.App.5th at p. 482, 484 [“Essentially, Chi is
complaining that the [APS] hearing does not follow the adversarial trial model, where the
advocates introduce evidence and a judge rules on objections. That train left the station
decades ago.”].) Again, it is universally agreed that the DMV may charge the same AHO
with both adjudicating the matter and collecting and developing evidence at the APS
hearing. (Chi, at p. 484; Romane, supra, 110 Cal.App.5th at p. 1021; Kazelka, supra, 109
Cal.App.5th at p. 1255; Clarke, supra, 104 Cal.App.5th at p. 1275–1276; Knudsen,

11.
supra, 101 Cal.App.5th at p. 207; CDLA, supra, 77 Cal.App.5th at p. 533, fn. 5 [“CDLA
concedes the DMV may task the same person with both collecting and developing the
evidence and rendering a final decision. [Citation.] He or she must refrain, however,
from advocating on behalf of the DMV as the [DMV policy] currently mandates ….”].) 9
None of these cases suggest that a different conclusion should be reached because the
AHO is the DMV’s representative and the only other party present besides the driver/the
driver’s counsel. Indeed, one court has expressly held that the omission of a separately
designated prosecutor does not “ ‘transmute the [AHO] into prosecutor’ or violate due
process.” (Chi, at p. 483.)
To the extent that Bocanegra contends the AHO’s acts of offering and admitting
evidence are the acts of an advocate, we disagree. The AHO in this case admitted
documents that were forwarded to the DMV by law enforcement. Such documents
generally establish a prima facie case for license suspension and are routinely admitted
and considered in APS hearings. (See Lake, supra, 16 Cal.4th at p. 451; Gerwig v.
Gordon (2021) 61 Cal.App.5th 59, 65–66; Romane, supra, 110 Cal.App.5th at pp. 1016–
1017.) When an AHO in an APS hearing introduces and admits “the documents that law
enforcement duly forward[] to the DMV, which are routinely admitted into evidence at

9 Bocanegra claims without explanation that CDLA’s footnote five is the lowest form of
dicta and should be ignored. We disagree. “Dicta” involves “ ‘observations and statements
unnecessary to the appellate court’s resolution of the case.’ ” (Sonic-Calabasas A, Inc. v.
Moreno (2013) 57 Cal.4th 1109, 1158.) Footnote five addressed an express argument made by
the DMV in support of the DMV policy at issue. (CDLA, supra, 77 Cal.App.5th at p. 533, fn. 5.)
Footnote five was also appended to a sentence that read: “[S]ection 14112, subdivision (b) is
unconstitutional to the extent it permits the DMV to combine the advocacy and adjudicatory
roles in a single APS hearing officer.” (CDLA, at p. 533.) Footnote five appears to clarify and
emphasize that section 14112, subdivision (b) was unconstitutional only to the extent that it
permitted a single individual to act as both adjudicator and advocate; other roles or functions
could be combined in the same individual, such as adjudicator and collector and developer of
evidence. This clarification not only explained the nature of CDLA’s holding, but also aided in
the proceedings on remand. Because footnote five was “ ‘responsive to the issues raised on
appeal and … intended to guide the parties and the trial court [on remand],’ ” CDLA’s footnote
five is not dicta, let alone the lowest form of dicta. (Sonic-Calabasas A, at p. 1158; see Leider v.
Lewis (2017) 2 Cal.5th 1121, 1134.)

12.
APS hearings, the [AHO] is merely collecting and developing evidence, not advocating
for the DMV.” (Romane, supra, 110 Cal.App.5th at p. 1018.)
In sum, given the conduct of the AHO, as well as the operative CDLA injunction
and the pre-hearing and in-hearing advisements regarding the AHO’s functions and roles,
Bocanegra has not shown that the AHO acted as an advocate for the DMV or that his due
process right to a constitutionally impartial adjudicator was violated. (Today’s Fresh
Start, supra, 57 Cal.4th at p. 221; Romane, supra, 110 Cal.App.5th at pp. 1016–1021
[finding no due process violation where the AHO merely admitted evidence]; see also
Chi, supra, 119 Cal.App.5th at pp. 481, 483; cf. Knudsen, supra, 101 Cal.App.5th at
pp. 210–213 [finding a due process violation where the AHO mischaracterized evidence,
made legal errors that benefitted the DMV, and asked questions that were inconsistent
with developing testimony].)
II. IMPLIED CONSENT ADMONISHMENT
A. Parties’ Arguments
Bocanegra contends that the weight of the evidence did not show he received an
adequate implied consent admonition. Bocanegra argues that the bodycam videos do not
show he was told that he would lose his license or the length of time that he would lose
his license if he refused to perform a BAC chemical test. Bocanegra claims that the
AHO’s decision relied on the bodycam videos to conclude that he was told he could lose
his license, which is a legally insufficient admonition. In the absence of an adequate
admonition, Bocanegra avers that he did not “refuse” to take a BAC chemical test for
purposes of the implied consent law.
The DMV responds that the trial court correctly found Bocanegra was properly
admonished before refusing to perform BAC chemical tests. The DMV argues that
Bocanegra improperly focuses on the bodycam videos to the exclusion of other evidence.
The DMV points out that the DS-367 form and the arrest report both show that Miller
properly admonished Bocanegra at 11:30 p.m. and that Bocanegra refused to perform any
BAC chemical tests. The DMV avers that the arrest report and the DS-367 form

13.
constitute substantial evidence that Bocanegra was properly admonished when he refused
to perform a BAC chemical test.
B. Additional Background
The DS-367 form contains a separate section entitled, “CHEMICAL TEST
ADMONITION.” This section contains eight separate paragraphs that inform a driver of
California’s implied consent law, as well as the consequences of failing to submit to a
BAC chemical test. This section has boxes to record a driver’s response to a request to
submit to either a breath test or a blood test and a box to be filled out when the officer
who gives the admonition is not the officer who submits the DS-367 form. In this case,
the DS-367 form’s chemical test admonition section indicates that it was filled out on
“1/2/24 at 2330 p.m.”; the driver responded “No” to a breath test and a blood test; and the
admonition was given by a different officer, Miller. The DS-367 form was filled out by
Major.
Major’s arrest report also addresses the implied consent admonition. After
Bocanegra was arrested and transported to a police station for pre-booking, the report
states: “Officer Miller … read the Chemical Test Admonition to [Bocanegra].
[Bocanegra] refused to provide a Breath Test and he refused to provide a blood sample.”
C. Legal Standards
1. Review of a Petition for Writ of Mandate
“Code of Civil Procedure section 1094.5 governs judicial review of adjudicatory
decisions by administrative agencies.” (Clarke, supra, 104 Cal.App.5th at p. 1275.) In
ruling on a petition for writ of mandate following an order of license suspension, trial
courts are to exercise their independent judgment and determine “ ‘ “whether the weight
of the evidence supported the administrative decision.” ’ ” (Lake, supra, 16 Cal.4th at
p. 456; Kazelka, supra, 109 Cal.App.5th at p. 1247.) On appeal, appellate courts review
the record in order to determine whether the trial court’s findings are supported by
substantial evidence. (Lake, at p. 457; Kazelka, at p. 1247.) As part of the substantial
evidence review, courts resolve all evidentiary conflicts and draw all reasonable

14.
inferences in favor of the trial court’s decision. (Lake, at p. 457; Freitas v. Shiomoto
(2016) 3 Cal.App.5th 294, 300.) However, when the facts are undisputed, and the issue
involves the proper application of a statute or administrative regulation, the question is
one of law to which the appellate court applies its independent judgment. (Payne v.
Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1517.)
2. Implied Consent
Under the implied consent law of California, anyone who drives a motor vehicle
and is arrested for driving under the influence is deemed to have consented to the
performance of a breath or blood test to determine their BAC. (§ 23612, subd. (a)(1)(A);
Troppman v. Valverde, supra, 40 Cal.4th at pp. 1129–1130; Romane, supra, 110
Cal.App.5th at p. 1008.) The implied consent law provides for noncriminal sanctions,
such as the suspension of a driver’s license, for a driver’s refusal to submit to a BAC
chemical test after being arrested for driving under the influence. (Clarke, supra, 104
Cal.App.5th at p. 1271, fn. 2; Hall, supra, 3 Cal.App.5th at p. 802; see also Troppman, at
pp. 1129–1130.)
A person arrested for driving under the influence must be told that his failure to
submit to or complete a BAC chemical test will result in a fine, mandatory imprisonment
upon conviction of driving under the influence, and the suspension or revocation of that
person’s driver’s license. (§ 23612, subd. (a)(1)(D); Hall, supra, 3 Cal.App.5th at
pp. 802–803.) “Courts have consistently required relatively strict compliance with the
duty to admonish suspected drunk drivers about the consequences of refusing chemical
testing.” (Munro v. Department of Motor Vehicles (2018) 21 Cal.App.5th 41, 47
(Munro).) This is because a “[p]roper warning of the consequence of [a refusal to submit
to BAC chemical testing] is an element essential to the suspension of a driver’s license.”
(Daly v. Department of Motor Vehicles (1986) 187 Cal.App.3d 257, 261; see also Hall, at
p. 803.) If the police give a misleading admonition, or fail to advise the person that his
driving privilege will be suspended or revoked if he refuses to submit to or complete a
BAC chemical test, then the person’s driver’s license cannot be suspended despite the

