Barone v. Department of Motor Vehicles

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 VANESSA BARONE, Case No. 3:23-cv-00858-WHO 8 Plaintiff, ORDER GRANTING MOTION FOR 9 v. JUDGMENT ON THE PLEADINGS WITH LEAVE TO AMEND 10 DEPARTMENT OF MOTOR VEHICLES, et al., Re: Dkt. No. 15 [11] Defendants. [12] 13 Plaintiff Vanessa Barone filed this lawsuit against the California Department of Motor 14 Vehicles (“DMV”) and its director, Steven Gordon, asserting that her due process rights were 15 violated when the DMV suspended her driver’s license without a hearing. Though the suspension 16 has since been terminated, Barone seeks equitable relief to retroactively challenge the merits of the 17 suspension and to remove the suspension from her driving record. The defendants filed a motion 18 for judgment on the pleadings, asserting that Barone received due process through a post19 suspension hearing process as provided by state statute but that she failed to follow through on 20 that process. Because it seems plausible that Barone could successfully seek rehearing or removal 21 of the suspension from her record under different legal theories, and for the following reasons, the 22 defendants’ motion is granted and Barone has leave to amend. 23 BACKGROUND 24 The following facts are alleged in Barone’s complaint. (“Compl.”) [Dkt. No. 1 Ex. A]. 25 “Sometime before March 22, 2022,” Barone felt light-headed and lost her balance when 26 she stood up, but neither fell nor lost consciousness. Id. ¶ 10. She had recently given birth and 27 thought that may have caused an iron deficiency that led to her light-headedness, so she emailed 1 confirmed she did not lose consciousness or experience a seizure, and told Bugay that her mother 2 had experienced seizures related to blood clots. Id. ¶ 11. Bugay subsequently ordered blood tests 3 which “showed elevated D-dimer, which is related to blood clots.” Id. ¶ 12. Bugay told Barone to 4 go to the emergency room. Id. 5 At the hospital, Barone’s blood clot tests were “negative,” her head and chest scans were 6 normal, and “there was no evidence of pulmonary embolism,” anemia, stroke, seizure, or loss of 7 consciousness. Id. However on March 23, 2022, Bugay submitted a “Confidential Morbidity 8 Report” to the DMV, “erroneously stating that Ms. Barone suffered episodic lapses of 9 consciousness.” Id. ¶ 13. It also stated that Barone did not experience multiple episodes or 10 nocturnal seizures; did not lose consciousness while driving; and did not have a permanent 11 disability, and the report also provided that Bugay was “uncertain” whether Barone would suffer 12 additional lapses in consciousness. Id. 13 On April 15, 2022, Barone received a notice from the DMV that “her privileges to operate 14 a motor vehicle would be withdrawn effective April 15, 2022,” based on unfavorable medical 15 information. Id. ¶ 14. 16 On April 20, 2022, Barone went to the DMV to “protest” the suspension of her driver’s 17 license. Id. ¶ 15. She asserts that a DMV representative informed her that her license was not 18 suspended and that she was directed to “contact the Driver Safety Branch.” Id. Barone did so, 19 was given a “Driver Medical Evaluation form,” and gave that form to her medical provider. Id. 20 On April 18, 2022, Dr. Meiling Chiang provided Barone a letter that said Barone had no history of 21 seizures, that there was no evidence she suffered from seizures, and that her lightheadedness was 22 likely “due to dehydration, allergy or working with her computer for too long.” Id. On May 12, 23 2022, Chiang “filled out a form” that stated that Barone did not lose consciousness. Id. 24 Barone alleges that she continually checked in with the DMV between May and October. 25 Id. ¶ 16. On November 1, 2022, she received notice that her driver’s license was no longer 26 suspended. Id. 27 On November 17, 2022, Barone’s auto insurer informed her that her premiums increased 1 suspended. Id. ¶ 17. Barone contacted the DMV to seek removal of that note on her record but 2 was told that it would remain on her record for three years. Id. ¶ 18. 3 Subsequently, on December 15, 2022, Barone filed suit in state court against the DMV, 4 Gordon in his official capacity, and 25 Doe defendants, alleging violation of her due process rights 5 under the United States and California Constitutions. See Compl. The defendants removed the 6 case from state court. [Dkt. No. 1]. 