Filed 5/7/14 Reiter v. Sonoma County Sheriff’s Dept. CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



JOSEPH REITER,
         Plaintiff and Appellant,
                                                                     A137941
v.
SONOMA COUNTY SHERIFF'S                                              (Sonoma County
DEPARTMENT et al.,                                                   Super. Ct. No. SCV-250631)
         Defendants and Respondents.


         Joseph Reiter appeals from a judgment dismissing his action against the Sonoma
County Sheriff’s Department (the Department) after the superior court sustained the
Department’s demurrer to Reiter’s first amended complaint (FAC) without leave to
amend. Claiming to be a qualified patient under the Compassionate Use Act, Health and
Safety Code section 11362.5 et seq. (CUA) and/or California’s Medical Marijuana
Program (MMP), Health and Safety Code section 11362.71,1 Reiter sued the Department
after its officers, armed with a valid search warrant, seized marijuana Reiter was
cultivating. The marijuana was later summarily destroyed pursuant to section 11479, the
statute that is at the center of Reiter’s appeal.
         Reiter sought declaratory and injunctive relief based on a claimed as-applied
violation of his due process rights under the California Constitution. After the
Department filed a demurrer to the FAC, Reiter took the unusual step of filing a “non-

1
    All further undesignated statutory references are to the Health and Safety Code.

                                                             1
opposition to the demurrer” in which he largely admitted his claim was barred by existing
California law. Reiter’s nonopposition purported to preserve certain claims for appeal,
however, and he now asks us to reverse the judgment. In this court, he contends the FAC
either states or could be amended to state claims arising out of the violation of his rights
to be free from unreasonable search and seizure and to due process, as well as an
equitable claim for recovery of the value of the seized marijuana.
       We reject all of Reiter’s arguments save the last. Accordingly, we will reverse the
judgment and remand to the trial court to permit Reiter the opportunity to amend his
pleading to state a claim for recovery of the value of the allegedly lawfully possessed, but
unlawfully seized, marijuana.
                        FACTUAL AND PROCEDURAL BACKGROUND
       In ruling on the Department’s demurrer, the trial court was required to accept as
true all material facts properly pleaded in Reiter’s first amended complaint. (Requa v.
Regents of University of California (2012) 213 Cal.App.4th 213, 216 (Requa).) We must
do the same on appeal, and thus our statement of facts is taken from the material
allegations of the FAC.2 (Ibid.)
       Search, Seizure, and Destruction of the Marijuana
       Reiter is a citizen and taxpayer in Sonoma County. On or about August 29, 2008,
officers of the Department executed a search warrant on property owned or occupied by
Reiter. The affidavit in support of the warrant stated Reiter had been observed openly
watering and tending to marijuana plants in the backyard of the property. The officers
made no effort to speak with Reiter before obtaining the warrant, and they made no effort
to determine whether his cultivation of marijuana was legal under the CUA or MMP.


2
 The FAC contains numerous allegations about what the relevant law is or should be.
While we must accept as true all well-pleaded factual allegations, we disregard
conclusions of law. (Requa, supra, 213 Cal.App.4th at p. 216; see Faulkner v. Cal. Toll
Bridge Authority (1953) 40 Cal.2d 317, 329 [“Allegations that the acts of a commission
or board were ‘arbitrary, capricious, fraudulent, wrongful and unlawful,’ like other
adjectival descriptions of such proceedings, constitute mere conclusions of law which are
not to be deemed admitted by a demurrer.”].)

                                              2
Other than the observation of 119 growing plants in plain view, and Reiter’s open
cultivation of those plants, the search warrant included no information indicating Reiter
was acting unlawfully. Nor did the warrant include facts suggesting Reiter might be
armed and dangerous.
       During the search of the property, four separate medical marijuana cards and/or
doctor’s recommendations for marijuana use were located, including a valid
recommendation issued to Reiter. Under Sonoma County’s guidelines for medical
marijuana, persons who qualify under the MMP may cultivate 30 live marijuana plants.3
Those guidelines would permit four qualified individuals to collectively and
cooperatively cultivate up to 120 marijuana plants. During the search, the Department’s
officers located 119 growing marijuana plants, one less than the legal limit. Without
making any effort to determine whether the plants were within the purview of the CUA
and MMP, the officers uprooted and seized all the plants.
       After the officers completed their search of the property from which the marijuana
was seized, they went to Reiter’s residence where they questioned Reiter’s wife, who
knew nothing about the cultivation and was unaware Reiter had a medical marijuana card
or a medical need for marijuana. The officers found no evidence of marijuana sales, but
they formed the opinion the seized marijuana had been cultivated unlawfully because
they found no evidence of marijuana use.
       Although the name and contact information of the issuing physicians was printed
on the face of the marijuana cards found during the initial search, the officers did not
attempt to contact the physicians to determine whether Reiter or the other cardholders
had legitimate recommendations for the use of marijuana under the CUA or MMP. One


3
 We base our description of the county’s guidelines solely on the allegations of the FAC.
The record on appeal contains no copy of those guidelines, and we have not located them
on our own. Although we could judicially notice the county’s legislative enactments
governing medical marijuana (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th
1068, 1077, fn. 5), in this court the parties have not sought judicial notice of the
guidelines to which the FAC refers. We therefore take no position on whether the
allegations accurately reflect the actual legislation.

