Judge: Curtis A. Kin, Case: 23STCP00162, Date: 2023-09-12 Tentative Ruling

Case Number: 23STCP00162    Hearing Date: September 12, 2023    Dept: 82

Petitioners Heidi Frahm and Estate of James Frahm, Heidi Frahm Executor seek a writ of mandate directing respondents California Department of Vehicles and Steve Gordon, in his official capacity as Director of the DMV (collectively, “respondent”), to process petitioner’s applications for title and registration without consideration or enforcement of certain provisions in the DMV manuals.

I.       Factual Background

            Petitioner Heidi Frahm is a resident of Los Angeles. (Frahm Decl. ¶ 1.) James Frahm, petitioner’s brother, died in 2021. (Id. ¶ 5.) Decedent was a resident of Tennessee. (Ibid.) In a valid will, petitioner was named as the estate’s personal representative. (Ibid.) Petitioner was left with a 2010 Toyota Corolla. (Ibid.) The car remains in decedent’s name. (Id. ¶ 8 & Ex. 7.)

            As part of an informal proceeding for estates that do not include real property, petitioner obtained a Small Estate Affidavit in probate court in Tennessee. (Id. ¶ 6 & Ex. 5.) On November 16, 2022, petitioner filled out an affidavit pursuant to California Probate Court § 13100 and had it notarized to obtain title of the vehicle. (Id. ¶ 7 & Ex. 6.)

On July 5, 2022, petitioner presented the Small Estate Affidavit to the Department of Motor Vehicles (“DMV”) in West Hollywood to transfer title and registration of the car to petitioner’s name. (Id. ¶ 10.) Petitioner was told that, pursuant to provisions in the DMV Manual, she needed letters testamentary or letters of administration to obtain title or have the registration changed. (Id. ¶¶ 1, 10 & Ex. 1.) Petitioner was told that the Tennessee Small Estate Affidavit or a California Probate Code § 13100 Affidavit would not suffice. (Ibid.) Petitioner was not able to have the Tennessee DMV transfer title because she is not a resident of Tennessee. (Id. ¶¶ 10, 23.)

            Petitioner filed a small claims action – Frahm et al. v. California DMV, LASC Case No. 22STSC04412 – against the DMV. (Id. ¶ 29.) The hearing took place on December 30, 2022. (Id. ¶ 39.) The judge pro tem opined that petitioner was not entitled to monetary damages and that he did not have jurisdiction to issue writ, declaratory, or injunctive relief with respect to the DMV Manual provisions. (Id. ¶¶ 39, 40.) The matter was continued to allow petitioner to seek relief in a court that could issue writ, declaratory, or injunctive relief. (Id. ¶ 40.) Because petitioner could not continue the small claims matter until the instant case was decided, petitioner dismissed the small claims matter without prejudice. (Ibid.)

Petitioner Heidi Frahm seeks a writ of mandate ordering respondents to process petitioner’s application for title and registration without consideration or enforcement of the DMV’s Vehicle Industry Registration Procedures Manual §§ 11.105, 11.110, and 12.030 or the DMV’s Registration Manual §§ 5.135, 5.140, and 10.030, unless or until those provisions comply with the Administrative Procedures Act.

II.      Procedural History

On January 20, 2023, petitioner filed a verified petition for writ of mandate and complaint for declaratory and injunctive relief. On March 15, 2023, respondent Steve Gordon, Director of the Department of Motor Vehicles of the State of California, filed an answer.

            On May 2, 2023, the Court (Hon. Mary H. Strobel) denied petitioner’s motion for preliminary injunction. The Court set the hearing on the petition for September 12, 2023. The Court also stayed the first and second causes of action for declaratory and injunctive relief, respectively, pending resolution of the third cause of action for writ of mandate. (5/2/23 Minute Order at 13.)

The Court has received an opening brief, opposition, and reply.

