Imports Performance v. Dept. Consumer Affairs 11/10/11 CA2/5

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State: California

Court: California Eastern District Court

Docket No: B228544

Case Date: 12/07/2011

Plaintiff: Imports Performance

Defendant: Dept. Consumer Affairs 11/10/11 CA2/5

Preview:Filed 11/10/11; partial pub. order & mod. 12/7/11 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

IMPORTS PERFORMANCE et al., Petitioners and Appellants, v. DEPARTMENT OF CONSUMER AFFAIRS, BUREAU OF AUTOMOTIVE REPAIR, Respondent and Respondent.

B228544 (Los Angeles County Super. Ct. No. BS124752)

APPEAL from a judgment of the Superior Court of Los Angeles County, David P. Yaffee, Judge. Affirmed. Kinsella Weitzman Iser Kump & Aldisert, Alan Kossoff for Petitioners and Appellants Imports Performance, Razmik Vartan, and Darryl Dean Rowe. Kamala D. Harris, Attorney General, Gregory J. Salute, Supervising Deputy Attorney General, Terrence M. Mason, Deputy Attorney General, for Respondent Department of Consumer Affairs, Bureau of Automotive Repair.

INTRODUCTION Razmik Vartan (Vartan), owner of and doing business as Imports Performance,1 held an automotive repair dealer registration and smog check station license for Imports Performance. Vartan also held an advanced emission specialist (smog check) technician license. Darryl Rowe (Rowe), a mechanic at Imports Performance, also held an advanced emission specialist technician license. Respondent and respondent the Department of Consumer Affairs, Bureau of Automotive Repair (Bureau) conducted an undercover investigation of the smog check inspection and vehicle repair operations at Imports Performance. Following that investigation, the Bureau revoked Vartans smog check station license probation for Imports Performance; revoked and stayed revocation of Rowes advanced emission specialist technician license pending completion of four years probation; and ordered Vartan, as owner of Imports Performance, and Rowe to pay $35,366.40 for the Bureaus costs of investigating and prosecuting the case. Imports Performance, Vartan, and Rowe (petitioners) filed a petition for writ of mandate or administrative mandamus to set aside the Bureaus decision. The trial court denied the petition, and petitioners appeal. On appeal, petitioners claim that the Bureau used the wrong standard of proof in the revocation proceedings; insufficient evidence supports the Bureaus findings of smog test violations; and the Bureau levied excessive "discipline" in revoking Vartans smog check station license, revoking and placing Rowes advanced emission specialist technician license on probation, and ordering payment of $35,366.40 in costs. We affirm.

BACKGROUND I. Facts Californias Smog Check Program requires most motor vehicles to pass a smog check inspection every two years upon registration renewal and when a vehicles title is transferred. Such inspections are performed by licensed smog check technicians at

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"Vartan" and "Imports Performance" are generally used interchangeably. 2

licensed smog check stations and include tailpipe emissions, visual, and functional tests. A vehicle that fails any of these tests fails the overall inspection. A vehicle that passes a smog check inspection receives a certificate of compliance. In August 1992, the Bureau issued to Vartan, owner of and doing business as Imports Performance, automotive repair dealer registration number AH 168479 and smog check station license number RH 168479. In August 2000, the Bureau issued to Vartan advanced emission specialist technician license number EA 142356. In 2003, the Bureau issued to Rowe advanced emission specialist technician license number EA 147729. By a decision effective February 18, 2005 (Case No. 79/02-116), the Bureau revoked and stayed revocation of Vartans automotive repair dealer registration and smog check station license, placing the registration and license on three years probation.2 The Bureaus action was based on Imports Performances failure to locate and correct in three undercover operations the Bureaus "inducements" that rendered vehicles incapable of passing smog inspections. Later in 2005, the Bureau conducted three additional undercover operations concerning the smog check inspection and vehicle repair services at Imports Performance, which operations are discussed below.

A.