                                              3
of the officers did speak with Reiter’s attorney immediately after the marijuana was
seized and informed him Reiter was a suspect with whom the officers wished to speak
concerning the marijuana. The officers also informed Reiter’s wife, who passed the
information along to Reiter. Reiter was thus fully aware that the marijuana had been
seized and he was a criminal suspect.
       Later on the day of the seizure, the officers summarily destroyed all but 10 pounds
of the marijuana pursuant to section 11479.4 This was done without notice to Reiter or
his attorney, who had no opportunity to be heard before the destruction occurred. Both
the Department’s internal administrative directive and the superior court’s order
authorizing immediate destruction of the marijuana stated that destruction was required
because the Department lacked adequate space to store the marijuana and because stored
marijuana can be flammable. Reiter alleges that neither of these reasons is true and
neither justifies the summary seizure and destruction of marijuana without some type of
post-seizure notice and opportunity to be heard.
       Reiter concedes the Department acted pursuant to a facially valid warrant and a
duly issued order of the superior court. Such orders are issued pro forma in Sonoma
County in cases of seizures of marijuana, and the superior court makes no inquiry to
determine whether the marijuana is potentially subject to the CUA.
       At the time of the destruction order at issue here, Reiter had not been arrested or
charged with any offense related to the seized marijuana. He had no prior history of drug
arrests, and no serious or felony convictions. There was no danger, urgency, or other law
enforcement justification warranting the uprooting of the marijuana plants and the
destruction of all but 10 pounds of the seized marijuana without giving Reiter notice and


4
 Section 11479 provides in relevant part that “at any time after seizure by a law
enforcement agency of a suspected controlled substance, that amount in excess of 10
pounds in gross weight may be destroyed without a court order by the chief of the law
enforcement agency or a designated subordinate.” Destruction shall not take place until
certain requirements are satisfied, including a determination by the chief of the law
enforcement agency “that it is not reasonably possible to preserve the suspected
controlled substance in place, or to remove [it] to another location.” (§ 11479, subd. (d).)

                                             4
an opportunity to be heard. There was no increased danger Reiter might flee or alert co-
conspirators if given notice, as he had already been told he was a suspect.
       Reiter was later charged with felony cultivation of marijuana and felony
possession with intent to sell. (§§ 11358, 11359.) He raised the CUA and MMP as an
affirmative defense and asserted that the 119 plants seized fell within the Sonoma County
guidelines for cultivating collectively and cooperatively under section 11362.775. Reiter
was initially held to answer following a preliminary hearing, but the prosecution later
agreed to dismiss all charges. The charges were dismissed in full in May 2011.
       In the criminal case, Reiter did not move for return of the seized marijuana plants
under the authority of City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th
355 (Garden Grove)5 “or any other available procedure for the return of the 119
marijuana plants originally seized[.]” (See Pen. Code, §§ 1538.5, subd. (a)(1)(B) [motion
for return of property seized under a warrant], 1540 [restoration of property seized
without probable cause for issuance of warrant]; see also § 11473.5, subd. (a) [drug
evidence seized by law enforcement may be destroyed “unless the court finds that the
controlled substances . . . were lawfully possessed by the defendant”].) All but 10
pounds of the marijuana were destroyed immediately following seizure, and without
giving notice to Reiter, the Department destroyed the remaining 10 pounds prior to, or
immediately following, dismissal of the charges against him.
       Reiter filed a claim under the Government Claims Act (Gov. Code, §§ 900 et seq.)
with the County of Sonoma seeking damages for the initial destruction of all but 10
pounds of the marijuana. In his claim, he alleged the Department’s actions were
unconstitutional. The county denied the claim. Reiter did not file an action based on his
damage claim “because he . . . concluded damages are barred based on qualified
immunity[.]” The FAC alleges that “[n]o viable damage claim can be asserted against



5
 Garden Grove held that a qualified patient under the CUA and MMP is entitled by due
process principles to the return of seized medical marijuana once criminal charges against
him have been dismissed. (Garden Grove, supra, 157 Cal.App.4th at pp. 386-389.)

