Coy v. County of Los Angeles

• Decision Date: 31 October 1991
• Docket Number: No. B048078,B048078
• Citation: 235 Cal.App.3d 1077,1 Cal.Rptr.2d 215
• Court: California Court of Appeals Court of Appeals
• Parties: Thomas Lee COY, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES, Defendant and Appellant.

Page 215

1 Cal.Rptr.2d 215

235 Cal.App.3d 1077

Thomas Lee COY, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES, Defendant and Appellant.

No. B048078.

Court of Appeal, Second District, Division 5, California.

Oct. 31, 1991.

Certified for Partial Publication ^*.

Morris, Polich & Purdy, Robert S. Wolfe, Marc S. Katz, Donald L. Ridge, Douglas J. Collodel, Los Angeles, for defendant and appellant.

Hurley, Grassini & Wrinkle, Roland Wrinkle, North Hollywood, for plaintiff and respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

The County of Los Angeles (County) appeals from a judgment, after a jury trial, in favor of plaintiff Thomas Lee Coy and from the trial court's denial of the County's new trial motion. The County also challenges the trial court's denial of its pretrial motion for summary judgment. The County contends that plaintiff's suit for claim and delivery as well as conversion of property taken by sheriff's deputies pursuant to a search warrant was barred as a matter of law by the three-year statute of limitations contained in Code of Civil Procedure section 338, subdivision (c). ¹ Because we determine that the pretrial summary judgment motion should have been granted, we reverse the judgment which was entered after the ensuing trial in plaintiff's favor and direct entry of summary judgment in favor of the County. ²

II. STATE OF THE PLEADINGS

The complaint contains causes of action for conversion, claim and delivery, malicious prosecution, as well as intentional and negligent infliction of severe emotional distress. The complaint alleges that sheriff's deputies employed by the County seized "coins, diamonds, jewelry, antiques and other valuables" while serving a search warrant. The complaint describes the seizure as follows: "On or about October 18, 1973, Defendants, and each of them, entered Plaintiff's residence ... and wrongfully and without Plaintiff's consent removed the aforementioned property from Plaintiff's residence and possession, in connection with a pending criminal investigation thought to involve Plaintiff." On November 20, 1973, plaintiff was indicted on ten counts of receiving stolen property and, according to the complaint, plaintiff was later arrested and charged in an information. On May 13, 1974, guilty verdicts were returned as to ten counts and a notice of appeal was filed "on or about September 18, 1974." At a later date, an "appellate court" ordered an evidentiary hearing. At the evidentiary hearing "it was determined that certain key evidence used to convict Plaintiff at the first trial was acquired through perjured testimony." Plaintiff then "made a Motion for New Trial, which was granted." The complaint further alleges that: on December 21, 1984, all criminal proceedings, which were commenced without probable cause, "were dropped" or dismissed; the property seized during the October 18, 1973, search was not returned; a claim was submitted to the County and rejected; and plaintiff was damaged as a result of the County's continued retention of the property and unwarranted prosecution of him. In the published portion of this opinion, we will discuss why there was no triable issue of fact concerning the application of the statute of limitations to the conversion and claim and delivery causes of action.

III. THE EVIDENCE BEFORE THE TRIAL COURT ³

The County presented the following evidence which is relevant to the conversion and claim and delivery causes of action. The County cited plaintiff's complaint filed November 16, 1985, as evidence. The complaint alleged that plaintiff's jewelry was wrongfully taken on October 18, 1973, he was convicted of receiving stolen property within the meaning of Penal Code section 496 on August 9, 1974, and he filed a notice of appeal on September 18, 1974. Furthermore, attached to the County's reply to the opposition were documents which indicated that he was placed on probation on September 18, 1974. The complaint alleged at a later date that the case was returned by "an appellate court" to the trial court where charges were ultimately dismissed. Additionally, the County referred to plaintiff's deposition transcript. The portions of the transcript which are relevant to this opinion indicated that prior to, during, and after his trial, plaintiff's attorneys made motions for return of all the property seized by the County. Plaintiff testified that he sought the return of the property that belonged to him. Plaintiff did not seek the return of the property which was stolen which he did not know was stolen when he purchased it. Finally, the County's evidence consisted of plaintiff's claim filed with the County prior to the commencement of the present lawsuit pursuant to Government Code section 910. The contents of the claim form will be discussed in the unpublished portion of the opinion.