15.
person’s failure to submit to or complete a BAC chemical test. (Decker v. Department of
Motor Vehicles (1972) 6 Cal.3d 903, 906 [reversing a license suspension when the driver
was told that a refusal to take a BAC chemical test “could” result in the suspension of his
license because the admonition given “misrepresented the legal significance of a refusal
to take a chemical test by implying that the [DMV] might decide not to suspend [the
driver’s] license in spite of his refusal.”]; Hall, at p. 803.) Further, “[w]hen police give
an incomplete admonition about the consequences of refusing [a BAC chemical test], the
law limits the permissible sanction to the extent of actual notice.” (Elmore v. Gordon
(2021) 73 Cal.App.5th 520, 523.) However, if a police officer corrects a prior misleading
or incomplete admonition regarding the consequences of refusing to take a BAC
chemical test, courts will generally find substantial compliance by the police officer and
uphold a license suspension. (Munro, at p. 47, citing Ormonde v. Department of Motor
Vehicles (1981) 117 Cal.App.3d 889, 892–893, Smith v. Department of Motor Vehicles
(1969) 1 Cal.App.3d 499, 502–503, and Janusch v. Department of Motor Vehicles (1969)
276 Cal.App.2d 193, 194, 197.) Whether a driver “refused” to perform a BAC chemical
test for purposes of the implied consent law is a question of fact. (Blitzstein v.
Department of Motor Vehicles (1988) 199 Cal.App.3d 138, 141.)
3. Analysis
We agree with Bocanegra that none of the bodycam videos demonstrate an
adequate admonition for purposes of the implied consent law. The closest the videos
come to showing a proper admonition is the footage identified by the AHO—when Miller
spoke to Bocanegra around 11:10 p.m. at the accident scene. As quoted above, Miller
said that Bocanegra had consented to perform “tests” at any time by virtue of obtaining a
license and that the DMV can automatically suspend his license for failing to do so.
Among other things, Miller did not mention breath or blood tests specifically, did not say
that the DMV will suspend his license, and did not identify the duration of any
suspension. (Cf. § 23612, subd. (a); Decker v. Department of Motor Vehicles, supra, 6
Cal.3d at p. 906; Hall, supra, 3 Cal.App.5th at pp. 802–803; Elmore v. Gordon, supra, 73

16.
Cal.App.5th at p. 523.) If Miller’s statements to Bocanegra at the accident scene were
the only admonitions in the record, we would grant Bocanegra relief. (See Decker, at
p. 906; Munro, supra, 21 Cal.App.5th at p. 47; Hall, at p. 803; Elmore, at p. 523; Daly v.
Department of Motor Vehicles (1986) 187 Cal.App.3d 257, 261.) However, these
statements are not the only admonition reflected in the record.
Both the DS-367 form and Major’s arrest report reflect that Miller read Bocanegra
the implied consent admonition as printed on the DS-367 form at 11:30 p.m. at the police
station. Bocanegra does not argue that the admonition in the DS-367 form was somehow
improper, confusing, or insufficiently specific for purposes of the implied consent law,
and we detect no such inadequacies. We presume that the officers regularly and correctly
performed their official duties, 10 including the duties embodied within a sworn DS-367
form. (Myers v. Department of Motor Vehicles (2026) 120 Cal.App.5th 470, 481.)
Because Bocanegra was properly admonished when Miller read him the DS-367 form’s
implied consent admonition, Bocanegra received a legally sufficient admonition. (See
Munro, supra, 21 Cal.App.5th at p. 47.) As a result, Bocanegra did refuse to perform a
BAC chemical test for purposes of the implied consent law.
Bocanegra focuses on the bodycam videos and the AHO’s description of the
relevant interaction in Miller’s bodycam video to argue that he was not properly
admonished. Bocanegra’s argument is too myopic. As quoted above, the AHO expressly
identified and described both the bodycam videos and the DS-367 form. Before
addressing the bodycam videos, the AHO stated that the DS-367 form indicated that

10 Evidence Code section 664 creates a presumption that government agents correctly
perform their regular official duties. (See Evid. Code, § 664; Furman v. Department of Motor
Vehicles (2002) 100 Cal.App.4th 416, 422.) Evidence Code section 664, along with Evidence
Code section 1280, which provides a hearsay exception for records made by a public employee
(Evid. Code, § 1280), together form the basis for admission of DS-367 forms during APS
hearings and for the presumption that peace officers regularly performed their official duties in
completing the DS-367 form. (See Furman, at p. 422; Davenport v. Department of Motor
Vehicles (1992) 6 Cal.App.4th 133, 142–143; see also Murphey v. Shiomoto (2017) 13
Cal.App.5th 1052, 1063–1064.)

17.
Bocanegra was given the full implied consent admonition. The AHO did not find that the
DS-367 form’s admonition was not actually given at the police station or identify any
flaws with the form’s admonition. The AHO also expressly cited to the DS-367 form
first and the bodycam videos second in support of his “conclusion that [Bocanegra] was
made aware of the refusal consequences.” The AHO clearly relied on the DS-367 form,
in addition to the bodycam videos. As such, it is appropriate to consider the DS-367
form, and the DS-367 form shows that Bocanegra received a proper implied consent
admonition.
In his reply brief, Bocanegra contends that he rebutted the official duty
presumption which attaches to DS-367 forms, and to the reading of the implied consent
admonition. Specifically, Bocanegra argues that the official duty presumption only
applies to an officer’s firsthand observations and, given the timing involved, Major could
not have witnessed Miller giving the implied consent admonition at the police station.
Bocanegra also argues that if the DS-367 form is considered, any representations to
Major from Miller constitute inadmissible hearsay. We cannot agree with Bocanegra.
We are not satisfied that Bocanegra has preserved for review his arguments
relating to the DS-367 form. In order to preserve a hearsay objection to evidence
considered during an administrative proceeding, the opponent must object that the
evidence contains inadmissible hearsay. (See Gov. Code, § 11513, subd. (d); Clary v.
City of Crescent City (2017) 11 Cal.App.5th 274, 302; Concord Communities v. City of
Concord (2001) 91 Cal.App.4th 1407, 1417, fn. 1.) Similarly, in order to preserve an
issue or argument for judicial consideration as part of the Code of Civil Procedure
section 1094.5 review process, the appellant must first raise that issue to the
administrative agency. (Hoag Memorial Hospital Presbyterian v. Kent (2019) 36
Cal.App.5th 413, 426; Dobos v. Voluntary Plan Administrators, Inc. (2008) 166
Cal.App.4th 678, 688.) Here, the record reveals that Bocanegra made no objections
whatsoever to the AHO regarding the DS-367 form and made no arguments whatsoever
regarding the DS-367 form. Instead, Bocanegra objected to the arrest and traffic collision

18.
reports and made arguments that were directed exclusively to the bodycam videos,
specifically the portions of the videos that depict the statements made by Miller around
11:10 p.m. Because he did not object at all to the DS-367 form, and because he failed to
raise any issues with respect to the DS-367 form, Bocanegra has forfeited his arguments
relating to the DS-367 form. 11 (Hoag, at p. 426; Clary, at p. 302; Dobos, at p. 688;
Concord, at p. 1417, fn. 1.)
Even if Bocanegra has not forfeited his arguments regarding the DS-367 form, his
arguments also fail on the merits. First, neither the DS-367 form nor the arrest report
affirmatively state that Major was told anything by Miller. Miller’s bodycam video
shows that the police station where Bocanegra was taken was about five minutes away
from the accident scene, without the apparent use of a patrol vehicle’s lights or sirens.
Given that distance, it is possible that Major could have quickly driven to the police
station and witnessed Miller reading the DS-367 implied consent admonition to
Bocanegra. 12 In the absence of express evidence to the contrary, we do not view the
record as conclusively establishing that Major was not present when Miller read the
DS-367 admonition.
Second, a sworn DS-367 form is sufficient to trigger the official duty presumption
under Evidence Code section 664. (Myers v. Department of Motor Vehicles, supra, 120

11 We are also concerned that Bocanegra’s opening brief failed to raise issues regarding the
DS-367 form. While the opening brief properly mentioned the DS-367 form and the admonition
contained therein, it did not address the significance of the DS-367 form or explain why it was
insufficient to show that Bocanegra was properly admonished. In sufficiency of the evidence
challenges, the appellant must summarize all evidence on a particular issue and explain why the
evidence, both favorable and unfavorable, is insufficient. (Cameron v. Las Orchidias Properties,
LLC (2022) 82 Cal.App.5th 481, 504.) To properly raise the issue on appeal, Bocanegra should
have addressed any insufficiencies regarding the DS-367 form in his opening brief. (Ibid.)
12 Bocanegra points out that Major’s bodycam video shows him putting his clipboard down
on a patrol vehicle at 11:24 p.m. However, as Bocanegra admits, that is the last image that the
bodycam captured. There is no evidence concerning what happened after the bodycam turned
off shortly after 11:24 p.m. Again, given the short distance involved as reflected by Miller’s
bodycam, Major could have driven to the police station and been present when Miller read the
admonition.

19.
Cal.App.5th at p. 481.) Even if Major was not present when Miller read the DS-367
admonition to Bocanegra, the official duty presumption would still apply. It has been
recognized that a DS-367 form may be admitted and considered in an APS hearing even
if the officer who submitted the DS-367 form included observations or information that
were provided by a different officer. 13 (Hildebrand v. Department of Motor Vehicles
(2007) 152 Cal.App.4th 1562, 1570–1572; Gananian, supra, 33 Cal.App.4th at pp. 640–
641.) This is consistent with the well-established principle that peace officers may rely
on official information obtained from or relayed by other peace officers. (E.g., United
States v. Hensley (1985) 469 U.S. 221, 230–233; People v. Brown (2015) 61 Cal.4th 968,
983; People v. Alcorn (1993) 15 Cal.App.4th 652, 655–656; cf. Gov. Code, § 11513,
subd. (c) [“Any 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.”].)
In this case, both filling out a DS-367 form and reading the DS-367 admonition
are part of a peace officer’s official duties and are acts done in the course and scope of
those duties. This is confirmed by section 13380, which requires officers to fill out the
DS-367 form and forward that form to the DMV (see Doe v. Department of Motor
Vehicles (2024) 102 Cal.App.5th 1004, 1014), and by the DS-367 form itself. The
DS-367 form’s implied consent admonition section contains a separate box to be filled
out when the officer who reads the admonition is different from the officer who submits

13 Bocanegra cites Murphey v. Shiomoto, supra, 13 Cal.App.5th at p. 1064, for the
proposition that: “[I]t is only ‘an officer’s statement relating firsthand observations’ that ‘meets
the criteria outlined in [Evidence Code] section 1280’ that qualifies for official duty
presumption.” Bocanegra then argues that because it is likely that Major did not observe Miller
giving the DS-367 implied consent admonition, the official duty presumption was rebutted. We
disagree. Contrary to Bocanegra’s argument, Murphey does not hold that only the firsthand
observations of the officer who submits a DS-367 form are sufficient to meet the requirements of
Evidence Code sections 664 and 1280. Rather, Murphey noted in general that an officer’s
firsthand observations are sufficient for purposes of Evidence Code sections 664 and 1280.
(Murphey, at pp. 1063 – 1064.) In fact, Murphey cited Gananian v. Zolin (1995) 33 Cal.App.4th
634 (Gananian) for the proposition that the requirements of Evidence Code section 1280 can be
met when an officer includes in a DS-367 form the official observations of a second officer.
(Murphey, at p. 1063.)

