Opinion
A145389
02-21-2018
THOMAS BENSON, et al., Plaintiffs and Appellants, v. COUNTY OF MENDOCINO, et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CVG-14-63425)
California's drug asset forfeiture laws (Health & Saf. Code, § 11469 et seq.) provide procedures under which property connected with certain unlawful drug activity may be forfeited to the state or local government. (Ramirez v. Tulare County District Attorney's Office (2017) 9 Cal.App.5th 911, 917 (Ramirez).) "[F]orfeiture is disfavored," however, and "the forfeiture statutes are strictly construed in favor of the person against whom forfeiture is sought, and procedural requirements set forth in the forfeiture statutes must be fully satisfied by the agency pursuing that remedy." (Ibid.)
Further undesignated statutory references are to the Health and Safety Code.
In this case, plaintiffs Thomas Benson, Michelle Pierce, and Ole Stribling allege their property was seized by law enforcement officers but the resulting forfeiture proceedings were "invalid in the first instance" because they were initiated in violation of the statutory requirements for nonjudicial forfeiture. Plaintiffs petitioned for a writ of mandate seeking the return of their seized property. They also sought class certification.
Defendants demurred to plaintiffs' second amended petition, and the trial court sustained the demurrers without leave to amend.
Following Ramirez, we conclude plaintiffs have alleged facts establishing the forfeiture proceedings were invalid from the start. Defendants argue plaintiffs' claims fail on the grounds that (1) plaintiffs failed to file a timely claim under the forfeiture laws, (2) plaintiffs did not comply with the Government Claims Act (Gov. Code, § 810 et seq.), (3) the statute of limitations has run, (4) plaintiffs cannot seek a writ of mandate because defendants have no ministerial duty to return the seized property, and (5) plaintiffs failed to allege facts establishing the city police departments were liable for the seizures.
Plaintiffs do not dispute that plaintiff Pierce has no claim against the city police departments. Therefore, we affirm the judgment of dismissal in favor of Fort Bragg Police Department, the Ukiah Police Department, and the Willits Police Department as to the claim brought by Pierce. We find no merit to defendants' remaining arguments, however, and otherwise reverse the judgment.
FACTUAL AND PROCEDURAL HISTORY
This case was initiated on January 21, 2014, as a taxpayer action challenging the drug asset forfeiture polices of various law enforcement agencies in Mendocino County. In May 2014, the parties stipulated that a first amended complaint could be filed, and a week later, plaintiffs Benson and Pierce filed their first amended complaint/petition. Defendants filed demurrers, and the trial court sustained the demurrers. Among other things, the trial court found the first amended complaint/petition failed to state facts sufficient to constitute a claim for writ of mandate and allowed Benson and Pierce to amend their petition. In the second amended petition, filed October 29, 2014, Stribling was added as a plaintiff.
In their second amended petition (petition), the operative pleading, plaintiffs alleged the following facts.
Defendant Mendocino Major Crimes Task Force (MMCTF) is a law enforcement unit made up of officers of the Fort Bragg Police Department, the Ukiah Police Department and the Willits Police Department (collectively city defendants), the Mendocino County Sheriff's Office (Sheriff or county defendant), and the California Highway Patrol (CHP or state defendant).
On March 14, 2011, MMCTF officers seized $6,000 in cash from Benson. MMCTF Officer R. Simas issued and signed a "Receipt and Notice of Non-Judicial Forfeiture Proceedings" (Notice/Receipt), which provided that the currency was seized for forfeiture in connection with violations of sections 11359 (possession of marijuana for sale) and 11360 (transportation of marijuana for purposes of sale). Benson was not charged with a crime. "Nonetheless," on May 31, 2011, a Mendocino County deputy district attorney executed a "Declaration of Administrative Forfeiture" pursuant to section 11488.4, subdivision (j), declaring the $6,000 forfeited to the state.