7 Now the defendants filed this motion for judgment on the pleadings. (“Mot.”) [Dkt. No. 8 15]. Barone opposed. (“Oppo.”) [Dkt. No. 16]. The defendants replied. (“Repl.”) [Dkt. No. 18]. 9 I held at hearing at which counsel for both parties appeared. [Dkt. No. 21]. Subsequently, I issued 10 an order for Barone to submit additional documents, [Dkt. No. 22], which she did, [Dkt. No. 23]. 11 Those exhibits are the April 15, 2022 notice from the DMV suspending Barone’s license, 12 (“April Notice”) [Dkt. No. 23-1], and the November 1, 2022 notice from the DMV ending the 13 suspension, (“November Notice”) [Dkt. No. 23-2]. 14 LEGAL STANDARD 15 Federal Rule of Civil Procedure (“FRCP”) 12(c) provides that “[a]fter the pleadings are 16 closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” 17 Fed. R. Civ. Proc. 12(c). “Dismissal under Rule 12(c) is warranted when, taking the allegations in 18 the complaint as true, the moving party is entitled to judgment as a matter of law.” Daewoo Elecs. 19 Am. Inc. v. Opta Corp., 875 F.3d 1241, 1246 (9th Cir. 2017) (citation omitted). “[M]otions for 20 judgment on the pleadings are functionally identical to Rule 12(b)(6) motions.” Webb v. Trader 21 Joe’s Co., 999 F.3d 1196, 1201 (9th Cir. 2021) (internal quotation marks omitted) (citing United 22 States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047 , 1054 n.4 (9th Cir. 2011)). 23 “[U]nder both rules, ‘a court must determine whether the facts alleged in the complaint, taken as 24 true, entitle the plaintiff to a legal remedy.’” Chavez v. United States, 683 F.3d 1102, 1108 (9th 25 Cir. 2012) (citation omitted). For both motions, dismissal may be based on either the lack of a 26 cognizable legal theory or absence of sufficient facts alleged under a cognizable legal theory. 27 Robertson v. Dean Witter Reynolds, Inc., 749 F. 2d 530, 534 (9th. Cir. 1984) (citation omitted). 1 face. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). A claim has “facial plausibility” when the 2 party seeking relief “pleads factual content that allows the court to draw the reasonable inference 3 that the defendant is liable for the misconduct alleged.” Id. Although the Court must accept as 4 true the well-pled facts in a complaint, conclusory allegations of law and unwarranted inferences 5 will not defeat an otherwise proper Rule 12(b)(6) motion. See Sprewell v. Golden State Warriors, [6] 266 F.3d 979, 988 (9th Cir. 2001). “[A] plaintiff’s obligation to provide the ‘grounds’ of his 7 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the 8 elements of a cause of action will not do. Factual allegations must be enough to raise a right to 9 relief above the speculative level.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 10 (citations and footnote omitted). 11 “Although Rule 12(c) does not mention leave to amend, courts have the discretion in 12 appropriate cases to grant a Rule 12(c) motion with leave to amend, or to simply grant dismissal of 13 the action instead of entry of judgment.” Cagle v. C & S Wholesale Grocers Inc., 505 B.R. 534 , 14 538 (E.D. Cal. 2014) (first citing Lonberg v. City of Riverside, 300 F. Supp. 2d 942, 945 (C.D. 15 Cal. 2004 ); and then citing Carmen v. S.F. Unified Sch. Dist., 982 F. Supp. 1396, 1401 (N.D. Cal. 16 1997)). Indeed, granting a Rule 12(c) motion and “[d]ismiss[ing] with prejudice and without 17 leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by 18 amendment.” Harris v. Cnty. of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012) (quoting Eminence 19 Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.2003) (per curiam)). 20 DISCUSSION1 21 Barone makes the same arguments for her claims under the U.S. and California 22 Constitutions. She argues that her due process rights were violated because she was not provided 23 30 days’ notice before the suspension was enacted. See Compl. ¶¶ 22, 28. As a result of that [24] 1 I consider the copies of the April Notice and the November Notice in this Order because they [25] were incorporated into the complaint. See Compl. ¶¶ 14, 16; see also Free Speech Sys., LLC v. Menzel, 390 F. Supp. 3d 1162 , 1167 n.1 (N.D. Cal. 2019) (“Under the ‘incorporation by reference’ [26] doctrine, a court may ‘consider materials incorporated into the complaint or matters of public record,’ including ‘documents in situations where the complaint necessarily relies upon a [27] document or the contents of the document are alleged in a complaint, the document’s authenticity 1 violation, Barone was unable to contest the suspension or keep it off her driving record. See id. 2 ¶¶ 24, 28. She asserts that her due process rights continue to be violated because of the suspension 3 on her record, which has caused a significant increase in her insurance premiums. See id. ¶¶ 17, 4 18, 24, 30. 