Sande v. DMV CA1/3

Filed 12/16/14 Sande v. DMV CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

HARVEY SANDE, Plaintiff and Appellant, A140071 v. DEPARTMENT OF MOTOR VEHICLES, (Alameda County Super. Ct. No. RG13674592) Defendant and Respondent.

Harvey Sande (appellant), in pro per, challenges the trial court’s judgment denying his petition for a writ of mandate and upholding the Department of Motor Vehicles’ (DMV) withdrawal of his driver’s license. He contends: (1) there was no substantial evidence to support the decision; (2) the trial court erred in denying his request for a jury trial; and (3) the trial court erred in admitting evidence pertaining to his conservatorship and medical records associated with the conservatorship. We reject the contentions and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND On December 13, 2012, the DMV issued an order of suspension/revocation of appellant’s driver’s license, effective December 17, 2012, on the ground that appellant was incapable of operating a motor vehicle safely because of a medical condition. The order stated that appellant had been “advised against driving due to Parkinson’s disease and dementia.” According to an investigation report, appellant “was brought to the attention of the [DMV] via receipt of a Confidential Morbidity Report submitted by Dr. C. Klebanoff that

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[appellant] had been diagnosed with Parkinson’s disease and dementia.” The investigative report further stated, “The ability of [appellant] to operate a motor vehicle safely is affected because of a neurological disorder in that: he has been advised against driving. [Appellant] poses a threat to the safety of himself and the motoring public at this time. Cause exists to immediately suspend driver’s privilege to operate a motor vehicle, in that his physical and mental condition renders him incapable of safely operating a motor vehicle.” Klebanoff’s report stated that appellant has Parkinson’s disease and dementia and “is markedly ataxic, . . . [H]e moves slowly and he has impairments in memory and judgment.” Klebanoff advised appellant not to drive because of his medical condition and opined the condition “represent[s] a permanent driving disability.” Appellant challenged the suspension of his license and an administrative hearing took place before the DMV on December 19, 2012. The DMV hearing officer reviewed appellant’s driving record, a written DMV examination that appellant took and passed, and the DMV “field file,” which contained the December 13, 2013 order of suspension and Klebanoff’s report. Appellant testified he does not have Parkinson’s disease or dementia and that Klebanoff, an internist, is “not competent to . . . voice her opinion” on those conditions. He testified that Klebanoff referred him to “the best Parkinson’s doctor in the East Bay,” Randall Starkey, M.D., who found no evidence Parkinson’s disease. Appellant testified he also went to the University of California at San Francisco (UCSF) Medical Center for extensive tests involving his memory, including “PET scans, CAT scans, MRIs, and cognitive tests” to determine “most particularly [whether he had] Alzheimer’s disease because [his] mother died from Alzheimer’s disease.” According to appellant, Gil D. Rabinovici, M.D. from UCSF, opined there was no evidence of Alzheimer’s disease. Appellant presented a February 8, 2011 report from Rabinovici. The hearing officer noted the report was “a year and a half old” and that “something more current” was needed. The hearing officer also stated, “And I’m not sure if Dr. Rabinovici would give you a letter saying there’s absolutely no evidence of dementia or Alzheimer because even in what you gave me, he says there is a possibility that there’s beginning dementia.