Judge Mary H. Strobel, Case 23STCP00162 2023-05-02 Tentative Ruling

Petitioner Heidi Frahm (“Petitioner”) moves for a preliminary injunction enjoining and prohibiting Respondents California Department of Motor Vehicles (“DMV”) and Steve Gordon, Director of the DMV (collectively “Respondents”) “from enforcing or utilizing in any way … the DMV’s Vehicle Industry Registration Procedures Manual §§ 11.105, 11.110, and 12.030 and the DMV s Registration [] Manual §§ 5.135, 5.140, and 10.030 — in processing Petitioner/Plaintiff’s applications for transfer of title and registration of her inherited vehicle (or at least her application for registration of it).” (Notice 1-2.)

Petitioner’s brother, James Frahm, was a resident of Tennessee. He died in 2021 and left a will that named Petitioner as his estate’s personal representative. The will also devised a 2010 Toyota Corolla (the “Vehicle”) to Petitioner. (Frahm Decl. ¶ 2.)

In an informal probate proceeding in Tennessee, Petitioner obtained a Small Estate Affidavit to obtain property in the name of Mr. Frahm. (Id. ¶ 3, Exh. D.)

On July 25, 2022, Petitioner presented the Small Estate Affidavit to the California DMV to transfer the title and registration of the Vehicle in her name. (Id. ¶ 5.) The DMV refused to transfer title and registration to Petitioner’s name because she did not present letters testamentary or letters of administration. The DMV representatives cited provisions in the Vehicle Industry Registration Procedures Manual (“VIRPM”) and the DMV Registration Manual. (Id. ¶¶ 5-10.)

“Not knowing what else to do,” Petitioner filed a small claims action against the DMV. On December 29, 2022, the day before the hearing on the small claims action, a DMV attorney informed Petitioner by email that she could “post a bond pursuant to Vehicle Code section 4157” in order to register a nonresident vehicle. The attorney stated: “If you choose to obtain such a bond, the Department is prepared to settle your small claims matter, including payment of your necessary filing fees….” (Id. ¶ 12, Exh. L.) On December 30, 2022, Petitioner responded to this email and expressed concern that her bond would not be “safe” given the “bad blood between me and the DMV” and Petitioner’s intent to sue DMV to invalidate the registration rules at issue. (Ibid.)

A hearing on the small claims matter was held on December 30, 2022. DMV’s representative stated, among other things, that Petitioner could post a “motor vehicle ownership surety bond.” (Id. ¶ 13, Exh. B at 20.) The small claims judge opined that Petitioner did not prove a claim for damages and stated that he could not issue a writ or declaratory or injunctive relief. The judge continued the matter for Petitioner “to attempt to exhaust her remedies.” (Id. Exh. A, C.)

On January 20, 2023, Petitioner, in pro per, filed her petition for writ of mandate pursuant to CCP section 1085 and complaint for declaratory relief. The first and second causes of action are for declaratory relief and alleged violations of the Administrative Procedures Act (“APA”). The third cause of action is for writ of mandate.

On February 3, 2023, Petitioner filed this motion for preliminary injunction. The court has received Respondents’ opposition and Petitioner’s reply.

Assignment of Declaratory Relief Action under the APA to Writs and Receivers Department

Pursuant to the local rules which designate that Department 82 is a specialized Writs and Receivers department and not a general civil department, only a cause of action for writ of mandate and other special proceedings are properly assigned to this department. (LASC Local Rules 2.8(d) and 2.9.) Local Rules 2.8(d) and 2.9 do not include a claim for declaratory relief as a special proceeding assigned to the writs departments. Accordingly, Petitioner’s first and second causes of action for declaratory relief will be stayed until the court rules on the third cause of action for writ of mandate.

The motion for preliminary injunction appears to be based largely on Petitioner’s first and second causes of action under the APA. Nonetheless, the third cause of action also incorporates allegations under the APA. Department 82 may rule on the motion for preliminary injunction because the case is currently assigned to this department. (See Local Rule 2.8(b).)

The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits. (Major v. Miraverde Homeowners Ass’n. (1992) 7 Cal. App. 4th 618, 623.) In deciding whether or not to grant a preliminary injunction, the court looks to two factors, including “(1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” (White v. Davis (2003) 30 Cal.4th 528, 553-54.) The factors are interrelated, with a greater showing on one permitting a lesser showing on the other. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) However, the party seeking an injunction must demonstrate at least a reasonable probability of success on the merits. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 73-74.) The party seeking the injunction bears the burden of demonstrating both a likelihood of success on the merits and the occurrence of irreparable harm. (Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1571.) Irreparable harm may exist if the plaintiff can show an inadequate remedy at law. (CCP § 526(a).)

