Case Name: Roberto Montejano Rocha v. County of Santa Clara, et al.

Case No.: 1-14-CV-270842

Demurrer to Plaintiff’s Second Amended Complaint by defendant County of Santa Clara

Plaintiff Roberto Montejano Rocha (“Rocha”) is the person with right of possession to $74,500 seized on or about December 4, 2012 by the Office of the Sheriff, Santa Clara County (“Sheriff”), incident to a search of Rocha’s vehicle. (Second Amended Complaint (“SAC”), ¶5.) The Sheriff asserted the property was subject to seizure. (Id.) The Sheriff issued a receipt for the property to Rocha identifying the property as “evidence.” (Id.) The Sheriff also provided Rocha an uncompleted Notice of Forfeiture. (Id.) To Rocha’s knowledge, no forfeiture proceedings were timely pursued. (Id.) On information and belief, the investigation incident to the seizure led to Rocha’s arrest. (Id.) Plaintiff Rocha alleges defendant County of Santa Clara (“County”) is “required to return the property pursuant to the US Constitution, 1st, 14th amendment, 5th Amendment, Cal Const, Art. I, § 19, Cal Civ Code § 2080.10, Health and Safety Codes §§ 11488.2 – 11488.7, and the inherent power of the court to control and prevent the abuse of its process.” (SAC, ¶6.)

On September 19, 2014, plaintiff Rocha filed this complaint against defendant County asserting claims for: (1) claim and delivery; and (2) conversion. On October 27, 2014, defendant County filed a demurrer to plaintiff’s complaint. On December 4, 2014, the court sustained County’s demurrer with leave to amend.

On December 23, 2014, plaintiff Rocha filed a FAC asserting claims for: (1) claim and delivery; and (2) conversion. On January 20, 2015, defendant County filed a demurrer to plaintiff FAC. On March 17, 2015, the court sustained County’s demurrer with leave to amend.

On April 21, 2015, plaintiff Rocha filed a SAC asserting claims for: (1) claim and delivery; and (2) conversion. On May 22, 2015, defendant County filed a demurrer to plaintiff’s SAC. On July 7, 2015, the court overruled defendant County’s demurrer to the SAC. On August 20, 2015, defendant County filed is answer to the SAC.

On March 4, 2016, defendant County filed the motion now before the court, a motion for judgment on the pleadings.

I. Motion for Judgment on the Pleadings

A motion for judgment on the pleadings can be made pursuant to Code of Civil Procedure section 438, subdivision (c)(1)(B)(i) which states that a motion may be made on the ground that the court has no jurisdiction of the subject of the cause of action alleged in the complaint. “A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by statute, the rules governing demurrers apply.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2015), ¶7:275, p. 7(II)-78 citing Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)

“The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or be based on facts which the court may judicially notice.” (Id. at ¶7:292, p. 7(II)-80 citing Code Civ. Proc., §438, subd. (d).) Here, defendant County’s motion for judgment on the pleadings depends, in large part, upon the Declaration of Vick L. Rashid (“Rashid Declaration”) who states that she is Forfeiture Counsel for the Drug Enforcement Agency (DEA), United States Department of Justice.

As a preliminary matter, the court must consider whether this extrinsic evidence is appropriate. Defendant County contends the court can properly consider extrinsic evidence when a defendant challenges subject matter jurisdiction, as defendant County is doing here, by citing to Great Western Casinos, Inc. v. Morongo Band of Mission Indians (1999) 74 Cal.App.4th 1407, 1417 – 1418 (Great Western) where the court wrote:

If the lack of subject matter jurisdiction can be raised at any time, it seems to follow no specified procedural vehicle should be required to bring the matter to the court’s attention. For example, it would be anomalous to require a defendant to demur to a complaint, or to file another answer, or a motion for judgment on the pleadings if the defect only came to light in the middle of a trial. Moreover, if subject matter jurisdiction may be challenged at any time during the course of an action it is logical for the court to consider all admissible evidence then before it in making its determination-whatever the procedural posture of the case. Permitting as thorough a review by the court considering the challenge is in accord with the principle a court’s subject matter jurisdiction is so fundamental it may be attacked at any time.

In the present case the trial court was faced with competing claims whether the defendants had waived their sovereign immunity and had consented to suit. To resolve the conflict the trial court necessarily had to go beyond the pleadings and contract language to consider the testimonial and documentary evidence submitted with defendants’ motion to stay/quash/dismiss and GWC’s opposition to those motions.

