Filed 1/24/22 Shangri La Care Center v. County of Ventura CA2/6

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SHANGRI LA CARE CENTER, 

INC.,

 Plaintiff and Appellant,

v.

COUNTY OF VENTURA,

 Defendant and Respondent.

2d Civ. No. B309790

(Super. Ct. No. 56-2020-

00543549-CU-WM-VTA)

(Ventura County)

Appellant Shangri La Care Center, Inc., sought damages 

for the destruction and decomposition of cannabis, commonly 

known as marijuana, seized by Ventura County (County) 

pursuant to search warrants.1 The judgment was entered after 

the trial court had sustained County’s demurrer without leave to 

amend. 

We reject County’s contention that appellant’s present 

action is barred by the doctrine of res judicata. The doctrine is 

1 We use “cannabis” and “marijuana” interchangeably. 
2

inapplicable because a judgment was not entered in the prior 

action that is the basis for County’s res judicata claim. On the 

other hand, we agree with County that appellant filed its present 

action after the expiration of the three-year statute of limitations 

and that the running of the statute was not tolled. We reject 

appellant’s argument that County is judicially estopped from 

arguing that the action is barred by the statute of limitations. 

Accordingly, we affirm.

Procedural Background

2016 Petition

On October 7, 2016, appellant filed a petition for a writ of 

mandamus (2016 petition). The 2016 petition was amended three 

times. The third amended petition, dated September 5, 2017, 

sought a writ of mandamus directing County to return 

appellant’s cannabis plants and products that had not been 

“wasted, damaged or destroyed.” County seized the cannabis 

pursuant to search warrants executed during four raids of 

appellant’s premises in 2015 and 2016. “For property taken that 

has been wasted, damaged or destroyed,” appellant sought to 

recover “the reasonable value of such property.” Appellant 

estimated that the value of all of its property taken by County 

was “in excess of at least fifteen million dollars.” 

In the third amended petition, appellant alleged that it “is 

a Collective . . . consisting of medical cannabis patients and 

patient caregivers.” It has “operated in conformance with state 

medical marijuana laws.” Therefore, the seized cannabis “was 

legally in [its] possession . . . [and] was not contraband.” “To 

date, [appellant] has not been charged with any crime.” 

(Underlining omitted.) “[A]ll 44 felony charges” filed against 

Jeffrey Kroll, appellant’s “head of operations,” were dismissed, 
3

and “no criminal charges are pending against [him].” 

(Capitalization and underlining omitted.) In its reply brief in the 

present appeal, appellant states that “criminal charges were 

dismissed against Kroll on June 21, 2017.” 

County demurred to the third amended petition. It noted 

that appellant had failed to file a motion in the criminal court for 

the return of the seized property pursuant to Penal Code section 

1536 (section 1536), which provides, “All property or things taken 

on a warrant must be retained by the officer in his custody, 

subject to the order of the court to which he is required to return 

the proceedings before him, or of any other court in which the 

offense in respect to which the property or things taken is 

triable.” County argued: “[N]o petition . . . seek[ing] the return 

of seized property can be appropriately filed until after . . . a 

formal [section 1536] request and denial for the return of 

property is made to the criminal court. Here, this statutory 

prerequisite has not been attempted, let alone satisfied.” County 

also argued that, because the seized marijuana is contraband, 

appellant “is not entitled to [its] return . . . or its replacement 

value.” County observed that although no charges were 

“currently pending against [Kroll, appellant’s] president and 

head of operations,” the applicable three-year criminal statute of 

limitations had not yet expired. (Pen. Code, § 801.) Thus, the 

seized property could be used as “evidence in a criminal 

proceeding at some point.” 

On December 21, 2017, the trial court sustained County’s 

demurrer to the third amended petition without leave to amend. 

The court did not state its reasons for the ruling. The court did 

not dismiss the action. 
4

Return of Seized Property

On April 23, 2019, 16 months after the sustaining of the 

demurrer to the third amended petition, appellant and Kroll 

moved in the criminal court for the return of property pursuant 

to section 1536. The property had been seized by County from 

appellant’s premises on the following dates: September 10, 2015, 

October 6, 2015, December 9, 2015, and April 14, 2016. 