5 I. PRE-SUSPENSION HEARING 6 Barone focuses most of her complaint and briefing on arguing that she was entitled to a 7 pre-suspension hearing as a matter of law. In turn, the defendants assert that Barone was not 8 legally entitled to a pre-suspension hearing and instead received sufficient process via the post9 suspension hearing procedures and availability of judicial review. 10 Under California Vehicle Code (“CVC”) section 13950, the DMV must provide “notice 11 and an opportunity to be heard” before “propos[ing] to suspend or revoke” an individual’s driving 12 privileges. CVC § 13950. But section 13953 provides, in relevant part: 13 [I]n the event the department determines upon investigation or reexamination that the safety of the person subject to investigation or reexamination or other persons 14 upon the highways require such action, the department shall forthwith and without hearing suspend or revoke the privilege of the person to operate a motor vehicle 15 . . . . No order of suspension or revocation . . . shall become effective until 30 days after the giving of written notice thereof to the person affected, except that the [16] department shall have authority to make any such order effective immediately upon 17 the giving of notice when in its opinion because of the mental or physical condition of the person such immediate action is required for the safety of the driver or other 18 persons upon the highways. 19 Id. § 13953 (emphasis added). A person who receives notice under sections 13950 or 13953 has 20 ten days to “demand a hearing” regarding the DMV’s decisions, “which shall be granted.” Id. 21 § 14100(a). But there is no entitlement to a hearing if the person “has previously been given an 22 opportunity with appropriate notice for a hearing and failed to request a hearing within the time 23 specified by law.” Id. § 14101(b)2; see also CVC § 14103 (“Failure to respond to a notice . . . [24] 2 Section 14101(a) provides that there is no entitlement to a hearing if the challenged action was [25] “mandatory” under the law. See also Pollack v. Dep’t of Motor Vehicles, 38 Cal. 3d 367, 380-81 , 696 P.2d 141 , 148 & n.8 (1985). Unlike the statute at issue in Pollack, which provides for [26] mandatory suspension of a driver’s license after a second conviction for drunk driving, see CVC § 13352, here the statute at issue provides that the DMV “shall have authority” to immediately [27] suspend a license based on medical condition, see id. § 13953. Actions taken under section 13953 1 within 10 days is a waiver of the right to a hearing.”). An individual may also seek judicial review 2 “of any order of the [DMV] refusing, canceling, suspending, or revoking” her driver’s license. Id. 3 § 14400; see also id. § 14401(a) (providing that judicial review must be sought within 90 days of 4 the date of the DMV’s order). 5 Barone argues that she did not receive due process because her license was suspended 6 without a hearing. She concedes that she received notice, Compl. ¶ 14; see also April Notice, and 7 does not contest that the notice satisfied due process, see Hopi Tribe v. Navajo Tribe, 46 F.3d 908 , 8 918 (9th Cir. 1996) (“Whether notice satisfies due process is a question of law.” (citation 9 omitted)). She also does not contest that suspension before a hearing is statutorily permissible 10 under section 13953, Oppo. 6:6-8, and she specifically disclaims the argument that section 13953 11 is unconstitutional, id. 8:14. Rather, she appears to argue that the first doctor’s note was an 12 inadequate basis for a section 13953 suspension, so her license could only have been suspended 13 under section 13950, which requires a pre-suspension hearing. See id. 6:8-26; Compl. ¶ 22. In her 14 view, her due process rights were violated because she did not receive that pre-suspension hearing. 15 In other words, Barone is challenging the merits of the DMV’s decision to suspend her license 16 under section 13953, not the fact that the statute constitutionally permits suspension before a 17 hearing. 