Plaintiff presented evidence which indicated that on April 29, 1974, a motion for return of evidence pursuant to Penal Code sections 1538.5, 1539, and 1540 was denied. Finally, plaintiff's evidence indicated that in 1983 he was found to have been convicted by the use of false evidence and on December 21, 1984, he was granted a new trial. On December 21, 1984, the prosecution was unable to proceed with the case and it was dismissed pursuant to Penal Code section 1385. ⁴

IV. THE PARTIES' RELEVANT ARGUMENTS IN THE TRIAL COURT AND ON APPEAL CONCERNING THE STATUTE OF LIMITATIONS FOR THE CONVERSION AND THE CLAIM AND DELIVERY CAUSES OF ACTION

In superior court, the County presented numerous arguments, many of them in the alternative. We need not address most of the arguments becausethey are irrelevant to our determination that the superior court should have granted the pretrial motion for summary judgment. The County argued that since plaintiff's complaint alleged the seizure and the detention of the property was wrongful "the statute of limitations on plaintiff's complaint would have begun to run on October 18, 1973, and would have expired on October 18, 1976." Additionally, the County argued in the alternative: "Were plaintiff permitted to amend his complaint to allege the original taking was lawful but that at some point in time, he made demand for return of the property and the County of Los Angeles refused to do so, plaintiff's complaint would nonetheless be barred by the statute of limitations. In this regard, the reference to plaintiff's own testimony during his deposition is instructive. In plaintiff's deposition, he testified that his attorneys made motions before, during and after trial for return of his property. All these motions were denied by the court." ⁵ In his opposition to the summary judgment motion, plaintiff argued that he was entitled to the benefit of the tolling provisions of Government Code section 945.3 which provides that when a person is charged with a crime, the statute of limitations for pursuing a civil action against a peace officer or the public entity employing the peace officer is tolled until proceedings are completed in the trial court. ⁶ On appeal, the County contends that when the motions for return of property were denied, the statute of limitations for conversion and the claim and delivery causes of action began to run. We conclude that the County is correct and that the present action, filed on November 6, 1985, insofar as it seeks damages for conversion or return of property on a claim and delivery theory was untimely.

V. THE STATUTE OF LIMITATIONS RAN AT THE LATEST WHEN A MOTION FOR RETURN OF PROPERTY WAS DENIED

Causes of action for claim and delivery or conversion of personal property are governed by the three-year statute of limitations as set forth in section 338, subdivision (c). The government is a bailee when a peace officer seizes property from an arrestee. (Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 121-122, 113 Cal.Rptr. 102, 520 P.2d 726.) In the case of a bailment, when an original taking is wrongful, the statute of limitations begins to run from the time of the unlawful taking. This rule applies to both causes of action for conversion and claim and delivery. (H. Russell Taylor's Fire Prevention Service, Inc. v. Coca Cola Bottling Corp. (1979) 99 Cal.App.3d 711, 725, 160 Cal.Rptr. 411; First National Bk. v. Thompson (1943) 60 Cal.App.2d 79, 81-83, 140 P.2d 75.) If the taking was wrongful, the statute of limitations began to run on the date the search warrant was served. ⁷ When, on the other hand, 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." (H. Russell Taylor's Fire Prevention Service, Inc. v. Coca Cola Bottling Corp., supra, 99 Cal.App.3d at p. 725, 160 Cal.Rptr. 411; Reed v. Molony (1940) 38 Cal.App.2d 405, 411, 101 P.2d 175.) As explained in Niiya v. Goto (1960) 181 Cal.App.2d 682, 688, 5 Cal.Rptr. 642: "The general rule is that the statute of limitations does not run against a bailor and owner of the property and in favor of the bailee claiming to hold adversely to the owner until such adverse claim is brought to the knowledge of the bailor. [Citation.] So long as the bailee holds in recognition of the bailor's right, the statute does not run. [Citation.] It does not commence to run until the illegal exercise of dominion over the property. [Citation.] When personal property is legally taken the statute of limitations is tolled until the owner demands and is refused possession of it. [Citation.] [p] Where the illegal taking consists of a refusal by the party in possession to surrender the property on demand, the period of limitations commences to run at the time of the refusal. [Citations.]" In other words, if the taking is unlawful, the three year statute of limitations commences to run at the time of the taking; if the seizure is lawful, the statute...