According to plaintiffs, the Notice/Receipt misidentified the location of seizure as the address of the Ukiah branch office of the CHP, which was actually where the seized property was taken after it was seized "in the field."
Further references to the district attorney or his deputies are to the Mendocino County District Attorney.
On October 16, 2011, Sheriff's Deputy Tim Goss seized $8,890 in cash from Pierce and issued and signed a Notice/Receipt, which provided that the currency was seized for forfeiture in connection with a violation of section 11360, subdivision (a) (transportation of marijuana for purposes of sale). The Notice/Receipt identified the location of the seizure as "MPH 42 Hwy 101, Willits CA." Pierce was never charged with a crime, but, on December 13, 2011, District Attorney C. David Eyster personally executed a "Declaration of Administrative Forfeiture" pursuant to section 11488.4, subdivision (j), declaring the $8,890 forfeited to the state.
On August 22, 2013, MMCTF officers seized $2,400 in cash from Stribling. MMCTF Officer Hoyle issued and signed a Notice/Receipt, which provided that $2,300 in United States currency was seized for forfeiture in connection with a violation of section 11359 (possession of marijuana for purposes of sale). Stribling was never charged with a crime, but, on January 16, 2014, a deputy district attorney executed a "Declaration of Administrative Forfeiture" pursuant to section 11488.4, subdivision (j), declaring the $2,300 forfeited to the state.
Plaintiffs alleged $2,400 was seized from Stribling, but the attached Notice/Receipt and "Declaration of Administrative Forfeiture" refer to property valued at $2,300. We note that the Notice/Receipt and "Declaration of Administrative Forfeiture" for each of the named plaintiffs were attached as exhibits to the petition.
Based on these factual allegations, plaintiffs sought a writ of mandate compelling return of the seized property or equitable payment of compensation. Plaintiffs alleged the Declarations of Administrative Forfeiture were invalid and unenforceable because the administrative forfeiture proceedings were unlawfully initiated by police officers rather than by the Attorney General or a district attorney as required by section 11488.4.
The request for a writ of mandate ordering return of property was plaintiffs' first cause of action. Plaintiffs asserted two other causes of action, which we do not discuss because they are not at issue on appeal.
Defendants demurred to the petition. State defendant argued plaintiffs' claims failed because (1) plaintiffs failed to comply with the Government Claims Act (Gov. Code, § 810 et seq.), (2) their claims were barred by the applicable one-year statute of limitations, (3) mandate relief was unavailable because defendants have no duty to return lawfully forfeited property, and (4) plaintiffs failed to exhaust their administrative remedies.
County defendant also made the first three arguments made by state defendant, and joined the other defendants' demurrers.
City defendants joined the other defendants' demurrers and raised the additional argument that, as to Benson and Pierce, the petition failed to allege any involvement by a city employee. According to the petition, Benson's cash was seized by a CHP officer, and Pierce's cash was seized by a Sheriff's deputy.
The trial court sustained the demurrers without leave to amend on the grounds that, first, plaintiffs were not entitled to a writ of mandate because they "failed to demonstrate the existence of a ministerial duty and/or that they do not have an adequate remedy at law" and, second, plaintiffs failed to comply with the Government Claims Act. In addition, as to city defendants, the trial court found plaintiffs failed to allege that city employees were involved in the seizures related to Benson and Pierce.
However, the trial court rejected the argument that plaintiffs' claims were barred because they failed to exhaust administrative remedies. Relying on Cuevas v. Superior Court (2013) 221 Cal.App.4th 1312 (Cuevas), the court found, "since each of the three challenged forfeitures was invalid from the beginning, there was no valid forfeiture proceeding in which any of the three [plaintiffs] could have made a claim pursuant to [section] 11488.4." (See id. at p. 1327 [procedural defects in the notice made the nonjudicial forfeiture proceeding "invalid in the first instance"].) The trial court also rejected the argument that plaintiffs' claims were time barred, finding the limitations period "irrelevant and moot."