                                             5
[the Department] in these circumstances.” Furthermore, according to the FAC, it is
unlikely a viable damage claim could be asserted in any similar case.
       Reiter has a lawful right to cultivate and possess marijuana under the CUA and
MMP. He would do so but for the Department’s policies and practices which permit
marijuana to be seized and destroyed without notice and opportunity to be heard and
without recompense to the lawful cultivator or possessor because, Reiter alleges, the
Department’s actions are subject to qualified immunity from damage claims.
Section 11479 expressly authorizes the Department to destroy all but 10 pounds of the
marijuana seized by its officers. Neither that section nor the policies and practices of the
Department and the Sonoma County Superior Court provide for notice and opportunity to
be heard before the destruction of marijuana, regardless of whether the circumstances of
the seizure have revealed evidence suggesting the marijuana might be lawfully cultivated
and possessed under the CUA and MMP. Because of the threat of the application of the
Department’s policies to him, Reiter fears any marijuana he might lawfully cultivate or
possess would be summarily seized without any opportunity to be heard in court prior to
its destruction, and without any ability to obtain compensation from the Department or
the county for the value of the marijuana.
       The Action Below
       Reiter filed this action on November 3, 2011. After a demurrer to his initial
complaint was sustained with leave to amend, he filed the FAC on March 12, 2012.
Reiter claimed to have taxpayer standing under Code of Civil Procedure section 526a6 to
enjoin the ongoing enforcement of section 11479 as applied to others, even if his
individual claim is not actionable or moot. He asserted a single cause of action for


6
  Code of Civil Procedure section 526a provides in relevant part: “An action to obtain a
judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the
estate, funds, or other property of a county, town, city or city and county of the State,
may be maintained against any officer thereof, or any agent, or other person, acting in its
behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is
liable to pay, or, within one year before the commencement of the action, has paid, a tax
therein.”

                                              6
declaratory and injunctive relief based on an as-applied violation of the due process
provisions of the California Constitution. (Cal. Const., art. I, § 7.)
         Reiter claimed the Department’s compliance with section 11479 and the terms of
the superior court order authorizing destruction of the seized marijuana was insufficient
to meet due process requirements. He asserted that before marijuana may be destroyed,
there must be some form of notice and opportunity to be heard in the circumstances of his
case. Reiter did not contend notice and opportunity to be heard were required before
marijuana is seized and challenged only the procedure afforded after seizure of the
marijuana, and then only when the seized marijuana is to be destroyed in whole or in
part.7
         Reiter alleged the Department would continue to enforce section 11479 and would
continue to seize and destroy marijuana in excess of 10 pounds “without prior notice and
opportunity to be heard in any circumstances; thereby leaving the party or parties
aggrieved with no viable recourse in damages or other lawful means to obtain
recompense for the value of the marijuana should it later prove to have been lawfully
cultivated and possessed under the [CUA], MMP and/or Sonoma County Guidelines.”
Reiter claimed he had no adequate remedy at law other than the declaratory and
injunctive relief sought in the FAC, and he asserted that in every case an aggrieved party
would be unable to avoid mootness by asserting a damage claim as qualified immunity
applies to the Department’s actions.
         The Department’s Demurrer
         The Department filed a demurrer to the FAC. It contended section 11479 and
other statutory and procedural protections available to those in Reiter’s situation provided
sufficient due process protection.8 Specifically, the Department argued Reiter’s due


7
  The FAC stated that, at the trial court level, Reiter was making no claim regarding pre-
seizure procedures, because he considered it barred by existing appellate precedent.
Instead, “Reiter reserve[d] the claim for appeal.”
8
  The Department’s demurrer was accompanied by a request for judicial notice of a
number of documents from Reiter’s criminal proceeding, as well as claim forms Reiter

                                              7
process rights were protected because he had an adequate post-deprivation civil
remedy—he could present a damage claim to Sonoma County for wrongful destruction of
the marijuana. (Gov. Code, §§ 815.2, subd. (a), 911.2.) The Department asserted Reiter
had filed such a claim but did not pursue legal action after the county denied it.
According to the Department, Reiter’s decision not to pursue that remedy did not create a
procedural due process violation.
       Reiter responded by filing a “Non-Opposition to Demurrer.” He conceded he had
not filed a timely action in damages after his government claim was rejected. He
contended he had not done so because under existing law, no damages are available to
him or anyone else in his position, since “governmental immunity indisputably applies, as
the search and seizure occurs pursuant to a facially valid warrant[.]” He claimed there
could be no recovery of damages until a court recognized the unconstitutionality of
section 11479 and of court orders for destruction of marijuana.
       In a section of his non-opposition entitled “Preserving Issues for Appeal,” Reiter
requested leave to amend to allege two new claims. First, he would allege that he is
entitled to damages in lieu of return of the destroyed marijuana under the authority of
Holt v. Kelly (1978) 20 Cal.3d 560 (Holt) and Minsky v. City of Los Angeles (1974) 11
Cal.3d 113 (Minsky). Second, he would allege that the facts set forth in the affidavit in
support of the warrant to search Reiter’s property did not establish probable cause, and
the existing law to the contrary is wrong. Reiter acknowledged the demurrer would be
properly sustained without leave to amend based on existing authority but promised to
“ride on to the Court of Appeal.”
       The court held a hearing on the demurrer, and after considering “the pleadings, the
evidence and the argument of the parties,” it sustained the demurrer without leave to
amend and entered a judgment dismissing the action. Reiter filed a timely appeal from
the judgment.



had filed with the county under Government Code section 910. Although Reiter did not
oppose the request, the record does not disclose whether the trial court acted on it.

