Case 2:14-cv-00751-GEB-AC Document 38 Filed 08/06/14 Page 1 of 9

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I(AMALAD. HARRIS, State BarNo.146672

Attorney General of California
ScorrH. WYCKOFF, State BarNo. 191367
Supervising Deputy Attorney General
MATTHEW T. BESMER, State Bar No. 269138
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
Telephone: (559) 477-1680
Fax: (559) 445-5106

E-mail: Matthew.Besmer@doj.ca.gov
Attorneys for Defendants

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

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REHAN SHEIKH,

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Plaintiff, REPLY IN SUPPORT OF MOTION TO

DISMISS FOR MOOTNESS AND
v.
STANDING (RULE 12(b)(1)) AND MOTION
TO DISMISS FOR FAILURE TO STATE A
CLAIM (RULE 12(b)(6))
BRIAN KELLY Secretary, California
State Transportation Agency and Mark
Tweety, Manager, Department of Motor
August 13, 2014
Date:
Vehicles,
10:00 a.m.
Time:
Courtroom:
26 , 8111 Ftoor
Defendants. Judge:
Honorable Allison Claire

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2:14-cv-751 GEB AC PS

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ __ J

TBA
Trial Date:
Action Filed: March 24, 2014

SUMMARYOFREPLY

ln his opposition, Plaintiff disputes the evidentiary bases fOr his license suspension. His

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arguments, however, do not revive his moot claims. The gravamen of Plaintiff's complaint is that

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he was not provided with a pre-deprivation or post-deprivation hearing in connection with his

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driver's license suspension. While Plaintiff is entitled to due process, he is not entitled to a

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formal adjudicatory hearing given the nature of his license suspension. Defendants have

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provided, and continue to provide, Plaintiff with post-deprivation due process that comports with

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the Fourteenth Amendment. Plaintiff is in complete control over how long he remains without a

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1
Reply in Suppmt of Motion to Dismiss for Mootness and Standing (Rule 12(b)(l)) and
Motion to Dismiss for Failure to State a Claim (Rule 12(b)(6)) (2:14-cv-751 GEB AC PS)

Case 2:14-cv-00751-GEB-AC Document 38 Filed 08/06/14 Page 2 of 9

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driver's license, and the Department of Motor Vehicles remains committed to providing Plaintiff

with the opportunity to become eligible to renew his license. Plaintiff' needs to do the following

things to become eligible to renew his license:

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Pay or otherwise resolve the traffic fine for his August 2011 citation;

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Clear the failure to appear with the San Joaquin County Superior Court for hls

February 2012 citation; and

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Because Plaintiff's claims are moot and because he lacks standing, Defendants' motion to

Submit to, and successfully complete, a reexamination.

dismiss should be granted. If Plaintiff would like to challenge the evidentiary basis for his license

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suspension, the remedy for doing so is through filing a petition for writ of mandate under Code of

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Civil Procedure section I 094.5.

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ADDITIONAL BACKGROUND REGARDING PLAINTIFF'S LICENSE SUSPENSION

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Plaintiff sought additional clarification for why his license was suspended and why he

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remains ineligible to renew his license by tiling a request for admission on July 9, 2014. See

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Docs. 31 and 31-1. Tn response, Defendants' counsel sent Plainti.ll'a letter dated July 14,2014,

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(the "July 2014 Letter"). A true and correct copy of that letter is attached as Exhibit 1 to the

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declaration of Matthew T. Besmer filed herewith ("Besrncr Decl."). The July 2014 Letter

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enclosed true and correct copies of certified traffic court records from the San Joaquin County

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Superior Court pertaining to Plaintiff's traffic citations. 'Ibis letter is additional evidence

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regarding the mootness of Plaintiffs claims.

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I.

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The August 11, 2011 Citation.

The traffic court records show that Plaintiff received a traffic citation on August 1I, 2011.