DISCUSSION
"A forfeiture proceeding is a civil in rem action in which property is considered the defendant, on the fiction that the property is the guilty party. [Citations.] Statutes imposing forfeitures are disfavored and are to be ' "strictly construed in favor of the persons against whom they are sought to be imposed." [Citation.]' [Citation.]" (People v. Superior Court (Plascencia) (2002) 103 Cal.App.4th 409, 418 (Plascencia).)
Plaintiffs claim they are entitled to return of their seized property because defendants failed to follow the statutory procedures required to effect a nonjudicial forfeiture. Defendants respond that plaintiffs' claims fail for all the reasons raised in their demurrers. We begin with a brief overview of the applicable forfeiture laws. A. Drug Asset Forfeiture Laws
The drug asset forfeiture laws comprise "a comprehensive scheme governing forfeitures of controlled substances, property, cash, and other things of value used in connection with the trade in controlled substances." (Plascencia, supra, 103 Cal.App.4th at pp. 418-419.)
1. Peace Officers Are Authorized to Seize Currency Traceable to Drug Crimes
Under section 11470, subdivision (f), "currency is subject to forfeiture if it is furnished or intended to be furnished in exchange for a controlled substance, traceable to such an exchange, or used or intended to be used to facilitate trafficking in, or the manufacture of, various controlled substances." (Plascencia, supra, 103 Cal.App.4th at p. 419, citing § 11470, subd. (f).) Under section 11471, subd. (d), "[p]roperty subject to forfeiture may be seized by a peace officer if there is probable cause to believe the property was used for the specified illicit purposes." (Ibid., citing § 11471, subd. (d).)
"Section 11488, subdivision (a), permits any peace officer, after making or attempting to make an arrest for certain drug crimes, to 'seize any item subject to forfeiture' under section 11470. Subdivision (b) of section 11488 requires the police officer to issue a receipt for the property 'to any person out of whose possession such property was seized.' Subdivision (c) of section 11488 states that a presumption exists 'that the person to whom the receipt for property was issued is the owner thereof.' " (Ramirez, supra, 9 Cal.App.5th at p. 925.)
Section 11488.1 allows property seized pursuant to Section 11488 to be held for evidence when appropriate. In such a case, "The Attorney General or the district attorney for the jurisdiction involved shall institute and maintain the proceedings." (§ 11488.1.)
Section 11488.2 generally provides that a peace officer who has seized property must either (1) refer the matter to the Attorney General or a district attorney for institution of forfeiture proceedings or (2) withhold any property as requested by the Franchise Tax Board and otherwise return the property: "Within 15 days after the seizure, if the peace officer does not hold the property seized pursuant to Section 11488 for evidence or if the law enforcement agency for which the peace officer is employed does not refer the matter in writing for the institution of forfeiture proceedings by the Attorney General or the district attorney pursuant to Section 11488.1, the officer shall comply with any notice to withhold issued with respect to the property by the Franchise Tax Board. If no notice to withhold has been issued with respect to the property by the Franchise Tax Board, the officer shall return the property to the individual designated in the receipt therefor or if the property is a vehicle, boat, or airplane, it shall be returned to the registered owner."
2. The Attorney General and District Attorneys Are Authorized to Initiate Judicial or Nonjudicial Forfeiture
"The statutory procedures for forfeiture are set forth in sections 11488.4 and 11488.5, which contemplate both judicial and nonjudicial forfeiture. Under section 11488.4, subdivision (a)(1), the Attorney General or district attorney may initiate judicial forfeiture by filing a petition of forfeiture in the superior court. In judicial forfeiture, a person claiming an interest in the property is entitled to a jury trial. The government bears the burden of proving the property is subject to forfeiture. (§§ 11488.4, subd. (i), 11488.5, subds. (c)-(f).) In addition, for some types of property, if forfeiture is contested, a judgment of forfeiture cannot be entered unless a defendant has been convicted of a related or underlying criminal offense. (§ 11488.4, subd. (i)(3); see People v. $10,153.38 in United States Currency (2009) 179 Cal.App.4th 1520, 1524-1526.)" (Ramirez, supra, 9 Cal.App.5th at p. 926.)