                                             8
                                          DISCUSSION
        Reiter claims the trial court’s order sustaining the demurrer, while admittedly
compelled under existing law, was nonetheless erroneous because “existing case law on
the issue of probable cause goes too far by establishing a rule of ‘search and seize
marijuana first, investigate its legality later.’” In addition, he contends due process is
violated by destruction of seized marijuana pursuant to section 11479, “because there is
no available recompense if the destruction later proves wrongful under the CUA and
MMP.”
        Reiter argues the FAC states valid claims for declaratory and injunctive relief
based on: (1) the violation of his right to be free from unreasonable search and seizure,
(2) the alleged unconstitutionality of section 11479, and (3) the absence of an available
damage remedy. He also asserts the FAC states, or could be amended to state, an
equitable claim under Holt and Minsky.9 We will examine each of these contentions in
turn.
I.      Standard of Review and the State of the Record
        We begin by restating the familiar principles governing our review of the trial
court’s ruling on a demurrer. “In performing our review, we are mindful that ‘[i]t is not
the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the
accuracy with which he describes the defendant’s conduct. A demurrer tests only the
legal sufficiency of the pleading.’ [Citation.] In considering the merits of a demurrer,
‘the facts alleged in the pleading are deemed to be true, however improbable they may
be. [Citation.]’ [Citation.] Thus, when reviewing the propriety of a judgment sustaining
a demurrer, the question of the plaintiffs’ or petitioners’ ‘ability to prove . . . allegations,


9
  The Department argues Reiter has forfeited a number of his arguments because he failed
to raise them in the trial court. While we agree it would certainly have been better
practice for Reiter to articulate these arguments in the superior court, “following the
sustaining of a demurrer without leave to amend, the plaintiff may advance on appeal
new legal theories explaining why the allegations of the complaint state a cause of
action.” (Lake Alamor Associates L.P. v. Huffman-Broadway Group, Inc. (2009) 178
Cal.App.4th 1194, 1205, fn. 8.)

                                                9
or the possible difficulty in making such proof does not concern the reviewing court[.]’
[Citation.]
       “In reviewing the superior court’s order sustaining the demurrer, ‘we examine the
complaint de novo to determine whether it alleges facts sufficient to state a cause of
action under any legal theory[.]’ [Citation.] While our focus is on the pleadings,
‘[r]elevant matters that are properly the subject of judicial notice may be treated as
having been pled.’ [Citation.] Even if the trial court has not ruled on a party’s request
for judicial notice, we may ourselves take judicial notice of appropriate matters.
[Citation.]” (Requa, supra, 213 Cal.App.4th at pp. 222-223, fn. omitted.)
       Although a demurrer admits all the properly pleaded factual allegations of the
complaint, it does not admit allegations that are mere conclusions of law. (Faulkner v.
Cal. Toll Bridge Authority, supra, 40 Cal.2d at p. 329.) Thus, a demurrer does not admit
purely argumentative allegations about the legal construction and operation of statutory
provisions or about the legal propriety of the defendant’s conduct. (See Sklar v.
Franchise Tax Board (1986) 185 Cal.App.3d 616, 621.)
       Reiter elected to proceed on appeal without a reporter’s transcript of the
January 30, 2013 hearing on the Department’s demurrer. His election prevents us from
determining what, if any, documents—beyond the pleading itself and the moving
papers—the trial court considered in ruling on the demurrer. Thus, we do not know
whether the trial court considered the documents attached to the Department’s request for
judicial notice.10 (See Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 711 [reviewing court
could not determine whether trial court considered exhibits to demurrer where plaintiff
failed to furnish reporter’s transcript of hearing on demurrer].) We also do not know


10
  In this court, the parties have not requested that we take judicial notice of these
materials, and we decline to do so on our own motion. We also deny Reiter’s July 12,
2013 request for judicial notice of the preliminary hearing transcript in his criminal case.
Reiter did not seek judicial notice of that document below, and his request for judicial
notice in this court plainly asks us to take notice of the facts contained in the transcript,
rather than notice of the document itself. Such facts are not a proper subject of judicial
notice. (E.g., Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7.)