Petitioner contends that VIRPM sections 11.105, 11.110, and 12.030 and the DMV’s Registration Manual sections 5.135, 5.140, and 10.030 (“Manual Provisions”) were not properly adopted pursuant to the APA and are therefore illegal underground regulations. (Mot. 8-10.)

Vehicle Code section 1651(a) states that the director of the DMV “may adopt and enforce rules and regulations as may be necessary to carry out the provisions of this code relating to the department.” Section 1651(b) states that “[r]ules 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).”

The California Administrative Procedure Act (“APA”) defines “regulation” 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.) Pursuant to the APA, “[n]o 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.” (Id. § 11340.5(a).) A regulation that substantially fails to comply with the requirements of the APA may be judicially declared invalid. (Id. § 11350.)

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.)

The DMV refused to transfer title and registration to Petitioner’s name because she did not present letters testamentary or letters of administration. It is undisputed that the DMV representatives relied on the Manual Provisions challenged by Petitioner, including VIRPM sections 11.105, 11.110, and 12.030 and the DMV’s Registration Manual sections 5.135, 5.140, and 10.030. (Oppo. 7-8; see Frahm Decl. ¶ 5 and Exh. B at 9-11 [DMV representative Moreno stating that DMV followed the procedures in the Registration Manual when requiring Petitioner to submit letters testamentary or letters of administration].)

VIRPM sections 11.105 and 11.110 define letters testamentary or letters of administration, respectively. VIRPM section 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.

The DMV Registration Manual further expands and explains these requirements to register an out-of-state vehicle. (Ibid.)

Based on the record presented for this motion, Petitioner has a colorable argument that the Manual Provisions apply generally to all persons seeking to obtain California registration of a vehicle titled in another state. Thus, as stated by Moreno at the small claims hearing, “The DMV West Hollywood office that Ms. Frahm went to, they were simply just following their procedures under their registration manual, which they are permitted to do pursuant to their general authority, under the Vehicle Code — California Vehicle Code Sections 1653, which is Exhibit 4, and 4751, which is Exhibit 5.” (Frahm Decl. Exh. B at 9.) Further, when asked by the judge about section 10.030 of the DMV Registration Manual, Moreno responded: “what it states in our section is letters of administration or letters testamentary issued in California or another state may be used to release ownership for an out-of-state title.” (Id. at 11.)

Petitioner also has a colorable argument that the Manual Provisions implement, interpret, or make specific the law enforced by the agency. Moreno acknowledged that the Manual Provisions implement Vehicle Code sections 1653 and 4751, which are discussed below. Further, Moreno’s testimony and the actions of the DMV West Hollywood office arguably support a conclusion that the Manual Provisions “make specific” DMV’s rules for registering title of out-of-state vehicles.

Respondents argue that “[t]he provisions in question do not apply generally since they only refer to individuals seeking transfers of title and registrations.” (Oppo. 13.) This argument is unpersuasive because it ignores well-established law. As stated by our Supreme Court, “[t]he rule need not, however, apply universally; a rule applies generally so long as it declares how a certain class of cases will be decided.” (Tidewater, supra, 14 Cal.4th at 333.)

Respondents contend that “the provisions do not implement, interpret, or make specific the law” because “Vehicle Code Section 1651, 1653, and 4751 grant the DMV discretion in adopting provisions related to regulations.” (Oppo. 13.)[1] Vehicle Code section 1653 states: “The department shall examine and determine the genuineness and regularity of every application or document filed with it under this code and may require additional information or reject any such application or document if not satisfied of the genuineness and regularity thereof or the truth of any statement contained therein.” Section 4751 states, in pertinent part: “The department may refuse registration or the renewal or transfer of registration of a vehicle in any of the following events:

(a) If the department is not satisfied that the applicant is entitled thereto under this code.

(b) If the applicant has failed to furnish the department with information required in the application or reasonable additional information required by the department….”

Sections 1651, 1653, and 4751 do not contain any specific language regarding the registration of out-of-state titled vehicles or any statement that letters testamentary or letters of administration are necessary to register these vehicles. Accordingly, Petitioner has a colorable argument that the Manual Provisions implement, interpret, or make specific the law enforced by the DMV for registration of such vehicles.

Further, the evidence suggests that DMV did not deny Petitioner’s registration because of specific concerns about the genuineness of her documentation, but rather because she did not have the documents required by the Manual Provisions.

