Opinion
A146710
03-10-2017
JESUS MARTINEZ, Plaintiff and Appellant, v. COUNTY OF MENDOCINO et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKCVG141464047)
Plaintiff Jesus Martinez filed a petition for a writ of mandate challenging a program of defendant Mendocino County District Attorney's Office in which criminal defendants charged with marijuana-related felonies are offered the opportunity to reduce their charges in exchange for a set payment determined by the amount of marijuana seized. Defendant C. David Eyster, the Mendocino County District Attorney, implemented the program in 2011 under the ostensible authority of Health and Safety Code section 11470.2, which permits prosecutors to recover expenses incurred in seizing, eradicating, or destroying drugs possessed by defendants convicted of certain crimes. The petition alleges that the program recovered over five million dollars as of fall 2014, with the money being distributed to local county and city agencies.
All further statutory references are to the Health and Safety Code.
Martinez appeals from an order denying his motion for a preliminary injunction and a judgment entered after the trial court sustained a demurrer to his cause of action for disgorgement of all payments criminal defendants have made under the program. Several causes of action remain pending below that challenge the legality of the program.
In this appeal, the parties have extensively briefed the legality of the program. But while this briefing raises serious questions, we need not resolve them here because we hold that the trial court properly ruled that Martinez (1) was not entitled to a preliminary injunction because he failed to demonstrate that the balance of harm favored him and (2) does not have standing to seek disgorgement of payments made in criminal cases. We therefore affirm.
Martinez filed three requests for judicial notice, on July 27, 2016, August 2, 2016, and January 4, 2017, on which we deferred ruling until we considered the merits of the appeal. All three requests are denied because the materials in question were not before the trial court when it ruled and are unnecessary to resolution of the appeal. Although we granted Martinez's May 18, 2016 request for judicial notice of a Mendocino County grand jury report involving the program, we do not rely on the report in reaching our holding. (See Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [appellate court "may take judicial notice of matters not before the trial court" but "need not give effect to such evidence"].)
As a result, we also deny Martinez's motion for an injunction to halt the program "upon resolution of the merits of the appeal favorably to [Martinez]."
I.
FACTUAL AND PROCEDURAL
BACKGROUND
In 2012, Martinez was arrested for marijuana-related felonies. He refused to pay the amount required under the program to reduce the charges, and he was ultimately charged with and convicted of a felony.
Martinez and another plaintiff who is not a party to this appeal subsequently brought this writ proceeding to challenge the program's legality. They filed their first amended petition for a writ of mandate in September 2014. The petition asserts six causes of action against 11 defendants: the Mendocino District Attorney's Office, Eyster, the Mendocino County Sheriff's Office, Thomas D. Allman (the Mendocino County Sheriff), the County of Mendocino, the City of Ukiah, the Ukiah Police Department, the City of Willits, the Willits Police Department, the City of Fort Bragg, and the Fort Bragg Police Department. The petition alleges that the program is unlawful on various grounds, and it seeks a writ of mandate to end the program, to require compliance with section 11470.2, and to obtain declaratory, injunctive, and other equitable relief. In particular, the fourth cause of action seeks to compel the defendants to return all payments received from criminal defendants under the program or to disgorge those payments to the trial court.
Two other defendants, the California Highway Patrol and the State of California, were later dismissed from the lawsuit.
According to the petition, after his election in 2011, Eyster implemented the program to generate revenue for the Mendocino County District Attorney's Office and local law enforcement agencies. "Under the Program, Eyster requires criminal defendants who have been arrested on felony charges of marijuana cultivation, transportation[,] and possession for purposes of sale . . . to pay the investigating law enforcement agency $500 per pound of marijuana and $50 per marijuana plant seized by the agency, with the district attorney's office receiving a 5% 'administrative fee' from the agency. Eyster agrees in writing to forgo felony charges . . . and instead to charge a misdemeanor offense of simple . . . possession of more than one ounce of marijuana . . . or, in a few cases, a felony-misdemeanor 'wobbler' of permitting one's land to be used by another to cultivate or store marijuana . . . which will later be reduced to a misdemeanor on successful completion on probation." (Emphasis omitted.) Thus, criminal defendants who can afford to do so can make large payments "to avoid felony charges carrying potentially lengthy prison terms . . . in favor of reduced misdemeanor or 'wobbler' charges with probation and little to no jail time," amounting to what the petition characterizes as "the patently illegal sale of prosecutorial charging discretion." Meanwhile, according to the petition, "first time offenders, others less culpable[,] and those who may well be completely innocent . . . face stiff felony charges because they lack adequate funds to 'pay-to-play,' or refuse to pay because they will not succumb to extortion."