                                             10
whether the court offered Reiter the opportunity to amend his complaint at the hearing,
and if so, whether Reiter declined that offer and chose to stand on his complaint.11
       Even when the issue on appeal is whether a demurrer was properly sustained, a
plaintiff must furnish the appellate court with an adequate record. (See Bains v. Moores
(2009) 172 Cal.App.4th 445, 478.) In the absence of the reporter’s transcript, “the trial
court is presumed to have entered a proper order.” (Fenton v. Groveland Community
Services Dist. (1982) 135 Cal.App.3d 797, 809 (Fenton) [appellate court must accord
presumption of correctness to trial court ruling on demurrer where hearing was not
recorded], disapproved on another point in Katzberg v. Regents of University of
California (2002) 29 Cal.4th 300, 328, fn. 30 (Katzberg).) We could thus affirm the
judgment based solely on Reiter’s failure to provide an adequate record. (Rossiter v.
Benoit, supra, 88 Cal.App.3d at p. 712.) Rather than base our decision on this procedural
ground, however, we will resolve this case on the record before us. (See Fenton, supra,
135 Cal.App.3d at p. 809.)
II.    California Law Bars Reiter’s Claim for Declaratory and Injunctive Relief Based
       on Violation of his Right to Be Free from Unreasonable Search and Seizure.
       Reiter first argues the FAC states a valid claim for declaratory and injunctive relief
based on the violation of his right to be free from unreasonable search and seizure.
Reiter’s fundamental claim appears to be that law enforcement officials must make a
reasonable inquiry regarding the possible legality of marijuana before applying for a
search warrant, and “where, as here, officer[s] executing a search warrant for marijuana
find evidence suggesting the legality of marijuana under the CUA and MMP, they . . .
have . . . the constitutional obligation, to act reasonably by delaying execution of the
warrant, refraining from uprooting live marijuana plants, and reporting back to the
magistrate to obtain a judicial reassessment of probable cause.”

11
  This is not a purely academic concern, for it affects our standard of review. If Reiter
elected not to amend his complaint, we must construe it strictly rather than liberally and
presume he has stated as strong a case as he can. (San Francisco Unified School Dist. ex
rel. Contreras v. Laidlaw Transit, Inc. (2010) 182 Cal.App.4th 438, 445 (Laidlaw
Transit).)

                                             11
       Reiter did not present this claim in the trial court, and in this court, he argues only
that the FAC presently states a claim for violation of his right to be free from
unreasonable searches and seizures. He does not argue his complaint can be amended to
make out such a claim. Since it appears Reiter has elected to stand on the existing
allegations of his complaint, we construe it strictly and assume the FAC states his case as
strongly as possible. (See Laidlaw Transit, supra, 182 Cal.App.4th at p. 445.) As we
explain, we conclude the claim is foreclosed by established case law.
       First, to the extent Reiter argues law enforcement officials must take into account
a person’s possible status as a qualified patient under the CUA and MMP in establishing
probable cause, the California Supreme Court has already held the probable cause
determination “depends on all of the surrounding facts [citation], including those that
reveal a person’s status as a qualified patient or primary caregiver[.]” (People v. Mower
(2002) 28 Cal.4th 457, 469 (Mower).) Thus, such a requirement is already part of
California law. In Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, the court
reversed a declaratory judgment that merely restated a Court of Appeal’s holding on the
constitutionality of a statute, because the declaration was “an idle and superfluous act[.]”
(Id. at p. 747.) If a declaratory judgment restating the holding of a Court of Appeal is an
idle and superfluous act, a declaration that merely restates the holdings of the California
Supreme Court would be even more so.
       Second, although Reiter complains about California decisions that, he claims,
embrace the principle of “ ‘search and seize first, investigate legality later,” a similar
argument was raised and rejected in Mower, supra, 28 Cal.4th 457. There, the defendant
asserted that a provision of the CUA “imposes an obligation on law enforcement officers
to ‘investigate first, arrest later’: Such officers ‘must determine if a person is cultivating
or possesses marijuana,’ ‘if that person represents that he/she is’ a qualified patient or
primary caregiver, and ‘how much [marijuana] can be grown or possessed in relation to
the actual medical needs of’ the person.” (Id. at p. 468.) The Supreme Court disagreed,
holding that the CUA “does not grant any immunity from arrest, and certainly no
immunity that would require reversal of a conviction because of any alleged failure on


                                              12
the part of law enforcement officers to conduct an adequate investigation prior to arrest.”
(Id. at p. 469; accord, People v. Kelly (2010) 47 Cal.4th 1008, 1013 [“So long as the
authorities have probable cause to believe that possession or cultivation has occurred, law
enforcement officers may arrest a person for either crime regardless of the arrestee’s
having a physician’s recommendation or approval.”] ) Instead, the legality of marijuana
possession or cultivation is properly raised by way of a motion to set aside the indictment
or information under Penal Code section 995. (Mower, supra, 28 Cal.4th at pp. 470-473.)
       The same holds true for the issue of probable cause to search. This appellate
district has held police officers need not stop an otherwise valid search merely because
they are presented with a medical marijuana card or physician recommendation. (People
v. Strasburg (2007) 148 Cal.App.4th 1052, 1059-1060.) In People v. Fisher (2002) 96
Cal.App.4th 1147 (Fisher), when officers holding a valid search warrant arrived at the
defendant’s residence, the latter presented a certificate purporting to allow him to possess
marijuana for medicinal purposes. (Id. at p. 1149.) The defendant claimed that after
presentation of the certificate, the officers should have stopped the search, secured the
premises, investigated his claim of lawful possession, and returned to the issuing
magistrate for further instructions. (Id. at pp. 1150-1151.) The court rejected this
argument, holding that the CUA created only an affirmative defense to prosecution which
could be raised either by motion or at trial. (Id. at pp. 1151-1152.) The facts of Reiter’s
case are even less compelling than those in Fisher, because the FAC does not allege the
officers had prior knowledge of Reiter’s or the other cultivators’ possession of medical
marijuana cards; it alleges only that four separate cards were found during the search. In
short, under established California law, probable cause to search and seize possible
contraband does not simply evaporate when police officers find medical marijuana
recommendations. (See Littlefield v. County of Humboldt (2013) 218 Cal.App.4th 243,
252-253 [reasonable suspicion for warrantless search not vitiated when police found
marijuana recommendations, because CUA limits quantity of marijuana lawfully
possessed to amount reasonably related to patient’s medical needs]; People v.
Hochanadel (2009) 176 Cal.App.4th 997, 1018 [even if facts discovered after warrant