20.
the form. This shows that the DS-367 form envisions a situation in which multiple
officers perform different tasks that are mandated by the form, including reading the
implied consent admonition. Nothing in the DS-367 form requires that the officer who
submits the form also personally witness the admonition being read.
Accordingly, Miller had a duty to read the implied consent admonition to
Bocanegra and a separate duty to report to Major that the admonition had been read. In
turn, Major had a duty to fill out the DS-367 form and report that Miller was the officer
who gave Bocanegra the admonition. There is nothing before us to suggest either that
Miller did not give the DS-367 admonition or that Major did not accurately fill out the
DS-367 form. Given the nature of the actions and duties involved by Major and Miller,
we detect no basis to exclude the DS-367 form from consideration or to conclude that
either Major or Miller failed to correctly and regularly perform their official duties.
(Hildebrand v. Department of Motor Vehicles, supra, 152 Cal.App.4th at pp. 1570–1572;
Gananian, supra, 33 Cal.App.4th at pp. 640–641.) The official duty presumption
remains unrebutted.
In sum, the DS-367 form in this case conclusively shows that Bocanegra received
a proper implied consent admonition. As a result, Bocanegra was properly admonished
regarding the consequences of refusing to submit to a BAC chemical test and he

21.
nevertheless refused to perform a BAC chemical test. We conclude that the trial court
correctly denied Bocanegra’s petition for writ of mandate. 14
DISPOSITION
The trial court’s order denying Bocanegra’s petition for writ of mandate is
affirmed. The DMV is entitled to its costs on appeal.

HARRELL, J.

WE CONCUR:

FRANSON, ACTING P. J

SNAUFFER, J.

14 We note that in his reply brief and at oral argument, Bocanegra maintained that we must
reverse the two-year revocation of his license and instead reimpose the one-year suspension that
was described in the AHO’s decision and that was upheld by the trial court. We are not satisfied
that the issue is properly before us. Bocanegra appealed the trial court’s denial of his writ of
mandate, which did not include a two-year revocation. (Polster, Inc. v. Swing (1985) 164
Cal.App.3d 427, 436 [“Our jurisdiction on appeal is limited in scope to the notice of appeal and
the judgment or order appealed from.”]; see also Faunce v. Cate (2013) 222 Cal.App.4th 166,
170.) Further, although Bocanegra mentioned the two-year revocation in his opening brief, he
did not make arguments that were unique to the two-year revocation and that were supported by
citation to authority. (People v. Oyler (2025) 17 Cal.5th 756, 844, fn. 42 [arguments that are not
developed or supported by citation to authority are forfeited]; Damak v. Superior Court (2026)
121 Cal.App.5th 792, 805, fn. 5 [same].) Instead, Bocanegra’s substantive arguments regarding
the specific two-year revocation issue were made for the first time during his reply brief.
(People v. Ng (2022) 13 Cal.5th 448, 568, fn. 13 [arguments raised for the first time in a reply
brief are forfeited]; Mora v. C.E. Enterprises, Inc. (2025) 116 Cal.App.5th 72, 87 [same].) Each
of these points are barriers to our consideration of the issue. Apart from these procedural
barriers, we additionally note that the DS-367 form’s implied consent admonition specifically
warns an arrestee that his license will be suspended for one year or revoked for two or
three years depending on whether the arrestee has certain prior convictions. Accordingly, we
cannot grant Bocanegra the relief he requests.

22.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

FIFTH APPELLATE DISTRICT

BONIFACIO SALGADO,
F090398
Plaintiff and Appellant,
(Super. Ct. No. BCV-22-103478)
v.

FRED PALLA FARMS, INC.,
OPINION
Defendant and Respondent.

APPEAL from a post-judgment order of the Superior Court of Kern County.
T. Mark Smith, Judge.
Twin-Oak Attorneys, Kingsley Opia-Enwemuche, for Plaintiff and Appellant.
Belden Blaine Raytis, T. Scott Belden and Chelsea K. Lewis, for Defendant and
Respondent.
-ooOoo-
Plaintiff and appellant Bonifacio Salgado brought an employment action against
defendant and respondent Fred Palla Farms, Inc. (Palla Farms). 1 During the discovery

1 Fred Palla Farms notes in its brief that its correct name is Alfred Palla Farms.
phase, Palla Farms filed multiple motions to compel discovery responses from Salgado.
Eventually, Palla Farms filed a motion for terminating sanctions based on Salgado’s
discovery violations. The trial court granted the motion for terminating sanctions,
dismissed the action with prejudice, and entered a judgment of dismissal.
Salgado subsequently filed, under Code of Civil Procedure section 473,
subdivision (b) (hereafter referred to as section 473(b) or § 473(b)), a motion for relief
from terminating sanctions
Salgado sought relief from the dismissal entered by the trial court. The court
denied Salgado’s motion for relief from terminating sanctions on grounds it was untimely
under section 473(b).
Salgado appealed. We affirm.
After this appeal was fully briefed, Palla Farms filed a motion for appellate
sanctions against Salgado and his attorney, on grounds that the appeal is frivolous and
that Salgado’s reply brief cites to fabricated legal authority. We agree that sanctions are
appropriate, grant the motion, and impose sanctions in the amount of $5,000 on Salgado’s
counsel.
FACTUAL AND PROCEDURAL BACKGROUND
Complaint and Discovery Process
On July 10, 2023, Salgado filed a first amended complaint (FAC) against Palla
Farms. The FAC alleged that Salgado was employed by Palla Farms “for over 20 years,”
and that his employment was terminated on November 14, 2022. The FAC asserted
multiple employment-related claims against Palla Farms, 2 including wrongful
termination as well as harassment and retaliation in violation of the Fair Employment and
Housing Act (FEHA). 3

2 The merits of Salgado’s claims are not at issue in this appeal.

3 FEHA is codified as Government Code section 12900, et seq.

2.
 During the discovery process, Palla Farms filed multiple motions to compel
discovery responses from Salgado. On January 31, 2024, 4 the trial court granted three
motions to compel filed by Palla Farms; the motions were unopposed. In addition, on
May 28, the court granted three motions to compel further discovery responses filed by
Palla Farms; these motions also were unopposed. The court ordered Salgado and his
counsel to pay monetary sanctions to Palla Farms, as well.
Palla Farms’s Motion for Terminating Sanctions; Entry of Judgment of Dismissal
On July 24, Palla Farms filed a motion for terminating sanctions. Palla Farms
noted in its motion that Salgado had not provided further discovery responses in violation
of the trial court’s May 28 order. Palla Farms also noted that Salgado had failed to pay
monetary sanctions in the amount of $1,930, “in violation of [the] [c]ourt’s orders to do
so.” Palla Farms asserted that “[Salgado] and his counsel [had] repeatedly ignored their
statutory obligations to participate in the discovery process[.]” Palla Farms requested the
court “to impose terminating sanctions” for Salgado’s “continuing misuse and abuse of
the discovery process and failure to obey the [c]ourt’s orders[.]” More specifically, Palla
Farms requested “terminating sanctions … in the form of a dismissal with prejudice.”
(Italics added.) Palla Farms also sought monetary sanctions in the amount of $2,560 for
attorney fees and costs incurred in bringing the motion.
While Palla Farms’s motion for terminating sanctions was pending, Salgado filed,
on August 14, a request for dismissal without prejudice; the same day, the clerk entered
the dismissal as requested. Palla Farms successfully moved to set aside the dismissal
without prejudice obtained by Salgado, and on October 24, re-filed its motion for
terminating sanctions. Salgado did not file an opposition to Palla Farms’s renewed
motion for terminating sanctions. The trial court heard the motion on November 25;
Salgado and his counsel did not appear at the hearing.

4 Subsequent references to dates are to dates in 2024 unless stated otherwise.

3.
 On December 6, the trial court issued and filed a written order “granting [the]
motion for terminating sanctions and entering judgment for [Palla Farms].” The court
(1) granted Palla Farms’s motion for terminating sanctions; (2) struck Salgado’s FAC; (3)
“entered” a “judgment on the merits in [Palla Farms’s] favor” in “the form of a dismissal
with prejudice”; 5 and (4) “dismissed” the action “with prejudice.”
Thereafter, on December 16, Palla Farms served on Salgado and filed, a notice of
entry of judgment. The notice of entry of judgment specified that (1) “[a] judgment …
was entered in this action on … December 6, 2024,” and (2) “[a] copy of the judgment …
is attached to this notice.” A copy of the court’s December 6 order entering a judgment
of dismissal with prejudice in favor of Palla Farms was attached to the notice of entry of
judgment. Salgado did not take an appeal from the judgment of dismissal.
Salgado’s Motion for Relief from Terminating Sanctions
Salgado filed a motion for relief from terminating sanctions under section 473(b).
Although Salgado’s section 473(b) motion did not specify the precise relief he sought, it
appears he sought the reinstatement of his case upon complying with the court’s prior
discovery-related orders. Salgado contends he “tendered” the motion “for filing on
June 16, 2025” but it “was rejected on the basis of a clerical caption error.” The
corrected motion was filed on June 18, 2025.
The trial court heard Salgado’s section 473(b) motion on July 29, 2025, and
denied it. The court’s post-hearing minute order simply notes, the “motion for relief from
terminating sanctions is denied” (capitalization omitted), without delineating the grounds
for denial. Further, the record on appeal does not contain a reporter’s transcript of the

5 The court’s order stated in this regard: “A judgment on the merits in [Palla
Farms’s] favor is hereby entered in the form of a dismissal with prejudice.” (Italics
added.)