(Emphasis added.)

In Great Western, the court noted that challenges to subject matter jurisdiction are normally brought by way of demurrer or motion for judgment on the pleadings. However, since a challenge to subject matter jurisdiction could be raised at any time and by other means, the Great Western court deemed it within the court’s power to consider all admissible evidence, even though extrinsic to the pleading.

Plaintiff Rocha objects to the court’s consideration of extrinsic facts citing Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (Cloud)—“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. [Citations.] Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. [Citation.]”; County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 32 (Orange)—“In reviewing the trial court’s grant of the motions for judgment on the pleadings under Code of Civil Procedure section 438, subdivision (b)(1), we apply the same rules governing the review of an order sustaining a general demurrer. [Citation.] A defendant’s motion for judgment on the pleadings should be granted if, under the facts as alleged in the pleading or subject to judicial notice, the complaint fails to state facts sufficient to constitute a cause of action. [Citation.].”; and Southern California Edison Company v. City of Victorville (2013) 217 Cal.App.4th 218, 227 (SCE)—“ ‘The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.’ [Citation.] ‘[J]udgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution.’ [Citation.]”

The courts in Cloud and Orange did not entertain motions for judgment on the pleadings based upon challenges to subject matter jurisdiction. The decision of SCE did involve a motion for judgment on the pleadings where the defendant challenged subject matter jurisdiction. However, except to state the general rule that the court looks to the pleadings and matters of judicial notice, the SCE court was not asked to consider extrinsic evidence and, consequently, did not answer the preliminary issue raised here and did not overturn the ruling in Great Western.

Thus, this court will consider the Rashid Declaration. The Rashid Declaration states, in relevant part that $70,430 in US currency was seized from a vehicle occupied by Otoniel Barragan and plaintiff Rocha by officers of a DEA task force and Sheriff’s deputies. The DEA commenced administrative forfeiture proceedings with regard to the currency after sending notice to plaintiff Rocha and others pursuant to the Civil Asset Forfeiture Reform Act (“CAFRA”) (codified at 18 U.S.C. §§ 983, 985 and 28 U.S.C. § 2465). County points out that the signature acknowledging receipt of the notice of the administrative forfeiture is the same as plaintiff Rocha’s signature on the claim that Rocha filed in Santa Clara County Superior Court, case number 113CV238888. On May 12, 2014, the DEA forfeited the currency.

“A declaration of forfeiture under this section shall have the same force and effect as a final decree and order of forfeiture in a judicial forfeiture proceeding in a district court of the United States. Title shall be deemed to vest in the United States free and clear of any liens or encumbrances (except for first preferred ship mortgages pursuant to section 961 of Title 46, Appendix, or any corresponding revision, consolidation, and enactment of such subsection in Title 46) from the date of the act for which the forfeiture was incurred.” (19 U.S.C.A. § 1609.)

Where the person entitled to notice of forfeiture did not receive such notice, he or she may file a motion to set aside a declaration of forfeiture pursuant to Title 18, United States Code, section 983, subdivision (e)(1). “A motion filed under this subsection shall be the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute.” (18 U.S.C.A. § 983.) Based on this explicit statutory language providing for an “exclusive remedy,” it is defendant County’s contention that plaintiff Rocha’s present action is expressly preempted and subject matter jurisdiction lies with the federal court.

In opposition, plaintiff Rocha references a multitude of state authority concerning state forfeiture proceedings. However, the only relevant argument proffered by plaintiff Rocha is that the SAC alleges possession of the currency by defendant County. (See SAC, ¶7.) Plaintiff Rocha apparently contends this allegation should be accepted as true and should trump any extrinsic evidence offered by defendant County, but in view of the ruling in Great Western, the court disagrees. Plaintiff Rocha cites United States v. Woodall (8th Cir. Mo. 1993) 12 F.3d 791 (Woodall) for the proposition that federal courts have jurisdiction to review administrative forfeiture proceedings. Plaintiff points to a footnote to the Woodall decision where the court, in dicta, questions under what authority the local police authority had to surrender possession of an inmate’s money to the DEA. The Woodall court raised the issue, but did not express any opinion. Thus, the Woodall opinion does not aid plaintiff Rocha and, on the contrary, serves only to bolster defendant County’s position that the issues raised by the SAC fall within the subject matter jurisdiction of the federal courts.

Accordingly, defendant County’s motion for judgment on the pleadings is GRANTED.