Appellant and Kroll alleged that they had “waited until the 

three-year statutory time for County to re-file charges against 

Kroll [had] passed, in order to bring this motion as there can no 

longer be any claim that the property sought to be returned 

herein is evidence in any criminal proceeding.”2 The criminal 

court ordered that the property be released to Kroll. The stillexisting property was returned in August 2019. Marijuana 

plants cut from the ground during the September 2015 raid were 

not returned because “the plants were destroyed at the time” they 

were seized. 

Motion for Leave to File Fourth 

Amended Petition in 2016 Action 

In a document dated December 16, 2019, appellant moved 

for leave to file a fourth amended petition in the 2016 action. The 

proposed petition sought “monetary damages for all . . . property 

that was destroyed, damaged or lost, and therefore not returned 

to [appellant] . . . .” 

The trial court denied the motion. Its ruling is set forth in 

an unsigned minute order that stated: “In essence, [appellant] 

seeks reconsideration of the Court’s December 21, 2017, order 

sustaining the demurrer to the Third-Amended Petition without 

2 In its reply brief appellant states that “the criminal 

statute of limitations against Kroll expired on April 14, 2019.” 
5

leave to amend and the resulting judgment of dismissal. [But no 

judgment of dismissal was entered.] The Court does not have 

jurisdiction to reconsider that ruling or act any further in this 

matter.” “This action remains disposed of by the judgment of 

dismissal entered on December 21, 2017.” 

Petition for Writ of Mandate in this Court

Appellant petitioned this court for a writ of mandate 

directing the trial court to vacate its order denying appellant’s 

motion for leave to file a fourth amended petition. In its opening 

brief in the present case, appellant asserts that it “sought relief 

in the appellate court via the Petition for Writ of Manda[te], 

instead of an appeal,” because “there was no final judgment in 

the [2016] action.” In April 2020 we summarily denied the 

petition. 

Present 2020 Petition 

On July 23, 2020, more than three years after criminal 

charges had been dismissed against Kroll, appellant filed a new 

petition for a writ of mandamus (2020 petition). This is the 

petition at issue in this appeal. The 2020 petition alleged: 

“[Appellant] was never charged with any criminal offense.” “All 

criminal charges brought against [its] members and associates 

were ultimately dismissed . . . . [Appellant] . . . seeks to recover 

the monetary value for its lawful property that was destroyed, 

and property that was damaged . . . while in the possession of 

[County] . . . .”3 The petition continued: During county’s raid of 

3 In its prayer for relief, appellant requested that County 

“[p]ay the reasonable value of such property that [County] 

destroyed, lost, wasted or damaged, or converted . . . .” Appellant

should have filed a complaint for damages, not a petition for a 

writ of mandamus. “Mandamus is not an action for damages
6

appellant’s premises in September 2015, County “seized and 

summarily destroyed . . . approximately 880 high-grade, highyield medical marijuana plants.” The marijuana seized on other 

occasions “was all badly decompensated and full of bugs” when it 

was returned to appellant. “[Appellant] determined that all 

inventories of packaged and stored cannabis products seized from 

[appellant’s] offices in the subject Raids, although returned, was 

in such damaged and degraded condition that all value was lost.” 

County’s Demurrer to 2020 Petition 

County demurred to the 2020 petition. It maintained that 

the petition is barred by the doctrine of res judicata, the statute 

of limitations, and the doctrine of laches. County also claimed 

that it had lawfully destroyed the 880 marijuana plants and “had 

no duty to preserve and return the [other] seized marijuana.” 

The court’s ruling on the demurrer states: “The Court 

Sustains, without leave to amend, [County’s] demurrer [to the 

2020 petition] on grounds the matter is barred by the doctrine of 

res judicata. [Citation.] [Appellant] raised the same facts and 

claims alleged here in a prior action [the 2016 petition], which 

the court dismissed without leave to amend after [appellant] 

failed to state a claim, despite having the opportunity to amend 

because it is an equitable, not a legal remedy.” (California Assn. 

for Health Services at Home v. State Dept. of Health Services

(2007) 148 Cal.App.4th 696, 705.) This is not a case where 

“mandamus will lie [because] the recovery of money is merely 

ancillary to an underlying proceeding which seeks performance of 

a ministerial duty.” (Holt v. Kelly (1978) 20 Cal.3d 560, 565, fn. 