The petition alleges that the program generated about $5.2 million as of fall 2014 from payments ranging between $500 to $100,000 per case, with the average payment being around $12,000 and payments of $25,000 or more being common. Despite its billing as a restitution program under section 11470.2, the program allegedly violates that statute because the payment schedule based on the amount of marijuana seized bears no relationship to the actual costs of marijuana seizure, eradication, and destruction and the money recovered has not been used to cover such costs but to pay for other agency expenses. In addition, contrary to section 11470.2's terms, criminal defendants make payments before being convicted and in cases involving charges that are not covered by that statute.
Martinez moved for a preliminary injunction to prevent enforcement of the program. Meanwhile, defendants demurred to all the petition's claims on the basis that the program involved the exercise of prosecutorial discretion and Martinez lacked standing to challenge it.
After briefing and argument, the trial court denied Martinez's motion for a preliminary injunction, finding that Martinez had failed to establish a likelihood of success on the merits or a balance of harm in his favor. The court sustained the demurrer to the fourth cause of action without leave to amend, accepting Martinez's concession that he did not have standing under Dix v. Superior Court (1991) 53 Cal.3d 442 (Dix) to seek relief in other defendants' criminal cases, but it overruled the demurrer to the remaining claims. The parties stipulated to the dismissal without prejudice of the other five causes of action against the city and police department defendants, and the court entered judgment in those defendants' favor.
This judgment is appealable despite the dismissal without prejudice of the remaining counts because there was no stipulation to toll the statute of limitations or otherwise "assure[] the potential for future litigation of the dismissed claims." (Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1104-1105.)
II.
DISCUSSION
A. The Trial Court Acted Within Its Discretion by Denying the Motion for a Preliminary Injunction.
Martinez claims that the trial court erred by denying his motion for a preliminary injunction. We are not persuaded.
Martinez originally moved for a preliminary injunction in October 2014, soon after filing the petition. He sought to enjoin Eyster and his office from imposing an administrative fee on local agencies who received payments under the program. In support of the motion, he filed a declaration of his attorney, which attached nine exhibits: three articles about the program and records obtained from defendant agencies showing, among other things, payments received under the program and how the agencies expended them. Martinez also filed his own declaration and a request for judicial notice of court records in various Mendocino County criminal cases in which defendants were offered deals under the program.
After several continuances of the hearing on the motion, Martinez was permitted to file an amended motion, and he did so in April 2015. The amended motion now sought to enjoin the defendants from enforcing the program at all. Martinez argued that his probability of success on the merits was high because the program was unlawful under section 11470.2, violated due process, and violated Eyster's "duty of financial impartiality," and he argued that allowing the program to continue would cause "[i]rreparable harm to the general citizenry" by "destroy[ing] the public's confidence in the fairness of the criminal process." Martinez also filed a supplemental declaration of his attorney providing additional details about calculations by the Mendocino County District Attorney's Office regarding payments due under the program and the amounts received from criminal defendants.
Defendants opposed the motion, arguing that Martinez lacked standing and could not demonstrate a likelihood of success on the merits. The only evidence filed in opposition was the declaration of Eyster, in which he averred that the five percent administrative fee had not been assessed or collected since June 30, 2014, and that his "compensation as District Attorney is not tied in any way" to the recovery of restitution under the program, which recovery represented less than two percent of his office's annual budget in the relevant time period.
In its minute order denying the motion, the trial court wrote, "The Court does not find at this point in time, despite the existence of significant and legitimate questions regarding the District Attorney's Program, that [Martinez has] a likelihood of success on the merits. Moreover, in light of the fact that the status quo for over the past approximately four years has been the utilization of the challenged Program, the Court finds that there is significant interim harm to the Respondents if the preliminary injunction is granted." The final order denying the motion, entered in August 2015, similarly stated, "[A]lthough there are issues for further resolution in the case, the Court cannot make a determination that there is a likelihood of success on the merits in favor of petitioner and further, balancing the respective hardships, determines that maintaining the status quo avoids the risk of significant harm to Respondents if the preliminary injunction is granted."
The trial court also denied the request for judicial notice of court records in other criminal cases, albeit in the section of the minute order addressing defendants' demurrer. We decline Martinez's suggestion in his opening brief that we take judicial notice of these records, because they are unnecessary to our decision.
With this understanding of the procedural history, we turn to the governing law. A trial court considering whether to grant a preliminary injunction "must evaluate two interrelated factors: (i) the likelihood that the party seeking the injunction will ultimately prevail on the merits of his [or her] claim, and (ii) the balance of harm presented, i.e., the comparative consequences of the issuance and nonissuance of the injunction." (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 441-442.) " 'The latter factor involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.' " (Husain v. McDonald's Corp. (2012) 205 Cal.App.4th 860, 867.) " 'The ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause.' " (White v. Davis (2003) 30 Cal.4th 528, 554, italics omitted.)