4.
hearing on the motion. 6 However, the parties agree the court denied Salgado’s motion
for relief on the stated basis that, under section 473(b), the motion was untimely and the
court lacked authority to adjudicate it. 7
Salgado appeals from the trial court’s post-judgment order denying his motion for
relief from terminating sanctions.
DISCUSSION
I. Salgado’s Motion for Relief from Terminating Sanctions Was Untimely
Salgado’s primary claim on appeal is that “the superior court erred as a matter of
law by treating [his] section 473(b) motion as untimely.” (Capitalization omitted.) We
disagree.
A. Applicable Law
Section 473(b) authorizes the trial court to grant a party relief from, inter alia, a
judgment or dismissal entered in an action. The statute provides for both discretionary
and mandatory relief.
The discretionary provision of section 473(b) provides, in relevant part: “The
court may, upon any terms as may be just, relieve a party or the party’s legal
representative from a judgment, dismissal, order, or other proceeding taken against the

6 An official court reporter pro tempore transcribed the motion proceeding.
However, in his notice designating the record on appeal, Salgado indicated he would
proceed on appeal without a record of the oral proceedings in the trial court.
Accordingly, a reporter’s transcript of the hearing on his motion for relief from
terminating sanctions is not part of the record on appeal.
7 For example, Salgado notes in his opening brief: “At the hearing on July 29,
2025, the superior court denied relief on the ground that the time to file the section 473(b)
motion had elapsed.” Salgado also states in his opening brief: “[T]he superior court
denied the motion as untimely because [it] concluded that the [m]otion was untimely.” In
his reply brief, Salgado notes that the court denied his motion as untimely and indicated
that it “therefore lacked jurisdiction to reach the merits.” Similarly, Palla Farms states in
its brief: “The trial court denied Salgado’s motion for relief on the basis of lack of
jurisdiction due to the untimeliness of the motion.”

5.
party through the party’s mistake, inadvertence, surprise, or excusable neglect.
Application for this relief shall be accompanied by a copy of the answer or other pleading
proposed to be filed therein, otherwise the application shall not be granted, and shall be
made within a reasonable time, in no case exceeding six months, after the judgment,
dismissal, order, or proceeding was taken.” (§ 473(b), italics added.) In short, “[u]nder
the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or
excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal,
order, or other proceeding taken against’ a party or his or her attorney.” (Leader v.
Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 615-616 (Leader).)
“[T]he discretionary relief provision of [section 473(b)] only permits relief from
attorney error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’
[Citation.] ‘Conduct falling below the professional standard of care, such as failure to
timely object or to properly advance an argument, is not therefore excusable. To hold
otherwise would be to eliminate the express statutory requirement of excusability and
effectively eviscerate the concept of attorney malpractice.’ ” (Zamora v. Clayborn
Contracting Group, Inc. (2002) 28 Cal.4th 249, 257-259.)
The mandatory provision of section 473(b) provides, in relevant part: “[T]he court
shall, whenever an application for relief is made no more than six months after entry of
judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit
attesting to the attorney’s mistake, inadvertence, surprise, or neglect, vacate any
(1) resulting default entered by the clerk against the attorney’s client, and which will
result in entry of a default judgment, or (2) resulting default judgment or dismissal
entered against the attorney’s client, unless the court finds that the default or dismissal
was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
(§ 473(b), italics added.) In short, “[u]nder the mandatory relief provision … upon a
showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court

6.
shall vacate any ‘resulting default judgment or dismissal entered.’ ” (Leader, supra,
89 Cal.App.4th at p. 616.)
“The range of attorney conduct for which relief can be granted in the mandatory
provision is broader than that in the discretionary provision, and includes inexcusable
neglect. But the range of adverse litigation results from which relief can be granted is
narrower. Mandatory relief only extends to vacating a default which will result in the
entry of a default judgment, a default judgment, or an entered dismissal.” (Leader,
supra, 89 Cal.App.4th at p. 616 (first italics added).) The mandatory provision of
section 473(b) is also known as the “ ‘attorney-fault’ ” provision because it is “ ‘confined
to situations in which the attorney, rather than the client, is the cause of the default,
default judgment, or dismissal.’ ” (Jimenez v. Chavez (2023) 97 Cal.App.5th 50, 57
(Jimenez).)
“[B]oth the mandatory and discretionary relief provisions of section 473(b) have
maximum six-month limitations periods.” (Jimenez, supra, 97 Cal.App.5th at p. 58.)
“[A] motion for relief under the discretionary relief provision of section 473(b) must be
filed ‘within a reasonable time, in no case exceeding six months,’ after [a judgment,
dismissal, order] or other proceeding was taken against the party or the party’s attorney.”
(Jimenez at p. 53, quoting § 473(b) (second italics added).) Similarly, “[a] motion to
vacate a default judgment [or dismissal] under the mandatory relief provision of
section 473(b) is required to be filed ‘no more than six months’ after the default judgment
[or judgment of dismissal] was entered.” (Jimenez at p. 53, quoting § 473(b) (second
italics added).)
“[T]he six-month limitations period of the mandatory and discretionary relief
provisions of section 473(b) is either 182 days or six calendar months, whichever period
is longer.” 8 (Jimenez, supra, 97 Cal.App.5th at pp. 54, 58 [“We conclude that the six-

8 Jimenez calculated the applicable 182-day period in that case by “computing the
number of days in the time period … excluding the first day and including the last day,

7.
month limitations periods of the mandatory and the discretionary relief provisions of
section 473(b) mean the longer of six calendar months or 182 days.”].)
“[A] court has no authority under [section 473(b)], to excuse a party’s
noncompliance with the six-month time limit.” (Arambula v. Union Carbide Corp.
(2005) 128 Cal.App.4th 333, 345 (Arambula); also see Austin v. Los Angeles Unified
School Dist. (2016) 244 Cal.App.4th 918, 928 [the “six-month time limitation [in
section 473(b)] is jurisdictional; the court has no power to grant relief under section 473
once the time has lapsed”].)
B. Standard of Review
A trial court’s ruling on a discretionary motion for relief under section 473(b) is
reviewed for abuse of discretion. (Henderson v. Pacific Gas & Electric Co. (2010)
187 Cal.App.4th 215, 230.) “To qualify for discretionary relief under section 473(b), the
party seeking relief must show (1) a proper ground for relief, and (2) ‘the party has raised
that ground in a procedurally proper manner, within any applicable time limits.’ ” (Id. at
p. 229.)
The standard of review under the mandatory relief provision of section 473(b) is
substantial evidence to the extent the applicability of mandatory relief turns on disputed
facts, and independent review if the applicability does not turn on disputed facts and
presents instead a pure question of law. (Carmel, Ltd. v. Tavoussi (2009)
175 Cal.App.4th 393, 399.)
“The application of the statute of limitations to undisputed facts is a purely legal
question subject to our de novo review.” (Jimenez, supra, 97 Cal.App.5th at p. 58
[applying independent review to the question of timeliness of section 473(b) motion].)

which was not a holiday.” (Jimenez, supra, 97 Cal.App.5th at p. 58.) With respect to the
six-calendar-month period, Jimenez indicated that where a default judgment was entered
on March 9, 2021, a motion for mandatory relief from the default judgment filed on
September 9, 2021 was timely. (Jimenez, at p. 54.)

8.
 We may affirm on any basis applicable to the case, regardless of the grounds
relied on by the trial court. (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 610.)
C. The Parties’ Positions
In his opening brief, Salgado focuses on the mandatory relief provision of
section 473(b). He states he “first submitted the section 473(b) motion on June 16,
2025[.]” He notes: “Here [Salgado] sought relief from the judgment entered on
December 16, 2024 and the terminating dismissal embodied in that judgment.” He
argues: “Because the judgment date controls the mandatory-relief request, [Salgado’s]
motion was timely.” 9
Palla Farms responds that Salgado’s argument is based on a false premise. Palla
Farms emphasizes that the underlying judgment of dismissal was entered on December 6,
2024, not December 16, 2024, as posited by Salgado. Palla Farms explains: “Here, six
calendar months from December 6, 2024 was June 6, 2025. [Salgado] did not submit the
motion until June 16, 2025, and the corrected motion was not file-stamped until June 18,
2025. [Citation.] [Salgado’s] motion therefore was not filed ‘no more than six months
after entry of judgment.’ Nor was it filed within 182 days. December 6, 2024 to June 16,

9 Salgado further argues that “a judgment of dismissal entered as a terminating
discovery sanction is a ‘dismissal’ for mandatory attorney-fault relief.” (Capitalization
omitted.) He states: “In Rodriguez v. Brill (2015) 234 Cal.App.4th 715, [725]
[(Rodriguez),] the Court of Appeal held that ‘mandatory relief under section 473(b) for
“any … dismissal entered” encompasses dismissals entered as a terminating sanction for
discovery abuse.’ ” He contends: “Under Rodriguez, [the dismissal in this mater] is a
qualifying dismissal for mandatory attorney-fault relief.”
Palla Farms does not dispute Salgado’s contention in this regard, noting: “[Palla
Farms] recognizes [Rodriguez, supra, at p. 725] held that a dismissal entered as a
terminating discovery sanction can qualify as a ‘dismissal’ for purposes of
section 473(b)’s mandatory attorney fault provision. But Rodriguez does not eliminate
the deadline, the proper-form requirement, or the causation requirement [in the
mandatory provision].”
For purposes of our analysis, we assume without deciding that the dismissal at
issue here qualifies as a dismissal for the mandatory relief provision of section 473(b).