5.) The 2020 petition seeks only the recovery of damages. The 

seized property that still existed had already been returned to 

appellant.
7

the action three times. . . . [¶] The [2020] Petition is also barred 

by the applicable statute of limitations, since it was filed over 

three years after the incident at issue. [Citation.] The Petition is 

further barred by the doctrine of laches, as [appellant’s] 

unreasonable three-year delay before seeking the return of seized 

marijuana prejudiced [County], given that [it] could not possibly 

maintain the perishable product in pristine condition for that 

amount of time.” 

In October 2020 the court signed a document entitled 

“Judgment.” The court ordered “that judgment is entered in 

favor of [County] and against [appellant], and that [appellant] 

shall recover nothing from [County].”

Standard of Review

“A demurrer tests the legal sufficiency of factual allegations 

in a complaint. [Citation.] A trial court’s ruling sustaining a 

demurrer is erroneous if the facts alleged by the plaintiff state a 

cause of action under any possible legal theory. [Citations.]” (Lee 

Newman, M.D., Inc. v. Wells Fargo Bank (2001) 87 Cal.App.4th 

73, 78.) 

“[W]e apply the de novo standard of review in an appeal 

following the sustaining of a demurrer . . . .” (California 

Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 

247.) “[W]e assume the truth of all facts properly pleaded in the 

complaint and its exhibits or attachments, as well as those facts 

that may fairly be implied or inferred from the express 

allegations. [Citation.] ‘We do not, however, assume the truth of 

contentions, deductions, or conclusions of fact or law.’ [Citation.]” 

(Cobb v. O’Connell (2005) 134 Cal.App.4th 91, 95.) “We . . . 

consider matters that may be judicially noticed . . . .” (Brown v.
8

Deutsche Bank National Trust Co. (2016) 247 Cal.App.4th 275, 

279.)

When “a demurrer has been sustained without leave to 

amend, unless failure to grant leave to amend was an abuse of 

discretion, the appellate court must affirm the judgment if it is 

correct on any theory. [Citations.] If there is a reasonable 

possibility that the defect in a complaint can be cured by 

amendment, it is an abuse of discretion to sustain a demurrer 

without leave to amend. [Citation.] The burden is on the 

plaintiff . . . to demonstrate the manner in which the complaint 

might be amended.” (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)

Plaintiff’s Burden on Appeal

On appeal “[t]he plaintiff has the burden of showing that 

the facts pleaded are sufficient to establish every element of the 

cause of action and overcoming all of the legal grounds on which 

the trial court sustained the demurrer, and if the defendant 

negates any essential element, we will affirm the order 

sustaining the demurrer as to the cause of action. [Citation.]” 

(Martin v. Bridgeport Community Assoc., Inc. (2009) 173 

Cal.App.4th 1024, 1031.)

Res Judicata

County claims that the 2020 petition is barred by the 

doctrine of res judicata. Appellant argues that the doctrine is 

inapplicable because a judgment was not entered after the trial 

court had sustained the demurrer to the third amended petition 

without leave to amend. “The doctrine of res judicata has a 

double aspect. In a new action on the same cause of action, a 

prior judgment for the defendant is a complete bar. In a new 

action on a different cause of action, the former judgment is not a 

complete bar, but it is effective as a collateral estoppel, i.e., it is 
9

conclusive on issues actually litigated between the parties in the 

former action.” (Ford Motor Co. v. Superior Court (1971) 16 

Cal.App.3d 442, 447-448.) “‘The doctrine applies basically to all 

types of final judgments that are rendered on the merits of 

litigation. [Citation.] It may apply to a final judgment, i.e., a 

dismissal, even though entered after sustaining a demurrer, if 

the demurrer was sustained on substantive grounds.’ . . .

[Citation.]” (Service Employees International Union v. Hollywood 

Park, Inc. (1983) 149 Cal.App.3d 745, 755-756 (Hollywood Park).)