III.     Request for Judicial Notice

          Petitioner’s request to take judicial notice of Exhibit 1 (DMV Manual Provisions at issue) and Exhibit 27 (DMV’s Vehicle Industry Registration Procedures Manual § 23.010) is GRANTED, pursuant to Evidence Code § 452(c).

            Petitioner’s request to take judicial notice of Exhibit 2 (certified transcript from small claims hearing in Frahm et al. v. California Department of Motor Vehicle [sic], LASC Case No. 22STSC04412), Exhibit 3 (link to the audio of small claims hearing), and Exhibit 5 (petitioner’s filing in Anderson County, Tennessee probate court) is GRANTED, pursuant to Evidence Code § 452(d).

            Petitioner’s request to take judicial notice of the California Law Revision Commission Memorandum 2020-37 is DENIED as irrelevant. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [“Although a court may judicially notice a variety of matters (Evid. Code, § 450 et seq.), only relevant material may be noticed”].) The letter from the California Judges Association to the Law Revision Commission is admitted by petitioner to be unrelated to this case and accordingly is not probative of the interpretation of any of the manual provisions at issue. (OB 14:9-12; cf. Estate of Joseph (1998) 17 Cal.4th 203, 210 [“We must, of course, judicially notice California statutory law. (Evid.Code, § 451, subd. (a).) We may also judicially notice matters underlying such law”].)

IV.     Standard of Review

CCP § 1085(a) provides: “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.”

“There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where…the claim is that an agency has failed to act as required by law.” (Id. at 705.) “‘Generally, a writ will lie when there is no plain, speedy, and adequate alternative remedy.…’ [Citation.]” (Pomona Police Officers’ Ass’n v. City of Pomona (1997) 58 Cal.App.4th 578, 584.)

“When a party seeks review of an administrative decision pursuant to Code of Civil Procedure section 1085, judicial review is limited to examining the agency proceedings to ascertain whether the agency’s action has been arbitrary, capricious or lacking entirely in evidentiary support, or whether the agency failed to follow the proper procedure and give notices required by law. And, where the case involves the interpretation of a statute or ordinance, our review of the trial court's decision is de novo.” (Ideal Boat & Camper Storage v. County of Alameda (2012) 208 Cal.App.4th 301, 311, citing Pomona Police Officers' Assn. v. City of Pomona (1997) 58 Cal.App.4th 578, 584.) In independently reviewing legal questions, “An administrative agency’s interpretation does not bind judicial review but it is entitled to consideration and respect.” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) In a CCP § 1085 writ petition, the petitioner generally bears the burden of proof. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)        

V.      Analysis

A.           Underground Regulations

Underlying the instant petition is the DMV’s invocation of Vehicle Industry Registration Procedures (“VIRP”) Manual §§ 11.105, 11.110, and 12.030 and the DMV’s Registration Manual §§ 5.135, 5.140, and 10.030 in refusing to transfer title of decedent’s 2010 Toyota Corolla to petitioner.

VIRP Manual § 12.030 states, in pertinent part:

Letters of Administration or Letters Testamentary—Letters of Administration or Letters Testamentary issued in California or another state may be used to release ownership on an out-of-state title. The vehicle does not have to be transferred to the heir in the other state prior to obtaining California registration.

Transfer Without Probate—An application for Transfer without Probate cannot be accepted for any vehicle that is not titled in California. Out-of-state titling documents must be transferred to the heir in the state of origin prior to obtaining California registration.

(Frahm Decl. Ex. 1, emphasis in original.) Letters of administration and letters testamentary are defined in VIRP Manual §§ 11.105 and 11.110, respectively. (Id. Ex. 1.) The Registration Manual further explains what documents are acceptable to register an out-of-state vehicle. (Ibid.)

The DMV refused to transfer title and registration to petitioner because she did not have letters testamentary or letters of administration. During the small claims hearing, DMV representative Mario Moreno confirmed that the DMV in West Hollywood was following the procedures under the Registration Manual in asking petitioner for letters testamentary or letters of administration. (Id. Ex. 2 at 9:10-21.)

