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Date: 02-11-2019

Case Style:

A.K. Anderson v. Jean Shiomoto, as Director, etc.

Case Number: E069398

Judge: McKinster, Acting P.J.

Court: California Court of Appeals Fourth Appellate District, Division Two on appeal from the Superior Court, County of San Bernardino

Plaintiff's Attorney: A.K. Anderson, in pro. per.

Defendant's Attorney: Xavier Becerra, Chris A. Knudsen, Kenneth C. Jones and Eric M. Fox

Description: In a prior appeal, this court affirmed a judgment denying A.K. Anderson’s petition
for writ of mandate challenging the September 15, 2012, suspension of his driver’s
license by the Department of Motor Vehicles (DMV). (A.K. Anderson v. George
Valverde (June 12, 2015, E059981) [nonpub. opn.] (Anderson I).) We concluded the
record contained substantial evidence that Anderson had been diagnosed by a neurologist
with a seizure disorder, and that he had voluntarily discontinued taking anti-seizure
medication.
After our first decision became final, Anderson submitted to the DMV a report
prepared by a family practice physician that purported to demonstrate Anderson suffered
from no medical ailments whatsoever, and that he required no medications. A traffic
safety officer concluded the report did not demonstrate Anderson no longer suffered from
a seizure disorder, and the officer ordered that Anderson’s license remain suspended as of
September 15, 2012. Anderson once again unsuccessfully petitioned the superior court
for a writ of mandate challenging his original license suspension and the order refusing to
lift the suspension.
On appeal, Anderson again challenges the original suspension of his driver’s
license, and he argues the DMV could not refuse to reinstate his driver’s license under
Vehicle Code section 12806, subdivision (c) (§ 12806(c)), because there is no evidence
he suffered a seizure or a lapse of consciousness within the last three years.
3
Anderson’s challenge to the original license suspension was determined finally in
his appeal from the denial of his first petition for writ of mandate, so he is barred from
relitigating it again in this appeal. The plain language of section 12806(c) demonstrates
the DMV may refuse to issue or renew a driver’s license to three categories of motorists,
including those who suffer from “a disorder characterized by lapses of consciousness.”
The requirement of a seizure or a lapse of consciousness within the last three years only
applies to motorists who suffer from “any condition which may bring about recurrent
lapses.” (Ibid.) Because we conclude the record contains substantial evidence that
Anderson suffers from “a disorder characterized by lapses of consciousness” (ibid.), we
affirm the judgment.
I.
FACTS AND PROCEDURAL BACKGROUND1
A. The Accident and DMV/Administrative Actions—July 2006 to October 2012.
As best we can determine from the record, on or about July 13, 2006, Anderson
was involved in an automobile accident. On July 13, 2006, the DMV mailed Anderson a
notice of reexamination, asking him to have his doctor fill out medical forms. The
deadline was August 6, 2006, in order to avoid having his license suspended as of August
7, 2006. (Anderson I, supra, E059981.)

