Shangri La Care Center v. County of Ventura CA2/6 ( 2022 )

Filed 1/24/22 Shangri La Care Center v. County of Ventura CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
SHANGRI LA CARE CENTER, 2d Civ. No. B309790
INC., (Super. Ct. No. 56-2020-
00543549-CU-WM-VTA)
Plaintiff and Appellant, (Ventura County)
v.
COUNTY OF VENTURA,
Defendant and Respondent.
Appellant Shangri La Care Center, Inc., sought damages
for the destruction and decomposition of cannabis, commonly
known as marijuana, seized by Ventura County (County)
pursuant to search warrants.1 The judgment was entered after
the trial court had sustained County’s demurrer without leave to
amend.
We reject County’s contention that appellant’s present
action is barred by the doctrine of res judicata. The doctrine is
1 We use “cannabis” and “marijuana” interchangeably.
inapplicable because a judgment was not entered in the prior
action that is the basis for County’s res judicata claim. On the
other hand, we agree with County that appellant filed its present
action after the expiration of the three-year statute of limitations
and that the running of the statute was not tolled. We reject
appellant’s argument that County is judicially estopped from
arguing that the action is barred by the statute of limitations.
Accordingly, we affirm.
Procedural Background
2016 Petition
On October 7, 2016, appellant filed a petition for a writ of
mandamus (2016 petition). The 2016 petition was amended three
times. The third amended petition, dated September 5, 2017,
sought a writ of mandamus directing County to return
appellant’s cannabis plants and products that had not been
“wasted, damaged or destroyed.” County seized the cannabis
pursuant to search warrants executed during four raids of
appellant’s premises in 2015 and 2016. “For property taken that
has been wasted, damaged or destroyed,” appellant sought to
recover “the reasonable value of such property.” Appellant
estimated that the value of all of its property taken by County
was “in excess of at least fifteen million dollars.”
In the third amended petition, appellant alleged that it “is
a Collective . . . consisting of medical cannabis patients and
patient caregivers.” It has “operated in conformance with state
medical marijuana laws.” Therefore, the seized cannabis “was
legally in [its] possession . . . [and] was not contraband.” “To
date, [appellant] has not been charged with any crime.”
(Underlining omitted.) “[A]ll 44 felony charges” filed against
Jeffrey Kroll, appellant’s “head of operations,” were dismissed,
2
and “no criminal charges are pending against [him].”
(Capitalization and underlining omitted.) In its reply brief in the
present appeal, appellant states that “criminal charges were
dismissed against Kroll on June 21, 2017.”
County demurred to the third amended petition. It noted
that appellant had failed to file a motion in the criminal court for
the return of the seized property pursuant to Penal Code section
1536 (section 1536), which provides, “All property or things taken
on a warrant must be retained by the officer in his custody,
subject to the order of the court to which he is required to return
the proceedings before him, or of any other court in which the
offense in respect to which the property or things taken is
triable.” County argued: “[N]o petition . . . seek[ing] the return
of seized property can be appropriately filed until after . . . a
formal [section 1536] request and denial for the return of
property is made to the criminal court. Here, this statutory
prerequisite has not been attempted, let alone satisfied.” County
also argued that, because the seized marijuana is contraband,
appellant “is not entitled to [its] return . . . or its replacement
value.” County observed that although no charges were
“currently pending against [Kroll, appellant’s] president and
head of operations,” the applicable three-year criminal statute of
limitations had not yet expired. (Pen. Code, § 801.) Thus, the
seized property could be used as “evidence in a criminal
proceeding at some point.”
On December 21, 2017, the trial court sustained County’s
demurrer to the third amended petition without leave to amend.
The court did not state its reasons for the ruling. The court did
not dismiss the action.
3
Return of Seized Property
On April 23, 2019, 16 months after the sustaining of the
demurrer to the third amended petition, appellant and Kroll
moved in the criminal court for the return of property pursuant
to section 1536. The property had been seized by County from
appellant’s premises on the following dates: September 10, 2015,
October 6, 2015, December 9, 2015, and April 14, 2016.