Undercover Operation No. 1

In July 2005, Daniel Woods (Woods), an employee in one of the Bureaus documentation laboratories, performed a smog check inspection on a 1992 Toyota Corolla owned by the Bureau. The inspection included a tail pipe emissions test and visual and functional inspection tests. The Corolla passed the smog check inspection. Woods then advanced the vehicles engine ignition timing from the factory specification of 10 degrees before top dead center to 20 degrees before top dead center so that the engine ignition timing was 10 degrees out of factory specification and seven degrees

According to the Bureaus December 21, 2009, Decision After Remand From Superior Court, in 1997 Imports Performances automotive repair dealer registration and smog check station license were revoked and placed on three years probation in a prior disciplinary action.
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beyond the Bureaus tolerance of three degrees out of factory specification. Woods performed another smog check inspection on the Corolla. This time, the Corolla failed the functional timing test because its engine ignition timing was 10 degrees out of factory specification. Woods placed a tamper seal on the engine to detect an adjustment of engine ignition timing. On August 5, 2005, Otis Cowley (Cowley), a Bureau undercover operator, drove the Corolla to Imports Performance and requested a smog check inspection. Rowe told Cowley that the Corolla failed the inspection due to incorrect timing. Rowe said that it would cost about $200 to make the necessary repairs so that the vehicle would pass a smog check inspection. Cowley left Imports Performance with the Corolla. On September 6, 2005, Woods again performed a smog check inspection on the Corolla, and the Corolla again failed the functional timing test. The engine ignition timing remained 10 degrees out of factory specification. The vehicle passed the remaining phases of the inspection. The tamper seal that Woods had placed on the engine remained intact. On September 15, 2005, Cowley took the Corolla to Imports Performance to have the vehicle repaired. Rowe told Cowley that it would take about four hours to determine why the vehicle would not pass a smog check inspection. Later, Cowley called Imports Performance and was told that the Corolla was not ready and that the vehicle needed a throttle position sensor to pass the smog check inspection. When Cowley returned to Imports Performance, Rowe said that he had replaced the throttle position sensor and adjusted the timing so that the Corolla would pass a smog check inspection. Cowley paid $150 for the repairs and was given the throttle position sensor that had been replaced and a document that stated that the vehicle had passed an inspection and been issued a certificate of compliance. The entry on the vehicle inspection report for engine ignition timing was 11 degrees before top dead center, a position within the Bureaus degree of tolerance. On September 26, 2005, Woods performed a smog check inspection on the Corolla and the vehicle failed. During the functional timing test, Woods observed that 4

the engine ignition timing was set at 15 degrees before top dead center, a position outside of the Bureaus degree of tolerance. Woodss tamper seal was broken. Woods tested the throttle position sensor that had been returned and found it to be fully functional, internally clean, and without defects. Woods concluded that a new throttle position sensor had not been needed and could not have corrected a "misadjusted" engine ignition timing. Woods further concluded that a smog certificate should not have been issued for the Corolla while its engine ignition timing was advanced beyond Bureau tolerance.

B.

Undercover Operation No. 2

During June and July 2005, Matthew Austin (Austin), an employee in one of the Bureaus documentation laboratories, inspected and marked various engine parts, including the throttle position sensor, in a 1988 Chevrolet Caprice owned by the Bureau. Austin found the parts to be in good condition. Austin also disassembled, inspected, and marked the vehicles carburetor. According to Austin, the throttle position sensor is an internal part of the carburetor that is designed to be adjusted externally. Austin then performed a smog check inspection on the Caprice. The vehicle passed the inspection. After the Caprice passed the smog check inspection, Austin placed two defects in the vehicles computer system. First, Austin adjusted the throttle position sensor to 3.0 volts at idle (factory specification was .46 to .7 volts at idle), thus causing the engine to "run rich" and the vehicle to fail the tailpipe emissions portion of a smog check inspection. That condition also would cause the "service engine soon" warning lamp (also known as the "MIL" or "check engine light") to illuminate. Second, Austin rendered the service engine soon warning lamp inoperative by installing a burned out bulb. With a warning lamp in such a condition, the vehicle would fail the functional portion of a smog check. Austin performed another smog check inspection on the Caprice, and the vehicle failed because of excessive tailpipe emissions and a nonfunctioning service engine soon light. On August 12, 2005, Maria Aleman (Aleman), a Bureau undercover operator, drove the Caprice to Imports Performance and requested a smog check inspection. Rowe 5