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Besmer Decl., Ex. 1. fle was ordered to appear on or before September I, 2011. Besmer Decl.,

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Ex. 1. He did not appear as ordered. Bcsmer Decl. Ex. 1. The HMV mailed two letters to

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Plaintiff dated December 5, 2011, stating that his licensee would be suspended as of January 4,

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2012, until all failures-to-appear were removed from his record. Bcsmer Decl., Ex. 1. The traffic

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court records show that Plaintiff finally appeared on February 29, 2012. Besrner Decl. Ex. 1. An

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additional charge for failure to appear wa<; added to the docket. Besmer Decl., Ex. 1. The court
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Reply in Support or Motion to Dismiss for Mootness and Standing (Rule 12(b)(l)) and
Motion to Dismiss for Failure to State a Claim (Rule 12(b)(6)) (2:14-cv-751 GEB AC PS)

Case 2:14-cv-00751-GEB-AC Document 38 Filed 08/06/14 Page 3 of 9

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records show that Plaintiff appeared again on May 23, 2012, and that he was fmmd guilty and

ordered to pay a fine for violating Vehicle Code section 22450(a) (charge 01), a fee for the

Emergency Medical Air Transportation frund (charge 06), and a fine for his failure to appear

(charge 07). Besmcr Decl., Ex. 1. I-Iis fines were due on or before August 21,2012. Besmer

Decl., Ex. 1. According to a San Joaquin County traffic court clerk, Plaintiff has not paid this

fine and as of August 5, 2014, owes $390. Besmer Dec!.,~ 5. Further, DMV's records show that

Plaintiff has not yet paid his traffic fine as of August 6, 2014. Second Declaration of Sharon R.

Robinson filed herewith (2d Robinson Dec!.) 113.

II.

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The February 16,2012 Citation.

The traffic court records show that Plaintiff was issued a traffic citation on February 16,

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2012. Besmer Decl., Ex. 1. He was required to appear in the San Joaquin Cmmty Superior Court

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on or before March 8, 2012. Besmer Decl., Ex. I. He never appeared. Besmer Decl., Ex. 1. The

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court minutes dated April4, 2012, show that he was charged with a failure to appear and a bench

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warrant was issued for his arrest in the amount of $20,000. Besmer Decl., Ex. 1. The DMV

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mailed two letters to Plaintiff dated October 23, 2012, stating that his licensee would be

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suspended as of November 22, 2012, until all tllilures-to-appear were removed from his record.

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Besmcr Decl., Ex. I. To date, the DMV does not have any record that Plaintiff has appeared on

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his February 2012 citation.

Plaintiff claims that on May 23. 2012. "[a] trial was held at the San Joaquin County

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Superior Court in connection witb the two traffic citations. The court addressed only alleged

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failure to completely Stop [sic] at the Stop [sic] sign dated August 11, 2011. All other allegations

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in the traffic citations dated August 11, 2011, and February 16, 2012, were previously resolved or

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withdrawn." Plaintiffs Memorandum of Points and Authorities (Doc. 34), at 7:27-8:16-18.

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According to a Sm1 Joaquin County traffic court clerk, as of August 5, 2014, PlaintiiThas not

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appeared on this citation and a bench warrant is outstanding in the amount of $20,000. Besmer

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Decl., ,[5. Further, DMV's records show that Plaintiff has not yet appeared in court on tbis

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citation as of August 6, 2014. 2d Robiuson Dec! . ~ 3.

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Ill
3
Reply in Support of Motion to Dismiss for Mootncss and Standing (Rule 12(b){l)) and
Motion to Dismiss for Failure to State a Claim (Rule 12(b)(6)) (2:14-cv-75 I GEB AC PS)

Case 2:14-cv-00751-GEB-AC Document 38 Filed 08/06/14 Page 4 of 9

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HI.

The Reexamination.

The July 2014 Leiter advised Plaintiff that Stockton Police Department Officer Hoffman

issued Plaintiff a Notice of Reexamination because he was observed violating traffic laws and

exhibited behavior that called into question his ability to safely operate a motor vehicle. Besmer

Decl., Ex. 1. In support of the Notice of Reexamination, the July 2014 Letter included a copy of

the Stockton Police Report pertaining to Plaintiffs February 16, 2012 traffic violations. Besmer

Decl. Ex. 1. The July 2014 Letter also explained (dhd enclosed DivfV records) that Plaintiffs

license was suspended because he had failed to timely schedule, and refused to complete, a

driver's license reexamination. Besmer Decl., Ex. 1.