Appellant and Kroll alleged that they had “waited until the
three-year statutory time for County to re-file charges against
Kroll [had] passed, in order to bring this motion as there can no
longer be any claim that the property sought to be returned
herein is evidence in any criminal proceeding.” 2 The criminal
court ordered that the property be released to Kroll. The still-
existing property was returned in August 2019. Marijuana
plants cut from the ground during the September 2015 raid were
not returned because “the plants were destroyed at the time” they
were seized.
Motion for Leave to File Fourth
Amended Petition in 2016 Action
In a document dated December 16, 2019, appellant moved
for leave to file a fourth amended petition in the 2016 action. The
proposed petition sought “monetary damages for all . . . property
that was destroyed, damaged or lost, and therefore not returned
to [appellant] . . . .”
The trial court denied the motion. Its ruling is set forth in
an unsigned minute order that stated: “In essence, [appellant]
seeks reconsideration of the Court’s December 21, 2017, order
sustaining the demurrer to the Third-Amended Petition without
2In its reply brief appellant states that “the criminal
statute of limitations against Kroll expired on April 14, 2019.”
4
leave to amend and the resulting judgment of dismissal. [But no
judgment of dismissal was entered.] The Court does not have
jurisdiction to reconsider that ruling or act any further in this
matter.” “This action remains disposed of by the judgment of
dismissal entered on December 21, 2017.”
Petition for Writ of Mandate in this Court
Appellant petitioned this court for a writ of mandate
directing the trial court to vacate its order denying appellant’s
motion for leave to file a fourth amended petition. In its opening
brief in the present case, appellant asserts that it “sought relief
in the appellate court via the Petition for Writ of Manda[te],
instead of an appeal,” because “there was no final judgment in
the [2016] action.” In April 2020 we summarily denied the
petition.
Present 2020 Petition
On July 23, 2020, more than three years after criminal
charges had been dismissed against Kroll, appellant filed a new
petition for a writ of mandamus (2020 petition). This is the
petition at issue in this appeal. The 2020 petition alleged:
“[Appellant] was never charged with any criminal offense.” “All
criminal charges brought against [its] members and associates
were ultimately dismissed . . . . [Appellant] . . . seeks to recover
the monetary value for its lawful property that was destroyed,
and property that was damaged . . . while in the possession of
[County] . . . .” 3 The petition continued: During county’s raid of
3 In its prayer for relief, appellant requested that County
“[p]ay the reasonable value of such property that [County]
destroyed, lost, wasted or damaged, or converted . . . .” Appellant
should have filed a complaint for damages, not a petition for a
writ of mandamus. “Mandamus is not an action for damages
5
appellant’s premises in September 2015, County “seized and
summarily destroyed . . . approximately 880 high-grade, high-
yield medical marijuana plants.” The marijuana seized on other
occasions “was all badly decompensated and full of bugs” when it
was returned to appellant. “[Appellant] determined that all
inventories of packaged and stored cannabis products seized from
[appellant’s] offices in the subject Raids, although returned, was
in such damaged and degraded condition that all value was lost.”
County’s Demurrer to 2020 Petition
County demurred to the 2020 petition. It maintained that
the petition is barred by the doctrine of res judicata, the statute
of limitations, and the doctrine of laches. County also claimed
that it had lawfully destroyed the 880 marijuana plants and “had
no duty to preserve and return the [other] seized marijuana.”
The court’s ruling on the demurrer states: “The Court
Sustains, without leave to amend, [County’s] demurrer [to the
2020 petition] on grounds the matter is barred by the doctrine of
res judicata. [Citation.] [Appellant] raised the same facts and
claims alleged here in a prior action [the 2016 petition], which
the court dismissed without leave to amend after [appellant]
failed to state a claim, despite having the opportunity to amend
because it is an equitable, not a legal remedy.” (California Assn.
for Health Services at Home v. State Dept. of Health Services
(2007) 148 Cal.App.4th 696, 705.) This is not a case where
“mandamus will lie [because] the recovery of money is merely
ancillary to an underlying proceeding which seeks performance of
a ministerial duty.” (Holt v. Kelly (1978) 20 Cal.3d 560, 565, fn.