The doctrine of res judicata did not bar appellant from 

filing the 2020 petition because there was no final judgment in 

the 2016 action. “The res judicata doctrine only applies when 

there is a final judgment.” (Hollywood Park, supra, 149 

Cal.App.3d at p. 756; see also Zevnik v. Superior Court (2008) 159 

Cal.App.4th 76, 82-83 [“res judicata and collateral estoppel 

require . . . [that] the prior proceeding resulted in a final 

judgment on the merits”].)

The order sustaining the demurrer to the third amended 

petition without leave to amend did not constitute a judgment. 

“An order sustaining a demurrer is not a judgment, and does not 

have the effect of finally and irrevocably dismissing the 

demurring party from the action. ‘It may form the basis for 

rendering a judgment, but it is not itself a judgment’ [citation], is 

not appealable, and can be reviewed by an appellate court only on 

appeal from a final judgment subsequently given. Upon such an 

order being made without leave to amend, . . . the party whose 

demurrer has been sustained may become entitled to a judgment,

which may effectually bar further proceedings against him in the 

matter from which he has been dismissed. In the absence of such 

a judgment, however, the mere order constitutes no bar . . . .” (De 
10

La Beckwith v. Superior Court of Colusa County (1905) 146 Cal. 

496, 500.)

 Here, an unsigned minute order states, “The Court orders 

the entire action dismissed without prejudice. Formal order to be 

submitted by Mr. Eicher,” County’s counsel. The unsigned 

minute order does not constitute a judgment. (Hyundai Motor 

America v. Superior Court (2015) 235 Cal.App.4th 418, 426; see 

Code Civ. Proc., § 581d, italics added [“All dismissals ordered by 

the court shall be in the form of a written order signed by the 

court and filed in the action and those orders when so filed shall 

constitute judgments and be effective for all purposes”].)4 “An 

order that is not signed by the trial court does not qualify as a 

judgment of dismissal under [Code of Civil Procedure] section 

581d.” (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 

1578.)

The trial court signed a separate order, but it also does not 

constitute a judgment. The separate order states, “[County’s] 

Demurrer to [Appellant’s] Third Amended Petition for Writ of 

4 In its brief County gives a truncated, misleading version 

of Code of Civil Procedure section 581d that omits the 

requirement that the order be signed by the court. The truncated 

version, which appears in footnote 2 at page 15 of the brief, is as 

follows: “‘All dismissals ordered by the court . . . shall constitute 

judgments and be effective for all purposes.’” The same 

truncated version appears in footnote 2 at page 6 of County’s 

demurrer to the 2020 petition. County’s deliberate omission of 

the crucial “signed by the court” language is inexcusable. (See

Biancalana v. Fleming (1996) 45 Cal.App.4th 698, 701, fn. 2 

[“Plaintiff misleads this court” by his quotation from a statute 

that “contains ellipsis points instead of” crucial statutory 

language. “Misquotation ‘is inexcusable upon the part of any 

lawyer, and places additional burdens upon this court’”].)
11

Mandamus is sustained without leave to amend.” The order does 

not say that the petition is dismissed or that judgment is entered 

in County’s favor. Thus, there is no final judgment as to County’s 

demurrer to the third amended petition in the 2016 action. There 

is merely an order sustaining the demurrer without leave to 

amend. Consequently, the doctrine of res judicata is inapplicable. 

(Hollywood Park, supra, 149 Cal.App.3d at p. 756.)

 County argues that our decision on this issue conflicts with 

our prior summary denial of appellant’s petition for writ of 

mandate. The petition was filed after the trial court’s denial of 

appellant’s motion for leave to file a fourth amended petition in 

the 2016 action. County notes that in the petition for writ of 

mandate appellant “made the same argument it now raises, 

that . . . ‘[t]he entry of the [unsigned] minute order did not 

constitute a judgment, pursuant to Section 581d.’” County claims 

that, “by presenting the exact same argument in its Opening 

Brief, [appellant] seeks to have this Court overrule . . . [its] own 

prior ruling.” “[T]he Court of Appeal . . . made it clear that a 

final judgment was entered in [appellant’s] prior action.” 

County misunderstands the significance of our summary 

denial of the petition. “When the court denies a writ petition 

without issuing an alternative writ, it does not take jurisdiction 

over the case; it does not give the legal issue full plenary review. 

A summary denial does not decide a ‘cause’ [citations], and 

should therefore not be given law of the case effect.” (Kowis v. 