"[S]ection 11488.4, subdivision (j), creates a streamlined process for forfeiture without any judicial involvement, which is referred to as nonjudicial or administrative forfeiture. [Citation.] As with judicial forfeiture, nonjudicial forfeiture proceedings must be initiated by " '[t]he Attorney General or the district attorney.' " (§ 11488.4, subd. (j).) However, nonjudicial forfeiture is available only if the value of the property at issue does not exceed $25,000. (Ibid.)" (Ramirez, supra, 9 Cal.App.5th at p. 926.)
3. Statutory Requirements for Nonjudicial Forfeiture
Section 11488.4, subdivision (j), provides for nonjudicial forfeiture as follows: "The Attorney General or the district attorney of the county in which property is subject to forfeiture under Section 11470 may, pursuant to this subdivision, order forfeiture of personal property not exceeding twenty-five thousand dollars ($25,000) in value. The Attorney General or district attorney shall provide notice of proceedings under this subdivision pursuant to subdivisions (c), (d), (e), and (f), including: [¶] (1) A description of the property. [¶] (2) The appraised value of the property. [¶] (3) The date and place of seizure or location of any property not seized but subject to forfeiture. [¶] (4) The violation of law alleged with respect to forfeiture of the property. [¶] (5) The instructions for filing and serving a claim with the Attorney General or the district attorney pursuant to Section 11488.5 and time limits for filing a claim and claim form.
In relevant part, subdivisions (c), (d), (e), and (f) of the applicable version of section 11488.4 provide: "(c) The Attorney General or district attorney shall make service of process regarding this petition upon every individual designated in a receipt issued for the property seized. In addition, the Attorney General or district attorney shall cause a notice of the seizure, if any, and of the intended forfeiture proceeding, as well as a notice stating that any interested party may file a verified claim with the superior court of the county in which the property was seized or if the property was not seized, a notice of the initiation of forfeiture proceedings with respect to any interest in the property seized or subject to forfeiture, to be served by personal delivery or by registered mail upon any person who has an interest in the seized property or property subject to forfeiture other than persons designated in a receipt issued for the property seized. Whenever a notice is delivered pursuant to this section, it shall be accompanied by a claim form as described in Section 11488.5 and directions for the filing and service of a claim.
"(d) An investigation shall be made by the law enforcement agency as to any claimant to a vehicle, boat, or airplane whose right, title, interest, or lien is of record in the Department of Motor Vehicles or appropriate federal agency. . . .
"(e) When a forfeiture action is filed, the notices shall be published once a week for three successive weeks in a newspaper of general circulation in the county where the seizure was made or where the property subject to forfeiture is located.
"(f) All notices shall set forth the time within which a claim of interest in the property seized or subject to forfeiture is required to be filed pursuant to Section 11488.5." (Former § 11488.4, subd. (j), added by Stats. 1994, ch. 314, § 13.)
Section 11488.4 has since been amended with no substantive change to subdivisions (c) through (e); subdivision (f) has been amended to add the following language: "The notices shall explain, in plain language, what an interested party must do and the time in which the person must act to contest the forfeiture in a hearing. The notices shall state what rights the interested party has at a hearing. The notices shall also state the legal consequences for failing to respond to the forfeiture notice." (See Stats. 2016, ch. 831, § 3, eff. Jan. 1, 2017.)
"If no claims are timely filed, the Attorney General or the district attorney shall prepare a written declaration of forfeiture of the subject property to the state and dispose of the property in accordance with Section 11489. A written declaration of forfeiture signed by the Attorney General or district attorney under this subdivision shall be deemed to provide good and sufficient title to the forfeited property. The prosecuting agency ordering forfeiture pursuant to this subdivision shall provide a copy of the declaration of forfeiture to any person listed in the receipt given at the time of seizure and to any person personally served notice of the forfeiture proceedings.