5.) The 2020 petition seeks only the recovery of damages. The
seized property that still existed had already been returned to
appellant.
6
the action three times. . . . [¶] The [2020] Petition is also barred
by the applicable statute of limitations, since it was filed over
three years after the incident at issue. [Citation.] The Petition is
further barred by the doctrine of laches, as [appellant’s]
unreasonable three-year delay before seeking the return of seized
marijuana prejudiced [County], given that [it] could not possibly
maintain the perishable product in pristine condition for that
amount of time.”
In October 2020 the court signed a document entitled
“Judgment.” The court ordered “that judgment is entered in
favor of [County] and against [appellant], and that [appellant]
shall recover nothing from [County].”
Standard of Review
“A demurrer tests the legal sufficiency of factual allegations
in a complaint. [Citation.] A trial court’s ruling sustaining a
demurrer is erroneous if the facts alleged by the plaintiff state a
cause of action under any possible legal theory. [Citations.]” (Lee
Newman, M.D., Inc. v. Wells Fargo Bank (2001) 87 Cal.App.4th
73, 78.)
“[W]e apply the de novo standard of review in an appeal
following the sustaining of a demurrer . . . .” (California
Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242,
247.) “[W]e assume the truth of all facts properly pleaded in the
complaint and its exhibits or attachments, as well as those facts
that may fairly be implied or inferred from the express
allegations. [Citation.] ‘We do not, however, assume the truth of
contentions, deductions, or conclusions of fact or law.’ [Citation.]”
(Cobb v. O’Connell (2005) 134 Cal.App.4th 91, 95.) “We . . .
consider matters that may be judicially noticed . . . .” (Brown v.
7
Deutsche Bank National Trust Co. (2016) 247 Cal.App.4th 275,
279.)
When “a demurrer has been sustained without leave to
amend, unless failure to grant leave to amend was an abuse of
discretion, the appellate court must affirm the judgment if it is
correct on any theory. [Citations.] If there is a reasonable
possibility that the defect in a complaint can be cured by
amendment, it is an abuse of discretion to sustain a demurrer
without leave to amend. [Citation.] The burden is on the
plaintiff . . . to demonstrate the manner in which the complaint
might be amended.” (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)
Plaintiff’s Burden on Appeal
On appeal “[t]he plaintiff has the burden of showing that
the facts pleaded are sufficient to establish every element of the
cause of action and overcoming all of the legal grounds on which
the trial court sustained the demurrer, and if the defendant
negates any essential element, we will affirm the order
sustaining the demurrer as to the cause of action. [Citation.]”
(Martin v. Bridgeport Community Assoc., Inc. (2009) 173
Cal.App.4th 1024, 1031.)
Res Judicata
County claims that the 2020 petition is barred by the
doctrine of res judicata. Appellant argues that the doctrine is
inapplicable because a judgment was not entered after the trial
court had sustained the demurrer to the third amended petition
without leave to amend. “The doctrine of res judicata has a
double aspect. In a new action on the same cause of action, a
prior judgment for the defendant is a complete bar. In a new
action on a different cause of action, the former judgment is not a
complete bar, but it is effective as a collateral estoppel, i.e., it is
8
conclusive on issues actually litigated between the parties in the
former action.” (Ford Motor Co. v. Superior Court (1971) 16
Cal.App.3d 442, 447-448.) “‘The doctrine applies basically to all
types of final judgments that are rendered on the merits of
litigation. [Citation.] It may apply to a final judgment, i.e., a
dismissal, even though entered after sustaining a demurrer, if
the demurrer was sustained on substantive grounds.’ . . .
[Citation.]” (Service Employees International Union v. Hollywood
Park, Inc. (1983) 149 Cal.App.3d 745, 755-756 (Hollywood Park).)