Respondents argue that the Manual Provisions are not underground regulations because they are permitted by broad authority granted to DMV to promulgate regulations in section 1651 and because they are “consistent with” and “reasonably necessary to effectuate” the purpose of various statutes. (Oppo. 9-13.) In support of these arguments, Respondents rely on Government Code section 11342.2, which states that “no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute.”[2] However, on its face, section 11342.2 only applies to a regulation that is “adopted” pursuant to the APA. Respondents apparently concede that the Manual Provisions were not formally adopted pursuant to the rulemaking procedures set forth in the APA. (Oppo. 13:21-23 [arguing that the Manual Provisions “fall[] within an exception to the APA’s rulemaking requirements”].) For these same reasons, the cases cited by Respondents discussing the consistency of formally adopted regulations with statutory law are inapposite. (See Oppo. 9-13; see e.g. California School Bds. Assn. v. State Bd. of Education (2010) 191 Cal.App.4th 530 [upholding formerly promulgated and adopted regulations]; Ford Dealers Assn. v. Dept. of Motor Vehicles (1982) 32 Cal.3d 347 [same].)

Respondents argue that “the DMV’s provisions in the Registration Manual and VIRPM falls [sic] within an exception to the APA’s rulemaking requirements for regulations that embody ‘the only legally tenable interpretation’ of the law.” (Oppo. 13, citing Gov. Code §§ 11342.600 and 11340.9(f).) However, this exception “applies only in situations where the law ‘can reasonably be read only one way’ …, 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, 336-337.) Respondents contend that the Manual Provisions at issue enforce the only “legally tenable interpretation” of Vehicle Code sections 1651, 1653, and 4751. (Oppo. 13-14.) As discussed, these statutes do not contain any specific language regarding the registration of out-of-state titled vehicles or any statement that letters testamentary or letters of administration are necessary to register such vehicles. Petitioner has a colorable argument that this exception to the APA does not apply.

Finally, Respondents argue that the Manual Provisions are “interpretive” of sections 1651, 1653, and 4751 such that, even if they are underground regulations, “the Court may properly consider the DMV’s interpretation and adopt it as its own.” (Oppo. 15, citing Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542.) For reasons discussed above and in Petitioner’s reply, there is a colorable argument that the Manual Provisions do not simply interpret these statutes, but rather should be viewed as “quasi-legislative rulemaking” because they “create[] new substantive standards under an express delegation of legislative authority,” specifically section 1651. (Alvarado, supra, 4 Cal.5th at 556 and Reply 6-7.) The discussion from Alvarado, upon which Respondents rely, applies to interpretive policies not quasi-legislative rulemaking. Further, since sections 1651, 1653, and 4751 contain no specific language regarding the registration of out-of-state title, Respondents do not show that the court, at trial in this action, would necessarily agree with any interpretation of those statutes that could be implied from the Manual Provisions.

Based on the foregoing, Petitioner has some, reasonable probability of proving that the Manual Provisions are a “regulation” within the meaning of the APA and that the Manual Provisions were not adopted pursuant to the procedures set forth in the APA.

Respondents contend that Petitioner is unlikely to succeed because she has not exhausted administrative remedies before the Office of Administrative Law (“OAL”). (Oppo. 6.) Respondents cite no statute or case that supports this position. Further, OAL’s regulations state that “[t]he submission of a petition pursuant to this chapter is not required prior to commencing legal action alleging a violation of section 11340.5 of the Government Code.” (1 CCR § 260.) Petitioner also submits evidence that OAL’s own informational materials state that OAL does not consider all petitions; that “[w]hether or not you seek an opinion from OAL is entirely optional”; and that “[i]f you choose to, you may ignore OAL and go directly to court.” (Reply Frahm Decl. Exh. B.) Respondents’ exhaustion defense is not persuasive.

Petitioner also contends that the Manual Provisions conflict with various statutes and, therefore, the court should not permit DMV to utilize them temporarily while DMV promulgates valid regulations under the APA. (Mot. 11-13.) Relatedly, Petitioner contends, as a result of the violations of the APA and other statutes concerning registration of cars, DMV has a mandatory duty to register the Vehicle. (Id. 13.)