18 Under the U.S. Constitution, a claim for violation of procedural due process requires two 19 elements: “(1) a deprivation of a constitutionally protected liberty or property interest, and (2) a 20 denial of adequate procedural protections.” United States v. 101 Houseco, LLC, 22 F.4th 843 , 851 21 (9th Cir. 2022) (quoting Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971 , 22 982 (9th Cir. 1998)). Here the parties do not contest that the first element is met. See Dixon v. 23 Love, 431 U.S. 105, 112 (1977) (“It is clear that the Due Process Clause applies to the deprivation 24 of a driver’s license by the State.”). 25 With respect to the second element, “[t]he determination of what procedures satisfy due 26 process [in a given situation] depends upon an analysis of the particular case in accordance with 27 the three-part balancing test outlined in Mathews v. Eldridge.” Brewster, 149 F.3d at 983 (quoting 1 319 (1976). Those elements are: (1) “the private interest that will be affected by the official 2 action”; (2) “the risk of erroneous deprivation of such interest through the procedures used, and 3 the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the 4 Government’s interest, including the function involved and the fiscal and administrative burdens 5 that the additional or substitute procedural requirements would entail.” Brewster, 149 F.3d at 983 6 (quoting Mathews, 424 U.S. at 335). The same elements are considered and balanced for due 7 process claims brought under the California Constitution, with an additional fourth element: “the 8 dignitary interest in informing individuals of the nature, grounds and consequences of the action 9 and in enabling them to present their side of the story before a responsible governmental official.” 10 Saleeby v. State Bar, 39 Cal. 3d 547, 565 , 702 P.2d 525, 535 (1985) (citation omitted); Barclay 11 Hollander Corp. v. Cal. Reg’l Water Quality Control Bd., 38 Cal. App. 5th 479 , 508 n.38 (2019) 12 (same). 13 Considering those elements here, first “the nature of the private interest” in a driver’s 14 license, while important, “is not so great as to require us ‘to depart from the ordinary principle, 15 established by our decisions, that something less than an evidentiary hearing is sufficient prior to 16 adverse administrative action.’” Dixon, 431 U.S. at 113 (quoting Mathews, 424 U.S. at 343); see 17 also Saleeby, 702 P.2d at 535 (“A formal hearing, with full rights of confrontation and cross18 examination is not necessarily required. What must be afforded is a reasonable opportunity to be 19 heard.” (internal citations and quotation marks omitted)). In other words, the DMV was not 20 required to provide the equivalent of a judicial hearing before suspending Barone’s driver’s 21 license. 22 Second, the risk of erroneous deprivation is low. See Brewster, 149 F.3d at 983. Unlike in 23 Dixon, 431 U.S. at 113 , where the driver did not challenge the validity of the underlying rationale 24 for the license suspension, here Barone says that the medical report was incorrect and inaccurate, 25 so she was erroneously deprived of her rights. But the statute itself provides for suspension 26 without notice only where the DMV is of the opinion that “immediate action is required for the 27 safety of the driver or other persons upon the highways” based on “the mental or physical 1 which drivers may contest a suspension that they believe is erroneous. See id. § 14100(a). 2 Though this process occurs post-suspension, the Supreme Court has said that post-deprivation 3 process is sufficient for suspending a driver’s license where there is a significant public safety 4 issue. See Dixon, 431 U.S. at 113-14 ; Mackey v. Montrym, 443 U.S. 1, 17-19 (1979); Schneider v. 5 Sutter Amador Hosp., No. 2:14-CV-00804 GEB AC, 2014 WL 5473545 , at *11 (E.D. Cal. Oct. 6 28, 2014), report & recommendation adopted, No. 2:14-CV-00804 GEB-ACPS, 2014 WL 7 13065162 (E.D. Cal. Nov. 20, 2014), aff’d, 621 F. App’x 480 (9th Cir. 2015). Indeed, here 8 California law builds in two separate post-suspension processes: first Barone could demand a 9 hearing under section 14100 and then she could seek judicial review under section 14400. These 10 processes “satisfy the due process rights of drivers subject to suspension or revocation under 11 section 13953,” Schneider, 2014 WL 5473545 , at *11, and the value of any additional procedural 12 safeguards is minimal, see Brewster, 149 F.3d at 983. 