The doctrine of res judicata did not bar appellant from
filing the 2020 petition because there was no final judgment in
the 2016 action. “The res judicata doctrine only applies when
there is a final judgment.” (Hollywood Park, supra, 149
Cal.App.3d at p. 756; see also Zevnik v. Superior Court (2008) 159
Cal.App.4th 76, 82-83 [“res judicata and collateral estoppel
require . . . [that] the prior proceeding resulted in a final
judgment on the merits”].)
The order sustaining the demurrer to the third amended
petition without leave to amend did not constitute a judgment.
“An order sustaining a demurrer is not a judgment, and does not
have the effect of finally and irrevocably dismissing the
demurring party from the action. ‘It may form the basis for
rendering a judgment, but it is not itself a judgment’ [citation], is
not appealable, and can be reviewed by an appellate court only on
appeal from a final judgment subsequently given. Upon such an
order being made without leave to amend, . . . the party whose
demurrer has been sustained may become entitled to a judgment,
which may effectually bar further proceedings against him in the
matter from which he has been dismissed. In the absence of such
a judgment, however, the mere order constitutes no bar . . . .” (De
9
La Beckwith v. Superior Court of Colusa County (1905) 146 Cal.
496, 500.)
Here, an unsigned minute order states, “The Court orders
the entire action dismissed without prejudice. Formal order to be
submitted by Mr. Eicher,” County’s counsel. The unsigned
minute order does not constitute a judgment. (Hyundai Motor
America v. Superior Court (2015) 235 Cal.App.4th 418, 426; see
Code Civ. Proc., § 581d, italics added [“All dismissals ordered by
the court shall be in the form of a written order signed by the
court and filed in the action and those orders when so filed shall
constitute judgments and be effective for all purposes”].) 4 “An
order that is not signed by the trial court does not qualify as a
judgment of dismissal under [Code of Civil Procedure] section
581d.” (Powell v. County of Orange (2011) 197 Cal.App.4th 1573,
1578.)
The trial court signed a separate order, but it also does not
constitute a judgment. The separate order states, “[County’s]
Demurrer to [Appellant’s] Third Amended Petition for Writ of
4 In its brief County gives a truncated, misleading version
of Code of Civil Procedure section 581d that omits the
requirement that the order be signed by the court. The truncated
version, which appears in footnote 2 at page 15 of the brief, is as
follows: “‘All dismissals ordered by the court . . . shall constitute
judgments and be effective for all purposes.’” The same
truncated version appears in footnote 2 at page 6 of County’s
demurrer to the 2020 petition. County’s deliberate omission of
the crucial “signed by the court” language is inexcusable. (See
Biancalana v. Fleming (1996) 45 Cal.App.4th 698, 701, fn. 2
[“Plaintiff misleads this court” by his quotation from a statute
that “contains ellipsis points instead of” crucial statutory
language. “Misquotation ‘is inexcusable upon the part of any
lawyer, and places additional burdens upon this court’”].)
10
Mandamus is sustained without leave to amend.” The order does
not say that the petition is dismissed or that judgment is entered
in County’s favor. Thus, there is no final judgment as to County’s
demurrer to the third amended petition in the 2016 action. There
is merely an order sustaining the demurrer without leave to
amend. Consequently, the doctrine of res judicata is inapplicable.
(Hollywood Park, supra, 149 Cal.App.3d at p. 756.)
County argues that our decision on this issue conflicts with
our prior summary denial of appellant’s petition for writ of
mandate. The petition was filed after the trial court’s denial of
appellant’s motion for leave to file a fourth amended petition in
the 2016 action. County notes that in the petition for writ of
mandate appellant “made the same argument it now raises,
that . . . ‘[t]he entry of the [unsigned] minute order did not
constitute a judgment, pursuant to Section 581d.’” County claims
that, “by presenting the exact same argument in its Opening
Brief, [appellant] seeks to have this Court overrule . . . [its] own
prior ruling.” “[T]he Court of Appeal . . . made it clear that a
final judgment was entered in [appellant’s] prior action.”
County misunderstands the significance of our summary
denial of the petition. “When the court denies a writ petition
without issuing an alternative writ, it does not take jurisdiction
over the case; it does not give the legal issue full plenary review.