1
Much of the procedural and factual background in this appeal has already been
recounted in this court’s prior decision in Anderson I, supra, E059981. On our own
motion, we take judicial notice of our prior unpublished opinion. (Evid. Code, §§ 452,
subd. (d), 459, subd. (a).)
4
On January 14, 2008, the DMV issued an order of suspension informing Anderson
that his driving privilege would be suspended as of January 18, 2008. The DMV issued
the suspension under Vehicle Code section 13801 because Anderson had not completed
the reexamination process. (Anderson I, supra, E059981.)
The DMV held administrative hearings on January 14, September 16, and
September 17, 2012. A notice of findings and decision, dated September 18, 2012,
withdrew Anderson’s privilege to operate a motor vehicle effective September 15, 2012.
Further, a hearing report, also dated September 18, 2012, made the following findings of
fact: Anderson’s ability “to operate a motor vehicle safely is affected because of a
disorder characterized by lapses of consciousness or control . . . . [Anderson]
discontinued taking anti-seizure medications . . . . His neurologist feels [Anderson] is at
risk for another seizure and has advised against driving. Per medical evidence and
opinion, [Anderson] poses an immediate threat to traffic safety and should not be driving
for his safety and that of others on the roadway.” The hearing report described that
Anderson “rambled on” at the hearing regarding doctors and a woman claiming that
Anderson had a seizure in his sleep. More important for the purposes of this appeal,
Anderson “presented no affirmative evidence or testimony to rebut the department’s
evidence in this hearing.” (Anderson I, supra, E059981.)
The DMV conducted a departmental review and mailed Anderson a notice of
decision on October 3, 2012, in which it affirmed its order of suspension. (Anderson I,
supra, E059981.)
5
B. Writ of Administrative Mandate Proceedings—October 2012 to October 2013.
On October 29, 2012, Anderson, acting in propria persona, filed in the superior court
a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5.
(Anderson I, supra, E059981.)
On July 15, 2013, Anderson filed in the superior court a petitioner’s statement of
intention in which he requested the restoration of his driving privilege and $25,000 with
interest. Anderson also requested to “[o]btain[] the accountability of my life with
property, monetary, and liability reimbursement” and to “proceed with discovery in this
case and other cases.” Anderson further stated that he did not have a seizure on July 13,
2006, as “one or more doctors have claimed,” but rather he was assaulted on the job.
(Anderson I, supra, E059981.)
On July 26, 2013, the DMV filed its opposition to the writ petition. The DMV
argued Anderson had not carried his burden to show that the challenged DMV decision
was incorrect. (Anderson I, supra, E059981.)
The hearing on the writ petition was held on August 16, 2013. The superior court
referred to the neurologist’s report of September 5, 2012, stating that Anderson had
suffered seizures within the previous three years and that he refused to take anti-seizure
medications, which put him at risk of having another seizure. It also referred to
Anderson’s admission to the hearing officer that he was not taking his medication and to
his claim, unsupported by any evidence, that his doctors had misdiagnosed him. The
court stated that “the overwhelming weight of the evidence” supported the DMV
6
decision. After hearing from Anderson, the court denied the petition. (Anderson I,
supra, E059981.)
On October 28, 2013, the superior court entered judgment on its denial of the writ
petition. (Anderson I, supra, E059981.)
On June 12, 2015, this court affirmed the judgment in Anderson’s first
administrative mandate proceeding, concluding, inter alia, that the judgment was amply
supported by the evidence provided by Anderson’s treating physician. (Anderson I,
supra, E059981.) We rejected Anderson’s unsupported assertion that he had been
misdiagnosed, stating: “It was up to Anderson to arrange for another complete medical
examination and report prior to the DMV hearing to counteract the report from his
treating physician. He did not do this.” (Ibid.)
C. Interview and Additional DMV/Administrative Actions—June to November 2016.
On June 23, 2016, Anderson submitted to the DMV a driver medical evaluation
(DME) form. On the portion of the form to be completed by the motorist, Anderson
denied he had a history of “[s]eizure, convulsions or epilepsy” or that he was “[c]urrently
taking medications.” Anderson repeated his assertion that his license had been suspended
based on hearsay and a misdiagnosis of epilepsy and a seizure disorder. The remainder
of the form was completed and signed on June 23, 2016, by Cyrus Damirchi, M.D., who
listed his specialty as “Family Practice.” Dr. Damirchi indicated that Anderson had been
a patient since April 2016, and that Anderson’s last examination took place on April 5,
2016. Dr. Damirchi noted that Anderson had “no medical conditions” and had been
7
prescribed “no meds.” The physician recommended that Anderson be given a driving
test.
On July 21, 2016, the DMV mailed a notice to Anderson informing him of a
scheduled telephone appointment on July 27, 2016. The record does not disclose whether
Anderson completed the interview.
On August 25, 2016, the DMV informed Anderson that he had failed to appear for
an in-person interview scheduled for that same day. Consequently, the DMV ordered
that Anderson’s license “remain suspended” effective September 15, 2012.
Anderson appeared for an in-person interview on September 13, 2016, to
determine whether his ability to safely operate a motor vehicle was still affected by a
condition characterized by a lapse of consciousness or control. During the interview,
Anderson again denied having a seizure on June 6, 2006; he denied that he ever suffered
a seizure or a lapse of consciousness; and he claimed that the genesis of his misdiagnosis
with a seizure disorder was a lie his ex-wife told paramedics following a verbal
confrontation. Anderson said that in 2008, he started taking Keppra and Dilantin on the
advice of his doctor, but he stopped taking the medication in 2011 “as he was not aware
that it was to treat him for Epilepsy.” Anderson also stated he had been “manipulated
into taking medications,” but he did not elaborate on the allegation “or provide any
additional details as to why he was taking the medication for three (3) years.”
The driver safety officer who conducted the interview concluded Anderson “has a
history of lapses of consciousness or control. Although he denies having seizures,
[Anderson] was taking anti-seizure medication for three years. Further, the DME he
8
submitted is from a treating physician reporting no medical conditions and which is a
contradiction with his past medical history.” Based on those findings, the DMV ordered
that Anderson’s license remain suspended as of September 15, 2012.
D. Writ of Administrative Mandate Proceedings—December 2016 to October 2017.
On December 20, 2016, Anderson, again acting in propria persona, filed a second
petition for writ of administrative mandate under Code of Civil Procedure section 1094.5.
In an opening brief filed on May 30, 2017, Anderson claimed the original
suspension of his license was based on the word of a drunken liar. “The entire ‘lapse of
consciousness’ set of allegations started on June 6, 2006, when after a heated argument
with [Anderson’s] ex-girlfriend,[2] drunk on Old English 800 beer, [the ex-girlfriend] said
to Rialto paramedics that [Anderson] was ‘having seizures.’ Anderson was never
epileptic, and he never had any form of seizures [or] lapses of any kind.”
Anderson quoted section 12806(c), which provides in relevant part that the DMV
may refuse to issue or renew a driver’s license to any motorist “[w]ho has a disorder
characterized by lapses of consciousness or who has experienced, within the last three
years, either a lapse of consciousness or an episode of marked confusion caused by any
condition which may bring about recurrent lapses . . . .” According to Anderson,
although the neurologist reported that Anderson suffered a seizure in 2012, “[t]here is NO
report or other documentation stating [Anderson] had a seizure or lapse between 2013
and the present.” To the contrary, Anderson argued his “last doctor stated he has no

