Lee v. City of Oakland

McCABE, J. pro tem.* By his complaint setting forth a common count for money had and received, plaintiff seeks to recover $3,707.67. He recovered judgment in the sum of $838.67. From this judgment, plaintiff appeals.

For some period of time prior to April 19, 1958, the Oakland Police Department, suspecting gambling activities, had kept watch over the premises of the Ying On Association. On April 19, 1958, and using a search warrant, the police department raided the premises. The association premises consisted of several rooms including a gambling room, a reading or TV room, a storage room and kitchen. A safe was kept in the storage room but no sleeping accommodations were present in this room. Yen Lau Lung was on the date of the raid, and had been, a cook and caretaker for the association for about two years. At the time of the entrance onto the premises by the policemen, there were 26 men in the reading or TV room and 14 in the gambling room. No gambling was seen by any of the police officers but there was gambling paraphernalia present. From Lung, the police officers took money. The amount of $838.67 was found in his wallet along with some chips. Other money, in rolls, amounting to $2,869 was found in other pockets of Lung’s clothing. These monies were placed in separate envelopes indentifiable as to their source. Receipts for these monies were given to Lung by the police officers. Some time just prior to the raid a Chinese undercover man was given marked money. Later, and at the police station, eight dollars of the marked money was found among the $2,869. Although requested to do so, the defendant city [167]has refused to return the money to Lung. Lung, in writing, assigned his claim to plaintiff who brought the present action.

The answer of the defendant city denies the allegations of the complaint.

The trial court found (1) Lung had been arrested and charged with gambling; (2) gambling was being conducted on the premises at the time of the raid and Lung was participating therein; (3) the money was taken from Lung; (4) defendant had a right to take and retain the money except the sum of $838.67; (5) defendant claims no title by a legal forfeiture; (6) $2,869 taken from the person of Lung was being used in a gambling game; (7) $838.67 taken from Lung was not in use in a gambling game; (8) Lung’s claim was assigned to plaintiff; (9) although demand has been made for the return of the money, defendant refuses to return it.

Plaintiff contends the pretrial order so restricted the issues that no evidence could be received as to the possible illegal transactions and gambling. A reasonable interpretation of the issues outlined in the pretrial order would allow for such evidence, if present, to be admitted. Evidence of illegality may be introduced at any time (Lewis & Queen v. N. M. Ball Sons, 48 Cal.2d 141 [308 P.2d 713]).