A summary denial does not decide a ‘cause’ [citations], and
should therefore not be given law of the case effect.” (Kowis v.
Howard (1992) 3 Cal.4th 888, 897; see also Funeral Directors
Assn. of Los Angeles and Southern California v. Board of Funeral
Directors and Embalmers of California (1943) 22 Cal.2d 104, 110
[“The denial shown by our minute order . . . of petitioner’s
11
application for a writ of mandate must be construed to constitute
simply a refusal by this court to exercise its original
jurisdiction. . . . The minute order . . . was not intended to be and
is not an adjudication upon the merits of the facts presented in
the application”].)
Statute of Limitations
The trial court ruled that the 2020 petition is “barred by
the applicable statute of limitations, since it was filed over three
years after the incident at issue,” i.e., the seizures of appellant’s
property in 2015-2016 pursuant to search warrants. The
applicable statute of limitations is set forth in Code of Civil
Procedure section 338, subdivision (c)(1), which provides, “An
action for taking, detaining, or injuring goods or chattels” must
be commenced “[w]ithin three years.”
Appellant contends: “[T]he three-year statute of
limitations did not commence until August 7, 2019, when the
County complied with the Order from the criminal court to return
the seized property . . . . At that point, [appellant] discovered
that some property was missing, damaged, or destroyed and its
claim for restitution ripened. The current Petition seeking the
restitution for the reasonable value of missing or damaged
property was filed on July 23, 20[2]0. [Appellant therefore] filed
within the three-year limitations period.”
“The statute of limitations usually commences when a
cause of action ‘accrues,’ and it is generally said that ‘an
action accrues on the date of injury.’ [Citation.] Alternatively, it
is often stated that the statute commences ‘upon the occurrence
of the last element essential to the cause of action.’ [Citations.]”
(Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926,
931.) “An important exception to the general rule of accrual is
12
the ‘discovery rule,’ which postpones accrual of a cause of action
until the plaintiff discovers, or has reason to discover, the cause
of action. [Citations.] [¶] A plaintiff has reason to discover a
cause of action when he or she ‘has reason at least to suspect a
factual basis for its elements.’ [Citations.] Under the discovery
rule, suspicion of one or more of the elements of a cause of action,
coupled with knowledge of any remaining elements, will
generally trigger the statute of limitations period.” (Fox v.
Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807.)
“[A]lthough a right to recover nominal damages will not
trigger the running of the period of limitation, the infliction of
appreciable and actual harm, however uncertain in amount, will
commence the statutory period. . . . [N]either uncertainty as to
the amount of damages nor difficulty in proving damages tolls
the period of limitations.” (Davies v. Krasna (1975) 14 Cal.3d
502, 514 (Davies).)
Before the still-existing property was returned to appellant
in August 2019, appellant knew that County’s seizure of its
property had inflicted “appreciable and actual harm.” (Davies,
supra, 14 Cal.3d at p. 514.) In its third amended petition in the
2016 action, appellant alleged, “Petitioner is unaware of the
extent to which it’s [sic] seized and confiscated property . . . was
damaged or destroyed, however, Petitioner is certain that some or
all of this property was damaged and/or destroyed by [County].”
(Italics added.)
In its April 2019 motion for the return of the seized
property, appellant alleged, “During the RAIDS, multiple officers
entered the property of [appellant], . . . took property, [and]
damaged and destroyed property . . . .” (Italics added.) During
the first raid in September 2015, County “cut from the earth . . .
13
approximately 880 cannabis (marijuana) plants . . . . Documents
in the criminal case . . . show that [County] quantified the market
value of the . . . crop destroyed by [County], based on weight of
3100 [pounds,] . . . at $75 Million dollars.” (Italics added.) “All
[of the cut plants] were still premature for harvesting.”