The court has considered both parties’ arguments on the question of whether the Manual Provisions do, or do not, conflict with California statutes related to the transfer of property from other states. (Mot. 11-13; Oppo. 11; Reply 5-6.) The court does not find any of these arguments to be particularly persuasive. Thus, for instance, Petitioner relies in part on Civil Code section 946, but that statute only applies “if there is no law to the contrary.” Here, there is arguably “law to the contrary,” including sections 1651, 1653, and 4751 and also potentially the Manual Provisions. However, Respondents’ cited statutes do not necessarily support a conclusion that “the registration of vehicles is specifically excluded from the Probate Code since DMV handles the transfer of title to vehicles,” as Respondents contend. (Oppo. 11, citing Veh. Code §§ 670, 5910 and Prob. Code § 13050.) The parties may further develop these arguments in their briefing for the trial on the writ petition.

As Petitioner acknowledges in her brief, even if a court determines a policy is an invalid underground regulation, the court has discretion to preserve the status quo while the agency promulgates valid regulations. Thus, in Morning Star v. State Board of Equalization (2006) 38 Cal.4th 324, the California Supreme Court held that DTSC’s interpretation of a statute—specifically, its identification of when corporations “use, generate, store, or conduct activities in this state related to hazardous materials”—was a regulation under the APA but was not properly promulgated under the APA and was “invalid.” (Id. at 340-341.) Despite the invalidity of the regulation, the California Supreme stated the following with respect to the remedy:

Instead, we direct the Board to conduct further administrative proceedings on Morning Star's refund request, without reliance upon the Department's invalid regulation. (Cf. Cal. Law Revision Com. com., 32D West's Ann. Gov.Code, supra, foll. § 11425.50, pp. 299–300.) To avoid significant disruption of the fee scheme, however, upon remand the superior court shall issue an order staying these proceedings before the Board and otherwise maintaining the fee system as presently interpreted and implemented by the agencies, an order to remain in effect until such time as the Department has had a reasonable opportunity to promulgate valid regulations under the APA.

Our instructions here derive from the court's inherent power to issue orders preserving the status quo. (California Hotel & Motel Assn. v. Industrial Welfare Com. (1979) 25 Cal.3d 200, 216, 157 Cal.Rptr. 840, 599 P.2d 31.) In California Hotel, we concluded that a minimum wage order promulgated by the IWC pursuant to various sections of the Labor Code was invalid because it lacked an adequate “statement of basis” as required by statute. (Ibid.) But we further concluded that the order was of “critical importance to significant numbers of employees” who bore “no responsibility for the deficiencies of” the order. (Ibid.) We therefore exercised “our inherent power to make an order appropriate to preserve the status quo pending correction of deficiencies,” directing the issuance of a writ of mandate to compel the IWC to correct the deficiencies “within 120 days of the finality of the opinion.” (Ibid.)

So, too, in the present case, the continued viability of the hazardous materials fee program is of critical importance to the State of California, as determined by the Legislature, and any disruption in collection of the fee would seriously undermine the program. With these considerations in mind, as in California Hotel we will allow the Department a reasonable opportunity to correct the deficiency in its hazardous material fee regulations by subjecting them to APA procedures, while maintaining the current system in the interim.

Subject to argument, the Manual Provisions may have significant importance to the DMV’s operations and registration of vehicles statewide. Should Petitioner prevail at the trial, the court would not necessarily enjoin DMV from enforcing the Manual Provisions while it promulgated regulations, even with respect to Petitioner.

Based on the foregoing, Petitioner has some reasonable probability of prevailing on her claim that the Manual Provisions are invalid underground regulations. However, on this briefing, Petitioner has not shown much probability of prevailing on her request in her petition for an immediate injunction against enforcement of the Manual Provisions for a reasonable period of time while new regulations are promulgated.

For the second factor, the court must consider “the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749.) “Irreparable harm” generally means that the defendant’s act constitutes an actual or threatened injury to the personal or property rights of the plaintiff that cannot be compensated by a damages award. (See Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.)

“Where, as here, the defendants are public agencies and the plaintiff seeks to restrain them in the performance of their duties, public policy considerations also come into play. There is a general rule against enjoining public officers or agencies from performing their duties…. This rule would not preclude a court from enjoining unconstitutional or void acts, but to support a request for such relief the plaintiff must make a significant showing of irreparable injury.” (Tahoe Keys Property Owners’ Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1471.)

