Bjorklund v. Dudley CA2/6

Filed 8/27/15 Bjorklund v. Dudley CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

ERIC BJORKLUND, 2d Civil No. B260532 (Super. Ct. No. 1467445) Plaintiff and Appellant, (Santa Barbara County)

v.

JOYCE DUDLEY, as District Attorney, etc., et al.,

Defendants and Respondents.

George Foxx was found guilty of vandalizing Eric Bjorklund's vehicles and ordered to make restitution. That same day, the Santa Barbara County District Attorney's Office confiscated $25,720 in a drug raid involving Foxx, Kenneth Koster and two other defendants. Claiming the funds were his, Koster agreed to forfeit them to the government under Health and Safety Code section 11469 et seq.1 Bjorklund filed a petition for writ of mandate against District Attorney Joyce Dudley, Assistant District Attorney Allison Neuffer and the Santa Barbara County District Attorney's Office (collectively "respondents") alleging his entitlement to the funds. (See Code Civ. Proc.,

1 All statutory references are to the Health and Safety Code unless otherwise stated.

§ 1085.) The trial court determined respondents had no duty to pay restitution from funds forfeited by Koster since he was not a party to the vandalism case. It further concluded the funds were exempt from restitution under section 11469. We affirm. PROCEDURAL BACKGROUND Bjorklund, who is self-represented, claimed that he was entitled to recover the restitution ordered in the vandalism case from funds confiscated in the drug case. Respondents denied his claim, and based upon the agreement with Koster, the funds were formally forfeited to the government. (See People v. Twenty Five Thousand Seven Hundred Twenty Dollars ($25,720.00) (Super. Ct. Santa Barbara County, 2013, No. 1341766).) Bjorklund petitioned for a writ of mandate compelling respondents to turn over the funds to him. The trial court sustained respondents' demurrer to the petition with leave to amend. Bjorklund amended his petition. The trial court again sustained respondents' demurrer, this time without leave to amend. Bjorklund appeals from the judgment of dismissal. DISCUSSION Bjorklund contends the trial court erred by sustaining the demurrer without leave to amend and dismissing his writ petition. We disagree. "The standard of review on appeal from a judgment of dismissal following the sustaining of a demurrer to a petition for writ of mandate without leave to amend is well established. We examine the pleading de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. [Citation.] We give the pleading 'a reasonable interpretation and treat the demurrer as admitting all material facts properly pleaded, but we do not assume the truth of contentions, deductions, or conclusions of law.' [Citation.]" (Keffeler v. Partnership Healthplan of California (2014) 224 Cal.App.4th 322, 335, fn. 10.) Bjorklund correctly asserts that restitution to victims of crimes is constitutionally and statutorily mandated in California. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045; see Cal. Const., art. I, § 28; Pen. Code, § 1202.4.) The problem