The second raid occurred at Kroll’s residence on October 6,
2015. The residence was appellant’s “operational headquarters.”
This raid was particularly damaging to appellant’s marijuana
products. The April 2019 motion for the return of the property
alleged: “The October 6, 2015 raid is when [County] seized
[appellant’s] entire . . . inventory of dried marijuana plants in
containers labeled by type or name, along with a multitude of
cannabis medicines and formulations including tinctures,
mixtures, specialty strain seeds, oils, edible and other forms of
medical marijuana products that were all packaged or bottled in
hermetically sealed jars with moisture sachets, and all labeled,
with codes corresponding to electronic records of formulas on
[appellant’s] computers and hard drives from years of work by
Kroll comprising specific medications for members of [the]
collective. [County] destroyed the value of most or all of said
cannabis products by opening containers and dump[ing] all into
common bags, where the integrity and value of the specific
formulations and product types was forever lost.” (Italics added,
capitalization omitted.)
Kroll was present during the second raid and may have
witnessed County’s seizure of the cannabis. He “urged the
officers and Detectives to let him show all of [appellant’s]
documentation of compliance and explain [appellant’s] operations
to demonstrate same, but [County] ignored Kroll.”
14
Thus, appellant’s cause of action for injury to its property
accrued, and the statute of limitations began to run, more than
three years before the filing of the 2020 petition on July 23, 2020.
The running of the statute of limitations was not delayed until
discovery of the full extent of the injury upon the return of the
still-existing property in August 2019. Long before the return of
the property, appellant was aware that it had suffered
“appreciable and actual harm.” (Davies, supra, 14 Cal.3d at p.
514.)
In arguing that the statute of limitations did not begin to
run until the return of the property, appellant relies on the
following rule stated in Coy v. County of Los Angeles (1991) 235
Cal.App.3d 1077, 1088: “When . . . the original taking is lawful,
the statute of limitations for conversion or claim and delivery
does not begin to run ‘until the return of the property has been
demanded and refused or until a repudiation of the owner’s title
is unequivocally brought to [her or] his attention.’” (Bracketed
material in original.)
Coy is of no assistance to appellant. The Coy rule does not
apply to an action seeking damages for injury to an owner’s
property where, as here, the owner knew that its property had
been damaged or destroyed at the time of the original taking.
Another authority relied upon by appellant is Minsky v.
City of Los Angeles (1974) 11 Cal.3d 113. There, the police took
$7,720 from an arrestee and held it as evidence of a criminal
offense. Upon disposition of the criminal charges, the arrestee
unsuccessfully demanded the return of the money. The arrestee’s
interest in the money was assigned to plaintiff, and the city
denied plaintiff’s claim for the money. Plaintiff filed an action
seeking specific recovery of the sum seized from the arrestee.
15
The Supreme Court concluded: “[P]laintiff fully complied with the
applicable statutes of limitation . . . for maintaining the present
action.” (Id. at p. 119.) “Plaintiff's claim accrued when [the
arrestee] learned of the ‘conversion’ of his property at the time of
the disposition of the criminal charges and [the city’s refusal of]
his oral demand [for the return of the property].” (Ibid., fn. 6.)
Minsky is distinguishable. Unlike the plaintiff in Minsky,
appellant’s claim accrued more than three years before the filing
of the 2020 petition when it learned that its property had been
destroyed or damaged by County during the 2015-2016 raids.
Accordingly, appellant has not carried its burden of
“overcoming” the trial court’s ruling that the 2020 petition was
not filed within the three-year statute of limitations. (Cantu v.
Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880 [“Cantu
bears the burden of overcoming all of the legal grounds on which
the trial court sustained the demurrers”].)
Equitable Tolling of Statute of Limitations
Appellant argues, “[T]he statute of limitations was
equitably tolled while [it] sought its rights in civil court, and then
criminal court, before filing the present [2020] action.” “The
doctrine [of equitable tolling] allows our courts, ‘in carefully
considered situations’ [citation], to exercise their inherent
equitable powers to ‘soften the harsh impact of technical rules’
[citation] by tolling statutes of limitations. . . . [E]quitable tolling
today applies when three ‘elements’ are present: ‘[(1)] timely
notice, and [(2)] lack of prejudice, to the defendant, and [(3)]
reasonable and good faith conduct on the part of the plaintiff.’