                                             13
issued showed lack of probable cause, executing officers had reasonable grounds to
believe they had probable cause at time warrant was issued].)
       We are bound by the holdings of the California Supreme Court on these issues
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and although we
are not bound by the views of our colleagues on the Courts of Appeal, we see no reason
to depart from them. The California Supreme Court has already given Reiter a
significant part of the relief he seeks: under its precedents, probable cause determinations
must include consideration of a person’s status under the CUA and MMP. (Mower,
supra, 28 Cal.4th at p. 468.) Our Supreme Court has been equally clear, however, that
the CUA and MMP provide only an affirmative defense to prosecution on charges of
illegal cultivation or possession of marijuana. (People v. Kelly, supra, 47 Cal.4th at
p. 1013.) Reiter’s argument that law enforcement officers must conduct a more extensive
investigation prior to obtaining a warrant is barred by existing precedent. (See ibid.;
Mower, supra, 28 Cal.4th at p. 269; Fisher, supra, 96 Cal.App.4th at pp. 1151-1152.)
We therefore conclude the FAC does not state a valid claim, either individually or as a
taxpayer, for declaratory or injunctive relief based on the right to be free from what
Reiter considers unreasonable search and seizure.
III.   Section 11479 Does Not Violate Due Process Merely Because Reiter Presumes
       Other Remedies Are Unavailable.
       Reiter next argues the FAC states a valid claim for injunctive and declaratory
relief because the summary, post-seizure destruction of marijuana pursuant to section
11479 violates due process for want of notice and hearing. We disagree.
       In both the trial court and in this court, Reiter has made clear the premise of this
argument is the claimed lack of any damage remedy for the destruction of marijuana. As
he explains in his opening brief, “The summary seizure and destruction of marijuana
pursuant to a search warrant and section 11479 violates the due process because there is
currently no available recompense in the event the destruction ultimately proves




                                             14
wrongful.”12 Thus, Reiter’s attack on the constitutionality of section 11479 is expressly
predicated on an untested legal conclusion—that neither he nor other qualified patients
may ever recover damages for the destruction of their marijuana if it is later established
their cultivation or possession was lawful.
       The FAC candidly admits there were other proceedings that might have provided
redress to Reiter, but he never sought to have a court determine whether damages would
be available through those proceedings. Reiter chose not to seek return of his property
under the authority of Garden Grove, supra, 157 Cal.App.4th 355, and he does not argue
he followed any other statutory procedure for its return, although both the FAC and his
opening brief concede they were available. (See, e.g., § 11488.4, subd. (h) [criminal
defendant may move for return of property on grounds there was no probable cause to
believe it was forfeitable]; § 11492, subd. (c) [court may order bond or undertaking to
preserve property interests of interested parties]; Pen. Code, § 1540 [restoration of
property wrongfully taken pursuant to search warrant]; Coy v. City of Los Angeles (1991)
235 Cal.App.3d 1077, 1088-1089 [discussing statutes providing for return of property
seized pursuant to search warrant].)13 He did not do so because, he alleged, the
destruction of the marijuana rendered such a motion moot.
       Although Reiter did file an administrative damage claim under Government Code
section 910, he chose not to pursue a timely legal action after the county denied his claim.


12
   In the trial court, Reiter noted the Department had actually acknowledged the right of
qualified patients to seek damages from the county if it were established they had been
lawfully cultivating marijuana. Reiter claimed, however, that the Department did not
really believe damages were available and was merely so stating “because the claim is
expedient and appears an easy-out.” Although we must accept the truth of the well-
pleaded factual allegations of the FAC, we need not accept Reiter’s unsupported and
argumentative claims about what the Department allegedly believes. (See Sklar v.
Franchise Tax Board, supra, 185 Cal.App.3d at p. 621.)
13
   In fact, Reiter’s opening brief states such motions “may be filed immediately after
seizure of property and can be promptly heard by the trial court[.]” Reiter became aware
his marijuana had been seized the same day the Department’s officers executed the
warrant. Reiter was represented by counsel at that time, and the officers spoke with
counsel “immediately after the marijuana was seized[.]”