placed a probe in the vehicles tailpipe and informed Aleman that the vehicle could not pass a smog check inspection because the exhaust had too much gas. Rowe told Aleman that it would cost $130 to "adjust" the Caprice so that it would pass a smog check inspection. Later that day, when Aleman called Imports Performance, Rowe told her that the vehicles carburetor needed to be repaired at a cost of $450. Aleman authorized the carburetor repair. On August 13, 2005, Rowe informed Aleman that the Caprice and been repaired and had passed a smog check inspection. On August 15, 2005, Aleman picked up the Caprice from Imports Performance. Aleman paid Rowe $450, and Rowe gave Aleman two vehicle inspection reports that showed that the Caprice had passed a smog check inspection. One of the reports, from "16 Minute Smog," included a certificate of compliance. On August 17, 2005, Austin performed another smog check inspection on the Caprice. The vehicle passed the visual and tailpipe emissions portions of the test, but failed the "MIL/Check Engine Light" functional portion of the test. Based on an invoice, Austin believed that the carburetor had been removed from the engine, overhauled, and reinstalled. Austin inspected the carburetor and determined that it was not the carburetor he had documented earlier. According to Austin, the carburetor did not need to be replaced; the only service necessary to correct the defect in the carburetor was an adjustment of the throttle position sensor. Austin inspected the throttle position sensor and determined that it was not set to factory specification. The throttle position sensor had been adjusted to 1.0 volts at idle. Austin concluded that the vehicle should not have passed a smog check inspection and been issued a certificate of compliance because the service engine soon light was non-functional.

C.

Undercover Operation No. 3

In September 2005, John Nelson (Nelson), an employee in one of the Bureaus documentation laboratories, inspected a 1988 Toyota pickup owned by the Bureau and performed a smog check inspection on the vehicle. The pickup passed the inspection. 6

Nelson then installed a defective #2 vacuum switch, a defect that would send an "improper wide open throttle signal to the computer, causing a rich fuel delivery." Nelson against tested the pickup and it failed the smog check inspection as a "gross polluter" due to excessive carbon monoxide and hydrocarbons. On October 4, 2005, Jose Najar (Najar), a Bureau undercover operator, drove the pickup to Imports Performance and requested a smog check inspection. Rowe performed the inspection and informed Najar that the vehicle did not pass because it was discharging too much fuel out of the exhaust. Rowe told Najar that it would cost $65 to diagnose the problem. Najar left the vehicle at Imports Performance. Later that day, Najar spoke with Rowe who stated that the pickups carburetor needed to be rebuilt and the mixture control solenoid needed to be replaced to enable the vehicle to pass a smog check inspection. The cost of the repairs would be $500. Najar authorized the repairs. On October 5, 2005, Rowe called Najar, apparently after the rebuilt carburetor was installed and the mixture control solenoid was replaced, and informed him that the pickup still would not pass a smog test. Rowe stated that pickups "mixture control unit" needed to be replaced. The prior $500 estimated cost of repair did not change. Najar authorized the repair. On October 7, 2005, Rowe informed Najar that the pickup was a "gross polluter" and that he still was attempting to get the vehicle to pass a smog check inspection--the vehicle would pass the test at Imports Performance, but not at a "test-only" station. Later that day, Rowe informed Najar that the pickup had passed the smog check inspection. When Najar went to Imports Performance to pick up the vehicle, Rowe charged him an additional $60 to cover the cost of taking the pickup to a test-only station. Rowe gave Najar various documents including a vehicle inspection report from 16 Minute Smog with a certificate of compliance printed on it. On October 14, 2005, Nelson inspected the pickup and determined that the defective #2 vacuum switch that he had installed was still in place. The carburetor had been removed, disassembled, and adjusted. The vacuum hose to the ignition distributor vacuum advance had been modified by cutting a notch in it, thereby causing a vacuum 7