Howard (1992) 3 Cal.4th 888, 897; see also Funeral Directors 

Assn. of Los Angeles and Southern California v. Board of Funeral 

Directors and Embalmers of California (1943) 22 Cal.2d 104, 110 

[“The denial shown by our minute order . . . of petitioner’s 
12

application for a writ of mandate must be construed to constitute 

simply a refusal by this court to exercise its original 

jurisdiction. . . . The minute order . . . was not intended to be and 

is not an adjudication upon the merits of the facts presented in 

the application”].)

Statute of Limitations

The trial court ruled that the 2020 petition is “barred by 

the applicable statute of limitations, since it was filed over three 

years after the incident at issue,” i.e., the seizures of appellant’s 

property in 2015-2016 pursuant to search warrants. The 

applicable statute of limitations is set forth in Code of Civil 

Procedure section 338, subdivision (c)(1), which provides, “An 

action for taking, detaining, or injuring goods or chattels” must 

be commenced “[w]ithin three years.” 

Appellant contends: “[T]he three-year statute of 

limitations did not commence until August 7, 2019, when the 

County complied with the Order from the criminal court to return 

the seized property . . . . At that point, [appellant] discovered 

that some property was missing, damaged, or destroyed and its 

claim for restitution ripened. The current Petition seeking the 

restitution for the reasonable value of missing or damaged 

property was filed on July 23, 20[2]0. [Appellant therefore] filed 

within the three-year limitations period.” 

“The statute of limitations usually commences when a 

cause of action ‘accrues,’ and it is generally said that ‘an 

action accrues on the date of injury.’ [Citation.] Alternatively, it 

is often stated that the statute commences ‘upon the occurrence 

of the last element essential to the cause of action.’ [Citations.]” 

(Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 

931.) “An important exception to the general rule of accrual is 
13

the ‘discovery rule,’ which postpones accrual of a cause of action 

until the plaintiff discovers, or has reason to discover, the cause 

of action. [Citations.] [¶] A plaintiff has reason to discover a 

cause of action when he or she ‘has reason at least to suspect a 

factual basis for its elements.’ [Citations.] Under the discovery 

rule, suspicion of one or more of the elements of a cause of action, 

coupled with knowledge of any remaining elements, will 

generally trigger the statute of limitations period.” (Fox v.

Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807.)

“[A]lthough a right to recover nominal damages will not 

trigger the running of the period of limitation, the infliction of 

appreciable and actual harm, however uncertain in amount, will 

commence the statutory period. . . . [N]either uncertainty as to 

the amount of damages nor difficulty in proving damages tolls 

the period of limitations.” (Davies v. Krasna (1975) 14 Cal.3d 

502, 514 (Davies).)

Before the still-existing property was returned to appellant 

in August 2019, appellant knew that County’s seizure of its 

property had inflicted “appreciable and actual harm.” (Davies, 

supra, 14 Cal.3d at p. 514.) In its third amended petition in the 

2016 action, appellant alleged, “Petitioner is unaware of the 

extent to which it’s [sic] seized and confiscated property . . . was 

damaged or destroyed, however, Petitioner is certain that some or 

all of this property was damaged and/or destroyed by [County].” 

(Italics added.) 

In its April 2019 motion for the return of the seized 

property, appellant alleged, “During the RAIDS, multiple officers 

entered the property of [appellant], . . . took property, [and] 

damaged and destroyed property . . . .” (Italics added.) During 

the first raid in September 2015, County “cut from the earth . . . 
14

approximately 880 cannabis (marijuana) plants . . . . Documents 

in the criminal case . . . show that [County] quantified the market 

value of the . . . crop destroyed by [County], based on weight of 

3100 [pounds,] . . . at $75 Million dollars.” (Italics added.) “All 

[of the cut plants] were still premature for harvesting.” 