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The police report pertaining to the Notice of Reexamination states that Plaintiff was

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observed speeding, he ran a red light, and he wa" following another vehicle too closely. Besmer

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Decl., Ex. 1. He also failed to immediately stop after Ofiicer Hoffman activated his emergency

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lights and sirens. Besmer Decl., Ex. 1. Ofiicer Hoffinan stated that Plaintiff made no attempt for

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several blocks to slow dovvn and pull over, even though he had several opportunities to do so.

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Besmer Decl., Ex. I. When Plaintiff finally stopped, Officer Hoffman discovered that he was

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driving with a suspended license. Besmer Decl., Ex. 1. Officer Hoffinan stated that PlaintifT's

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demeanor was initially calm, but he suddenly became angry when asked whether he had a valid

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driver's license and insurance. Bcsmer Decl., Ex. I.

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While Officer Hoffman was speaking to a second officer who had arrived on scene,

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Plaintiff honked his hom, turned his brake lights on and off, and hit his steering wheel. Besmer

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Dec!., Ex. 1. '!11en Plaintiff exited his vehicle and when asked to get back inside, he told Officer

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Hoffman "Fuck You." Bcsmer Decl., Ex. 1. When Officer Hoffman gave PlaintilTthe

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opportunity to either sit in his vehicle or in the patrol vehicle, he refused to comply and was

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handcuffed and placed in the backseat of the patrol vehicle. Besmer Decl., Ex. 1. While Officer

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I-Joffinan was writing Plaintiff a ticket, he kicked the rear driver side door. Besmer Dec I., Ex. 1.

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Plaintiff refused to sign the citation and requested to be arrested. Besmer Decl., Ex. 1. At the

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police department, Plaintiff continued to refuse to sign the citation and were booked into the San

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Joaquin County Jail. Besmer Decl., Ex. 1.

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Reply in Support of Motion to Dismiss for Mootncss and Standing (Rule l2(b)(l)) and
Motion to Dismiss for Failure to State a Claim (Rule 12(b)(6)) (2:14-cv-751 GEB AC PS)

Case 2:14-cv-00751-GEB-AC Document 38 Filed 08/06/14 Page 5 of 9

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ARGUMENT

I.

PLAiNTIFF'S CLAIMS ARE MOOT BECAUSE HE liAS BEEN PROVIDED WITH POSTDEPRIVATION DUE PROCESS FOR THE SUSPENSIONS RELATED TO IDS TRAFF1C
CITATIONS

Plaintiff alleges that Defendants have denied his "requests for administrative hearing."

Plaintiffs Opposition (Doc. 36) at 3:19-20. He further alleges that "Defendants have denied all

requests for post deprivation administrative hearing since 2011." Plaintifl"s Opposition (Doc. 36) at

3:24-25. Due process, however, docs not require Plaintiff to be provided with a formal hearing in

connection with bis license suspension due to his failure to pay a fine and appear in court.

"It has been said so often by this [United States Supreme] Court and others as not to

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require citation of authority that due process is flexible and calls for such procedural protections

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as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 480-481 (1972); see

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also Parham v. J.R., 442 U.S. 584 (1979) (due process does not require a formal, judicial type

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hearing to have a child institutionalized); Demekpe v. Bd. ofTrs. of the Cal. State Univ., 551 Ped.

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Appx. 338 (9th Cir. Cal. 2013) ("due process docs not require a formal hearing for an adverse

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academic decision, but only prior oral or written notice to the student and an opportunity to

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present his side of the story") (citing Rd. of Curators ofUniv. ofMo. v. Ilorowitz, 435 U.S. 78,

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85-87 (1978)).

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Plaintiff has been provided with all the due process required because he has been notified

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of his license suspension and the steps he needs to take to become eligible to renew his license.

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After he resolves his failure to pay his citation fine and after he appears in court, the DMV's

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records will be updated in accordance with Vehicle Code sections 13365 and 40509. As

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explained in Defendants' supporting memorandum (Doc. 21 at 6:20 -7:23), this statutory

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framework comports with the post-deprivation due process factors set forth in Mathews v.

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Eldridge, 424 U.S. 319,335 (1976).

