Franklin v. Municipal Court
| Citation | 103 Cal.Rptr. 354,26 Cal.App.3d 884 |
| Court | California Court of Appeals |
| Decision Date | 26 July 1972 |
| Parties | Donald Tyron FRANKLIN, Plaintiff and Appellant, v. The MUNICIPAL COURT FOR the SAN FRANCISCO JUDICIAL DISTRICT OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents. Civ. 29013, 29803. |
Edward H. Steinman, San Francisco, for appellant.
Thomas M. O'Connor, City Atty., Burk E. Delventhal, Deputy City Atty., San Francisco, for respondents.
In these consolidated appeals plaintiff Donald Tyron Franklin appeals from the order denying his petition for a writ of mandate (1 Civil 29013) and from a judgment of dismissal in an action for claim and delivery, conversion and declaratory relief (1 Civil 29803).
This case involves a revolver which was introduced into evidence at a preliminary hearing in a criminal action in the municipal court.
On June 17, 1970, Franklin filed an action in the superior court naming as defendants the Municipal Court of the City and County of San Francisco (hereinafter referred to as the 'Municipal Court') and John A. O'Kane, 'an individual' (hereinafter referred to as 'Judge O'Kane'). This action purported to state three causes of action. The 'first cause of action' sought a writ of mandate compelling the return of a certain revolver allegedly belonging to Franklin. The 'second cause of action' sought relief upon a theory of conversion or alternately in claim and delivery. In the 'third cause of action' Franklin sought a declaration as to his rights and duties under Penal Code section 1418, 1 dealing with the disposition of evidence in criminal cases, and as to the validity and constitutionality of this statute.
The cause proceeded before Judge Byron Arnold on the 'first cause of action,' and on August 5, 1970, Judge Arnold issued an order denying the petition for writ of mandate which was entered as a judgment on August 6, 1970. An appeal from said order was filed on August 11, 1970. Upon the filing of the record this appeal was given the number 1 Civil 29013.
The action thereafter proceeded on the 'second and third causes of action' before Judge Robert W. Merrill who, on February 11, 1971, granted a motion for summary judgment in favor of defendants dismissing those causes of action. On February 17, 1971, Franklin filed a notice of appeal from this judgment and upon the filing of the record this appeal was given the number 1 Civil 29803.
On June 2, 1971, Franklin made an application to consolidate the two appeals for appellate purposes. This court thereupon issued an order to show cause why the appeal in 1 Civil 29013 should not be dismissed as premature under the 'One Final Judgment Rule.' Upon the hearing of said order to show cause on June 29, 1971, and following a stipulation entered into between the parties that consolidation was acceptable to them, consolidation of the two appeals was ordered. Said order was made on the basis that, although joined in the same complaint, two separate actions had in essence been filed and tried separately in the court below, i.e., a petition for a writ of mandate, on the one hand, and a complaint for conversion, claim and delivery and declaratory relief, on the other.
In his petition for writ of mandate Franklin alleges as follows: That on March 16, 1969, he was arrested at his residence and the police seized his .38 caliber 'snub nosed' Smith and Wesson revolver. The revolver was in a room in which Franklin was not present at the time of the arrest. Franklin had purchased the revolver four months earlier at Val's Gun Shop, a licensed gunshop dealer in San Francisco, and had registered it with the San Francisco Police Department.
That on April 10, 1969, a preliminary hearing was held in the Municipal Court before Judge O'Kane, sitting as a judge of said court. The criminal charges against Franklin were dismissed and Judge O'Kane issued an order confiscating the revolver pursuant to section 1418.
That the Municipal Court has not and will not give Franklin notice of any hearing at which he might inquire into and contest the taking and detention of the revolver, and in addition, the Municipal Court has not compensated Franklin for the taking of the revolver.
