Pursuant to Vehicle Code sections 3050(b) and Section 3052, an applicant for, or holder of, a license as a new motor vehicle dealer, manufacturer, manufacturer branch, distributor, distributor branch, or representative, may file an appeal with the Board after any final decision of the Director of the Department of Motor Vehicles ("Department") which adversely affects the occupational license of the appellant. Examples include matters such as the suspension or revocation of the appellant's license.
How to File an Appeal
The following are guidelines to consider when filing an appeal; however, the applicable Vehicle Code sections (3000 et seq.) and regulations (13 CCR § 550 et seq.) should be consulted as well. Additionally, the Board's legal staff is available to provide information concerning the procedural aspects of filing an appeal. The staff can be contacted at (916) 445-1888. PLEASE NOTE: THE BOARD'S STAFF IS NOT PERMITTED TO PROVIDE LEGAL ADVICE CONCERNING THE MERITS OF A PARTICULAR MATTER.
There are four things that must accompany each appeal filed:
- The Notice of Appeal (DOC)
- Evidence that the appellant has requested the administrative record of the Department and advanced the cost of that record;
- A $200.00 filing fee or request for fee waiver (DOC) upon good cause shown; and,
- Proof of service (DOC) that the Department was served with a copy of the appeal.
If any of the above are not enclosed, the appeal may not be processed until any missing items have been received.
Time Frame for Filing an Appeal
In general, the notice of appeal must be filed with the Board on the 10th day after the last day on which reconsideration of the final decision of the Department can be ordered (Veh. Code § 3052(a) and (13 CCR § 566). The failure to seek reconsideration before the Department does not affect the right to appeal (Veh. Code § 3052(a)).
An appeal is filed on the date it is received by the Executive Director of the Board. An appeal mailed by registered mail is deemed filed on the postmark date.
Upon its receipt from the Office of Administrative Hearings, the original and 3 copies of the complete administrative record is forwarded by the appellant to the Executive Director of the Board (13 CCR § 571(a)). The complete administrative record of the Department includes the pleadings, all notices and orders issued by the Department, any proposed decision by an administrative law judge, the exhibits admitted or rejected, the written evidence and any other papers in the case (Veh. Code § 3052(c)).
Effectiveness of Department's Decision
A decision of the Department is not effective during the period in which an appeal may be filed. The filing of an appeal stays the decision of the Department until a final order is made by the Board.
However, when a decision of the Department orders the revocation of a dealer's license, the Department, may on or before the last day upon which an appeal may be filed with the Board, petition the Board to order the decision of the Department into effect. With regards to the petition, the Department bears the burden of proof (Veh. Code § 3052).
Required Elements of an Appeal
The contents of a Notice of Appeal are contained in 13 CCR § 568. A Notice of Appeal must:
- Be in writing and be signed by the appellant or its attorney (13 CCR § 567);
- Indicate that appellant is an applicant for, or a holder of, a license as a new car dealer, manufacturer, manufacturer branch, distributor, distributor branch, or representative (13 CCR § 568(a));
- Set forth those portions of Vehicle Code sections 3054 and 3055 providing the basis for the appeal (13 CCR § 568(b));
- Indicate that appellant has applied to the Office of Administrative Hearings for the complete administrative record or those portions that appellant desires to file with the Board and has advanced the costs of the preparation thereof; or, in lieu thereof, that the case is being submitted on an agreed statement (13 CCR §§ 568(c) and 572).
- Include a statement that appellant desires to produce before the Board relevant evidence which in the exercise of reasonable diligence could not have been produced or which was improperly excluded at the hearing, if the appeal is based in whole or in part on Vehicle Code section 3054(e) (13 CCR §§ 568(d) and 569);
- Indicate either that the appellant does or does not desire to appear before the Board (13 CCR § 568(e));
- Be accompanied by a $200 filing fee in the form of a check, money order or credit card payable to the New Motor Vehicle Board (13 CCR § 553.40); and
- Be accompanied by a completed proof of service signifying that a copy of the Notice of Appeal was served upon the Department (13 CCR § 570).