It is well-settled that the denial of a preliminary injunction is reviewed for an abuse of discretion. (Butt v. State of California (1992) 4 Cal.4th 668, 678; Pittsburg Unified School Dist. v. S.J. Amoroso Construction Co., Inc. (2014) 232 Cal.App.4th 808, 814.) " 'An abuse of discretion will be found only where the trial court's decision exceeds the bounds of reason or contravenes the uncontradicted evidence.' " (Jay Bharat Developers, Inc. v. Minidis (2008) 167 Cal.App.4th 437, 443.)
"When a trial court denies an application for a preliminary injunction, it implicitly determines that the plaintiffs have failed to satisfy either or both of the 'interim harm' and 'likelihood of prevailing on the merits' factors. On appeal, the question becomes whether the trial court abused its discretion in ruling on both factors. Even if the appellate court finds that the trial court abused its discretion as to one of the factors, it nevertheless may affirm the trial court's order if it finds no abuse of discretion as to the other." (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286-287, italics omitted.) Here, the trial court found that Martinez had failed to establish either that he was likely to prevail on the merits or that the balance of harm favored him. Because we conclude that the court did not abuse its discretion in finding that the balance of harm favored defendants, we need not determine whether the court erred by ruling that Martinez failed to establish a likelihood of prevailing on the merits.
For the same reason, we need not resolve the parties' dispute about whether Martinez had standing to seek the injunction. --------
" 'The general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of the action.' " (Law School Admission Council, Inc. v. State of California (2014) 222 Cal.App.4th 1265, 1280.) A trial court "also has the power to issue a preliminary injunction that ' " 'mandates an affirmative act that changes the status quo,' " ' " but a court "should do so only in those ' " 'extreme cases where the right thereto is clearly established.' " ' " (Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1184.) Here, the trial court made clear that it viewed the denial of a preliminary injunction as preserving the status quo, and Martinez does not argue otherwise. Thus, he must "show that the facts so indisputably established [his] right to a preliminary injunction that the trial court was guilty of an actual abuse of discretion in failing to grant this relief pending [a] trial on the merits." (Alvarez v. Eden Township Hospital Dist. (1961) 191 Cal.App.2d 309, 311-312; see also VitaVet Labs, at p. 1184 [issuance of preliminary injunction that changes status quo is " ' " 'more closely' " ' 'scrutinize[d]' " than issuance of preliminary injunction that preserves status quo].)
Martinez fails to make such a showing. He argues that the public "will continue to suffer irreparable harm from the Program . . . because the sale of justice by the D.A. has destroyed the impartiality of the criminal justice system, without which 'the concept of the rule of law cannot survive.' " In White v. Davis, supra, 30 Cal.4th 528, our state Supreme Court rejected a similar argument by the plaintiffs in a taxpayer action challenging the Legislature's failure to timely adopt a budget bill as a violation of the state Constitution. (Id. at pp. 533, 557.) The plaintiffs argued that the failure to issue a preliminary injunction barring the Controller from making payments from the state treasury would, among other harms, " 'allow the flagrant violation of the [state] Constitution to continue as it has for the past dozen years,' " thus destroying "respect for the Constitution." (Ibid.) The Supreme Court disagreed that "a taxpayer's interest in forestalling an alleged continuing violation of the state Constitution" was a sufficient injury to support the issuance of a preliminary injunction. (Id. at p. 557.) Martinez does not offer any reason that White's reasoning is inapplicable here, where he claims to have " 'citizen standing' " to seek proper enforcement of the law. Nor has he cited any authority in support of his claim that the harm he identifies is of the type that justifies the issuance of a preliminary injunction, much less one that would alter the status quo.
Furthermore, in contrast with Martinez's generalized harm, direct harm could befall defendants if the status quo was altered. According to the petition, the program has generated about $5.2 million as of fall 2014. Suspending a program that generates significant revenues for small local agencies could impose immediate and meaningful fiscal problems. It could also interfere with the exercise of prosecutorial prerogatives. Under these circumstances, we cannot say that the trial court's finding that "there [would be] significant interim harm to the Respondents if the preliminary injunction is granted" was an abuse of discretion.
In short, Martinez has failed to demonstrate that the trial court abused its discretion in denying his request for a preliminary injunction.
B. Martinez Lacks Standing to Bring the Disgorgement Cause of Action.
Martinez also claims that the trial court erred by sustaining the demurrer to the disgorgement cause of action. We disagree.