"If a claim is timely filed, then the Attorney General or district attorney shall file a petition of forfeiture pursuant to this section within 30 days of the receipt of the claim. The petition of forfeiture shall then proceed pursuant to other provisions of this chapter, except that no additional notice need be given and no additional claim need be filed." (Former § 11488.4, subd. (j).) B. Standard of Review
Recent amendments to section 11488.4 made no substantive change to subdivision (j). (See Stats. 2016, ch. 831, § 3, eff. Jan. 1, 2017.)
"We review independently the trial court's judgment of dismissal following a demurrer, considering de novo whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. [Citations.] We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken. [Citation.] We also review de novo issues of statutory construction, ascertaining the intent of the lawmakers so as to effectuate the purpose of the statutes." (Boorstein v. CBS Interactive, Inc. (2013) 222 Cal.App.4th 456, 463.) C. Plaintiffs Alleged Facts Establishing the Forfeiture Proceedings Were Invalid
Here, each plaintiff allegedly received a notice of nonjudicial forfeiture proceedings signed by a law enforcement officer. But under the forfeiture laws, only the Attorney General or a district attorney may initiate and provide notice of nonjudicial forfeiture proceedings. (§§ 11488.1; 11488.4, subds. (c) and (j); Cuevas, supra, 221 Cal.App.4th at p. 1325.)
In Cuevas, supra, 221 Cal.App.4th 1312, as in the current case, a law enforcement officer rather than a prosecutor prepared a notice of nonjudicial forfeiture and served the notice to the defendant, and the district attorney later executed a declaration of nonjudicial forfeiture. (Id. at pp. 1317-1318.) The Cuevas court found this procedure was improper. "[B]ecause forfeiture is disfavored and the relevant statutes are to be strictly construed in favor of the person against whom forfeiture is sought, notice must be provided by the Attorney General or the district attorney as expressly provided for in section 11488.4, subdivisions (c) and (j)." (Id. at p. 1325.) The court held, "[T]he defects in the notice and the procedure employed to give notice make this forfeiture proceeding invalid in the first instance." (Id. at p. 1327.)
Following Cuevas, the trial court found the three challenged forfeitures in this case were invalid. We agree with the trial court that plaintiffs have alleged facts establishing the forfeiture proceedings were invalid from the beginning. D. Defendants' Response
Because we conclude the forfeiture proceedings as alleged were invalid from the beginning, we reject state defendant's argument that plaintiffs have no claim to the seized cash even if the cash was wrongfully forfeited because the property was legally forfeited (when the district attorney filed declarations of administrative forfeiture pursuant to section 11488.4, subd (j)). The forfeiture proceedings (as alleged) were never properly initiated. Therefore, the declarations of administrative forfeiture could not accomplish valid forfeitures. (Cuevas, supra, 221 Cal.App.4th at p. 1327.)
Defendants contend plaintiffs' claims are procedurally barred for various reasons.
1. Exhaustion of Statutory Remedies
Generally, a person claiming an interest in property seized who wishes to challenge nonjudicial forfeiture must file a verified claim with the superior court of the county in which the property was seized pursuant to section 11488.5. (See People v. $400 (1993) 17 Cal.App.4th 1615, 1619.) "If no claims are timely filed, the Attorney General or the district attorney shall prepare a written declaration of forfeiture of the subject property to the state. . . . A written declaration of forfeiture signed by the Attorney General or district attorney under this subdivision shall be deemed to provide good and sufficient title to the forfeited property." (Former § 11488.4, subd. (j)(5).)