At the hearing, oral argument is heard and a Final Order is rendered. The hearing is not conducted according to the technical rules relating to evidence and witnesses. 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, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Evidence that is irrelevant or unduly repetitious is excluded (13 CCR § 580).
Application Pro Hac Vice
Pursuant to Rule 9.47 of the California Rules of Court, a person who is not a member of the California State Bar must file an application to appear as counsel pro hac vice (DOC) and associate with local counsel.
Request for a Fee Waiver
The Executive Director may, upon a showing of good cause, waive the filing fee (13 CCR § 553.40).
Once the administrative record or agreed statement of facts has been received from the appellant, the Executive Director establishes a briefing schedule. Any party to the appeal filing a brief must submit the original brief and an additional 9 copies. A copy must be served upon the opposing party and completed proof of service must accompany the original filed with the Board (13 CCR § 573).
HEARINGS ON THE MERITS
Notice of the Hearing
At least 20 days prior to the hearing date, the Executive Director shall service notice of date, time and place of hearing upon the Department, appellant, the members of the Board and any other party making a written request for such notice (13 CCR § 574).
Changes to a Hearing Date
The Executive Director may continue the date fixed for the hearing, if good cause is shown. Applications for continuance must be in writing and must be filed with the Executive Director at least 10 days prior to the hearing. Continuances are not granted except in extreme emergencies such as serious accident or death (13 CCR § 575).
Failure to Appear at a Hearing
Any party who fails to appear at a hearing may not be entitled to a further opportunity to be heard except in cases where good cause for such failure is shown to the Board within 5 days thereafter. The lack of such a showing may, in the discretion of the Board, be interpreted as an abandonment of interest by the party in the subject matter of the dispute (13 CCR § 582).
Conduct of Hearing
Unless otherwise ordered by the Board, counsel for each party is allowed 20 minutes for oral argument. No more than one counsel for a party may be heard except that different counsel for appellant may make opening and closing arguments (13 CCR § 576).
Any person, including a Board Member, may file a motion to intervene in a pending appeal (13 CCR § 551.13).
Amicus curiae Briefs
The Board, its Executive Director, or a hearing officer may, in his or her discretion, allow the filing of amicus curiae briefs (13 CCR §§ 551.13 and 573). If the application for filing an amicus curiae brief is granted, the original and 9 additional copies must be filed with the Executive Director. A copy must be served on the appellant and the Department, and completed proof of service must accompany the original filed with the Board.
FINAL ORDERS OF THE BOARD
Board Action in an Appeal
Vehicle Code section 3054 gives the Board the power to reverse or amend a decision of the Department for any of the following reasons:
- The Department has proceeded without or in excess of its jurisdiction;
- The Department has proceeded in a manner contrary to the law;
- The decision is not supported by the findings;
- The findings are not supported by the weight of the evidence in the light of the whole record reviewed in its entirety, including any and all relevant evidence adduced at any hearing of the Board;
- There is relevant evidence, which in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing; or
- The determination or penalty, as provided in the decision of the Department is not commensurate with the findings.
The Board also has the power to amend, modify, or reverse the penalty imposed by the Department (Veh. Code § 3055). This power has been construed by the courts to include the ability to increase penalties set by the Department (Toyota of Visalia v. Department of Motor Vehicles(1984) 155 Cal.App.3d 315, 202 Cal.Rptr.190; appeal after remand, (1987) 188 Cal.App.3d 872, 233 Cal.Rptr. 708).
Determination of Appeal
In all cases, the Board is required to enter its order within 60 days after the appeal is filed unless there is an unavoidable delay in receiving the administrative record. Should the Board issue an order reversing a decision of the Department, the Board may direct the Department to reconsider the matter and take further action (Veh. Code § 3056).
The Board's order must be in writing and becomes final upon delivery of copies to the parties. The Board will fix an effective date for its orders not more than 30 days from the date the order is served or remand the matter back to the Department for fixing an effective date (Veh. Code § 3057).
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