13 Third, the government and public have an “important” and strong interest “in safety on the 14 roads and highways, and in the prompt removal of a safety hazard.” Dixon, 431 U.S. at 114 15 (citation omitted). In Dixon the Supreme Court held that the public interest in removing drivers 16 repeatedly convicted of traffic offenses from the road without a pre-suspension hearing 17 outweighed the private interest in a driver’s license and the minimal risk of erroneous deprivation. [18] Id. at 107, 113-15 . The Court also reasoned that post-suspension hearing and notice was sufficient 19 process because providing pre-suspension hearing and notice in cases of public safety “would 20 encourage drivers routinely to request full administrative hearings” to automatically delay the 21 suspension of their drivers’ licenses, which would significantly “impede[]” public safety. Id. at 22 114. That same reasoning applies here—there is a strong and countervailing government interest 23 in public safety, which is supported by immediately removing drivers with certain medical 24 conditions from the road, without a pre-suspension hearing. See also Schneider, 2014 WL 25 5473545, at *11-12 (reaching same conclusion in factually similar case where plaintiff challenged 26 the revocation of his driver’s license without pre-suspension hearing). 27 Fourth, Barone’s dignitary interest under the California Constitution, see Saleeby, 702 P.3d 1 processes. For the same reasons that her private interest does not outweigh the public interest in 2 safety, her dignitary interest—given the available processes—does not outweigh the government’s 3 interest in keeping the state’s highways safe. 4 Accordingly, considering the balancing tests from Mathews and Saleeby, the California 5 statutes provide sufficient due process via a post-suspension hearing process. Though Barone 6 disagrees with the merits of the decision to suspend her license under section 13953, the statute 7 permissibly provides sufficient due process to challenge the merits after suspension, including 8 through judicial review. See CVC §§ 13953, 14400. She was not required to receive pre9 suspension notice or hearing, and the defendants’ motion is GRANTED as to this argument. 10 II. MAINTENANCE OF SUSPENSION ON DRIVING RECORD 11 In its motion, the DMV argues that Barone cannot assert a due process violation regarding 12 its maintenance of the suspension on Barone’s driving record because she does not have a property 13 right to an accurate driving record. Mot. 11:17-14:9. The DMV also argues that it would be 14 contrary to the law and public policy for a court to order the DMV to change Barone’s driving 15 record. See id. In opposition, Barone fails to address the argument about property rights to 16 accurate driving records and instead reframes her claim as one for defamation, which is not 17 mentioned in the complaint. Oppo. 7:13-28. She also asserts that there is no public policy benefit 18 to maintaining erroneous information on her driving record. Id. 8:1-19. 19 Despite the defendants’ perspective, I do not read Barone’s complaint to assert a separate 20 due process claim for maintenance of the suspension on her driving record. By alleging that the 21 maintenance of the suspension on her record violates her due process rights, see, e.g., Compl. ¶ 24, 22 Barone clearly refers to her due process right to a hearing regarding the suspension. She says that 23 those rights were violated because she did not receive a hearing, and the manifestation of that 24 violation was the suspension of her license and the addition of the suspension to her driving 25 record. Indeed, the entire purpose of her case is to challenge the merits of the initial suspension 26 decision, which if successful may result in a judicial order setting aside the suspension decision, in 27 turn legally requiring the DMV to remove the suspension from her record. See CVC § 1808(c)- 1 process challenge that requires Barone to demonstrate an independent basis or property right. Cf. 2 Mot. 11:25-12:27. 