2
Throughout this case, Anderson was inconsistent in attributing the lie to his exwife
or to his ex-girlfriend.
9
medical condition impairing the ability to drive.” Anderson concluded by stating, “It’s
time to end this Old English 800 nonsense, and allow [me] to take a driving test again.”
In an opposition filed on June 23, 2017, the DMV argued the order continuing the
suspension of Anderson’s driver’s license was amply supported by the evidence and did
not constitute an abuse of discretion. According to the DMV, Anderson “was requested
to submit a medical report from a neurologist familiar with his condition. The one he
submitted was clearly based on incomplete history and was not sufficient to demonstrate
that his seizure condition is under control.” The DMV stated it would consider
reinstating Anderson’s driver’s license “provided he is truly seizure free and medically
cleared to drive. However, that determination can only be based on a medical opinion
from a neurologist familiar with [Anderson’s] full medical history.”
At the hearing on Anderson’s petition held on August 4, 2017, the superior court
stated its tentative decision was to deny the petition. “You have a long, well-documented
history of a seizure disorder, with reports to the DMV from various healthcare providers,
hospitals, and other institutions. Your denial of having a seizure disorder is—I don’t
mean to be disrespectful when I say this—but it is not credible in light of this amply
documented history.” The court indicated it did not find Anderson’s DME to be
persuasive evidence to the contrary. “[T]hat physician was a family practitioner, not a
neurologist, [who] saw you once, and [who] did not have an opportunity to review any of
your medical records.” The court characterized as a “misunderstanding” Anderson’s
argument that the DMV had the burden to show he “had an incident involving a loss of
consciousness within the last three years.” The court noted the DMV could also deny
10
Anderson his driving privilege if it concluded he had “a physical or mental disease which
could make it unsafe to operate a vehicle.” Exercising its independent judgment, and
giving no “particular deference” to the DMV’s decision, the court stated the evidence
supported the conclusion that Anderson’s “seizure disorder” was such a physical or
mental disease.
Anderson repeated the argument made in his brief that his original misdiagnosis
with a seizure disorder was based on false information from “a female who was drunk.”
The superior court indicated it was not inclined to change its tentative decision and
denied Anderson’s petition.
On August 9, 2017, the superior court entered judgment against Anderson and in
favor of the DMV.
Anderson timely appealed.
II.
DISCUSSION
“‘When a person petitions for a writ of mandate following an order suspending his
or her driver’s license, the [trial] court is required to determine, based on the exercise of
its independent judgment, whether the weight of the evidence supports the administrative
decision. [Citations.] In making that determination, the court acts as a trier of fact; it has
the power and responsibility to weigh the evidence and make its own determination about
the credibility of witnesses. [Citation.] The administrative findings, however, are
entitled to “a strong presumption of correctness,” and “the party challenging the
administrative decision bears the burden of convincing the court that the administrative
11
findings are contrary to the weight of the evidence.”’” (Espinoza v. Shiomoto (2017)
10 Cal.App.5th 85, 99-100.)
“‘On appeal, we review the record to determine whether the court’s findings are
supported by substantial evidence. “‘“We must resolve all evidentiary conflicts and draw
all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.]
Where the evidence supports more than one inference, we may not substitute our
deductions for the trial court’s. [Citation.] We may overturn the trial court’s factual
findings only if the evidence before the trial court is insufficient as a matter of law to
sustain those findings.”’”’” (Espinoza v. Shiomoto, supra, 10 Cal.App.5th at p. 100.)
“‘An appealed judgment is presumed to be correct. We will indulge all
intendments and presumptions to support the judgment on matters as to which the record
is silent and prejudicial error must be affirmatively shown.’” (Espinoza v. Shiomoto,
supra, 10 Cal.App.5th at p. 100.) “Finally, ‘we will affirm a judgment correct on any
legal basis, even if that basis was not invoked by the trial court. [Citation.] There can be
no prejudicial error from erroneous logic or reasoning if the decision itself is correct.’”
(Ibid.)
The DMV “is not required to show it was right.” (Elizabeth D. v. Zolin (1993)
21 Cal.App.4th 347, 355.) Rather, Anderson has the affirmative obligation to
demonstrate error and must overcome the strong presumption of correctness that attaches
to the superior court’s ruling. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 812.)
12
As he did in the superior court, on appeal, Anderson once again argues the original
suspension of his driver’s license was “based on false statements from [his] ex-wife [or
ex-girlfriend (see, ante, fn. 2)] who was drunk on Old English 800 beer,” and that he was
never an epileptic, and never suffered seizures or a lapse of consciousness. That issue
has already been conclusively and finally decided against Anderson. In the prior appeal,
this court concluded the record contained substantial evidence to support the superior
court’s denial of Anderson’s petition for writ of mandate challenging the original
suspension of his driver’s license. (Anderson I, supra, E059981.) On August 26, 2015,
the California Supreme Court denied Anderson’s petition for review (case No. S227977),
and we issued our remittitur on September 1, 2015. Anderson is, therefore, barred from
relitigating the propriety of the original license suspension. (Gikas v. Zolin (1993) 6
Cal.4th 841, 848-849.)
With respect to the judgment that is actually on appeal—the judgment denying
Anderson’s petition for writ of mandate challenging the DMV’s order declining to lift
Anderson’s license suspension and leaving it in place as of September 15, 2012—
Anderson argues the record contains no evidence that he suffered any seizures or lapses
of consciousness in the last three years and, therefore, the superior court should have
granted his petition. Anderson’s argument is premised on the assumption that the DMV
may only refuse to issue or renew a driver’s license under section 12806(c) if the motorist
has suffered a seizure or a lapse of consciousness within the previous three years.
13
Whether section 12806(c) limits the DMV’s discretion as Anderson contends is a
question of statutory interpretation that we review de novo. (Brown v. Valverde (2010)
183 Cal.App.4th 1531, 1546.) “The fundamental principle of statutory interpretation is
‘the ascertainment of legislative intent so that the purpose of the law may be
effectuated.’” (Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 372.) “In
interpreting statutes, if the ‘language is clear and unambiguous there is no need for
construction, nor is it necessary to resort to indicia of the intent of the Legislature.’”
(Rehman v. Department of Motor Vehicles (2009) 178 Cal.App.4th 581, 586.)
As relevant here, the DMV “may”3
refuse to issue or renew a driver’s license to
any person who “[(1)] has a disorder characterized by lapses of consciousness or [(2)] who
has experienced, within the last three years, either a lapse of consciousness or an episode
of marked confusion caused by any condition which may bring about recurrent lapses, or
[(3)] who has any physical or mental disability, disease, or disorder which could affect the
safe operation of a motor vehicle unless the department has medical information which
indicates the person may safely operate a motor vehicle.”4
(§ 12806(c).)