We independently review an order sustaining a demurrer. (Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 637.) Regardless of the label given to a cause of action, "[o]ur task is to determine whether the pleaded facts state a cause of action on any available legal theory." (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) "We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions[,] or conclusions of law." (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) " '[W]e are not bound by the trial court's analysis' of questions of law and 'independently construe statutory law.' " (Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 10.)
Martinez acknowledges that the disgorgement claim fails unless this court finds an exception to our state Supreme Court's holding in Dix, supra, 53 Cal.3d 442. In Dix, a criminal defendant who was serving a prison sentence for assault agreed to testify in another case if he could serve his sentence in county jail instead. (Id. at pp. 447, 449.) The trial court recalled the defendant's sentence and, at the prosecutor's request, agreed to delay resentencing until after the defendant testified. (Id. at pp. 448-449.) The defendant's victim filed an application for prohibition and/or mandamus in the Court of Appeal, and the Court of Appeal ordered issuance of a peremptory writ of mandate requiring the trial court "to vacate its recall order and to return [the defendant] to prison forthwith." (Id. at p. 450.)
The Supreme Court reversed, holding that the victim had no standing because the "extraordinary writ proceeding [fell] within the general rule that neither a crime victim nor any other citizen has a legally enforceable interest, public or private, in the commencement, conduct, or outcome of criminal proceedings against another." (Dix, supra, 53 Cal.3d at pp. 450, 465.) The Court of Appeal had held that the victim had standing "by invoking the principle that ' " 'where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced.' " ' " (Id. at p. 451.) The Supreme Court rejected this theory, holding that "[e]xcept as specifically provided by law, a private citizen has no personal legal interest in the outcome of an individual criminal prosecution against another person. Nor may the doctrine of 'public interest' standing prevail over the public prosecutor's exclusive discretion in the conduct of criminal cases." (Ibid.)
Martinez seizes on language in Dix that he contends "suggested there may be room for exception in cases of restitution because '[t]he [state] Constitution and statutes do accord individual felony victims certain "rights" of a more specific and personal nature,' " including " 'the "right" to restitution in appropriate circumstances.' " (Quoting Dix, supra, 53 Cal.3d at p. 453.) He claims that since the program also involves restitution, "it may be argued . . . that a private citizen such as [himself], who is seeking to vindicate the rights and interests of the general citizenry in preventing grossly excessive payments by criminal defendants to law enforcement under the guise of 'restitution' . . . in exchange for prosecutorial grace from felony prosecution, is properly afforded standing via a civil action in mandate to seek disgorgement." But even assuming that crime victims may have standing in a criminal case based on their right to restitution, no analogous form of restitution is at issue here. Under section 11470.2, it is government agencies, not private citizens, that have an interest in restitution, and Martinez offers no theory under which a citizen has a cognizable interest in forcing agencies to disgorge funds.
Martinez also seeks to distinguish Dix, supra, 53 Cal.3d 442, because it "is premised on the assumption that the prosecutor will be financially disinterested in the decisions he makes and will act in the interest of justice for [the] benefit of the People at large," and "the Supreme Court could not have envisioned a situation such as this, where 'the fix is in' because the district attorney, the police, the criminal defendant[,] and the defendant's attorney have colluded and conspired to violate the law[.]" After reiterating arguments for why the program is illegal and "a criminal enterprise sounding in bribery and extortion," Martinez cites a number of cases which held that taxpayers had standing to bring claims for disgorgement on behalf of local agencies that were under the control of officials who had engaged in wrongdoing. In all these cases, however, the plaintiffs sought to require disgorgement on the agencies' behalf, not to require the agencies themselves to disgorge funds. (Osburn v. Stone (1915) 170 Cal. 480, 482-483 [taxpayer standing to sue for return to city treasury of "illegal expenditures" made by city officials]; Gilbane Building Co. v. Superior Court (2014) 223 Cal.App.4th 1527, 1529-1531 [associational standing to seek disgorgement of funds companies illegally received from school district]; People ex rel. Harris v. Rizzo (2013) 214 Cal.App.4th 921, 928 [Attorney General's standing to require "allegedly corrupt individuals" in control of charter city to pay restitution to city].) These decisions offer no support for the theory that Martinez has standing to require agencies to return funds to individual criminal defendants or disgorge them to the trial court. We conclude that the court properly sustained the demurrer to the disgorgement cause of action.
III.
DISPOSITION
The order denying Martinez's motion for a preliminary injunction and the judgment in the city and police department defendants' favor are affirmed. Respondents are awarded their costs on appeal.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.