                                              15
He asserts he did not pursue the latter action based upon his belief that governmental
immunity would apply to the Department’s actions. Despite his admitted failure to
pursue these possible remedies, Reiter now asks us to permit him to litigate the
constitutionality of section 11479 based on his unproven view that neither recovery of his
property nor compensation in damages would have been available in other proceedings.
We decline to do so.
       First, we need not credit Reiter’s allegations about either the mootness of a motion
for return of property or the unavailability of damages under the Government Claims Act
because those are merely conclusions of law and are not deemed admitted on demurrer.
(Faulkner v. Cal. Toll Bridge Authority, supra, 40 Cal.2d at p. 329; see McAllister v.
County of Monterey (2007) 147 Cal.App.4th 253, 289-292 [where plaintiff’s claim that
county’s action was void ab initio was premised on allegations that were conclusions of
law, court did not have to accept truth of those allegations].) Such allegations likewise
cannot state claims in Reiter’s capacity as a taxpayer, since “ ‘[g]eneral allegations,
innuendo, and legal conclusions are not sufficient’ ” to satisfy the requirements of Code
of Civil Procedure section 526a. (Connerly v. Schwarzenegger, supra, 146 Cal.App.4th
at p. 749.)
       Second, to accept Reiter’s premise that no damages are available to qualified
patients in his circumstances, we would have to engage in speculation about the outcome
of lawsuits and motions Reiter chose not to file. For example, we would have to be
willing to speculate that if Reiter had filed an action for damages after denial of his
government claim, the county would have asserted a defense of governmental immunity.
We would further have to predict the defense would have been successful, and this would
then have resulted in a denial of his claim for damages.14 We think neither this court nor

14
  The Department argues there may be instances in which qualified immunity will not
apply even if the marijuana is seized pursuant to a search warrant and then destroyed by
order of the court. The Department hypothesizes that if, as Reiter claims in his brief, its
officers deliberately made false statements in the section 11479 declaration,
governmental immunity might not be available under those facts. (See O’Toole v.
Superior Court (2006) 140 Cal.App.4th 488, 507, fn. 10 [no immunity would attach

                                             16
the trial court can hold a statute unconstitutional based on nothing more than a party’s
forecast of the outcome of litigation that did not occur. As the Department correctly
argues, Reiter’s decision not to seek redress through other avenues does not create a due
process violation. A potential remedy does not become inadequate merely because it has
been lost due to a party’s failure to avail himself of it. (See Wilkison v. Wiederkehr
(2002) 101 Cal.App.4th 822, 835; cf. Carmel Valley Fire Protection Dist. v. State of
California (1987) 190 Cal.App.3d 521, 534 [State waived right to contest agency
findings where it failed to seek judicial review as authorized by statute].)
       Third, where a party has been wrongfully deprived of seized property, a post-
deprivation remedy in damages suffices to satisfy due process requirements. For
example, in Sandrini Brothers v. Voss (1992) 7 Cal.App.4th 1398, a farming partnership
claimed the Department of Food and Agriculture had wrongfully seized grapes that had
been treated with an “ ‘economic poison.’ ” (Id. at p. 1400.) The partnership filed an
action for administrative mandamus seeking a ruling the seizure was wrongful and
requesting damages. (Ibid.) The trial court held the statute under which the seizure had
been conducted unconstitutional because it did not expressly provide for compensation in
the event property was wrongfully seized. (Ibid.) The Court of Appeal reversed, holding
that an action for damages under Government Code sections 815.2 and 911.2 provided
for compensation, and this remedy was sufficient to satisfy the demands of procedural
due process. (Sandrini Brothers v. Voss, supra, 7 Cal.App.4th at pp. 1405-1406; see also
Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465, 1475-1476 [homeless man
whose belongings had been disposed of by city workers had no cause of action for
damages based on a due process violation, because he could have sought damages for
conversion], disapproved on another point in Katzberg, supra, 29 Cal.4th at pp. 320-321.)
       Indeed, at least one court has held that an aggrieved party in Reiter’s
circumstances may seek damages for the destruction of marijuana. In County of Butte v.


under Gov. Code, § 820.6 where officer enforces policy in particularly arbitrary or
egregious manner].) We agree with the Department to the extent that it cannot be said as
a matter of law that governmental immunity will necessarily apply in every case.