9.
2025 exceeds 182 days. Thus, even under Jimenez’s longer-of-two-periods approach, 10
[Salgado] was late.” (Italics added.) Palla Farms concludes that since Salgado’s motion
was untimely, the trial court properly denied it.
Salgado makes a few additional arguments. At one point in his brief, he
confusingly contends, with respect to his section 473(b) motion, that the trial court’s
“deadline calculation should … have begun with notice of entry of judgment[,] for
[purposes of] mandatory relief[.]” (Italics added.) This argument contradicts his
assertion elsewhere in his brief, that “if the motion sought mandatory attorney-fault relief,
the six-month [limitations] period ran from entry of judgment.” (Italics added, boldface
omitted.) As noted above, Palla Farms had served and filed a notice of entry of judgment
on December 16, 2024, and Salgado initially attempted to file his section 473(b) motion
on June 16, 2025.
Salgado also contends that, “[b]ecause the superior court [erroneously] treated the
motion as untimely[,] [it] never applied the correct mandatory-relief framework[.]” He
argues the motion should have been granted because it was not only timely, but “was in
proper form and supported by attorney fault.” (Capitalization omitted.)
D. Analysis
The question before us concerns the timeliness of Salgado’s motion for relief from
terminating sanctions, under section 473(b).
Where a motion for relief from a “dismissal” or “other proceeding” is made under
the discretionary provision of section 473(b), it must “be made within a reasonable time,
in no case exceeding six months,” after the dismissal or other proceeding “was taken.”
(§ 473(b).) Where a motion for relief from a “default judgment or dismissal entered” is
made under the mandatory provision of section 473(b), it must be filed “no more than six
months after entry of judgment.” (§ 473(b).) Thus, a “six-month limitations period”

10 See Jimenez, supra, 97 Cal.App.5th at pp. 54, 58.

10.
applies to both the discretionary and mandatory relief provisions of section 473(b) and
this limitations period is “either 182 days or six calendar months, whichever period is
longer.” (Jimenez, supra, 97 Cal.App.5th at p. 54.)
Here, it cannot reasonably be disputed that the trial court issued an order granting
Palla Farms’s motion for terminating sanctions on December 6, 2024, which order
expressly entered a dismissal with prejudice and judgment of dismissal in favor of Palla
Farms on that same date. 11 The clerk’s transcript contains the court’s written order
signed by the court on and file-stamped December 6, 2024. The order specifies: “A
judgment on the merits in [Palla Farms’s] favor is hereby entered in the form of a
dismissal with prejudice.”
In this matter, the limitations period applicable to a motion arising under either the
discretionary or mandatory provisions of section 473(b) would be the longer of “182 days
or six calendar months” from December 6, 2024. (Jimenez, supra, 97 Cal.App.5th at
p. 54.) Given that Salgado first submitted his section 473(b) motion for filing on June 16,
2025—that is, more than 182 days as well as over six calendar months after the dismissal
and judgment were entered on December 6, 2024—it was untimely. Accordingly, the
trial court properly denied it. (Arambula, supra, 128 Cal.App.4th at p. 345 [“[A] court
has no authority under [section 473(b)], to excuse a party’s noncompliance with the six-
month time limit.”].)
To the extent Salgado argues that the limitations period for either the discretionary
or the mandatory relief provision of section 473(b) runs from the notice of entry of
judgment, rather than from the entry of the judgment itself, his argument finds no support
in the express terms of section 473(b). Moreover, Salgado has not provided any authority
to support such a contention. (See Arambula, supra, 128 Cal.App.4th at p. 341 [“We

11 Salgado’s claim in his opening brief that “the order [on] terminating sanction[s]
was entered on December 16, 2024” is demonstrably incorrect.

11.
cannot insert qualifying language where it is not stated or rewrite the statute to conform
to a presumed intention that is not expressed.”].) His contention therefore fails.
Given our conclusion that the trial court properly denied Salgado’s section 473(b)
motion on grounds it was untimely, we need not address Salgado’s argument that the
court should have granted the motion because it “was in proper form and supported by
attorney fault.” (Capitalization omitted.)
Finally, we note that, to the extent Salgado makes additional arguments in his
reply brief, these arguments are forfeited as they are not supported by requisite citations
to the record and to relevant legal authorities. 12 (See Cal. Rules of Court, 13 rule
8.204(a)(1)(B) & C); Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849,
856 [issue forfeited due to lack of record citations]; City of Lincoln v. Barringer (2002)
102 Cal.App.4th 1211, 1239, fn. 16 [“any reference [to a matter in the record] in [a
litigant’s] brief must be supported by a citation]; Allen v. City of Sacramento (2015)
234 Cal.App.4th 41, 52 [“When legal argument with citation to authority is not furnished
on a particular point, we may treat the point as forfeited and pass it without
consideration.”].) Salgado’s reply brief does not contain a single citation to the record. It
also contains a citation for a nonexistent case, a citation that potentially represents an
artificial-intelligence hallucination. 14

12 Similarly, we decline to consider any contentions raised by Salgado for the first
time in his reply brief. (See, e.g., Committee to Relocate Marilyn v. City of Palm Springs
(2023) 88 Cal.App.5th 607, 637, fn. 8 [“We do not consider arguments raised for the first
time in a reply brief.”].)
13 Subsequent references to rules are to the California Rules of Court.

14 Specifically, Salgado’s reply brief cites to R&S Industries, Inc. v. Caton (1996)
47 Cal.App.4th 1145, 1149, a case that does not exist. After Salgado submitted his reply
brief, Palla Farms filed a motion for sanctions based in part on the R&S Industries, Inc. v.
Caton citation included in his reply brief (see fn. 15, post). Salgado filed an opposition in
which his counsel acknowledged that the R&S Industries, Inc. v. Caton citation was
“fabricated” and withdrew both the citation and “the sentence” it purportedly supported.
Salgado’s counsel stated that the “citation” in question “did not and does not exist.”

12.
II. Salgado’s Due Process Argument Fails
Finally, Salgado directly challenges on due process grounds, the trial court’s prior
December 6, 2024, order granting Palla Farms’s motion for terminating sanctions and
the related judgment of dismissal. He argues the court’s order granting the motion for
terminating sanctions and dismissing the action did not serve “the goals of fairness and
due process” and seeks reversal of the related judgment. This appeal, however, does not
arise from the court’s dismissal order and related judgment of dismissal. Rather, it arises
from Salgado’s subsequent, post-judgment section 473(b) motion seeking relief from the
court’s dismissal judgment. As explained below, Salgado’s due process challenge to the
court’s prior order dismissing the action and to the underlying judgment itself, is
untimely and inapposite.
Under Rule 8.104, a notice of appeal must be filed on or before the earliest of
60 days after service by the court clerk or a party of a notice of entry or file-endorsed
copy of the judgment, or 180 days after entry of judgment. (Rule 8.104(a)(1)(A), (B), &
(C).) “This time limit is jurisdictional: ‘no court may extend the time to file a notice of
appeal.’ ” (Meinhardt v. City of Sunnyvale (2024) 16 Cal.5th 643, 649; Rule 8.104(b).)
Here, as noted, the underlying judgment was entered on December 6, 2024, and
Palla Farms served and filed a notice of entry of judgment on December 16, 2024. The
notice of appeal initiating the instant appeal from the court’s post-judgment order was
filed on September 2, 2025. Under Rule 8.104, the notice of appeal was untimely for
purposes of appealing the December 6, 2024, judgment.
III. Palla Farms’s Motion for Sanctions Pending in This Court
As mentioned, while this appeal was pending and after Salgado submitted his
reply brief, Palla Farms filed a motion for sanctions in this court. Palla Farms contends

Counsel added, elliptically: “The page and case name are real enough, but the date and
parallel reporter citation are fabricated.”

13.
in its motion that it is entitled to monetary sanctions because (1) this appeal is frivolous;
(2) Salgado’s reply brief “relies on a fabricated case citation that does not exist in
California courts”; and (3) Salgado’s reply brief does not provide requisite citations to the
record and to relevant legal authorities for factual and legal points raised therein.
(Boldface omitted.) Palla Farms seeks the imposition of sanctions, jointly and severally
against Salgado and his counsel, in the amount of $18,330.20, to cover its past and
estimated future appellate litigation fees and costs, inclusive. Salgado’s counsel filed an
opposition to Palla Farms’s motion for sanctions. (Rule 8.276(d).) As explained below,
we conclude sanctions are appropriate in this case.
Code of Civil Procedure section 907 (hereafter, section 907 or § 907) provides:
“When it appears to the reviewing court that the appeal was frivolous or taken solely for
delay, it may add to the costs on appeal such damages as may be just.”
In addition, subject to certain procedural protections, Rule 8.276(a) authorizes this
court to impose sanctions, including monetary sanctions, “on a party or an attorney” for:
“(1) Taking a frivolous appeal or appealing solely to cause delay; (2) Including in the
record any matter not reasonably material to the appeal’s determination; (3) Filing a
frivolous motion; or (4) Committing any other unreasonable violation of these rules.”
(Rule 8.276(a).)
A. Lack of Requisite Record Citations in Reply Brief (Rule 8.204(a)(1)(C))
First, Palla Farms’s contention that Salgado’s reply brief does not provide
requisite citations to the record is accurate. Indeed, we concluded above, based in part on
rule 8.204(a)(1)(C), that Salgado had forfeited the arguments raised in his reply brief.

14.
 Palla Farms highlights the fact that Salgado’s reply brief does not contain a single
citation to the record, 15 and also includes demonstrably incorrect factual contentions. 16
The lack of appropriate record citations and inclusion of inaccurate facts in appellate
briefs potentially constitutes an unreasonable violation of rule 8.204(a)(1)(C), which
requires every factual reference to be supported by a citation to the record. (See
Pierotti v. Torian (2000) 81 Cal.App.4th 17, 30-31 (Pierotti).) Although we do not make
such a finding here and focus on other, more serious violations embodied in Salgado’s
briefs, the issue is a very close one.