[Citation.] These requirements are designed to ‘balanc[e] . . . the
injustice to the plaintiff occasioned by the bar of his claim against
the effect upon the important public interest or policy expressed
16
by the [operative] limitations statute.’” (Saint Francis Memorial
Hospital v. State Department of Public Health (2020) 9 Cal.5th
710, 724-725.)
In support of its argument that the statute of limitations
was equitably tolled, appellant presents the following paragraph
in its opening brief: “Here, all three elements are satisfied.
First, the prior civil action [2016 petition] constituted timely
notice to the County during the statutory period that it would
need to begin investigating the facts that form the basis for the
current action. Second, there is a lack of prejudice to the County
in gathering and preserving evidence, as the claims in the prior
and current action are the same, the County was the bailee of the
seized property, and may fairly defend the present lawsuit.
Third, [appellant made a reasonable and good faith] attempt to
first seek relief . . . in civil court . . . , then criminal court
(pursuant to Penal Code Section 1536), and now back in civil
court.”
We agree that the first element has been satisfied.
Appellant’s 2016 petition gave County timely notice of its claim.
But appellant has not satisfied the second element – lack of
prejudice to County – or the third element – its conduct was
reasonable.
In the demurrer to the third amended petition, County
correctly argued that, pursuant to section 1536, appellant was
required to seek return of the property in the criminal court. (See
People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 713 [“Law
enforcement officials who seize property pursuant to a warrant
issued by the court do so on behalf of the court, which has
authority pursuant to Penal Code section 1536 to control the
disposition of the property”]; Zuniga v. County of San Mateo Dept.
17
of Health Services (1990) 218 Cal.App.3d 1521, 1527, fn. 4 [“The
adult dogs seized as evidence pursuant to a search warrant were
retained subject to the order of the criminal court. (§ 1536.)”].) In
its opening brief appellant concedes that pursuant to section
1536, “County was required to maintain possession of the seized
property until the criminal court ordered otherwise.”
County’s demurrer to the third amended petition put
appellant on notice that it must move for the return of its
property in the criminal court pursuant to section 1536. Despite
this notice, appellant did not file its section 1536 motion until
April 23, 2019, 16 months after the sustaining of County’s
demurrer to the third amended petition on December 21, 2017,
and more than three years after County’s last seizure of property
on April 14, 2016. The trial court concluded, “[A]ppellant’s]
unreasonable three-year delay before seeking the return of seized
marijuana [pursuant to section 1536] prejudiced [County], given
that [it] could not possibly maintain the perishable product in
pristine condition for that amount of time.”
Appellant claims that it “reasonably believed that it had to
wait until the [three-year] criminal statute of limitations expired
in the criminal action brought against Kroll to bring a motion in
the criminal court” for the return of its property pursuant to
section 1536. Appellant explains: “[In the demurrer to the third
amended petition,] County argued that the criminal court had an
interest in the seized property until the three-year criminal
statute of limitations expired. [Record citation.] [Appellant] . . .
reasonably waited until the criminal statute of limitations
expired to seek return of the seized property in criminal court.
The decision to wait until the criminal statute of limitations ran
was based on the County’s argument in the prior civil action.”
18
County’s demurrer to the third amended petition did not
suggest that appellant must delay its section 1536 motion for the
return of property until the three-year criminal statute of
limitations had expired. In the demurrer County noted that
appellant’s prayer for relief had requested the return of its seized
property “that is not being used as evidence in a related criminal
matter.” County cautioned: “Just because charges are not
currently pending, does not mean that charges related to the
seized items could not be filed in the future. As the Court is
aware, certain felony charges can be brought up to three years
from the date of the offense. [Citation.] . . . The fact that criminal
charges related to the seized items may still be filed contradicts
[appellant’s] attempts to demonstrate that the items seized are of
no use to the criminal court.” After the last quoted sentence,
County inserted a footnote that read: “[County] is merely holding
the seized items for the criminal court. If [appellant] believes
these items should be released, [it] must file a formal motion with
the judge who allowed for the seizure of these items by issuing a
search warrant.” County did not say that appellant must delay
filing the motion until the expiration of the three-year criminal
statute of limitations.