Defendants argue plaintiffs in this case are barred from seeking relief through writ of mandate because they failed to file a claim under section 11488.5. (See Nasir v. Sacramento County Off. of the Dist. Atty. (1992) 11 Cal.App.4th 976, 989, fn. 9.) This argument was recently rejected by the Fifth District Court of Appeal in precisely the circumstances alleged by plaintiffs.
In Ramirez, Tulare County Sheriff's deputies seized cash from each plaintiff and issued notices of nonjudicial forfeiture proceedings. The plaintiffs filed petitions for writ of mandate against the Tulare County District Attorney and Sherriff's Office seeking return of their property. (Ramirez, supra, 9 Cal.App.5th at pp. 918-919.) The defendants filed demurrers arguing the plaintiffs' claims failed because the plaintiffs "failed to exhaust an administrative remedy set forth in the forfeiture statutes," i.e., they failed to file claims pursuant to section 11488.5. (Id. at p. 930.)
The Ramirez court addressed this argument as follows: "Defendants contend that because this administrative remedy existed in the abstract, plaintiffs' petitions for writ of mandate were barred (for failure to exhaust) because plaintiffs never filed claims to oppose the nonjudicial forfeiture of their property. Under the circumstances presented here, defendants' contention cannot be sustained. The gaping hole in defendants' argument is precisely the same one that existed in Cuevas: there were no valid forfeiture proceedings in existence within which to file such claims for purposes of exhaustion of remedies. That was so because police officers or sheriff's deputies cannot lawfully or validly initiate forfeiture proceedings under the forfeiture statutes; only prosecuting agencies (i.e., the Attorney General or district attorney) have been given that power or authority. (§§ 11488.1, 11488.2, 11488.4, subds. (a) & (j); Cuevas, supra, 221 Cal.App.4th at pp. 1316, 1323-1331.) Consequently, the purported nonjudicial forfeiture proceedings in the several cases under consideration, having been initiated solely by police officers or deputies, were 'invalid in the first instance.' (Cuevas, supra, at pp. 1327, 1331.) As a result, just as in Cuevas, the question of whether plaintiffs filed a claim 'is not relevant to our determination here for there was no proper or valid forfeiture proceeding to which [the plaintiffs] could make a claim.' " (Ramirez, supra, 9 Cal.App.5th at pp. 931-932, fn. omitted.)
We find Ramirez and Cuevas persuasive and therefore reject defendants' contention that plaintiffs' claims are barred because they did not file claims pursuant to section 11488.5.
Defendants also argue that a litigant may not bypass an available administrative remedy by arguing the challenged governmental act was a "nullity," citing United States v. Superior Court (1941) 19 Cal.2d 189, 194.) Ramirez distinguished United States v. Superior Court by noting, "in contrast, [here] persons having no statutory power or authority to initiate nonjudicial forfeiture proceedings purported to do so; that is, police officers and sheriff's deputies attempted to commence nonjudicial forfeiture proceedings in their own right and on their own initiative—proceedings that, under the clear terms of the forfeiture statutes, may only be initiated by an appropriate prosecuting agency (i.e., the Attorney General or district attorney). [Citations.] Exhaustion of administrative remedies does not apply in these circumstances because the supposed forfeiture proceedings do not carry any force of law since the persons initiating them were devoid of statutory authority to act. Moreover, at the risk of stating the obvious, we would stress that this fundamental lack of statutory authority to initiate forfeiture proceedings by those purporting to do so came within the context of forfeiture statutes, which statutes are disfavored, are strictly construed in favor of the person against whom forfeiture is sought, and must always be rigidly adhered to by the agency seeking to effectuate that drastic remedy." (Ramirez, supra, 9 Cal.App.5th at p. 933.) We agree with Ramirez.