B. Lack of Citations to Appropriate Legal Authorities and Citation to
Fabricated Legal Authority in Reply Brief (Rule 8.204(a)(1)(B))
Second, Palla Farms’s contention that Salgado’s reply brief does not support legal
points with appropriate legal authorities and contains a citation to a nonexistent case, is
also correct. Most importantly, Salgado’s reply brief cites to R&S Industries, Inc. v.
Caton (1996) 47 Cal.App.4th 1145, 1149, a case that does not exist. Salgado’s counsel
acknowledges in his opposition to the motion for sanctions that such a case “did not and
does not exist,” and that the citation is “fabricated.” (Boldface omitted.) Counsel does
not, however, specifically concede that the citation arose from an artificial intelligence
hallucination. Counsel notes in his opposition that he withdraws both the fabricated
citation and the proposition for which it was provided.17

15 Palla Farms suggests that the lack of any citation to the record in Salgado’s
reply brief indicates that Salgado’s counsel may have “utilized artificial intelligence to
draft the brief.”
16 For example, the reply brief incorrectly refers to the trial court’s December 6,
2024, order dismissing the action as an “unsigned, unlodged, and unentered” ruling. On
the contrary, the order was signed by the trial court and entered a judgment of dismissal.
17 Palla Farms also notes that the fact that Salgado filed his 25-page reply brief
“less than 26 hours” after Palla Farms filed its respondent’s brief is indicative either of
the “use of artificial intelligence” or of the fact that counsel did not read the cases cited
therein.

15.
 The citation to R&S Industries, Inc. v. Caton amounts to an unreasonable violation
of rule 8.204(a)(1)(B), which requires points raised in an appellate brief to be supported
by citation to appropriate legal authorities. (See Schlichter v. Kennedy (2025)
116 Cal.App.5th 24, 33 (Schlichter) [“[Attorney] unreasonably violated
rule 8.204(a)(1)(B) ‘by not support[ing] each point with citations to real (as opposed to
fabricated) legal authority.’ ”].)
Sanctions are permitted under Rule 8.276(a)(4), for unreasonable violation of an
appellate rule, here rule 8.204(a)(1)(B). (See rule 8.276(a)(4); Schlichter, supra,
116 Cal.App.5th 24, 34; also see Noland v. Land of the Free, L.P. (2025)
114 Cal.App.5th 426, 445 (Noland) [“relying on fabricated legal authority is
sanctionable”].)
C. Appeal is Frivolous
Finally, we agree with Palla Farms that this appeal is frivolous and subject to
sanctions on that basis.
Our Supreme Court delineated the standard for assessing whether an appeal is
frivolous in In re Marriage of Flaherty (1982) 31 Cal.3d 637 (Flaherty). Flaherty
emphasized the difficulties of distinguishing “merely meritless” appeals from frivolous
ones, clarifying that “[a]n appeal that is simply without merit is not by definition
frivolous and should not incur sanctions.” (Id. at pp. 646-648, 650 [“Counsel face the
danger of being trapped between their obligation to their clients to diligently pursue any
possibly meritorious claim, and their obligation to the judicial system to refrain from
prosecuting frivolous claims.”].) Flaherty concluded that any definition of a frivolous
appeal must be “surrounded by procedural protections … and sparingly applied,” to
penalize “the most egregious conduct without deterring valid appellate claims.” (Id. at
p. 649.)
Flaherty formulated the following standard for assessing frivolous appeals: “[A]n
appeal should be held to be frivolous only when it is prosecuted for an improper

16.
motive—to harass the respondent or delay the effect of an adverse judgment—or when it
indisputably has no merit—when any reasonable attorney would agree that the appeal is
totally and completely without merit.” (Flaherty, supra, 31 Cal.3d at p. 650, italics
added.)
The Flaherty definition combines a subjective strand or prong (whether the appeal
was prosecuted for an improper purpose) 18 and an objective strand or prong (whether any
reasonable attorney would agree the appeal is wholly without merit). 19 (Flaherty, supra,
31 Cal.3d at pp. 649, 650.) Flaherty noted that the “two standards are often used
together, with one providing evidence of the other,” as when “the total lack of merit of an
appeal is viewed as evidence that [the] appellant must have intended it only for delay.”
(Id. at p. 650.)
Flaherty clarified, however, that a finding of frivolousness could rest on either
prong. It explained, “[a]n appeal taken for an improper motive represents a time-
consuming and disruptive use of the judicial process. (Ibid.) It added, “[s]imilarly, an
appeal taken despite the fact that no reasonable attorney could have thought it meritorious
ties up judicial resources and diverts attention from the already burdensome volume of
work at the appellate courts.” (Ibid.; see Malek Media Group, LLC v. AXQG Corp.
(2020) 58 Cal.App.5th 817, 834 (Malek) [“[a] finding of frivolousness may be based on
either standard [objective or subjective] by itself”]; DeRose v. Heurlin (2002)
100 Cal.App.4th 158, 179-180 [applying Flaherty prongs disjunctively]; Morales v. City
and County of San Francisco (2025) 114 Cal.App.5th 43,54 (Morales) [finding of

18 This is a subjective determination: “The subjective standard looks to the
motives of the appellant and his or her counsel.” (Flaherty, supra, 31 Cal.3d at p. 649.)
19 This is an objective determination: “The objective standard looks at the merits
of the appeal from a reasonable person’s perspective.” (Flaherty, supra, 31 Cal.3d at
p. 649.)

17.
frivolousness can be based on either the objective or subjective prong; not “necessary” to
apply both prongs to issue sanctions].)
Taking the subjective prong of the Flaherty standard first, the record does not
suggest that the instant appeal was brought for an improper dilatory purpose. Here,
Salgado’s appeal arose from the dismissal of his entire action. Bringing the appeal
appears to be a misguided, last-ditch effort by Salgado’s counsel to get the case
reinstated. Indeed, both in the trial court and on appeal, counsel took responsibility for
his role in the dismissal. 20 These circumstances do not indicate that the decision to bring
the appeal was merely a dilatory tactic, unrelated to the goal of reinstating the case. We
conclude the appeal is not frivolous under the subjective prong of the Flaherty standard.
However, under the objective prong of the Flaherty standard, the outcome is
different. Here, on December 6, 2024, the trial court (1) granted Palla Farms’s motion
for terminating sanctions, and (2) entered the dismissal and related judgment. Thereafter,
on June 16, 2025, Salgado submitted his section 473(b) motion for relief from
terminating sanctions. The court denied Salgado’s section 473(b) motion on grounds it
was untimely because, by June 16, 2025, the six-month or 182-day limitations periods
applicable to the discretionary and mandatory provisions of section 473(b) had expired
and were not subject to extension. An appeal taken from the court’s denial of Salgado’s
section 473(b) motion under these circumstances is frivolous because any reasonable
attorney would agree it is wholly without merit. (See Malek, supra, 58 Cal.App.5th at
pp. 834-835 [“appeal may be objectively frivolous” when “appellant’s arguments rest on
negligible legal foundation”].)
Salgado’s counsel appears to have understood this himself. He based his
challenge to the trial court’s ruling on the demonstrably false premise that the date of

20 For example, Salgado’s opening brief states: “Here, the dismissal disposed of
Appellant’s case without any merits determination and was caused by counsel’s failure to
comply with discovery obligations.”

18.
entry of judgment was December 16, 2024, and his section 473(b) motion was therefore
timely. However, judgment was in fact entered on December 6, 2024; the notice of entry
of judgment was served and filed by Palla Farms on December 16, 2024. Counsel also
obfuscated matters by referring to “entry of judgment” and “notice of entry of judgment”
interchangeably, when these were two distinct events that occurred on different dates. 21
Salgado argues in his opposition to the sanctions motion that he had a reasonable
basis to bring this appeal. His argument hinges on the limitations clause in the
discretionary provision of section 473(b). A motion for relief under the discretionary
relief provision of section 473(b) must be filed “within a reasonable time, in no case
exceeding six months,” after “a judgment, dismissal, order, or [other] proceeding was
taken.” (§ 473(b), italics added.) Salgado argues: “ ‘Taken’ is not defined by
section 473(b), nor is the significance of the word ‘taken’ in this statutory context
otherwise defined by statute. In the context of section 473(b) motions for relief,
reasonable attorneys disagree over what event that term means—the trial court entering
the terminating sanctions order or serving it.” Salgado adds: “An argument that the outer
time limit under a remedial statute should be tied to notice of entry of that order rather
than to a signing date of which the party may not have actual knowledge is, at worst, a
losing argument. But it is not frivolous.”
Salgado’s contentions are not persuasive because they target the wording of the
discretionary provision of section 473(b), while his opening brief focuses on the
mandatory provision of section 473(b). (See fn. 21.) The mandatory provision of section

21 For example, Salgado argues in his opening brief: “Here, Appellant sought
relief from the judgment entered on December 16, 2024 and the terminating dismissal
embodied in that judgment. [Citation.] The court’s deadline calculation should therefore
have begun with notice of entry of judgment for mandatory relief, not with another earlier
event, unless the court was analyzing only discretionary relief from a nonjudgment order.
Because the judgment date controls the mandatory-relief request, Appellant’s motion was
timely.”