leak. Nelson determined that the ignition timing had been adjusted to eight degrees before top dead center which was eight degrees out of factory specification. When Nelson had prepared the vehicle for the undercover operation, the engine ignition timing was at its factory specification of top dead center. Nelson performed a smog check inspection on the pickup. The vehicle failed the test as a gross polluter due to excessive carbon monoxide and hydrocarbon emissions and the modified vacuum hose to the ignition distributor. The vehicle also failed the functional timing portion of the test because its engine ignition timing was advanced eight degrees from factory specification. Nelson then replaced the defective #2 vacuum switch and the modified vacuum hose, adjusted the engine ignition timing to its factory specification, and performed another smog check inspection. The pickup passed the inspection. According to Nelson, the only repair the pickup had needed to pass a smog check inspection was replacement of the #2 vacuum switch. The disassembly and adjustment of the carburetor was unnecessary. According to Nelson, with a defective #2 vacuum switch, modified vacuum hose, and engine ignition timing eight degrees out of factory specification the pickup could not have passed a smog check inspection that was performed properly.

II.

Procedure In March 2007, the Bureau filed an Accusation and Petition to Revoke Probation

(Accusation) against petitioners. The Accusation sought a decision temporarily or permanently invalidating automotive repair dealer registration number AH 168479, issued to Vartan doing business as Imports Performance; revoking or suspending probationary smog check station license number RH 168479, issued to Vartan doing business as Imports Performance; revoking or suspending advanced emission specialist technician license number EA 142356, issued to Vartan; revoking or suspending advanced emission specialist technician license number EA 147729, issued to Rowe; and ordering petitioners to pay the Bureau the reasonable costs of its investigation and enforcement. 8

In November 2008, following eight days of administrative hearings, the administrative law judge filed his proposed decision, which was adopted as the decision of the Director of the Department of Consumer Affairs (Bureaus Decision) on November 25, 2008. Pursuant to the Bureaus Decision, the Accusation was dismissed with respect to Vartans automotive repair dealer registration number AH 168479; Vartans smog check station license number RH 168479 was revoked; the Accusation was dismissed with respect to Vartans advanced emission specialist technician license number EA 142356; Rowes advanced emission specialist technician license number EA 147729 was revoked, with the revocation stayed pending Rowes completion of four years probation; and Vartan, as owner of Imports Performance, and Rowe were ordered to reimburse the Bureau the amount of $39,366.40 for the Bureaus investigation and prosecution costs. On December 29, 2008, petitioners filed a petition for writ of mandate or administrative mandamus (Superior Court Case No. BS118421) with respect to the Bureaus Decision. Petitioners contended that the Bureau applied the wrong standard of proof, the Bureaus Decision was not supported by its findings, and the Bureaus findings were not supported by the evidence. The trial court, the Honorable James C. Chalfant, granted petitioners writ petition and remanded the matter to the Bureau. With respect to the Bureaus Decision, the writ of mandate directed the Bureau "(1) to set aside and vacate the findings and conclusions in the Decision that Petitioners committed violations with respect to the check engine light on the 1988 Chevrolet Caprice; (2) to set aside and vacate the findings and conclusions in the Decision that Petitioners committed violations with respect to the timing on the 1988 Toyota Pickup; (3) to set aside and vacate the costs and discipline sections set forth in the Decision; (4) to reconsider and reassess the costs and discipline in the Decision in light of this Courts Judgment and Ruling." On December 21, 2009, the Director of the Department of Consumer Affairs issued the Bureaus Decision After Remand From Superior Court (Bureaus Decision After Remand). The Bureaus Decision After Remand complied with the trial courts writ of mandate, expressly excluding from its findings and conclusions any violations