3
In contrast, the DMV “shall not” issue or renew a license to a motorist “[w]hen
it is determined, by examination or other evidence, that the person is unable to safely
operate a motor vehicle upon a highway.” (Veh. Code, § 12805, subd. (a)(4); see People
v. Superior Court (Wilson) (1993) 18 Cal.App.4th 31, 36 [“upon making a determination
the driver cannot drive safely, DMV is mandated to terminate driving privileges”].)
4
In determining whether a motorist falls within the descriptions contained in
section 12806(c), the DMV “may rely on any relevant information available to the
department.” Presumably, “any relevant information” includes reliable hearsay.
14
As demonstrated by our addition of numbers 1 through 3 in brackets,
section 12806(c) lists three distinct categories of motorists separated by the word “or.”
“[T]he plain and ordinary meaning of the word ‘or,’ when used in a statute, is to designate
separate, disjunctive categories. [Citation.] The word ‘or’ suggests alternatives.
[Citation.] In its ordinary sense in a statute, ‘“‘the function of the word “or” is to mark an
alternative such as “either this or that.”’”’” (In re E.A. (2018) 24 Cal.App.5th 648, 661.)
The requirement of a seizure or a lapse of consciousness within the last three years applies
solely to the second category of motorists, to wit, those who suffer from “any condition
which may bring about recurrent lapses.” (§ 12806(c).) No such requirement applies to
the first and third categories of motorists, viz, those who suffer from “a disorder
characterized by lapses of consciousness”
5 or who have “any physical or mental disability,
disease, or disorder which could affect the safe operation of a motor vehicle.” (Ibid.)

