Case Name: People of the State of California v. $1,395.18 of U.S. Currency
Case No.: 17CV314587

I. Background and Procedural History

This is an asset forfeiture proceeding, which is a civil, in rem proceeding to determine whether the government may retain title to property seized in connection with an arrest (Cuevas v. Super. Ct. (2013) 221 Cal.App.4th 1312, 1320-21).

This proceeding commenced in August 2017 when claimant Daniel Grimley (“Grimley”) filed a claim opposing forfeiture of $1,395.18. On Grimley’s claim form, he indicated that he was filing his claim “[i]n response to a judicial petition for forfeiture” and not “[i]n response to notice of administrative proceedings.” (Claim at p. 1.) But Grimley’s claim form was the first paper filed in this proceeding; there was no pending petition.

In November 2017, the Santa Clara County District Attorney’s Office (the “DA”) filed a petition for forfeiture pursuant to Health and Safety Code section 11470, et seq. In June 2018, the DA filed the present motion to strike Grimley’s claim opposing forfeiture. Grimley has yet to file an opposition.

II. Discussion

Health and Safety Code sections 11470 through 11489 establish standards and procedures for forfeiture of assets traceable to an unlawful drug transaction. (Nasir v. Sacramento County Office of the Dist. Atty. (1992) 11 Cal.App.4th 976, 982.) “It is well settled that statutes imposing forfeitures are disfavored and, thus, those statutes are to be strictly construed in favor of the persons against whom they are sought to be imposed.” (Cuevas, supra, 221 Cal.App.4th at p. 1322.)

There are two types of forfeiture proceedings: judicial and nonjudicial (also known as administrative). (Nasir, supra, 11 Cal.App.4th at p. 983.) Given the DA filed a forfeiture petition after Grimley filed his claim, it is important to clarify the nature of this proceeding as a preliminary matter.

“[J]udicial forfeiture is accomplished through a civil action commenced by filing a [petition] for forfeiture in the superior court.” (Nasir, supra, 11 Cal.App.4th at p. 983, citing Health & Saf. Code, §§ 11488.4, 11488.5.) In contrast, administrative forfeiture commences without judicial involvement. (Nasir, supra, 11 Cal.App.4th at p. 983.) So long as “property is within the jurisdictional amount [of $25,000], the district attorney may declare the property forfeit without a judicial proceeding.” (Ibid. [internal quotation marks and citation omitted].) Although commenced without judicial involvement, administrative forfeiture may be contested in court. (Id. at pp. 983-84.)

The DA does not articulate and it is not especially clear whether the DA believes this proceeding involves a judicial or administrative forfeiture. Although the DA filed a forfeiture petition, that petition did not commence this proceeding and was not the first step taken to seize Grimley’s assets. Rather, the DA alleges in its petition that it published and served a notice of forfeiture in July and August 2017, which notice is typically provided for purposes of an administrative forfeiture. (See Health & Saf. Code, § 11488.4, subd. (j).) In light of this allegation and given there is substantially less than $25,000 at issue, it appears this proceeding arises from the administrative forfeiture of Grimley’s assets in connection with his arrest.

With this clarification in mind, the central issue is whether there is any basis for striking Grimley’s claim.

The DA does not identify any statutory basis for its motion in its notice or memorandum of points and authorities. This is problematic because the California Rules of Court require a party to identify the legal basis for his or her motion. (Cal. Rules of Court, rules 3.1112(d), 3.1113(b).) Furthermore, it is difficult to truly evaluate the propriety of the DA’s motion, both substantively and procedurally, in the absence of any articulation of the legal basis thereof.

Asset forfeiture proceedings are civil proceedings governed by the Code of Civil Procedure. (Health & Saf. Code, § 11488.5, subd. (c)(3).) Thus, the only conceivable statutory basis for the DA’s motion to strike the pleading is Code of Civil Procedure section 436. Pursuant thereto, a court may strike out an “irrelevant, false, or improper matter inserted in any pleading” and “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” This latter ground “authorizes the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528, original italics.) It “is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court.” (Ibid.) Here, the DA raises a timing issue, and so perhaps it intended to rely on the latter ground set forth in Code of Civil Procedure section 436, subdivision (b).