The second raid occurred at Kroll’s residence on October 6, 

2015. The residence was appellant’s “operational headquarters.” 

This raid was particularly damaging to appellant’s marijuana 

products. The April 2019 motion for the return of the property 

alleged: “The October 6, 2015 raid is when [County] seized 

[appellant’s] entire . . . inventory of dried marijuana plants in 

containers labeled by type or name, along with a multitude of 

cannabis medicines and formulations including tinctures, 

mixtures, specialty strain seeds, oils, edible and other forms of 

medical marijuana products that were all packaged or bottled in 

hermetically sealed jars with moisture sachets, and all labeled, 

with codes corresponding to electronic records of formulas on 

[appellant’s] computers and hard drives from years of work by 

Kroll comprising specific medications for members of [the] 

collective. [County] destroyed the value of most or all of said 

cannabis products by opening containers and dump[ing] all into 

common bags, where the integrity and value of the specific 

formulations and product types was forever lost.” (Italics added, 

capitalization omitted.) 

Kroll was present during the second raid and may have 

witnessed County’s seizure of the cannabis. He “urged the 

officers and Detectives to let him show all of [appellant’s] 

documentation of compliance and explain [appellant’s] operations 

to demonstrate same, but [County] ignored Kroll.” 
15

Thus, appellant’s cause of action for injury to its property 

accrued, and the statute of limitations began to run, more than

three years before the filing of the 2020 petition on July 23, 2020. 

The running of the statute of limitations was not delayed until 

discovery of the full extent of the injury upon the return of the 

still-existing property in August 2019. Long before the return of 

the property, appellant was aware that it had suffered 

“appreciable and actual harm.” (Davies, supra, 14 Cal.3d at p. 

514.) 

In arguing that the statute of limitations did not begin to 

run until the return of the property, appellant relies on the 

following rule stated in Coy v. County of Los Angeles (1991) 235 

Cal.App.3d 1077, 1088: “When . . . 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.’” (Bracketed 

material in original.) 

Coy is of no assistance to appellant. The Coy rule does not 

apply to an action seeking damages for injury to an owner’s 

property where, as here, the owner knew that its property had 

been damaged or destroyed at the time of the original taking.

Another authority relied upon by appellant is Minsky v. 

City of Los Angeles (1974) 11 Cal.3d 113. There, the police took 

$7,720 from an arrestee and held it as evidence of a criminal 

offense. Upon disposition of the criminal charges, the arrestee 

unsuccessfully demanded the return of the money. The arrestee’s 

interest in the money was assigned to plaintiff, and the city 

denied plaintiff’s claim for the money. Plaintiff filed an action 

seeking specific recovery of the sum seized from the arrestee. 
16

The Supreme Court concluded: “[P]laintiff fully complied with the 

applicable statutes of limitation . . . for maintaining the present 

action.” (Id. at p. 119.) “Plaintiff's claim accrued when [the 

arrestee] learned of the ‘conversion’ of his property at the time of 

the disposition of the criminal charges and [the city’s refusal of] 

his oral demand [for the return of the property].” (Ibid., fn. 6.)

Minsky is distinguishable. Unlike the plaintiff in Minsky, 

appellant’s claim accrued more than three years before the filing 

of the 2020 petition when it learned that its property had been 

destroyed or damaged by County during the 2015-2016 raids.

Accordingly, appellant has not carried its burden of 

“overcoming” the trial court’s ruling that the 2020 petition was 

not filed within the three-year statute of limitations. (Cantu v. 

Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880 [“Cantu 

bears the burden of overcoming all of the legal grounds on which 

the trial court sustained the demurrers”].)

Equitable Tolling of Statute of Limitations

Appellant argues, “[T]he statute of limitations was 

equitably tolled while [it] sought its rights in civil court, and then 

criminal court, before filing the present [2020] action.” “The 

doctrine [of equitable tolling] allows our courts, ‘in carefully 

considered situations’ [citation], to exercise their inherent 

equitable powers to ‘soften the harsh impact of technical rules’ 

[citation] by tolling statutes of limitations. . . . [E]quitable tolling 

today applies when three ‘elements’ are present: ‘[(1)] timely 

notice, and [(2)] lack of prejudice, to the defendant, and [(3)] 

reasonable and good faith conduct on the part of the plaintiff.’ 

[Citation.] These requirements are designed to ‘balanc[e] . . . the 

injustice to the plaintiff occasioned by the bar of his claim against 

the effect upon the important public interest or policy expressed 
17

by the [operative] limitations statute.’” (Saint Francis Memorial

Hospital v. State Department of Public Health (2020) 9 Cal.5th 

710, 724-725.)