                                             17
Superior Court (2009) 175 Cal.App.4th 729 (County of Butte), the court held that a
qualified medical marijuana patient, who destroyed marijuana plants he was cultivating
under orders of a sheriff’s deputy, was not prohibited from seeking damages for the
unlawful destruction of the marijuana.15 (Id. at pp. 733, 735, 738-739.) The plaintiff in
that case alleged causes of action including violation of the Tom Bain Civil Rights Act
(Civ. Code, § 52.1) and conversion, which, if successful, might result in an award of
damages. (County of Butte, supra, 175 Cal.App.4th at p. 733; see Civ. Code, § 52.1,
subd. (b) [individual whose constitutional rights have been interfered with may file civil
action for damages].) The court permitted the plaintiff’s action to go forward so the
plaintiff could “seek[] an adjudication as to whether the deputy had probable cause to
order [the plaintiff] to destroy his property, or whether a lack of probable cause led to a
violation of his constitutional rights.” (Id. at p. 738.)
       Finally, Reiter expressly concedes his due process rights are not violated if a
damages remedy is available. He agrees there is no due process violation if recompense
is available under an equitable theory.16 We will therefore turn to that question.
IV.    The FAC Can Be Amended to State a Claim Under Holt and Minsky.
       This brings us to Reiter’s final argument, which is that the complaint states, or
could be amended to state, a claim under Holt, supra, 20 Cal.3d 560 and Minsky, supra,
11 Cal.3d 113. Unlike other arguments Reiter makes on appeal, he specifically raised
this one in the trial court.
       Minsky held that “the government in effect occupies the position of a bailee when
it seizes from an arrestee property that is not shown to be contraband.” (Minsky, supra,

15
   Reiter claims County of Butte is distinguishable because it involved a warrantless
seizure, and although he describes the case as “authorizing monetary damages for
wrongful destruction of marijuana,” he does not argue the FAC states or could be
amended to state a cause of action under that case. Reiter rejects the application of
County of Butte to the facts of this case based on his legal assumption that governmental
immunity will always apply to prevent a damage claim.
16
   In response to the court’s questions at oral argument, Reiter’s counsel confirmed that
the existence of a damages remedy would remove at least one premise on which his
claimed constitutional violation is based.

                                               18
11 Cal.3d at p. 121.) The court explained that the arrestee retained the right to recover
the specific property taken, and since such claims are not claims for money or damages,
they are not subject to the requirements of the Government Claims Act. (Id. at pp. 121-
122.) In Holt, our Supreme Court clarified that a claim may be made under Minsky “even
though some or all of the property may have been dissipated and [the governmental]
respondent may be compelled to respond in damages in lieu of property.” (Holt, supra,
20 Cal.3d at p. 565, fn. omitted.) Thus, a claim under these cases is available in
“situations in which the defendant [has] a duty to return seized property, enforceable by
way of mandamus.” (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 743.)
       In this case, the FAC contains the rudiments of a Minsky claim. Reiter alleges he
has a lawful right under the CUA and MMP to cultivate or possess marijuana. He alleges
his property was seized and later destroyed by the Department. He also alleges the
criminal charges against him were ultimately dismissed in full. Even if those allegations
are not themselves sufficient to state a Minsky claim, we conclude they can be amended
to do so. Reiter’s response to the Department’s demurrer states, “Reiter would allege . . .
that he is entitled to the return of all or at least a portion of the marijuana which was
seized, as he was at the time of seizure and is now a qualified medical marijuana patient,
and at the time of the seizure he was cultivating the marijuana lawfully for medicinal
purposes. The government having destroyed the marijuana, Reiter would thereupon pray
for payment in damages in lieu of return of the property, pursuant to Holt and Minsky.”
(Fn. omitted.) Assuming Reiter were to amend his complaint in the manner he outlined
above, we conclude it would suffice to state a Minsky claim. (See Escamilla v.
Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 511-512
[Minsky claim may be stated even if pleading does not expressly seek recovery of specific
property].)




                                              19
       We therefore hold the trial court erred in sustaining the Department’s demurrer
without leave to amend, because it appears the FAC can be amended to state a claim
under Minsky. We will remand to permit Reiter the opportunity to do so.17




17
   We obviously offer no opinion on the factual merit of Reiter’s Minsky claim. Thus, we
express no view on the validity of the Department’s argument that Reiter would not be
entitled to return of his property because he pleaded guilty to misdemeanor possession of
marijuana and therefore did not possess it legally. (See Minsky, supra, 11 Cal.3d at
p. 117, fn. 3 [noting claim could fail “on the ground that the [property] was
contraband”].) The record before us does not contain enough information to evaluate that
argument. In addition, we express no opinion on other possible barriers to recovery, such
as whether the claim is timely under any applicable statute of limitations or the extent to
which issues decided in Reiter’s criminal case may preclude relitigation of issues in this
case. (See id. at p. 119, fn. 6 [statute of limitations]; McGowan v. City of San Diego
(1989) 208 Cal.App.3d 890, 895 [collateral estoppel may apply in civil case based on
ruling on motion to suppress in criminal case].) The parties will have the opportunity to
litigate these and other issues on remand.

                                            20
                                      DISPOSITION
       The judgment is reversed and the matter is remanded to permit Reiter the
opportunity to amend his complaint to state a claim under Minsky, supra, 11 Cal.3d 113.




                                                      _________________________
                                                      Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Bruiniers, J.




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