2. The Government Claims Act
Next, defendants contend plaintiffs' claims fail because plaintiffs failed to bring a timely claim for money or damages under the Government Claims Act. (Gov. Code, § 810 et seq.) Again, we rely on Ramirez to dispatch this contention: "The defect in defendants' argument is that the Government Claims Act applies only to 'claims for money or damages.' (Gov. Code, § 905.) Here, . . . plaintiffs sought the return of seized personal property, not damages. Therefore, the Government Claims Act was inapplicable." (Ramirez, supra, 9 Cal.App.5th at p. 934; accord Holt v. Kelly (1978) 20 Cal.3d 560, 564 (Holt) ["an arrestee who seeks in good faith to specifically recover property taken from him at the time of his arrest is exempt from the claim filing provisions of the Government Code"]; Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 117, 124 (Minsky).)
Under the Government Claims Act, claims for money or damages against local public entities generally must be presented to such entities, claims for property damage must be presented within six months of accrual, and failure to present a timely claim bars a claimant from filing a lawsuit against such entity seeking money or damages. (Gov. Code, § 905, 911.2, subd. (a); Ramirez, supra, 9 Cal.App.5th at p. 934.)
3. Statute of Limitations
The statute of limitations in an action for writ of mandate "generally depends on the right or obligation involved." (Ramirez, supra, 9 Cal.App.5th at p. 935.) Defendants contend the one-year statute of limitation of Code of Civil Procedure section 340 applies in this case. We disagree.
State defendant argues subdivision (d), an "action against an officer to recover damages for the seizure of any property for a statutory forfeiture to the state," applies. (Code Civ. Proc., § 340, subd. (d), italics added.) As discussed above (in considering whether the Government Claims Act applies), plaintiffs are not seeking damages; they are seeking the return of their seized property.
County defendant argues Code of Civil Procedure section 340 applies because plaintiffs have brought "[a]n action upon a statute for a penalty or forfeiture." (Code Civ. Proc., § 340, subds. (a) and (b).) But "[t]he phrase 'for a forfeiture or penalty' [citation] is clear and unambiguous, and refers to a suit seeking a forfeiture or penalty, while the phrase 'upon a statute' can only mean that the forfeiture or penalty being sought is based on a statute providing such a remedy." (Ramirez, supra, 9 Cal.App.5th at p. 936.)
Instead, we agree with plaintiffs and Ramirez that the applicable statute of limitations is three years for "[a]n action for taking, detaining, or injuring goods or chattels, including actions for the specific recovery of personal property" under Code of Civil Procedure section 338, subdivision (c)(1). (Ramirez, supra, 9 Cal.App.5th at p. 937 ["We are convinced that section 338, subdivision (c), was applicable here because the gravamen of plaintiffs' actions filed in the trial court was plainly 'for the specific recovery of personal property.' "].)
4. Availability of Writ of Mandate
"A writ of mandate may be issued by any court . . . to compel the performance of an act which the law specially enjoins . . . ." (Code Civ. Proc., § 1085, subd. (a).) " 'Two basic requirements are essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon the part of the respondent [citations]; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty [citation]. [Citation.]' " (Ellena v. Department of Insurance (2014) 230 Cal.App.4th 198, 205.)
Defendants claim plaintiffs cannot seek return of their seized property through a petition for a writ of mandate because plaintiffs have failed to identify a statutory duty requiring the return of the seized property. But section 11488.2 creates a ministerial duty to return seized property under the facts alleged in this case. As we have seen, a peace officer has authority to seize property under sections 11488 and 11488.1. If the officer does not refer the matter to the appropriate prosecuting agency, "the officer shall comply with any notice to withhold issued with respect to the property by the Franchise Tax Board," and "[i]f no notice to withhold has been issued with respect to the property by the Franchise Tax Board, the officer shall return the property to the individual designated in the receipt therefor. . . ." (§ 11488.2, italics added.) In light of section 11488.2's command, we reject defendants' claim that plaintiffs' petition for writ relief fails for lack of a ministerial duty.