In support of its argument that the statute of limitations 

was equitably tolled, appellant presents the following paragraph 

in its opening brief: “Here, all three elements are satisfied. 

First, the prior civil action [2016 petition] constituted timely 

notice to the County during the statutory period that it would 

need to begin investigating the facts that form the basis for the 

current action. Second, there is a lack of prejudice to the County 

in gathering and preserving evidence, as the claims in the prior 

and current action are the same, the County was the bailee of the 

seized property, and may fairly defend the present lawsuit. 

Third, [appellant made a reasonable and good faith] attempt to 

first seek relief . . . in civil court . . . , then criminal court 

(pursuant to Penal Code Section 1536), and now back in civil 

court.” 

We agree that the first element has been satisfied. 

Appellant’s 2016 petition gave County timely notice of its claim. 

But appellant has not satisfied the second element – lack of 

prejudice to County – or the third element – its conduct was 

reasonable. 

In the demurrer to the third amended petition, County 

correctly argued that, pursuant to section 1536, appellant was 

required to seek return of the property in the criminal court. (See 

People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 713 [“Law 

enforcement officials who seize property pursuant to a warrant 

issued by the court do so on behalf of the court, which has 

authority pursuant to Penal Code section 1536 to control the 

disposition of the property”]; Zuniga v. County of San Mateo Dept.
18

of Health Services (1990) 218 Cal.App.3d 1521, 1527, fn. 4 [“The 

adult dogs seized as evidence pursuant to a search warrant were 

retained subject to the order of the criminal court. (§ 1536.)”].) In 

its opening brief appellant concedes that pursuant to section 

1536, “County was required to maintain possession of the seized 

property until the criminal court ordered otherwise.” 

County’s demurrer to the third amended petition put

appellant on notice that it must move for the return of its

property in the criminal court pursuant to section 1536. Despite

this notice, appellant did not file its section 1536 motion until 

April 23, 2019, 16 months after the sustaining of County’s 

demurrer to the third amended petition on December 21, 2017, 

and more than three years after County’s last seizure of property 

on April 14, 2016. The trial court concluded, “[A]ppellant’s] 

unreasonable three-year delay before seeking the return of seized 

marijuana [pursuant to section 1536] prejudiced [County], given 

that [it] could not possibly maintain the perishable product in 

pristine condition for that amount of time.” 

Appellant claims that it “reasonably believed that it had to 

wait until the [three-year] criminal statute of limitations expired 

in the criminal action brought against Kroll to bring a motion in 

the criminal court” for the return of its property pursuant to 

section 1536. Appellant explains: “[In the demurrer to the third 

amended petition,] County argued that the criminal court had an 

interest in the seized property until the three-year criminal 

statute of limitations expired. [Record citation.] [Appellant] . . . 

reasonably waited until the criminal statute of limitations 

expired to seek return of the seized property in criminal court. 

The decision to wait until the criminal statute of limitations ran 

was based on the County’s argument in the prior civil action.” 
19

County’s demurrer to the third amended petition did not 

suggest that appellant must delay its section 1536 motion for the 

return of property until the three-year criminal statute of 

limitations had expired. In the demurrer County noted that 

appellant’s prayer for relief had requested the return of its seized 

property “that is not being used as evidence in a related criminal 

matter.” County cautioned: “Just because charges are not 

currently pending, does not mean that charges related to the 

seized items could not be filed in the future. As the Court is 

aware, certain felony charges can be brought up to three years 

from the date of the offense. [Citation.] . . . The fact that criminal 

charges related to the seized items may still be filed contradicts 

[appellant’s] attempts to demonstrate that the items seized are of 

no use to the criminal court.” After the last quoted sentence, 

County inserted a footnote that read: “[County] is merely holding 

the seized items for the criminal court. If [appellant] believes 

these items should be released, [it] must file a formal motion with 

the judge who allowed for the seizure of these items by issuing a 

search warrant.” County did not say that appellant must delay 

filing the motion until the expiration of the three-year criminal 

statute of limitations.

Appellant appears to maintain that, as a nonparty to the 

dismissed criminal proceedings against Kroll, it lacked “standing” 

to move for the return of the property pursuant to section 1536 

even though it was the owner of the property. Section 1536 does 

not impose such a standing requirement. 

