Kanarek v. Davidson

Opinion

TAMURA, J.

Plaintiff filed an action for damages under the federal Civil Rights Act (42 U.S.C. § 1983

1

) against named and unnamed Riverside County sheriff’s deputies and agents of the Franchise Tax Board for alleged deprivation of property without due process of law. The demurrer of the sheriff’s deputies on the ground that the complaint failed to state facts sufficient to constitute a cause of action was sustained without leave to amend and plaintiff appeals from the ensuing judgment of dismissal.

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[344]

In reviewing a ruling on a demurrer, all material facts properly pleaded must be deemed to be true.

(Glaire

v.

La Lanne-Paris Health Spa, Inc.

(1974) 12 Cal.3d 915, 918 [117 Cal.Rptr. 541, 528 P.2d 357].) In addition, the complaint must be read as if it contained facts of which the trial court was entitled to take judicial notice.

(Weil

v.

Barthel

(1955) 45 Cal.2d 835, 837 [291 P.2d 30];

Chavez

v.

Times-Mirror Co.

(1921) 185 Cal. 20, 23 [195 P. 666];

Saltares

v.

Kristovich

(1970) 6 Cal.App.3d 504, 510 [85 Cal.Rptr. 866].) Viewing the complaint in light of those principles, the pertinent facts as pleaded together with those facts which the court was entitled to judicially notice are as follows:

On March 11, 1976, pursuant to a search warrant issued in connection with a narcotics investigation, Deputy Sheriff Gary Davidson searched Bruce Alan Parker’s residence and seized, among other items, approximately $42,000 in cash. The next day Parker, for a valuable consideration, assigned “all of his right, title and interest” in the money to plaintiff. On March 14, 1976, plaintiff gave the sheriff written notice of the assignment and demanded the money. The sheriff responded in writing as follows: “Mentioned Funds Taken as Evidence, Not Released.”