That on July 9, 1969, Franklin, through his attorney, delivered to Judge O'Kane an application for an order returning the revolver; that the Municipal Court, through Judge O'Kane, refused to issue an order for the return of the revolver; that on October 27, 1969, Franklin, through his attorney, contacted Judge O'Kane by telephone seeking the return of the revolver; and that the Municipal Court, through Judge O'Kane, refused to issue an order for the return of the revolver.
Franklin further alleges that the Municipal Court has the ability and the duty to return the revolver lawfully owned by him and has refused all requests and demands for the return of said property. He also alleges that the Municipal Court has deprived him of his property without due process of law by taking the revolver pursuant to section 1418 which does not afford reasonable notice of the time and place of a hearing, an opportunity to be heard, nor just compensation for the property taken and held. He therefore alleges that section 1418 is unconstitutional and that the orders confiscating the revolver and subsequently refusing to return it are void. Finally, Franklin alleges that he has no plain, speedy and adequate remedy at law. 2
On June 17, 1970, an alternative writ of mandate was issued by the superior court. The Municipal Court and Judge O'Kane filed their answer and return to the petition on July 13, 1970. All of the allegations of the petition are denied except those expressly admitted, as follows: That Franklin had been arrested at his residence on March 16, 1969; that at a preliminary hearing arising out of the March 16, 1969 arrest all criminal charges against Franklin were dismissed; that a Smith and Wesson snubnosed .38-caliber weapon was introduced into evidence at the preliminary hearing and that an order was issued confiscating said weapon; that the Municipal Court, through Judge O'Kane, refused to issue an order for the return of said weapon; and 'THAT TELEPHONE CONVERSATIONS HAVE BEEN HELD Between the court and various attorneys allegedly representing petitioner; . . .'
The answer and return affirmatively allege that Franklin had been booked on suspicion of violating section 217; that the testimony of Janice Burns was given at said preliminary hearing; and that the pistol in question is no longer under the jurisdiction of the Municipal Court.
By way of an affirmative defense, the Municipal Court and Judge O'Kane allege that Franklin has failed to state a cause of action; that he has failed to make a showing in either his petition or his affidavits that the ownership of the revolver had been proved at the time of the original request for its return or at any time subsequent; that Franklin is guilty of laches; that Franklin comes before the court with unclean hands; and that he has an adequate remedy at law.
As a further, separate and distinct defense, the Municipal Court and Judge O'Kane allege that at all times mentioned in the petition sections 1417 through 1419 were in full force and effect; that on March 16, 1969, Janice Burns was found shot in the chest at 77 Langton Street; and upon entering the residence two members of the San Francisco Police Department observed Franklin leaning over Janice Burns; that the policemen inquired as to the circumstances of the shooting and Franklin told them Miss Burns had shot herself; that during this conversation Franklin handed to the policemen the revolver which is the subject of the intsant petition; that Franklin was arrested and booked for violation of section 217; that a check by the San Francisco Police Department failed to show that the revolver was registered with said department; that on April 10, 1969, a preliminary hearing was held in the Municipal Court before Judge O'Kane; that at this hearing Janice Burns testified that she was shot while she and Franklin were playing 'Russian Roulette'; that the revolver was discharged while it was pointed at her; that Franklin told her to tell the police she had shot herself; that when the police arrived she told them she had shot herself; that at said preliminary hearing the subject revolver was offered as an exhibit; that at the conclusion of the testimony the court ordered the charge dismissed but issued an order confiscating the revolver; and that no objection was made by counsel for Franklin at that time.
The minutes of the court attached as an exhibit to defendants' answer contain the following notation:
Franklin did not file any responsive pleading to the return of the Municipal Court and Judge O'Kane. The matter having been submitted on the pleadings, the superior court made its order denying the petition for writ of mandate.
(Lotus Car Ltd. v. Municipal Court, 263 Cal.App.2d 264, 268, 69 Cal.Rptr. 384, 387; California Portland Cement Co. v. State Bd. of Equalization, 67 Cal.2d 578, 582, fn. 5, 63 Cal.Rptr. 5, 432 P.2d 700.)
Applying these principles to the case before us we find that the essential affirmative allegations of the...
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