Thus, appellant did not reasonably delay its section 1536 

motion for the return of property until after the three-year 

criminal statute of limitations had expired. But even if the delay 

in making the motion had been reasonable, the running of the 
20

three-year civil statute of limitations would not have been tolled. 

Appellant knew that, at the time of the original takings, it had 

suffered “appreciable and actual harm.” (Davies, supra, 14 

Cal.3d at p. 514; see the discussion ante, at pp. 13-17.) Therefore, 

no justification existed for waiting to file the 2020 petition for 

damages until after the still-existing property had been returned 

by County. “[O]nce plaintiff has suffered actual and appreciable 

harm, neither the speculative nor uncertain character of damages 

nor the difficulty of proof will toll the period of limitation.” 

(Ibid.)

County Is Not Judicially Estopped from Arguing that

the 2020 Petition is Barred by the Statute of Limitations

Appellant claims that the trial court should have accepted 

its argument that County is judicially estopped from arguing that 

the 2020 petition is barred by the three-year statute of 

limitations. “‘“Judicial estoppel precludes a party from gaining 

an advantage by taking one position, and then seeking a second 

advantage by taking an incompatible position. [Citations.] The 

doctrine’s dual goals are to maintain the integrity of the judicial 

system and to protect parties from opponents' unfair strategies. 

[Citation.] Application of the doctrine is discretionary.”’ 

[Citation.] The doctrine applies when ‘(1) the same party has 

taken two positions; (2) the positions were taken in judicial or 

quasi-judicial administrative proceedings; (3) the party was 

successful in asserting the first position (i.e., the tribunal adopted 

the position or accepted it as true); (4) the two positions are 

totally inconsistent; and (5) the first position was not taken as 

a result of ignorance, fraud, or mistake.’” (Aguilar v. Lerner

(2004) 32 Cal.4th 974, 986-987.) Where, as here, 
21

“the relevant facts are undisputed, the appellate court 

independently reviews whether the elements of judicial estoppel 

are met.” (Kerley v. Weber (2018) 27 Cal.App.5th 1187, 1195.)

Appellant argues that the elements of judicial estoppel 

have been met because “County is now contending that the 

current [2020] Petition is allegedly barred by the affirmative 

defense[] of statute of limitations . . . , whereas the County 

previously argued [in its demurrer to the third amended petition] 

that the criminal court still had an interest in the seized property 

until the three-year criminal statute of limitations expired. The 

County is now arguing that [appellant] waited too long to bring 

this Petition when it was the County’s own argument that the 

three-year criminal statute of limitations had yet to expire and 

criminal charges could still be brought. The two arguments are 

inconsistent.” 

County’s positions are not inconsistent. Although the 

three-year criminal statute of limitations had not yet expired, 

appellant could still have moved for the return of its seized 

property pursuant to section 1536. County said so in its 

demurrer to the third amended petition: “[Appellant] did not file 

a formal motion for the return of property with the criminal court 

which issued the search warrant . . . . [It] failed to do so despite 

the fact that such a motion could have been filed in the related 

criminal proceedings.” 

County’s positions are also not inconsistent because its 

arguments in the demurrer to the third amended petition 

concerned appellant’s request for the return of its seized 

property. This issue is distinct from County’s contention in the 

instant appeal that the 2020 civil action for damages is barred by 

the three-year statute of limitations for injury to property. 
22

Disposition

The judgment is affirmed. County shall recover its costs on 

appeal.

NOT TO BE PUBLISHED.

YEGAN, Acting P. J.

We concur:

PERREN, J.

TANGEMAN, J.
Vincent J. O’Neill, Jr., Judge*

Superior Court County of Ventura

______________________________

Law Offices of Herbert Hafif, Greg K. Hafif and Michael G. 

Dawson; Law Offices of Jason Rowe and Jason Rowe, for Plaintiff 

and Appellant.

Lawrence Beach Allen & Choi, Paul B. Beach, James S. 

Eicher, Jr. and Rocco Zambito, Jr., for Defendant and 

Respondent.

*Retired Judge of the Ventura Sup. Ct. assigned by the Chief 

Justice pursuant to art. VI, § 6 of the Cal, Const.