19.
473(b) does not include the word, “taken”; rather, it simply provides that the trial court
“shall” vacate a dismissal “whenever an application for relief is made no more than six
months after entry of judgment.” (§ 473(b), italics added.) Moreover, the argument
regarding the meaning of the word “taken” in the discretionary provision of
section 473(b) appears for the first time in Salgado’s reply brief and is based on the
fabricated citation to R&S Industries, Inc. v. Caton, a nonexistent case.
More specifically, in his reply brief, Salgado cites to R&S Industries, Inc. v.
Caton, apparently for the proposition that “[a]n order is ‘taken’ against a party when
there is something against which to seek relief and the party has notice of it.” (Italics
added.) As Palla Farms notes in its motion for sanctions, Salgado’s reply brief, “relies on
the purported R&S Industries holding to reframe the entire six-month period in [section
473(b)] as running from the date of notice rather than the date of entry.”
Based on the assumption that the R&S Industries, Inc. v. Caton citation in
Salgado’s reply brief is an artificial intelligence hallucination, Palla Farms adds that such
hallucinations are more likely to occur when an attorney requests citations for
unsupported legal principles. (See Noland, supra, 114 Cal.App.5th at p. 444 [suggesting
that “AI hallucinations are ‘more likely to occur when there are little to no existing
authorities available that clearly satisfy the user’s request’ ”].) In sum, Salgado’s
argument regarding the meaning of the word “taken” in the discretionary provision of
section 473(b) is not supported by appropriate authority and, under the circumstances,
does not justify the instant appeal.
We conclude this appeal is frivolous, and we may impose monetary sanctions on
Salgado and/or his counsel for filing a frivolous appeal. (Flaherty, supra, 31 Cal.3d at
p. 650; § 907; rule 8.276(a)(1); Malek, supra, 58 Cal.App.5th at p. 837 [“Sanctions are
appropriate when appellant’s counsel had a professional obligation not to pursue the
appeal[.]”].)

20.
 D. Sanctions are Appropriate
Sanctions are appropriate here. “Sanctions may be awarded to the respondent to
compensate for the costs of responding to a frivolous appeal, or to the clerk of the court
for conduct that unnecessarily burdens the court and the taxpayers.” (Noland, supra,
114 Cal.App.5th at p. 447.)
Salgado’s counsel has acknowledged that here, the underlying dismissal was the
consequence of “counsel’s failure[s].” Salgado’s section 473(b) motion for relief and the
instant appeal were thus necessitated by counsel’s conduct. We therefore think it
appropriate to impose appellate sanctions against counsel alone. (See Morales, supra,
114 Cal.App.5th at p. 55 [imposing appellate sanctions on the appellant’s counsel alone
when the issues on appeal concerned the trial court’s imposition of sanctions against the
appellant’s counsel].) Furthermore, the responsibility for inclusion of a citation to a
nonexistent case in Salgado’s reply brief also lies primarily with counsel. Here, Salgado’s
counsel used a citation to a nonexistent case to anchor a pivotal but otherwise
unsupported argument in his reply brief. (See Pierotti, supra, 81 Cal.App.4th at p. 37
[sanctions against counsel appropriate for violation of appellate rules as counsel “must
accept primary responsibility” for violation].)
“The amount of sanctions is determined by looking to respondent’s attorney fees
on appeal, the judgment against the appellant, the degree of objective frivolousness and
delay, and the need to discourage similar conduct in the future.” (Malek, supra,
58 Cal.App.5th at p. 837; see Pierotti, supra, 81 Cal.App.4th at p. 33 [“We impose a
penalty for a frivolous appeal for two basic reasons: to discourage further frivolous
appeals, and to compensate for the loss that results from the delay.”].) Courts have
similarly imposed varying amounts of sanctions for the use of fabricated citations in
appellate briefs, depending on factors such as the number of fabricated citations, whether
the conduct was unintentional, and whether counsel expressed remorse. (See, e.g.,
Noland, supra, 114 Cal.App.5th at p. 443, 447, 449 [$10,000 sanction payable by

21.
attorney to Court of Appeal, where appeal was frivolous and briefs were “replete with
fabricated legal authority” derived from “generative AI sources”]; People v. Alvarez
(2025) 114 Cal.App.5th 1115, 1117-1118, 1120 (Alvarez) [$1,500 sanction payable by
attorney to Court of Appeal where filing contained one fabricated citation and
misrepresented other legal authorities]; Schlichter, supra, 116 Cal.App.5th at pp. 33-34
[$1,750 sanction payable by attorney to Court of Appeal for attorney’s “unreasonable
violation of rule 8.204(a)(1)(B),” by relying on fabricated legal authorities].)
Here, there was no underlying money judgment in favor of Palla Farms. Rather,
there was a judgment of dismissal, without any determination of the merits of the case.
However, Salgado’s primary argument rested on a false premise and his reply brief
contained an admittedly fabricated citation. (See Alvarez, supra, 114 Cal.App.5th at
p. 1119 [“ ‘ “Honesty in dealing with the courts is of paramount importance, and
misleading a judge is, regardless of motives, a serious offense.” ’ ”].) Overall, the degree
of objective frivolousness is relatively high. At the same time, there is no indication that
Salgado or his counsel filed the appeal for a bad faith or dilatory purpose.
We conclude that sanctions in the amount of $5,000 payable by Salgado’s counsel
to Palla Farms, are appropriate in this case, for counsel’s filing of a frivolous appeal and
his unreasonable violation of rule 8.204(a)(1)(B). 22 Palla Farms is also awarded its
appellate costs.

22 On September 9, 2026, this court advised the parties that it had read and
considered Palla Farms’s motion for sanctions, as well as appellant’s opposition, and was
considering imposing sanctions on appellant’s counsel for filing and pursuing a frivolous
appeal and for relying on fabricated legal authority by citing to a nonexistent case.
On September 21, 2026, appellant’s counsel submitted a written response to the
court’s notification. Among other things, counsel noted in his response that any
sanctions imposed by the court should be imposed on counsel alone. The parties also
accepted this court’s invitation to appear for oral argument to address the merits of the
appeal and the motion for sanctions; the parties had initially waived oral argument in the

22.
 DISPOSITION
The trial court’s post-judgment order denying Salgado’s motion for relief from
terminating sanctions is affirmed. Costs on appeal are awarded to Palla Farms.
(Rule 8.278(a)(1).) Palla Farms’s motion for appellate sanctions is granted—Kingsley
Opia-Enwemuche and Twin-Oaks Attorneys shall pay Palla Farms the amount of $5,000,
to be paid no later than 30 days after the remittitur issues. The clerk of the court is
directed to forward a copy of this opinion to the State Bar. (Bus. & Prof. Code, § 6086.7,
subd. (a)(3); rule 10.1017(a).) This opinion serves as notice to counsel that the matter of
sanctions imposed has been referred to the State Bar. (Bus. & Prof. Code, § 6086.7,
subd. (b); rule 10.1017(c).)

SNAUFFER, J.
WE CONCUR:

FRANSON, Acting P. J.

GUERRA, J.

matter. Hence, our consideration of the motion for sanctions accords with due process.
(See rule 8.276.)
Finally, we note that this opinion constitutes a written statement of our reasons for
imposing sanctions. (See Flaherty, supra, 31 Cal.3d at p. 654.)

23.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent, A171464
v.
(Alameda County Super. Ct.
CHAUNDELL BRIAN WYCOFF, Nos. 23-CR-005189; 23-MH-
005189)
Defendant and Appellant.

Chaundell Brian Wycoff pled no contest to assault by means likely to
produce great bodily injury. Months later, he sought to withdraw his plea,
but the trial court denied the oral motion and sentenced him to felony
probation. On appeal, he contends the court erred by summarily denying his
motion — which was based on alleged ineffective assistance of counsel —
without first conducting a hearing similar to those required by People v.
Marsden (1970) 2 Cal.3d 118 and without appointing separate counsel to
investigate, file, and argue a formal motion to withdraw his plea.1 We affirm.

1 After a Marsden hearing, court-appointed counsel may be discharged

or replaced when the trial court determines “ ‘ “failure to do so would
substantially impair or deny the right” ’ ” to effective assistance of counsel.
(People v. Marsden, supra, 2 Cal.3d at p. 123.)
1
 BACKGROUND
In 2023, Wycoff stabbed someone, and the district attorney charged
him with felony assault with a deadly weapon and various aggravating
factors. (Pen. Code, §§ 245, subd. (a)(1), 1192.7, subd. (c); undesignated
statutory references are to this code.) Pursuant to a plea agreement, he pled
no contest to assault by means likely to produce great bodily injury. (§ 245,
subd. (a)(4).) He also admitted his prior convictions as an adult were
numerous or of increasing seriousness. (Cal. Rules of Court, rule 4.421(b)(2).)
Before accepting the plea, the trial court asked Wycoff if anyone
promised him anything different, was forcing or threatening him to enter the
agreement, or if he was under the influence of alcohol, drugs or medication.
He responded, “No.” It also confirmed he’d had an opportunity to review the
charges and defenses with his attorney. He conveyed that he understood he
was waiving certain constitutional rights, and the court found his plea
knowing and voluntary. It released him from custody pursuant to a Cruz
waiver — authorizing courts to “impose a sentence in excess of the bargained-
for term” if a defendant fails to appear where the defendant (1) expressly
waives his right to withdraw guilty plea; and (2) agrees to those terms.
(People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.)
At a June 13, 2024 sentencing hearing, Wycoff requested a Marsden
hearing, so the matter was sent to a different department. At the Marsden
hearing, he claimed his counsel failed to adequately consider his contention of
self-defense, failed to provide him with discovery material, and consistently
disregarded his concerns, which demonstrated a breakdown of the attorney-
client relationship. As a result, he wanted to withdraw his plea and enter a
not guilty plea.