Appellant appears to maintain that, as a nonparty to the
dismissed criminal proceedings against Kroll, it lacked “standing”
to move for the return of the property pursuant to section 1536
even though it was the owner of the property. Section 1536 does
not impose such a standing requirement.
Thus, appellant did not reasonably delay its section 1536
motion for the return of property until after the three-year
criminal statute of limitations had expired. But even if the delay
in making the motion had been reasonable, the running of the
19
three-year civil statute of limitations would not have been tolled.
Appellant knew that, at the time of the original takings, it had
suffered “appreciable and actual harm.” (Davies, supra, 14
Cal.3d at p. 514; see the discussion ante, at pp. 13-17.) Therefore,
no justification existed for waiting to file the 2020 petition for
damages until after the still-existing property had been returned
by County. “[O]nce plaintiff has suffered actual and appreciable
harm, neither the speculative nor uncertain character of damages
nor the difficulty of proof will toll the period of limitation.”
(Ibid.)
County Is Not Judicially Estopped from Arguing that
the 2020 Petition is Barred by the Statute of Limitations
Appellant claims that the trial court should have accepted
its argument that County is judicially estopped from arguing that
the 2020 petition is barred by the three-year statute of
limitations. “‘“Judicial estoppel precludes a party from gaining
an advantage by taking one position, and then seeking a second
advantage by taking an incompatible position. [Citations.] The
doctrine’s dual goals are to maintain the integrity of the judicial
system and to protect parties from opponents' unfair strategies.
[Citation.] Application of the doctrine is discretionary.”’
[Citation.] The doctrine applies when ‘(1) the same party has
taken two positions; (2) the positions were taken in judicial or
quasi-judicial administrative proceedings; (3) the party was
successful in asserting the first position (i.e., the tribunal adopted
the position or accepted it as true); (4) the two positions are
totally inconsistent; and (5) the first position was not taken as
a result of ignorance, fraud, or mistake.’” (Aguilar v. Lerner
(2004) 32 Cal.4th 974, 986-987.) Where, as here,
20
“the relevant facts are undisputed, the appellate court
independently reviews whether the elements of judicial estoppel
are met.” (Kerley v. Weber (2018) 27 Cal.App.5th 1187, 1195.)
Appellant argues that the elements of judicial estoppel
have been met because “County is now contending that the
current [2020] Petition is allegedly barred by the affirmative
defense[] of statute of limitations . . . , whereas the County
previously argued [in its demurrer to the third amended petition]
that the criminal court still had an interest in the seized property
until the three-year criminal statute of limitations expired. The
County is now arguing that [appellant] waited too long to bring
this Petition when it was the County’s own argument that the
three-year criminal statute of limitations had yet to expire and
criminal charges could still be brought. The two arguments are
inconsistent.”
County’s positions are not inconsistent. Although the
three-year criminal statute of limitations had not yet expired,
appellant could still have moved for the return of its seized
property pursuant to section 1536. County said so in its
demurrer to the third amended petition: “[Appellant] did not file
a formal motion for the return of property with the criminal court
which issued the search warrant . . . . [It] failed to do so despite
the fact that such a motion could have been filed in the related
criminal proceedings.”
County’s positions are also not inconsistent because its
arguments in the demurrer to the third amended petition
concerned appellant’s request for the return of its seized
property. This issue is distinct from County’s contention in the
instant appeal that the 2020 civil action for damages is barred by
the three-year statute of limitations for injury to property.
21
Disposition
The judgment is affirmed. County shall recover its costs on
appeal.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
22
Vincent J. O’Neill, Jr., Judge*
Superior Court County of Ventura
______________________________
Law Offices of Herbert Hafif, Greg K. Hafif and Michael G.
Dawson; Law Offices of Jason Rowe and Jason Rowe, for Plaintiff
and Appellant.
Lawrence Beach Allen & Choi, Paul B. Beach, James S.
Eicher, Jr. and Rocco Zambito, Jr., for Defendant and
Respondent.
*Retired Judge of the Ventura Sup. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal, Const.