3 And, contrary to the DMV’s assertions, neither California law nor public policy precludes 4 reopening an inquiry into Barone’s suspension or granting her a hearing even if she waived her 5 right to a hearing. Indeed, CVC section 14103 provides that even if a driver waives her right to a 6 hearing by failing to request one within 10 days of the notice, the DMV still “may, upon request of 7 the person whose privilege of driving is in question, or at its own option, reopen the question, take 8 evidence, change, or set aside any order previously made, or grant a hearing.” CVC § 14103. If it 9 grants a new hearing, the DMV may modify any prior decision “to correct mistakes.” Id. 10 §§ 14105(b), 14105.5(d). The DMV may also “reopen the question, take further evidence, or 11 change or set aside any order previously made” even after a final decision. Id. § 14106. Barone’s 12 challenge to the merits of the initial suspension therefore may properly be considered and the 13 DMV may lawfully modify the previous suspension. 14 Further, the DMV is wrong on the law (and policy) that it cannot remove the suspension 15 from Barone’s record. While state law requires the DMV to “make available or disclose 16 suspensions and revocations of the driving privilege while the suspension or revocation is in effect 17 and for three years following termination of the action or reinstatement of the privilege” save 18 certain exceptions not applicable here, it also provides that the DMV “shall not make available or 19 disclose a suspension or revocation that has been judicially set aside or stayed.” CVC § 1808(c)- 20 (d). Accordingly, if the present case results in an order staying or setting aside the initial decision 21 to suspend Barone’s license, the DMV is legally prohibited from publishing that suspension on 22 Barone’s driving record. Compliance with that existing statute is not, as the DMV contends, 23 rewriting the CVC to provide for a new exception for suspensions based on inaccurate medical 24 information. 25 And the DMV misses the mark by arguing that it is good public policy to keep the medical 26 report on Barone’s record. See Mot. 13:17-14:6; Repl. 7:7-18. Though it makes sense that the 27 DMV and insurers would benefit from knowing about medical information relevant to Barone’s 1 is no public policy benefit for the government or insurers to have access to inaccurate medical 2 information, and indeed it would be likely be contrary to public policy to maintain the record and 3 indirectly punish the driver with higher insurance premiums based on incorrect information. 4 Accordingly, the motion is DENIED as to this argument. 5 III. LEAVE TO AMEND 6 With respect to the arguments above, Barone is granted leave to amend to clarify her 7 claims. Importantly, she seems to assert that she tried to overturn the suspension decision but was 8 misled by a DMV representative or otherwise was not provided process. If she can clarify this 9 allegation and provide additional context or support, she may be able to plead a due process 10 violation. 11 Barone alleges that she followed the instructions on the April Notice—which told her to 12 “contact your local Driver Safety office” and that a “hearing may be requested by telephone, mail, 13 or in person”—and that she timely contacted the DMV. See Compl. ¶ 15; April Notice; see also 14 Oppo. 7:1-9. Barone does not allege that she requested a hearing, but she does say she went to the 15 DMV within the correct time period, the representative said her that her license was not 16 suspended, and she was informed that she could resolve any issues by contacting the “Driver 17 Safety Branch.” Compl. ¶ 15; see also Oppo. 7:1-9. The Driver Safety Branch then gave her a 18 “Driver Medical Evaluation,” which she submitted back to the DMV with information from her 19 new doctor, who medically cleared her. See Compl. ¶ 15. 20 The DMV subsequently sent the November Notice informing Barone that her suspension 21 ended. See November Notice. The box is checked for, “After review of the information on file, 22 including any evidence which you may have presented, the action(s) effective April 15, 2022, 23 pursuant to § 13953 . . . is ended.” Id. (emphases added). The checkbox for suspension “is set 24 aside” was not selected. See id. There is no information about appealing this decision to end her 25 suspension—rather than set it aside, which apparently would remove it from her driving record— 26 or about how to ask the DMV to correct a prior decision. Notably, the box on the notice is not 27 checked for, “In compliance with your request, a Department Review of the information and 1 effective __ , pursuant to § __, of the Vehicle Code (VC), 0 is set aside, 0 is ended.” Id. 2 (emphases added). As discussed, supra Part II, section 14105.5 provides a path for the DMV to 3 modify its prior decisions and correct mistakes after a hearing. 