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based on the 1988 Chevrolet Caprices check engine light or the 1988 Toyota pickups engine ignition timing. As for discipline, the Bureaus Decision After Remand noted that the total number of sustained violations by Imports Performance and Rowe had not changed even excluding the violations based on the Caprices check engine light and the Toyota pickups engine ignition timing allegations. Accordingly, the discipline imposed under the Bureaus Decision After Remand did not change. As relevant here, the Bureaus Decision After Remand revoked Vartans probationary smog check station license number RH 168479, and revoked and stayed revocation of Rowes advanced emission specialist technician license number EA 147729 pending Rowes completion of four years probation. As for costs, the Bureau noted in its Decision After Remand, as it had in its earlier Decision, that the Bureau requested $39,366.40 for its investigation and prosecution of the case. That amount consisted of $7,525.90 for investigative services; $225 for undercover vehicle preparation, documentation, and operation; and $31,615.50 in Attorney General fees. According to the administrative law judge, those costs were undisputed and deemed just and proper. The Bureaus Decision After Remand again noted that not all of the allegations in the Accusation had been proven, but the administrative law judge had not made an offset for the unproven allegations because they were part of the overall investigation and the prosecution of the case, and no separable efforts were made in connection with such unproven allegations. The Bureaus Decision After Remand then noted that the total number of sustained violations by Imports Performance and Rowe had not changed, even excluding the violations based on the Caprices check engine light and the Toyota pickups engine ignition timing allegations. Nevertheless, "in light of the Superior Courts ruling," the Director of Consumer Affairs reduced cost recovery by $4,000 for a total recovery of $35,366.40. On January 19, 2010, petitioners filed a petition for writ of mandate or administrative mandamus (Superior Court Case No. BS124752) with respect to the

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Bureaus Decision After Remand.3 Petitioners contended that the Bureau failed to comply with the trial courts prior writ of mandate, the Bureau failed to apply the proper standard of proof, the evidence did not support the alleged violations, and the discipline and costs imposed were unfair and excessive. On August 26, 2010, the trial court, the Honorable David P. Yaffe, denied petitioners writ petition. The trial court stated that the discipline imposed on Vartans smog check station license probation and Rowes advanced emission specialist technician license was based on petitioners failure to correct defects the Bureau created in three undercover automobiles and the unnecessary repairs petitioners made to two of the vehicles. The trial court observed that Judge Chalfants ruling on petitioners prior writ petition vacated only two findings in the Bureaus Decision--the findings related to the check engine light in the Caprice and the engine ignition timing in the Toyota pickup-- and remanded the matter to the Bureau to reconsider the penalties and costs imposed on petitioners in light of the vacated findings. The trial court found that the Bureau had complied with Judge Chalfants judgment and writ of mandate. The Bureau had imposed a new decision that effectively stated that the penalties imposed would remain the same with the two findings vacated. In expressly rejecting petitioners argument that the Bureau violated Judge Chalfants judgment, the trial court concluded that the Bureaus Decision After Remand did not discipline petitioners with respect to the Caprices check engine light or the engine ignition timing on the Toyota pickup and that the Decision After Remand disciplined petitioners for other violations with respect to those vehicles. The trial court rejected petitioners remaining contentions as attempts to relitigate issues decided by Judge Chalfant in connection with petitioners first writ petition. On September 10, 2010, the trial court entered judgment denying petitioners writ petition. On November 2, 2010, petitioners timely field their Notice of Appeal.

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Petitioners originally filed the writ petition under the same Superior Court case number as their prior writ petition (Superior Court Case No. BS118421), but were ordered to file the new writ petition under a new case number. 11

DISCUSSION I. Standards of Review ",,In reviewing the trial courts ruling on a writ of mandate (Code Civ. Proc.,

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