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Burkhart v. Department of Motor Vehicles9/30/1981
lis v. Dept. of Motor Vehicles, supra, 264 Cal. App. 2d 373. We believe that the holding in Fankhauser v. Orr, supra, 268 Cal. App. 2d 418 is correct.
It follows that the hearing afforded petitioner by the referee should not have been struck down for reliance on hearsay in the form of the statutory report of the officer. (§ 13353.) This is true even though there was evidence by Burkhart and his wife which was, at least arguably, in conflict with the contents of the report.
There is a special problem in this case because the matter was continued twice so that the officer could attend, and thus Burkhart had no warning that it would be necessary to serve the officer with a subpoena if he desired his attendance.
The mandamus hearing in the court below was a limited trial de novo. By virtue of the fact that Burkhart had been led to believe that the officer would be present at the administrative hearing, he could not be faulted for failure to serve his own subpoena.
Nor is it reasonable to require Burkhart to have anticipated our holding that it is his burden to produce the officer's testimony if desired. Therefore, we hold that upon remand, the officer's testimony, if offered by Burkhart, should be admitted as evidence which could not have been produced at the administrative hearing in the exercise of reasonable diligence. (Code Civ. Proc., § 1094.5, subd. (e).)
Upon remand, and providing that Burkhart files a timely request with the trial court for the opportunity to present the officer's testimony, the trial court shall hear and consider such evidence, or, in its discretion, remand the cause to the Department for such purpose. (Code Civ. Proc., § 1094.5, subd. (e).)
The judgment is reversed and remanded for further proceedings in accordance with this opinion.
Disposition
The judgment is reversed and remanded for further proceedings in accordance with this opinion.
Judges Footnotes
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