Petitioner contends that the above provisions are regulations, which were required to be adopted under the California Administrative Procedure Act (“APA”) in order to be enforceable.

            Under Vehicle Code § 1651(a): “The director may adopt and enforce rules and regulations as may be necessary to carry out the provisions of this code relating to the department.” Such rules and regulations “shall be adopted, amended, or repealed in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).” (Veh. Code § 1651(b).)

Under the APA, “regulation” is defined as “every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure.” (Gov. Code § 11342.600.) “No state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation as defined in Section 11342.600, unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule has been adopted as a regulation and filed with the Secretary of State pursuant to this chapter.” (Gov. Code § 11340.5(a), emphasis added.)

To be a regulation, a policy must meet two requirements: (1) “the agency must intend it to apply generally, rather than in a specific case”; and (2) the agency must adopt it to implement, interpret, or make specific the law enforced by the agency. (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 571.)  Applying this test, the Court finds that VIRP Manual §§ 11.105, 11.110, and 12.030 and Registration Manual §§ 5.135, 5.140, and 10.030 are regulations under the APA.

            The provisions are intended to apply generally. For individuals seeking to obtain title for and register an out-of-state vehicle in California, section 12.030 of the VIRP Manual and section 10.030 of the Registration Manual provide that an application for transfer without probate cannot be accepted, but letters of administration or letters testamentary may be accepted to release an out-of-state title. (Frahm Decl. Ex. 1.) Section 11.105 of the VIRP Manual and section 5.135 of the Registration Manual set forth the documents that must be submitted as part of letters of administration. (Ibid.) Section 11.110 of the VIRP Manual and section 5.140 of the Registration Manual set forth the documents that must be submitted as part of letters testamentary. (Ibid.)

            Further, the provisions were also adopted to “implement, interpret, or make specific” the law enforced by the DMV. During the small claims hearing, DMV representative Moreno stated: “The DMV West Hollywood Office that Ms. Frahm went to, they were simply following their registration manual, which they are permitted to do pursuant to their general authority, under the Vehicle Code -- California Vehicle Code Sections 1653…and 4751.” (Id. Ex. 2 at 9:10-16.) Based on this testimony, it is clear the DMV implemented and made specific the law that it enforced pursuant to its general authority under Vehicle Code § 1651(a).

Because the manual provisions at issue satisfy both elements of a regulation under Tidewater, pursuant to Vehicle Code § 1651(b), the DMV was required to adopt the manual provisions at issue in accordance with the APA. “If an agency adopts a regulation without complying with the APA requirements it is deemed an ‘underground regulation’ (Cal.Code Regs., tit. 1, § 250) and is invalid.” (Naturist Action Com. v. Department of Parks & Recreation (2009) 175 Cal.App.4th 1244, 1250.) Here, it is undisputed the manual provisions at issue were not adopted pursuant to the APA. (Frahm Decl. ¶ 15 & Ex. 9 [email from DMV counsel indicating that DMV has no rulemaking files for manual provisions at issue]; Opp. at 13:13-15, 14:17-20 [arguing that provisions are exempt from APA rulemaking requirements].)

            Respondent contends that, under Vehicle Code §§ 1651, 1653,[1] and 4751,[2] it has broad authority and discretion in the registration of vehicles in California. (Opp. at 10:7-12.) That may be true, but respondent still must follow the APA in adopting regulations pursuant to such authority and discretion. (Veh. Code § 1651(b).)

