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Tentative Ruling
Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Department of Motor Vehicles vs California Highway Patrol et

Case No: 1416848
Hearing Date: Tue Jul 30, 2013 9:30

Nature of Proceedings: OSC Failure to Comply with Subpoena Duces Tecum

Order to Show Cause Re Contempt Ruling The Court orders as follows: The Court orders the hearing continued to September 3, 2013, at 9:30 a.m., and directs the Department of Motor Vehicles to effect personal service of notice of continuance of the hearing, the April 30, 2013, Order to Show Cause, and the Certification of Facts to Justify Contempt Sanction on the California Highway Patrol, Custodian of Records, and to mail a copy to counsel for parties in interest – Daryl Genis. Background On April 29, 2013, the Department of Motor Vehicles filed a certification of facts to justify contempt sanction against the California Highway Patrol, Custodian of Records, pursuant to Gov’t Code § 11455.20. Pursuant to Gov’t Code § 11455.10(e), a person is subject to contempt sanction for failure or refusal, without substantial justification, to comply with a subpoena in an adjudicative proceeding before an administrative agency. Counsel for Christopher Stroh purported to serve by mail a subpoena duces tecum on the CHP custodian of records for appearance at Stroh’s administrative per se hearing before the DMV and production of the Mobile Video Audio Recording System (MVARS) video disc #102012C1, 415 time sheets, booking photos and blood test results. The proof of service attached to the subpoena does not include the date of mailing of the subpoena. The CHP custodian of records did not appear at the time on the subpoena. According to DMV, only the MVARS video is at issue. Counsel for Stroh refuses to complete the MVARS Digital Media Disclosure and Use Agreement. Gov’t Code § 11455.20 provides: (a) The presiding officer or agency head may certify the facts that justify the contempt sanction against a person to the superior court in and for the county where the proceeding is conducted. The court shall thereupon issue an order directing the person to appear before the court at a specified time and place, and then and there to show cause why the person should not be punished for contempt. The order and a copy of the certified statement shall be served on the person. Upon service of the order and a copy of the certified statement, the court has jurisdiction of the matter. (b) The same proceedings shall be had, the same penalties may be imposed, and the person charged may purge the contempt in the same way, as in the case of a person who has committed a contempt in the trial of a civil action before a superior court. On April 30, 2013, the Court issued an order to show cause why the Court should not order the CHP custodian of records to appear before the DMV pursuant to the subpoena. DMV has not served the OSC on the CHP custodian of records. Personal service is required. CCP § 1016. Therefore, the Court continues this hearing to September 3, 2013, at 9:30 a.m., and directs the Department of Motor Vehicles to effect personal service of notice of continuance of the hearing and the April 30, 2013, Order to Show Cause on the CHP custodian of records and to mail a copy to counsel for parties in interest – Daryl Genis.