The DA argues Grimley’s claim opposing forfeiture should be stricken because he did not timely serve it within 30 days as required by Health and Safety Code section 11488.5. This is not a defect in the manner in which Grimley’s claim was “drawn or filed.” (Code Civ. Proc., § 436, subd. (b).) Accordingly, the DA’s argument does not justify striking the pleading.

To be sure, Health and Safety Code section 11488.5, subdivision (a)(1) states “[a]ny person claiming an interest in the property seized pursuant to Section 11488 may, unless for good cause shown the court extends the time for filing, at any time within 30 days from the date of the last publication of the notice of seizure, if that person was not personally served or served by mail, or within 30 days after receipt of actual notice, file with the superior court. . . a claim, verified in accordance with Section 446 of the Code of Civil Procedure, stating his or her interest in the property.” The DA does not dispute that Grimley timely filed his claim in August 2017. (Mem. of Pts. & Auth. at p. 3.) Instead, the DA asserts Grimley did not comply with the requirement that “[a]n endorsed copy of the claim shall be served by the claimant on the Attorney General or district attorney, as appropriate, within 30 days of the filing of the claim.” (Health & Saf. Code, § 11488.5, subd. (a)(1).) But the DA does not substantiate this assertion.

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).) Here, it is not apparent from the face of the claim that Grimley did not timely serve the DA with an endorsed copy thereof. Furthermore, the DA did not file a request for judicial notice of any particular matter to substantiate its assertion. (See Cal. Rules of Court, rule 3.1113(l).) The DA relies upon a declaration stating a claim has not been “filed upon” it. (Gemetti Decl., ¶ 9.) But the Court cannot consider this declaration for purposes of a motion to strike. (See Code Civ. Proc., § 437, subd. (a).)

Additionally, the declaration is of no evidentiary value because it is entirely based on unspecified “information and belief.” (Gemetti Decl. at p. 2:11.) A declarant cannot qualify the truth of his or her statements by simply stating they are based on “information and belief.” (Star Motor Imports, Inc. v. Super. Ct. (1979) 88 Cal.App.3d 201, 203-04; see generally Code Civ. Proc., §§ 2002, 2009, 2015.5.) A declaration “based on ‘information and belief’ is hearsay and must be disregarded. . . .” (Star Motor Imports, supra, 88 Cal.App.3d at p. 204; accord Humphrey v. App. Div. (2002) 29 Cal.4th 569, 574; see also In re Roth (1934) 3 Cal.App.3d 226, 235-36.) Additionally, to properly make a statement on information and belief, a declarant must identify the facts or information that led him or her to infer or believe the truth of the ultimate fact stated. (See Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158-59.) The DA fails to do so here. For these reasons, even if the Court could consider the DA’s declaration, it does not establish the factual premise of its argument, namely that it never received Grimley’s claim.

To this point, the DA appears to believe that actual notice is the standard for whether service has been effectuated. But courts have consistently rejected actual notice as a standard when evaluating whether service has been effectuated for purposes of a motion to quash service of summons. (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 392-93.)

Finally, it should be noted that the DA does not appear to be correctly reading and interpreting the relevant provision of the Health and Safety Code. In arguing that Grimley did not timely serve his claim, the DA asserts that he also did not show good cause sufficient to justify an extension of the 30-day period for service. But Health and Safety Code section 11488.5, subdivision (a)(1) states a court may extend the time for filing a claim upon a showing of good cause; the statute does not state the time for service may be extended. Although this distinction is not material to the disposition of the motion, it reflects an overall lack of accuracy and precision in the presentation.

For all of these reasons, the DA does not demonstrate that, based on the face of the claim or matters subject to judicial notice, the Court may strike the claim on the ground it is “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court” (Code Civ. Proc., § 436, subd. (b)). Consequently, the DA’s motion to strike is DENIED.