Petitioner contends that she “does not seek to enjoin public officers from performing their legal duties” and, instead, “wants them to perform their legal duties of transferring titles and registrations.” (Reply 7.) The court disagrees. Petitioner seeks a preliminary injunction that would prevent Respondents from performing their statutory registration duties, as interpreted in the Manual Provisions. (See e.g. Veh. Code §§ 1651, 1653, 4751.) Accordingly, Petitioner must make a significant showing of irreparable injury.[3]

Petitioner argues that she would suffer irreparable harm if the preliminary injunction is denied because she cannot drive, park, or sell the Vehicle. Petitioner further declares:

It sits in storage unusable. And, because I got rid of my old car after my brother passed because I chose to drive the car he left me instead, I have had no car to drive since July 2022. This has been horrific for me. I have had to miss, among other things, many necessary medical appointments, holiday gatherings, and much-needed grief therapy. I recently inherited a cat from my neighbor who passed away, and the cat is not fixed and thus goes into heat and howls regularly. I have been unable to take her to the vet to get her fixed. In addition, I cannot even run most day-to-day errands, like going to the supermarket. I tried to get insurance on the car, but the insurance company refused to insure it while it is in my brother’s name. Therefore, if anything happens to the car while this situation persists, I will not be compensated. Additionally, I have had to pay expensive storage fees for the car. I also am not able to close my brother’s estate in the probate court until this is resolved (although, as mentioned above, I also need to collect his money from the IRS before closing the estate). And just knowing that all of these problems (and more) are caused because the government that I have been paying taxes to for the past 17 years refuses to obey the law has caused a great deal of anger and general emotional distress that I will probably never be able to forgive or forget. I have had, among other things, extreme sleeping problems because of the DMV’s behavior, and I will never be compensated for that.

In opposition, Respondents contend: “there is no hardship if the DMV is not enjoined because Petitioner has the option to transfer title and registration by and through a surety bond. Petitioner has not even attempted to obtain title and registration of the vehicle through a surety bond.” (Oppo. 17.)

Respondents’ argument is persuasive. In connection with the small claims action, in late December 2022, Respondents’ attorney informed Petitioner that she could “post a bond pursuant to Vehicle Code section 4157” in order to register a nonresident vehicle. (Frahm Decl. Exh. L.) Section 4157 provides: “In 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.”

On December 30, 2022, Petitioner responded to this email and expressed concern that her bond would not be “safe” given the “bad blood between me and the DMV” and Petitioner’s intent to sue DMV to invalidate the registration rules at issue. (Id. Exh. L.) In her declaration and at the small claims hearing, Petitioner raised similar concerns about whether she could “trust” that a bond issued to DMV would be “secure” and whether DMV would “just steal the money.” (Frahm Decl. ¶ 12; Exh. B at 21-22.) However, Petitioner submits no evidence to substantiate these concerns, which appear speculative on this record. Nor does Petitioner show any effort to determine the amount of the bond or the terms that would apply.

In reply, Petitioner argues that “DMV’s offer that Plaintiff may post a bond was a settlement offer contingent on her dropping this lawsuit, as evidenced by an attached email.” (Reply 2, citing Frahm Decl. ¶ 2, Exh. A.) The court is not persuaded from the cited evidence that Respondents conditioned the acceptance of a bond on dismissal of this writ action. The procedure for posting a bond is statutory not dependent on a settlement from DMV. While DMV’s attorney stated: “If you choose to obtain such a bond, the Department is prepared to settle your small claims matter, including payment of your necessary filing fees upon the provision of an itemization of such costs,” (Frahm Decl. Exh. L.), this does not support a conclusion DMV ever conditioned acceptance of a bond on dismissal of this separate writ action.

Petitioner does not show that she has even applied to post a bond pursuant to section 4157. While neither party discloses the probable amount of the bond, it is Petitioner’s burden to show that she would suffer irreparable harm if the injunction is denied. A bond would also be required for issuance of a preliminary injunction (CCP § 529(a)). Because a bond option is available to Petitioner under section 4157 to obtain registration of the Vehicle, and has not been shown to be an reasonable option, Petitioner does not show she would suffer harm if the preliminary injunction is denied.

The court finds some irreparable harm to Respondents if the preliminary injunction is granted. On this record, the Manual Provisions appear to be part of DMV’s standard operations for the registration of vehicles. There could be some irreparable harm to Respondents in disrupting such operations pending trial, even on an individual basis with respect to Petitioner. However, the harm to Respondents does not appear substantial since the proposed injunction is worded to apply only to Petitioner.

Having considered Petitioner’s probability of success and the balance of harms, the court will deny the preliminary injunction.

[1] Respondents do not develop any arguments with respect to Vehicle Code section 5909, which is cited in parts of the Manual Provisions.

[2] Respondents cite Government Code section 11342.1, but that section does not contain the language quoted by Respondents. (Oppo. 11:10.) Respondents apparently meant section 11342.2.

[3] Although the court believes that Tahoe applies to this case, even if it does not, the court would reach the same result and find that the balance of harms does not weigh for granting the injunction.