5
The DMV has adopted regulations to govern the license suspension or
revocation of motorists who have “a disorder characterized by lapses of consciousness or
episodes of marked confusion,” which affect the motorist’s ability to safely operate a
motor vehicle. (Cal. Code Regs., tit. 13, § 110.01; see id., §§ 110.02-118.00.) In turn,
those regulations incorporate the definition of “a disorder characterized by lapses of
consciousness or episodes of marked confusion” adopted by the State Department of
Health Care Services (DHCS). (Id., §§ 110.01-110.02.)
DHCS defines “[d]isorders characterized by lapses of consciousness” as “medical
conditions that involve: [¶] (1) a loss of consciousness or a marked reduction of alertness
or responsiveness to external stimuli; and [¶] (2) the inability to perform one or more
activities of daily living; and [¶] (3) the impairment of the sensory motor functions used
to operate a motor vehicle.” (Cal. Code Regs., tit. 17, § 2806(a); see Health & Saf. Code,
§ 103900.) Notably absent from that definition is a requirement that the individual have
suffered a seizure or a lapse of consciousness within the past three years.
Like Vehicle Code section 12806(c) (see, ante, fn. 4), the DMV’s regulations
permit the DMV to consider “[a]ny other relevant evidence” when determining whether a
[footnote continued on next page]
15
The administrative record that was presented to the superior court in this case
contains much of the record that was presented with Anderson’s first petition. In other
words, the court once again had before it evidence that Anderson’s treating neurologist
had diagnosed Anderson with a seizure disorder, and that Anderson had voluntarily
discontinued taking anti-seizure medication. The DME submitted by Anderson purported
to demonstrate that he did not suffer from any medical ailments whatsoever, and that he
required no medications. But the court (and the DMV) expressly discounted the
evidentiary weight to be given to the DME because the family practice physician who
prepared it had only examined Anderson once, and it did not appear that the physician
had reviewed Anderson’s complete medical history. We are not free to reweigh the
evidence, and we are bound by that determination. (Espinoza v. Shiomoto, supra,
10 Cal.App.5th at p. 100.)
The superior court concluded the DMV properly refused to lift Anderson’s license
suspension because he fell within the class of motorists who suffer from “any physical or
mental disability, disease, or disorder which could affect the safe operation of a motor
vehicle.” (§ 12806(c).) We hold substantial evidence supports the conclusion that
Anderson falls within the first category of motorists described in that statute because he
suffers from “a disorder characterized by lapses of consciousness.” (Ibid.) Therefore,

[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
motorist has a disorder characterized by a lapse of consciousness. (Cal. Code Regs.,
tit. 13, § 110.01(h).)
16
although we disagree with the superior court’s reasoning, we agree with its ultimate
decision—that the DMV did not err by refusing to lift Anderson’s license suspension.

Outcome: The judgment is affirmed. In the interest of justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

Plaintiff's Experts:

Defendant's Experts:

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