            Respondent also contends that the manual provisions are not binding on petitioner because petitioner may obtain title and registration through a surety bond. (Opp. at 11:9-13, 13:5-8.) The Vehicle Code does provides that, “[i]n the absence of the regularly required supporting evidence of ownership upon application for registration or transfer of a vehicle, the department may accept an undertaking or bond which shall be conditioned to protect the department and all officers and employees thereof and any subsequent purchaser of the vehicle, any person acquiring a lien or security interest thereon, or the successor in interest of such purchaser or person against any loss or damage on account of any defect in or undisclosed claim upon the right, title, and interest of the applicant or other person in and to the vehicle.”  (Veh. Code § 4157; see also 13 C.C.R. § 152.00(a) [“A motor vehicle owner applying for a California certificate of title without the required supporting evidence of ownership may submit a bond as authorized under Vehicle Code section 4157”].) But the resort to posting a bond is only necessary here because the DMV has required letters of administration or letters testamentary as the “regularly required supporting evidence of ownership” for petitioner’s application for registration or transfer of a vehicle. Accordingly, the manual provisions, which require letters of administration or letters testamentary, are binding on petitioner.

            Respondent further argues that the manual provisions do not apply generally because they refer only to individuals seeking transfer of title and registration. (Opp. at 11:27-12:2.) For a rule to be subject to the APA, “[t]he rule need not…apply universally; a rule applies generally so long as it declares how a certain class of cases will be decided.” (Tidewater, 14 Cal.4th at 571.) Here, the manual provisions do not apply just to petitioner’s specific case but to all individuals seeking to transfer title and registration of out-of-state vehicles. Under VIRP Manual § 12.030, anyone who seeks to transfer ownership of an out-of-state vehicle may not rely on documents other than letters testamentary or letters of administration. Accordingly, the cases respondent cites for the proposition that the application of the manual provisions in question is case-specific are inapposite. (Cf. General Motors Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 773, 789 [Franchise Tax Board’s decision to exclude General Motors’ investment proceeds is not a regulation subject to APA]; Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 504 [“an administrative agency properly can choose to resolve some aspects of the implementation of a statutory scheme through ad hoc adjudication rather than by general rule”].)

Respondent additionally argues that the manual provisions are not mandatory because petitioner can submit a surety bond instead of submitting letters testamentary or letters of administration. (Opp. at 12:16-17.) As discussed above, even if petitioner could submit a bond, the manual provisions prohibiting transfer of title and registration for an out-of-state vehicle absent letters testamentary or letters of administration are still being applied against petitioner. The manual provisions were not merely advisory, as respondent contends. (See Frahm Decl. Ex. 1 at VIRP Manual § 12.030, emphasis in original [“An application for Transfer without Probate cannot be accepted for any vehicle that is not titled in California. Out-of-state titling documents must be transferred to the heir in the state of origin prior to obtaining California registration”]; cf. Modesto City Schools v. Education Audits Appeal Panel (2004) 123 Cal.App.4th 1365, 1382 [finding that audit guide was not an underground regulation that was generally applicable because Education Code § 14503(a) states that guide was a suggested resource].)

Respondent next argues that, even if the manual provisions are underground regulations, they are exempt from the APA because they relate only to the internal management of the DMV, specifically how to assess the genuineness of documents. (Opp. at 13:11-17; Gov. Code § 11340.9(d).) This argument is unpersuasive. “The scope of the internal management exception is narrow and inapplicable where a rule is to have general application and is to affect persons subject to regulation by the agency.” (Californians for Pesticide Reform v. Department of Pesticide Regulation (2010) 184 Cal.App.4th 887, 907.) As stated above, the manual provisions are generally applicable because they apply to all individuals who seek to transfer title and registrater out-of-state vehicles. Further, the manual provisions affect individuals subject to regulation by the DMV, specifically individuals seeking transfer of registration of a vehicle. (See Veh. Code § 4751.)