2
 In response, defense counsel noted Wycoff never requested discovery.
He also detailed the different avenues he pursued for Wycoff — declaring
doubt regarding his competency, mental health diversion, and ultimately
obtaining a plea agreement with a Cruz waiver. Counsel said, “If he had
wanted to fight his case at that time and present a self-defense defense, of
course, I would have supported him in doing that.” Counsel also believed
Wycoff made an informed decision when pleading to the charge. Specifically,
he told Wycoff a felony conviction could affect his access to low-income
housing. Despite this, Wycoff accepted the plea agreement and Cruz waiver
to get out of custody. Only thereafter, counsel explained, did Wycoff seek to
withdraw his plea because of his concerns it would impact his housing. The
trial court denied the Marsden motion, concluding counsel was providing
constitutionally adequate representation. It explained that changing one’s
mind about a plea was not a basis for replacing counsel.
Later the same day, the matter was returned to the sentencing court.
Although the parties did not provide us with a transcript of this proceeding,
Wycoff indicates he told the court he wanted to withdraw his plea. The court
apparently indicated it was inclined to deny the request, and Wycoff’s counsel
obtained a continuance.2
At the continued sentencing hearing on July 31, 2024, Wycoff’s counsel
seemed to summarize what occurred when the parties returned to the
sentencing department on June 13: “The Court [heard] his motion to
withdraw his plea. He didn’t want to go forward with sentencing. You
denied it, and I asked for a continuance.” Counsel continued, “At this point, I
don’t have anything to offer the Court, but I know my client still wishes to

2 There also was a hearing on July 15, 2024. But Wycoff did not
appear, and the parties do not address this hearing.
3
withdraw his plea and not go forward with sentencing today.” The court
denied the oral motion and imposed the negotiated sentence of two years of
felony probation with credit for time served. Upon Wycoff’s request, the court
issued a certificate of probable cause.
DISCUSSION
Wycoff argues the trial court ignored procedures for assessing his
motion to withdraw his plea based on alleged ineffective assistance of
counsel. He contends the court was required to either examine whether his
right to counsel was substantially impaired or appoint separate special
counsel to assess his reasons for seeking to withdraw his plea. No error
appears.
Courts must conduct Marsden hearings when a criminal defendant
indicates “after conviction a desire to withdraw his plea on the ground that
his current counsel provided ineffective assistance.” (People v. Sanchez
(2011) 53 Cal.4th 80, 89–90 (Sanchez).) There must be a clear indication the
defendant “ ‘wants a substitute attorney.’ ” (Ibid.) At the hearing, they must
have the opportunity to state grounds for dissatisfaction with the current
attorney. (Id. at p. 90.) Substitute counsel must be appointed for all
purposes if defendants demonstrate their right to counsel was substantially
impaired. (Ibid.) But a court errs by “appoint[ing] substitute counsel to
represent” defendants on motions to withdraw their pleas “in lieu of
conducting a Marsden hearing—in effect, granting [the] Marsden motion
without conducting the required hearing.” (Id. at p. 92.) Indeed, courts
should not appoint substitute counsel “ ‘to investigate or evaluate [a]
defendant’s proposed . . . plea withdrawal motion.’ ” (Id. at p. 89.)
The trial court employed the correct procedure here. It transferred the
case to a different department for a Marsden hearing once Wycoff requested

4
new counsel based on alleged inadequacies in representation that resulted in
his desire to withdraw his plea. (Sanchez, supra, 53 Cal.4th at p. 89.)
During that hearing, Wycoff “relate[d] specific instances of his attorney’s
asserted inadequacy” — the alleged failure to consider self-defense, provide
discovery materials, and address his concerns. (People v. Turner (1992)
7 Cal.App.4th 1214, 1218–1219.) In response, counsel detailed his
discussions with Wycoff before accepting the plea agreement. He explained
Wycoff accepted the deal because he wanted to be released from custody.
(Compare with People v. Farley (1979) 90 Cal.App.3d 851, 859 [ineffective
assistance of counsel if defendant affirmatively shows defense counsel’s
omission “ ‘involved a critical issue, and . . . cannot be explained on the basis
of any knowledgeable choice of tactics’ ” (italics omitted)].) Counsel noted he
would support Wycoff “in whatever he decides to do.” Moreover, counsel said
he would provide Wycoff with any discovery materials, even though he never
requested any access to them. (Turner, at p. 1219 [courts may question
attorneys about asserted inadequacies in Marsden hearings].) After the
hearing, the court determined counsel was providing constitutionally
adequate representation. Wycoff’s change of mind about the plea, the court
explained, was not a basis to replace counsel.
We discern no error. The trial court’s procedures mirror those Wycoff
seeks on appeal — it conducted a Marsden hearing and solicited his reasons
for withdrawing his plea. We reject his further assertion that People v.
Eastman (2007) 146 Cal.App.4th 688 required the court to appoint
independent counsel to represent him or investigate why he wished to
withdraw his plea. To the contrary, Eastman concluded a trial court erred by
appointing a second attorney to investigate the defendant’s claims of
inadequate representation rather than holding a Marsden hearing. (Id.

5
at p. 698.) Indeed, Sanchez — ignored by Wycoff — expressly disapproved
the appointing of a “substitute or ‘conflict’ attorney solely to evaluate whether
a criminal defendant has a legal ground on which to move to withdraw the
plea on the basis of the current counsel’s incompetence.” (Sanchez, supra,
53 Cal.4th at p. 90.)
Next, Wycoff argues the trial court abandoned its duty to assess his
request to withdraw his plea at the sentencing hearing. Not so. Courts
“may . . . permit the plea of guilty to be withdrawn and a plea of not guilty
substituted” any time before judgment. (§ 1018.) “A no contest plea is
treated the same as a guilty plea for this purpose.” (People v. Ramirez (2006)
141 Cal.App.4th 1501, 1506.) Defendants must demonstrate by clear and
convincing evidence that there is good cause to withdraw the guilty plea —
i.e., that they were “operating under mistake, ignorance, or any other factor
overcoming the exercise of [their] free judgment, including inadvertence,
fraud, or duress.” (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.) In
addition, defendants must demonstrate they would not have accepted the
plea bargain but for the mistake. (Ibid.) We review a decision to deny a
motion to withdraw a guilty plea for abuse of discretion. (Ibid.)
There is “no basis to disturb the trial court’s exercise of discretion in
denying [Wycoff’s] motion to withdraw” his plea. (People v. Breslin, supra,
205 Cal.App.4th at p. 1416.) As a threshold matter, the record indicates that
after the Marsden motion was denied, the court heard his motion to withdraw
his plea on June 13, 2024. It seems that on that date, the court denied his
motion (or indicated its inclination to deny it), but Wycoff’s counsel obtained
a continuance. At the July 31 hearing, counsel again noted Wycoff wanted to
withdraw his plea and forgo sentencing. Only then did the court deny the
motion without further inquiry.

6
 More importantly, the record demonstrates Wycoff sought to withdraw
his plea because having a felony conviction impacted his ability to obtain or
maintain low-income housing. But his counsel expressly advised him of that
consequence before he entered his plea. Despite this, he pled guilty because
he wanted to be released from custody. Thus, he accepted the plea not due to
mistake, ignorance or involuntary exercise of judgment — any one of which
could have supported good cause for withdrawal — but because he changed
his mind — which does not constitute good cause to withdraw a guilty plea.
(People v. Breslin, supra, 205 Cal.App.4th at p. 1416; People v. Nance (1991)
1 Cal.App.4th 1453, 1456.)
In his reply brief, Wycoff asserts he entered the plea while under
duress; this does not alter our conclusion. He forfeited this argument by
raising it for the first time in his reply brief without presenting any good
reason for failing to present it earlier. (Shade Foods, Inc. v. Innovative
Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894–895, fn. 10.)
He further fails to identify any evidence to support this claim. Nor are we
persuaded that his alleged self-defense claim — which he maintains his
counsel failed to investigate — was “ ‘ “sufficient cause to permit a change of
plea from guilty to not guilty.” ’ ” (People v. Ramirez, supra, 141 Cal.App.4th
at p. 1507.) In Ramirez, the defendant was ignorant of an existing
supplemental prosecution report containing exonerating evidence regarding
his charged offense. (Id. at p. 1508.) The report “provided possible defenses
to several charges, thereby casting the case against him in an entirely
different light.” (Ibid.) His resulting ignorance affected the decision to enter
his guilty plea. (Ibid.) The facts here are distinguishable. Wycoff fails to
identify exculpatory evidence of which he was ignorant before he entered his
plea. Nor does he identify new witnesses or provide information that could

7
support possible defenses to his original charges. Rather, his counsel told the
trial court he discussed possible defenses if the case proceeded to trial, but
Wycoff elected to enter a guilty plea to secure his release from custody. “To
the extent there was a credibility question between defendant and counsel at
the hearing, the court was ‘entitled to accept counsel’s explanation.’ ” (People
v. Smith (1993) 6 Cal.4th 684, 696.) The court did not err in forgoing further
inquiry regarding the basis for his motion to withdraw.
Wycoff alternatively insists his counsel was ineffective because he did
not argue the motion to withdraw his plea. This argument fails too.
Criminal defendants are entitled to competent representation on a motion to
withdraw. (People v. Smith, supra, 6 Cal.4th at p. 690.) But we “ ‘ “indulge a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance,” ’ ” while also “bearing in mind that not
even the Sixth Amendment requires a defense attorney to act in violation of
accepted ethical standards.” (People v. McLeod (1989) 210 Cal.App.3d 585,
589.)
Here, defense counsel brought Wycoff’s motion to withdraw to the trial
court’s attention. He then stated, “At this point, I don’t have anything to
offer the Court, but I know my client still wishes to withdraw his plea and
not go forward with sentencing today.” Though not expressly stated on the
record, it appears counsel felt the motion was meritless — as counsel and the
court were aware, Wycoff only wanted to withdraw his plea because he
changed his mind. (Compare with People v. Brown (1986) 179 Cal.App.3d
207, 215–216 [counsel should not have refused to bring nonfrivolous motion
to withdraw plea].) Counsel did not abandon Wycoff by not offering further
argument since doing so could “involve potential compromise of legal or

8
ethical standards.” (People v. McLeod, supra, 210 Cal.App.3d at pp. 589–
590.)
DISPOSITION
The order denying Wycoff’s motion to withdraw his plea is affirmed.

9
 _________________________
RODRÍGUEZ, J.

WE CONCUR:

_________________________
TUCHER, P. J.

_________________________
FUJISAKI, J.

A171464; P. v. Wycoff

10