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A formal post-deprivation hearing would offer Plaintiff no more due process than what he

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is currently being afforded. See Parham, 442 U.S. at 584 (recognizing that in a child

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institutionalization process the "risks of error will not be significantly reduced by a more formal,

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judicial-type hearing"). lf a hearing were held, for example, the DMV would review its records
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Reply in Support orMation to Dismiss for Mootness and Standing (Rule 12(b)(J)) and
Motion to Dismiss for raihlre to State a Claim (Rule l2(b)(6)) (2:14-cv-751 GEB AC PS)

Case 2:14-cv-00751-GEB-AC Document 38 Filed 08/06/14 Page 6 of 9

to determine whether Plaintiff has cleared his traffic fine and failure to appear. See Cal. Veh.
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Code 13365(b). The DMV has invited Plaintiff to submit proof that he has resolved these two

issues. (Bcsmer Decl., Ex. 1.) A formal hearing on these issues is unnecessary. To date, Plaintiff

has offered no proof that he ha..; paid his traffic fme. While Plaintiff claims that he appeared in

court on May 23,2012, to resolve his February 16,2012 trafllc citation, the traffic court records

do not support Plaintiff's claims. (Besmer Decl.,

Joaquin County Superior Court to address the failure to appear on his February 2012 traffic

citation. He is in complete control of this process. It is his decision not to address this failure to

appear.

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~5.)

Plaintiff needs to do appear in the San

For the foregoing reasons, Plaintiffs due process claims are moot.
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PLAINTIFF'S CLATMS ARE MOOT BECAUSE liE HAS BEEN PROVIDED WITH POSTDEPRIVATION DUE PROCESS FOR THE SUSPENSION RELATED TO HIS FAILURE TO
COMPLETE THE REEXAMINATJON

Plaintiff's assertions regarding the reexamination focus on whether he believes he should

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be required to submit to a reexamination. Neither California statutes nor the Fourteenth

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Amendment require Plainti1Tto be provided with a hearing to determine whether he must submit

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to a reexamination. ln fact, due process is built into the statutory reexamination process.

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Under V chicle Code section 21061 (a), a traffic officer may issue a notice of

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reexamination to any person who violates traffic laws and who "exhibits evidence of incapacity to

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the traflic officer which leads the traffic officer to reasonably believe that the person is incapable

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of operating a motor vehicle in a manner so as not to present a clear or potential danger of risk of

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injury to that person or others if that person is permitted to resume operation of a motor vehicle."

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Veh. Code 21061 (a). Evidence of incapacity "means evidence, other than violations of this

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division, of serious physical injury or illness or mental impairment or disorientation which is

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apparent to the tratlic officer and which presents a clear or potential danger or risk of injury to the

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person or others if that person is permitted to resume operation of a motor vehicle." Cal. Veh.

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Code 21061(b).

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Upon issuance of a Notice of Reexamination, a licensee has five working days to

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complete the examination to avoid preemptory suspension of driving privileges. Cal. Veh. Code
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Reply in Support of Motion to Dismiss for Mootness and Standing (Rt~le 12(b)(l)) and
Motion to Dismiss for Pailt1re to State a Claim (Rule 12(b)(6)) (2: 14-cv-751 GEB AC PS)

Case 2:14-cv-00751-GEB-AC Document 38 Filed 08/06/14 Page 7 of 9

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12819. After competing the examination, the DMV may remove the suspension, revoke the

license, or issue a restricted license. Cal. Veh. Code 12818(b)(1 )-(2).

Here, Plaintiff scheduled a reexamination for March 26, 2012. Bcsmer Dccl., Ex. 1.

Plaintiff, however, refused to complete the reexamination. Bcsmer Decl., Ex. 1. While Plaintiff

does not admit that he refused to complete the reexamination, he does admit that on March 26,

2012, "Plaintiff went to DMV Sacramento office." Plaintiffs Memorandum of Points and

Authorities (Doc. 34) at 9:28.

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The reexamination that Plaintiff has been instructed to complete is akin to a hearing on
whether his license should be reinstated, revoked, or restricted. To date, Plaintiff has refused to

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exercise his due process rights. The DMV has extended an open invitation to Plaintiffto schedule

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a reexamination after he resolves the failure to pay his fine and appear in court. Besmer Decl.,

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Ex. 1. Accordingly, Plaintifihas been provided with adequate post-deprivation due process and

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his claims are moot.

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III.