            Respondent also asserts that the manual provisions are exempt from the APA because they “embod[y] the only legally tenable interpretation of a provision of law.” (Opp. at 14:17-26; Gov. Code § 11340.9(f).) Respondent contends that it is merely enforcing the actual language of Vehicle Code §§ 1651, 1653, and 4751. (Opp. at 15:7-9.) The “exception for the lone ‘legally tenable’ reading of the law applies only in situations where the law ‘can reasonably be read only one way’ [citation] such that the agency’s actions or decisions in applying the law are essentially rote, ministerial, or otherwise patently compelled by, or repetitive of, the statute’s plain language.” (Morning Star Co. v. State Bd. of Equalization (2006) 38 Cal.4th 324, 336-37.) Vehicle Code §§ 1651, 1653, and 4751 do not mention registration of out-of-state vehicles or what documents are necessary to effectuate such registration.  It is hard to see how the manual provisions are logically required by those statutory provisions. The ”legally tenable” exception to the APA is inapplicable.

Because there is no exception to the APA here, the Court finds that, as required by Vehicle Code § 1651(b), the DMV failed to adopt the manual provisions at issue in accordance with the APA.

B.           Entitlement to Writ of Mandate

1.            Ministerial Duty and Right to Performance

“‘A ministerial duty is an obligation to perform a specific act in a manner prescribed by law whenever a given state of facts exists, without regard to any personal judgment as to the propriety of the act. [Citation.]’” (Center for Biological Diversity v. Department of Forestry & Fire Protection (2014) 232 Cal.App.4th 931, 952, quoting People v. Picklesimer (2010) 48 Cal.4th 330, 340.)

Here, petitioner demonstrates that the DMV is required to consider her Affidavit for Collection of Personal Property executed pursuant to Probate Code § 13100. (Frahm Decl. Ex. 6.)

The Probate Court provides: “Excluding the property described in Section 13050, if the gross value of the decedent’s real and personal property in this state does not exceed…$166,250…as adjusted periodically in accordance with Section 890, and if 40 days have elapsed since the death of the decedent, the successor of the decedent may, without procuring letters of administration or awaiting probate of the will, do any of the following with respect to one or more particular items of property: [¶] (b) Receive any particular item of property that is tangible personal property of the decedent….” (Prob. Code § 13100(b).) Probate Code § 13101(a) sets forth the contents of the affidavit which shall be furnished to the holder of the decedent’s property. “If the requirements of Sections 13100 to 13104, inclusive, are satisfied: [¶] (1) The person or persons executing the affidavit or declaration as successor of the decedent are entitled to have the property described in the affidavit or declaration paid, delivered, or transferred to them.” (Prob. Code § 13105(a)(1).)

            Probate Code § 13105(a)(1) requires the DMV to transfer title and registration of the subject vehicle to petitioner upon satisfaction of the requirements of Probate Code §§ 13100 to 13104.

Petitioner has demonstrated a ministerial duty and right to performance. As the undisputed successor of decedent James Frahm (see Frahm Decl. Ex. 6 at ¶ 8; Prob. Code § 13101(a)(7)), the DMV was obligated under Probate Code §§ 13100 to 13105 to consider petitioner’s Probate Code § 13100 affidavit in deciding whether to transfer title and registration of the subject vehicle, notwithstanding petitioner’s lack of letters testamentary or letters of administration.

2.            Lack of Plain, Speedy, and Adequate Alternative Remedy

CCP § 1086 states: “The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested. It must be issued upon the verified petition of the party beneficially interested.” (See also Villery v. Department of Corrections & Rehabilitation (2016) 246 Cal.App.4th 407, 410 [“As a general rule, a petition for a writ of mandate may be dismissed if the plaintiff has an alternate ‘plain, speedy, and adequate remedy, in the ordinary course of law.’ [Citation]”].) A writ of mandate cannot be granted if the petitioner has a legal remedy that is equally convenient, beneficial, and effectual. (Tulare County v. Woody (1933) 132 Cal.App. 459, 461.)

            To the extent respondent contends that petitioner may submit a bond as an alternative to writ relief, this argument is not well-taken.

