People v. Fifteen Thousand Two Hundred Seventeen Dollars

Opinion

RACANELLI, P. J. This appeal concerns the forfeiture of cash seized from a drug dealer. The question before us is whether the drug dealer’s former wife and judgment creditor for spousal and child support arrearages is entitled to personal service of the forfeiture proceeding. We affirm the judgment below.

Facts

The facts are essentially uncontroverted: Martin Gustafson was arrested on October 20, 1987, on narcotics charges. At the time of his arrest, the police seized $15,217 in cash from Gustafson’s home.

On November 13, 1987, the district attorney served Gustafson with a notice of forfeiture and also caused a notice of forfeiture to be published three times in a local newspaper. The law firm of Cooper & Arguedas (Gustafson’s attorneys) filed a claim of interest in the money. The district attorney thereupon filed a petition for forfeiture to place the matter before the court.

On April 13, 1988, the court entered an order of forfeiture, pursuant to stipulation, which provided for the release of $7,500 to Cooper & Arguedas and forfeiture of the remainder.1 The monies were paid in June 1988.

On October 7, 1988, nearly six months after the order of forfeiture, appellant Kathryn Streem moved pursuant to Code of Civil Procedure section 473 to set aside the order of forfeiture on the ground that, as a judgment creditor for family support, she had a lawful claim to the money but had never received notice of the forfeiture proceedings. Streem declared [723]that at the time of the April 13 forfeiture order, Gustafson, her former husband, owed her $10,155 in back due child support and spousal support. She further declared that shortly after Gustafson’s arrest, she instructed her attorney to determine whether any money had been seized and to inform the district attorney of her interest in the funds seized. Streem’s attorney, Kathleen Ryan, had represented Streem in obtaining a restraining order during the dissolution proceedings.

In November 1987, Ms. Ryan, according to her declaration, inquired of the district attorney who informed her that Streem had no cognizable claim to the money. However, he did not inform Ms. Ryan about the claim procedure.

In his declaration in opposition to the motion, the district attorney declared that he had only expressed an opinion to Ms. Ryan that Streem would have no claim; that he did inform Ms. Ryan of the claim procedure, and that Ms. Ryan replied that she intended to file a claim to protect her client’s interest.