County and city defendants also argue plaintiffs may not seek a writ of mandate because they have plain, speedy, and adequate remedy at law. (See County of San Diego v. State (2008) 164 Cal.App.4th 580, 593 ["To obtain writ relief under Code of Civil Procedure section 1085, the petitioner must show there is no other plain, speedy, and adequate remedy"].) The trial court agreed with this argument, noting "it seems clear" plaintiffs could have brought an action for conversion. Yet, in Holt, supra, 20 Cal.3d 560, our high court recognized, "Since respondent is under a duty to return the claimed property to petitioner (Gov. Code, § 26640), a writ of mandate is appropriate to compel its return." (Id. at p. 564; see also Minsky, supra, 11 Cal.3d at p. 123 ["A defendant in a criminal proceeding clearly has the right to obtain mandamus to compel the return of personal property wrongfully withheld by the custodial officers."]; Escamilla v. Dept. of Corrections and Rehabilitation (2006) 141 Cal.App.4th 498, 509 [concluding prisoner's petition for writ of habeas corpus should be treated as a petition for writ of mandamus seeking specific recovery of his personal property].) We believe Holt, Minsky, and Escamilla sufficiently establish that a writ of mandate is an appropriate remedy to compel return of seized property under the facts alleged.
5. City Defendants
The trial court sustained city defendants' demurrer as to Benson and Pierce on the additional ground that plaintiffs failed to allege that city employees were involved in the seizures related to those two plaintiffs.
Plaintiffs argue on appeal that their allegations that the law enforcement agencies shared in the forfeited property is sufficient to state a claim. As to Benson, the petition alleged the $6,000 seized from him was distributed as follows: 65 percent (plus expenses incurred) was divided equally among the law enforcement agencies that participate in the MMCTF, expressly including the three city defendants, 10 percent (plus expenses incurred) was distributed to the district attorney, and the balance was given to the state. As to Pierce, the petition alleged 65 percent was distributed to the Sheriff.
As to Stribling, the petition alleged 65 percent was divided equally among the law enforcement agencies that participate in the MMCTF, expressly including the three city defendants.
Plaintiffs contend their allegations are sufficient to state a claim for the return of their property under general constructive trust principles. "An action to impose a constructive trust is a suit in equity to compel a person holding property wrongfully to transfer the property interest to the person to whom it rightfully belongs." (Higgins v. Higgins (2017) 11 Cal.App.5th 648, 658.) We agree with plaintiffs that their allegation that city defendants received a portion of Benson's seized cash is sufficient to state a claim by Benson. (See Minsky, supra, 11 Cal.3d at p. 121 [an arrestee whose property was seized at arrest "retains his right to eventual specific recovery, . . . [of] a specific sum of money which, under general constructive trust principles, is traceable to property within the possession of the defendant"].) Plaintiffs do not dispute that they failed to state a claim as to Pierce. Accordingly, we uphold the trial court's ruling sustaining city defendants' demurrer as to Pierce.
City defendants argue that the forfeiture laws do not provide for distribution of seized property to law enforcement entities that do not participate in the seizure. Since the plaintiffs did not allege the city defendants participated in the seizure, those defendants would not have received any of the seized funds. In reviewing the trial court's ruling, however, we assume the truth of plaintiffs' factual allegations. (Boorstein v. CBS Interactive, Inc., supra, 222 Cal.App.4th at p. 463.) Since they alleged city defendants received a portion of Benson's seized cash, plaintiffs have stated a claim against city defendants as to Benson.
DISPOSITION
The judgment of dismissal in favor of Fort Bragg Police Department, the Ukiah Police Department, and the Willits Police Department as to the claim brought by plaintiff Michelle Pierce is affirmed. The remaining judgment of dismissal is reversed. The trial court is directed to enter new orders overruling defendants' demurrers consistent with this opinion.
With respect to plaintiff Pierce's claim against defendants Fort Bragg Police Department, the Ukiah Police Department, and the Willits Police Department, the parties shall bear their own costs on appeal. Pierce is awarded costs on appeal from the remaining defendants. Plaintiffs Benson and Stribling are awarded costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.