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PLAINTIFF LACKS STANDING BECAUSE HE IS NOT DISPUTING IllS FATLUHE TO PAY

IllS TRAFFIC FINE

In Plaintiff's Memorandum of Points and Authorities (Doc. 34), he asserts that he resolved
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all outstanding failures to appear. Doc. 34 at 8:17-18. But on August 5, 2014, a San Joaquin
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County traffic court clerk stated that Plaintiff has not yet appeared on his February 2012 citation.
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(Bcsmer Dec I.~ 5.) Further, as of August 6, 2014, Plaintiff's driving record shows that he bas
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not yet appeared on this citation. 2d Robinson Decl., ,-r 3. Plaintiff has not disputed his failure to
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pay the fine for his August2011 trafiic citation. Plaintiff cannot renew his license tmtil he pays
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this fine. See Cal. Veh. Code 12807(a) and 13665(b). Because he is not disputing this fact, he
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does not have standing to pursue his due process claims. See Defendant's Memorandum (Doc.
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21) at 9:4-24. Plaintiffs complaint should therefore be dismissed.

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IV.
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PLAINTIFF liAS NOT ADDRESSED 0EFI~NDANTS' ARGUMENTS THAT PORTIONS OF

HIS PRAYER FOR RELIEl' SHOULD BE DISJ\.fTSSED

Under Pederal Rule of Civil Procedure 12(b)(6), Defendants have requested dismissal of

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Plaintift:~s

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ordering the renewal of his license, and a permanent injunction to enjoy the enforcement of
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request for declaratory relief against Brian Kelly and Mark Twcety, for an injunction

Reply in Support of Motion to Dismiss for Mootness and Standing (Rule 12(b)(I)) and
Motion to Dismiss for Failure to State a Claim (Rule l2(b)(6)) (2:14-cv-751 GEB AC PS)

Case 2:14-cv-00751-GEB-AC Document 38 Filed 08/06/14 Page 8 of 9

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unconstitutional and burdensome policies. Defendants' Memorandum (Doc. 21) at 10:22-12:13.

Plaintiff has not addressed these arguments. Therefore, Defendants' motion to dismiss should be

granted.

CONCLUSION

Based on the foregoing, Plaintiffs complaint should be dismissed for mootness and lack

of standing. Alternatively, certain portions of his prayer for relief should be dismissed under Rule

12(b)(6).

Dated:

Respectfully submitted,

August 6, 2014

KAMALA D. HARRIS

Attorney General of California

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SCOT!' H. WYCKOFF

Supervising Deputy Attorney General

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/s/ :Matthew 'I. !Jlesmer

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MATTHEWT. BESMER

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Deputy Attorney General

Attorneys for Defendants

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SA2014ll5505
95113895.doc

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Reply in Support of Motion to Dismiss for Mootncss and Standing (Rule 12(b)(J)) and
Motion to Dismlss (Or Failure to Sialc a Claim (Rule 12(b)(6)) (2:14-cv-751 GEB AC PS)

Case 2:14-cv-00751-GEB-AC Document 38 Filed 08/06/14 Page 9 of 9

DECLARATION OF SERVICE BV U.S. MAIL

Case Name:
No.:

Sheikh, Rehan v. Kelly, Brian, et al

2:14-cv-751 GEB AC PS

I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member1s direction this service is made. I am 18 years of age or
older and not a party to this matter. I am familiar with the business practice at the Office of the
Attorney General for collection and processing of correspondence for mailing with the United
States Postal Service. In accordance witb that practice, correspondence placed in the internal
mail collection system at the Office of the Attorney General is deposited with the United States
Postal Service with postage thereon fully prepaid that same day in the ordinary course of
business.
On August 6, 2014, I served the attached REPLY IN SUPPORT OF MOTION TO DISMISS
FOR MOOTNESS AND STANDING (RULE 12(b)(l)) AND MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM (RULE 12(b)(6)) by placing a true copy thereof enclosed in
a scaled envelope in the internal mail collection system at the Office of the Attorney General at
2550 Mariposa Mall, Room 5090, Fresno, CA 93721, addressed as follows:
Rehan Sheikh
1219 W. E1 Monte Street
Stockton. CA 95207

I declare under penalty of perjury under the laws of the State of Califomia the foregoing is true
and correct and that this declaration was executed on August 6, 2014, at Fresno, California.

Carol Borunda
Declarant
SA2014115505

95113931.doc

/s/ Caro[<Borunda
Signature