Petitioner presents evidence that the sales value of a car with a clouded title reduced by twenty to forty percent. (Frahm Decl. ¶ 35 & Ex. 26.) A bond under Vehicle Code § 4157 is intended to protect “[s]ubsequent purchasers…who buy a vehicle following registration or transfer of the vehicle by the DMV.” (Auto Procurement, Inc. v. Westgate California Ins. Co. (1977) 65 Cal.App.3d 859, 862.) It is unclear whether a surety bond encumbers the title of a vehicle like a lien imposed due to financing of a vehicle.

Petitioner presents evidence that a surety bond issuer would charge a minimum of $100 per year. (Frahm Decl. ¶ 34 & Ex. 25.) Petitioner would not incur this cost were the DMV to accept her affidavit pursuant to Probate Code § 13100, et seq. It thus appears that writ relief is more convenient and beneficial than a bond.

Further, petitioner contends that, for vehicles valued at $5,000 and up, the individual seeking registration without evidence of ownership must undergo a “diligent effort” process to contact the last owner, submit a bond, and fill out a Statement of Facts form to substantiate ownership of the vehicle. (Frahm Decl. ¶ 36 & Ex. 27 [VIRP Manual § 23.010].) However, petitioner presents a Kelley Blue Book appraisal valuing the subject vehicle at $4,741. (Id. ¶ 9 & Ex. 8; 13 C.C.R. § 152.00(b)(1)(B) [fair market value calculated as sum of highest and lowest price variations divided by two].) For vehicles valued at below $5,000, the “diligent effort” process is not required and all that is needed is “[a]ny documentation that establishes ownership of the described vehicle or vessel” and the Statement of Facts. (Frahm Decl. Ex. 27.)

More to the point, no bond is required for a vehicle whose value is less than $5,000. (Ibid.) Accordingly, the alternative remedy of a bond appears not to be applicable to the subject vehicle.

            For the foregoing reasons, a bond is not equally convenient, beneficial, and effectual compared to the requested writ relief which may result in outright ownership of the vehicle.

C.           Remedy

Respondent contends that, if the Court were inclined to grant the writ, the Court should invalidate only the provisions in question. (Opp. at 16:19-21.) The Court agrees that a remedy tailored to the manual provisions at issue is appropriate, and, indeed, petitioner does not seek to invalidate manuals in their entirety. (See Petition at Prayer, ¶ 3.)

Respondent also asks the Court to provide the DMV a reasonable opportunity to address any deficiencies under the APA. In some circumstances, an agency may need to consider reliance interests before rescinding a regulation, even if the regulation was illegally adopted. In Morning Star v. State Board of Equalization (2006) 38 Cal.4th 324, the California Supreme Court held that the agency’s interpretation of a statute was a regulation under the APA but was not properly promulgated under the APA and was “invalid.” (Morning Star, 38 Cal.4th at 340-341.) Despite the invalidity of the regulation, the California Supreme Court allowed the regulation interpreting the statute to remain in place until the agency had reasonable opportunity to promulgate valid regulations under the APA. (Morning Star, 38 Cal.4th at 341-42.) The high court noted that it previously allowed an invalid minimum wage order to remain in place pending correction of the deficiencies because the order was of “‘critical importance to significant numbers of employees’ who bore ‘no responsibility for the deficiencies of’ the order. [Citation.]” (Id. at 342.) The high court thus held that the hazardous materials fee program at issue implemented the invalid regulation and rescission of the regulation pending promulgation of valid regulations would disrupt and “seriously undermine the program.” (Id. at 342.)

Here, the Court questions whether the manual provisions at issue here are of the type that are so critically important that their immediate recission would be disruptive.  Further, the Court questions whether it is reasonable to allow the DMV the opportunity to comply with the APA rule-making process, given that the provisions at issue if enacted would still conflict with Probate Code § 13105(a)(1), as discussed above.  The Court will hear from the parties about these concerns at the hearing on this matter.

VI.     Conclusion

The petition is GRANTED. Subject to the discussion during the hearing regarding the proper scope of writ relief, pursuant to Local Rule 3.231(n), petitioner shall prepare, serve, and ultimately file a proposed judgment and proposed writ of mandate.