4 The November Notice therefore suggests that Barone did not request a hearing and instead 5 only submitted evidence to contest the April Notice and suspension. Yet, the November Notice 6 also implies that the DMV accepted the evidence that Barone submitted and ended her 7 suspension—but did not set it aside—based on that evidence. Because the DMV did so without a 8 hearing, it is not clear how Barone could have followed the appeal process laid out in the first 9 notice, which tells her how to appeal an adverse decision “after the hearing.” April Notice. And 10 because there was no hearing, the DMV could not modify is prior decision or correct a mistake 11 under the Vehicle Code, which seems to only contemplate such a correction or modification after a 12 hearing. See CVC §§ 14103, 14105(b), 14105.5(d). In other words, even if Barone failed to 13 request a hearing—which is not clear from the complaint—and instead only submitted evidence to 14 challenge the April Notice and suspension, it is not clear that she was provided notice of how to 15 challenge the changed result that came from the evidence she submitted. The November Notice 16 does not clearly provide how to appeal or challenge the decision to end her suspension rather than 17 set it aside. Based purely on the two notices, it seems plausible that the DMV followed a separate, 18 “no hearing” process for the suspension and end of the suspension which does not seem to clearly 19 follow the provisions of any statutes cited by the parties. 20 Based on this lack of clarity from both sides, it seems likely that Barone could plausibly 21 allege a due process violation, though her complaint and briefs do not currently address these 22 issues. Accordingly, though the motion is GRANTED for the above reasons, Barone has leave to 23 amend to plausibly allege a due process violation. See Harris, 682 F.3d at 1131 ; Cagle, 505 B.R. 24 at 538 . 25 IV. CLAIM UNDER 42 U.S.C. § 1983 AGAINST DMV, STATE OF CALIFORNIA 26 Finally, the defendants argue that Barone’s claims under 42 U.S.C. § 1983 claims against 27 the DMV, the State of California, and Gordon fail as a matter of law. Mot. 14:10-18. Barone 1 the State of California. Oppo. 8:20-25. 2 States and state officials sued in their official capacities are not “person[s]” under 42 3 U.S.C. § 1983 and so cannot be sued under § 1983, except that state officials acting in their 4 || official capacities can be sued under § 1983 in suits seeking prospective injunctive relief. Doe v. 5 || Lawrence Livermore Nat’! Lab’y, 131 F.3d 836 , 839 (9th Cir. 1997) (citing Will v. Mich. Dep’t of 6 State Police, 491 U.S. 58 , 71 n.10 (1989)); Schneider, 2014 WL 5473545 , at *6 (same); see also 7 Bolden-Hardge v. Off. of Cal. State Controller, 63 F.4th 1215, 1221 (9th Cir. 2023) (“[Section] 8 1983 does not provide a cause of action to sue state entities or state officials in their official 9 || capacities.”). “The State of California Department of Motor Vehicles is not a ‘person’ within the 10 || meaning of the Civil Rights Statutes [including 42 U.S.C. § 1983 ]” and therefore cannot be sued 11 under those statutes. Sykes v. State of Cal. (Dep’t of Motor Vehicles), 497 F.2d 197, 201 (9th Cir. 12 1974). 5 13 Because the State of California and the DMV cannot be sued under § 1983, see id.; Doe, 14 131 F.3d at 839, the motion is GRANTED with prejudice as to these defendants.? But because 3 15 state officials may be sued in their official capacities under § 1983 if the suit seeks prospective a 16 || injunctive relief, see Doe, 131 F.3d at 839, which this suit appears to seek, see Compl. at 7-8 J 1, 3 17 3, the motion is DENIED as to the claim against Gordon in his official capacity. CONCLUSION 19 For those reasons, the motion is GRANTED with leave to amend by February 20, 2024. 20 IT IS SO ORDERED. 21 Dated: January 29, 2024 _VM.Qe 23 . liam H. Orrick 24 United States District Judge [26] 27 3 To the extent that the State of California was not yet named in this complaint, but Barone seeks 28 ro amend her complaint to name the state, that amendment would be futile for the reasons