(Super. Ct. No. SCCVPO 10-01577)
The opinion of the court was delivered by: Blease , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Judy Curtis sued Benjamin A. Grossman, a detective in the Siskiyou County Sheriff's Office, alleging he violated her civil rights (42 U.S.C. § 1983; hereafter section 1983) in 2008 when he seized marijuana from her property for which she had a valid physician recommendation. Grossman's demurrer to the complaint on the ground Curtis's claims are barred by the statute of limitations was sustained without leave to amend.
Curtis brings this judgment roll appeal from the subsequent judgment. She argues her action is timely because it did not accrue until 2010, when she learned (in the criminal proceedings against her husband arising from the same seizure complained of in this action) that Grossman committed fraud in obtaining the search warrant by which her marijuana was seized and, alternatively, because the statute of limitations was tolled during the pendency of the criminal proceedings. We find no error and shall affirm the judgment.
Because this is an appeal following a successful demurrer, we accept as true all facts properly pleaded in plaintiff's complaint, and also incorporate any facts of which we may take judicial notice. (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 200.)
On May 29, 2008, Grossman -- a trained and experienced member of Siskiyou County's marijuana eradication team -- "seized and eradicated" marijuana for which Grossman was aware Curtis had a valid physician's recommendation following a warrantless search of Curtis's property.
On June 10, 2008, Grossman returned to Curtis's property with a search warrant, and again seized Curtis's medical marijuana and other property.
Following the June 10 seizure of marijuana on Curtis's property, a criminal complaint was filed in Siskiyou County against Curtis's husband (People v. Curtis, Dale Alan (Super. Ct. Siskiyou County, 2010, No. MCYKCRBF08-1109); hereafter criminal case). Curtis herself was not a party to any criminal proceedings; nor was she a party to the Penal Code section 1538.5 motion to quash that was filed in the criminal case. The trial court in the criminal case determined that the June 10, 2008, seizure was illegal because Grossman committed fraud in obtaining the search warrant used in that event. Proceedings in the criminal case were dismissed August 4, 2010.
Curtis initiated this action on November 23, 2010. She alleged Grossman violated her federal civil rights (§ 1983) by the warrantless seizure on May 29, 2008, of what he knew to be marijuana that Curtis was authorized to possess by virtue of the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5 et seq.; hereafter Compassionate Use Act). She also alleged the affidavit submitted by Grossman in support of the search warrant used in the June 10, 2008, seizure of Curtis's medical marijuana and other property constituted "an intentional misrepresentation, deceit, and concealment of material facts known to [Grossman]" which, when discovered by the trial court in the criminal case, resulted in a ruling in that case traversing the warrant.
Grossman demurred to the original complaint on the grounds Curtis's complaint failed to allege facts sufficient to state a cause of action and, alternatively, that it is barred by the two-year statute of limitations applicable to section 1983 actions because it was brought more than two years after June 10, 2008, when the last seizure occurred. The trial court agreed that the complaint failed to state a cause of action, and sustained the demurrer with leave to amend.
Curtis filed an amended complaint, in which she made the same allegations of wrongdoing against Grossman, but also alleged that the statute of limitations was tolled until August 4, 2010, by virtue of the pending criminal case, and the ultimate determination by the ...