Friday, March 17, 2017
C.A. Revives Challenge to Forfeiture Proceedings
Panel Says Lack of Prosecutorial Oversight Excused Failure to Exhaust Remedies
By KENNETH OFGANG, Staff Writer
A misstep by law enforcement—directly initiating nonjudicial forfeiture proceedings rather than asking the district attorney to do so—excused the claimants from having to exhaust administrative remedies, the Fifth District Court of Appeal has ruled.
The justices Wednesday reinstated consolidated court challenges by individuals seeking to recover cash seized by the Tulare County Sheriff’s Department and the Porterville and Dinuba police departments as a result of drug investigations.
One petitioner alleged that a sheriff’s deputy seized $1,420 from him in January 2011 based on his allegedly possessing a controlled substance for sale. Another alleged that a sheriff’s deputy seized nearly $1,700 from him in November 2012 based on his alleged possession of marijuana for sale.
Three petitioners claimed that Porterville police seized $16,000 in cash and two vehicles based on an allegation of illegal drug activity, in October 2011. Four petitioners claimed property seized by Dinuba police—over $7,000 in cash and a pickup drug taken in November 2010, and over $2,000 taken in March 2011.
In each instance, the petitioner was served with a notice of nonjudicial forfeiture by the officer or deputy who seized the property. It was undisputed that in none of the cases did the officer or deputy submit the proposed seizure to a prosecutor for review before taking the property.
No Claim Filed
Each petitioner acknowledged that he did not file a claim within 30 days after service of the notice of nonjudicial forfeiture, as required by Health and Safety Code §11488.4. Nonjudicial forfeiture proceedings allow for a streamlined process in cases where the property seized is valued at no more than $25,000.
Each petitioner, however, argued that the 30-day limitation did not bar his claim because the forfeiture proceedings were void under Cuevas v. Superior Court (2013) 221 Cal.App.4th 1312.
The Fifth District held in that case, which involved Tulare police, that police may not initiate asset forfeiture proceedings under §11488.2, which provides that “The Attorney General or the district attorney for the district involved shall institute and maintain the proceedings.” The court held that the forfeiture proceedings were void, that the 30-day limitation did not apply, and that the petitioner was entitled to a hearing on the merits of his claim for the property’s return.
In the cases ruled on Wednesday, the defendants—the Tulare County district attorney and the relevant police agencies—demurred on the grounds that the petitioners did not exhaust their administrative remedies by filing a claim with the district attorney, who under the statute would then have had 30 days to file a petition for judicial forfeiture.
The defendants also demurred on the grounds the petitioners did not comply with the Government Claims Act’s claim-presentation requirement, and that the action was barred by Code of Civil Procedure §340’s one-year limitations period for actions “upon a statute for a penalty or forfeiture.”
Tulare Superior Court Judge Melinda M. Reed sustained the demurrers on the statute of limitations ground.
Justice Stephen Kane, writing for the Court of Appeal, said the demurrers should have been overruled.
The petitioners were not required to exhaust administrative remedies, based on Cuevas, Kane said. The Government Claims Act did not apply, he added, because the claim was not for money damages.
The trial judge, he went on to say, erred in concluding that §340 applied. The correct statute of limitations, Kane said, is §338(c)(1), which allows three years to sue “for the specific recovery of personal property.”
He cited Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, which held that a potential criminal defendant whose property was seized, but who was not charged, had three years to sue for the return of his property.
He also concluded that the three years in which to sue did not begin to run until the district attorney, in each instance, issued a declaration of forfeiture following expiration of the putative 30-day claims period. The seizing agency, he explained, becomes a bailee of the property, the claim for the return of which does not accrue until the claimant demands its return or until the bailee “unequivocally” informs the owner that his title is being repudiated.
The case is Ramirez v. Tulare County District Attorney’s Office, F071223.
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