Judge: Carolyn M. Caietti, Case: 37-2023-00023871-CU-AF-CTL, Date: 2024-05-10 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 09, 2024

05/10/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Asset forfeiture Motion Hearing (Civil) 37-2023-00023871-CU-AF-CTL PETITION OF THE PEOPLE OF THE STATE OF CALIFORNIA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The People of the State of California's Motion for Default Judgment of Forfeiture is DENIED WITHOUT PREJUDICE.

The People's request for judicial notice is granted and notice will be taken to the extent permitted. (Evid.

Code, § 452(d).) However, 'while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.' ' (In re Vicks (2013) 56 Cal.4th 274, 314, quoting Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) This case concerns forfeiture statutes under the California Uniform Controlled Substances Act. Statutes imposing forfeitures are disfavored and are to be strictly construed in favor of the persons against whom they are sought to be imposed. (See, Ramirez v. Tulare County Dis. Attorney's Office (2017) 9 Cal.App.5th 911, 928.) This disfavor applies notwithstanding the strong governmental interest in stemming illegal drug transactions and strict compliance with the letter of the law by those seeking forfeiture is required. (Ibid.) Here, the People ask for a default judgment of forfeiture pursuant to Health and Safety Code section 11488.5. (ROA 22.) But there are service issues.

A petition for forfeiture requires personal delivery or registered mail service on every individual who was issued a receipt for the property seized. (Health & Saf. Code, § 11488.4(c).) Here, there is no discussion of any receipts issued, precluding the Court from confirming all individuals received notice. There is also no proof of personal or mail service on Terence Choate. Rather, only a criminal defense attorney was apparently served by email and there is no record of this attorney appearing on behalf of Terence Choate in this action or acknowledging receipt of the petition. (ROA 10.) There is also no proof of personal or mail service on Masako Choate. Rather, there is a proof of service showing an email exchange with an email of choatemasako@gmail.com, acknowledging service of 'paperwork for the seized money.' (ROA 11.) As for the default motion, the forfeiture statutes do not address service of the motion for default.

However, a request for entry of default must generally be mailed to the defendant's last known address.

(Health & Saf. Code, § 11488.5(c)(3) ['The provisions of the Code of Civil Procedure shall apply to proceedings under this chapter unless otherwise inconsistent with the provisions or procedures set forth in this chapter']; C.C.P., § 587 [application for entry of default must include an affidavit stating a copy of Calendar No.: Event ID:  TENTATIVE RULINGS

3022158  49 CASE NUMBER: CASE TITLE:  PETITION OF THE PEOPLE OF THE STATE OF CALIFORNIA [IMAGED]  37-2023-00023871-CU-AF-CTL the application has been mailed to the defendant's attorney of record or to the defendant at their last known address].) Here, again, Terence Choate was not served. Rather, a nonappearing attorney was served allegedly on his behalf. His attorney has not appeared on his behalf in this action. (ROA 24.) Masako Choate was served at a mailing address by mail. (ROA 25.) In light of the requirement to strictly construe forfeiture statutes, the Court cannot grant the motion based on this record.

For these reasons, the motion is DENIED WITHOUT PREJUDICE.

If the tentative is confirmed without modification, the minute order will be the Court's final order. Plaintiff is ordered to serve written notice of the Court's final order on all parties by May 14, 2024.

Plaintiff is also reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

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