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Khouja v. State11/7/2002
f a drive test involving a life-threatening incident such as a collision, near collision or the like.
Fanucchi found no cause for immediate revocation or suspension. Mkhize was allowed to drive home. Later that day she hit and killed decedent infant.
Appellants filed a tort claim against the state, followed by the complaint in this action. The state obtained summary judgment; this appeal followed.
II. DISCUSSION
A. Standard of Review
"Summary judgment in favor of a defendant is proper if (1) the defendant shows that one or more elements of a cause of action cannot be established or there is a complete defense to it; and (2) the plaintiff fails to meet his or her burden of showing the existence of a triable issue of material fact. [Citation.] Because a summary judgment motion raises only questions of law, we independently review the trial court's grant of summary judgment. [Citation.]" (Gray v. Stewart (2002) 97 Cal.App.4th 1394, 1397.)
B. No Mandatory Duty Was Triggered
Appellants insist that DMV was under a mandatory duty imposed by section 12805 to refuse to issue or renew Mkhize's driver's license. Resolution of this issue entails the interplay of several statutes.
We start with Government Code section 815.6, which provides: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury , the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." An enactment is "a constitutional provision, statute, charter provision, ordinance or regulation." (Id. at § 810.6.) "Regulation" is defined as "a rule, regulation, order or standard, having the force of law, adopted . . . as a regulation by an agency of the state pursuant to the Administrative Procedure Act . . . ." (Id. at § 811.6.)
The Vehicle Code, in turn, mandates that the DMV refrain from issuing or renewing a license when the department determines "by examination or other evidence, that the person is unable to safely operate a motor vehicle upon a highway." (§ 12805, subd. (d).) Subdivision (d) sets forth a two-step decision-making process. First, DMV has discretion to determine that a driver is unable to drive safely, based on an examination or other evidence. Second, DMV is mandated to terminate driving privileges, but only if it makes that threshold determination. (See Trewin v. State of California (1984) 150 Cal.App.3d 975, 981; see also People v. Superior Court (Wilson) (1993) 18 Cal.App.4th 31, 36-37.) Conversely, the DMV has discretion to refuse to issue or renew a license to anyone "who has any physical or mental disability, disease, or disorder which could affect the safe operation of a motor vehicle . . . ." (§ 12806, subd. (c), italics added.) Nevertheless, this discretion is subject to an exception when DMV has medical information indicating that the person may drive safely notwithstanding the disability. (Ibid.) Additionally, DMV has discretion to require an applicant for renewal of a license to take an examination deemed "appropriate in relation to evidence of a condition that may affect the ability of the applicant to safely operate a motor vehicle." (§ 12814, subd. (a).) However, it cannot rely solely on the driver's age as evidence of a condition requiring an examination of driving ability. (Ibid.)
It is clear from the language of section 12805 and its role in the licensing scheme as a whole that subdivision (d) preserves DMV's discretionary power to determine in the first instanc
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