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Court of Appeal, First District, Division 1, California.

Charles Barrios GONZALES et al., Plaintiffs and Appellants, v. The PEOPLE of the State of California, Defendant and Respondent.

Civ. 37800.

Decided: February 15, 1977

Leslie C. Nichols, Rubin Tepper, Palo Alto, Mayron & Emanuel, Michael Allan Mayron, San Jose, for plaintiffs-appellants. Evelle J. Younger, Atty. Gen., Robert L. Bergman, Asst. Atty. Gen., San Francisco, for defendant-respondent.

Plaintiffs appeal from an order granting their ex parte motion to dismiss their action pursuant to Code of Civil Procedure section 5811 following the sustaining of defendant's demurrer to plaintiffs' amended complaint with leave to amend.

The action is a class action brought by plaintiffs on behalf of themselves and others similarly situated who have or will have their convictions under Vehicle Code section 23102, subdivision (a), (misdemeanor drunk driving) declared unconstitutional, seeking to establish and enforce a constructive trust naming defendant (State of California) trustee of money paid to the state pursuant to said convictions, alleging that defendant is wrongfully withholding their money, and seeking to impose a constructive trust in order to prevent unjust enrichment.

A demurrer to the complaint was interposed by defendant on several grounds. The demurrer was sustained on the ground that it failed to allege compliance with the presentation of claims against the state as provided for in Government Code section 905.2. Plaintiffs amended their complaint alleging compliance with Government Code section 905.2. Defendant demurred to the amended complaint on substantially the same gounds urged in its demurrer to the original complaint. The demurrer was sustained, with leave to amend, on all of the grounds set forth in the demurrer. Plaintiffs chose to stand on the amended complaint.

Plaintiffs first contend that the trial court, having sustained the demurrer to the original complaint on only one ground, erred in sustaining the demurrer to the amended complaint on grounds identical to those raised by the first demurrer. They contend that the trial court impliedly overruled all grounds of the first demurrer which it did not specifically sustain and that, therefore, defendant was estopped from relitigating the issues already determined.

Reliance is placed by plaintiffs on section 472d of the Code of Civil Procedure which provides: ‘Whenever a demurrer in any action or proceeding is sustained, the court shall include in its decision or order a statement of the specific ground or grounds upon which the decision or order is based which may be by reference to appropriate pages and paragraphs of the demurrer.’ This section has been interpreted, however, to require affirmance of trial court's rulings on demurrers if any of the grounds raised by the defendant require the sustaining of the demurrer, whether or not the court specifies all the grounds. (Banerian v. O'Malley, 42 Cal.App.3d 604, 610, 116 Cal.Rptr. 919). Accordingly, if any ground stated in a demurrer is sustainable, the trial court's action is proper. The court need not consider all the points raised in the demurrer. ‘It is the validity of the court's action in sustaining the demurrer which is here reviewable, and not the court's opinion or statement of reasons for its action.’ (Weinstock v. Eissler, 224 Cal.App.2d 212, 225, 36 Cal.Rptr. 537, 545; emphasis added.) No contention is made that the court improperly sustained the demurrer to the original complaint on the one specific ground stated in its order sustaining the demurrer thereto.

The alleged cause of action is one based on implied contract where the mutual obligations of the parties are implied by their conduct. (Civ.Code, § 1621.)2 ‘The doctrine of implied contracts has its foundation in the doctrine of unjust enrichment.’ (McCaffrey v. Cronin, 140 Cal.App.2d 528, 535, 295 P.2d 587, 591.) Where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it, a constructive trust arises. (Rest. Restitution, § 160.)

As a general rule, a party is entitled to restitution after reversal of a judgment if he has been deprived of property by virtue of that judgment, and, as justice requires, the courts will place the appellant as nearly as possible in the condition in which he stood previously. (Schubert v. Bates, 30 Cal.2d 785, 790, 185 P.2d 793; Ward v. Sherman, 155 Cal. 287, 291, 100 P. 864; Holmes v. Williams, 127 Cal.App.2d 377, 273 P.2d 931; see Code Civ.Proc., § 908.) Penal Code section 1262 expressly provides for the return of fines after a successful appeal.3

It is also the rule applicable to criminal cases that the striking or dismissal of a charge of prior conviction by way of collateral attack is not the equivalent of a determination that the defendant did not suffer the conviction (People v. Burke, 47 Cal.2d 45, 51, 301 P.2d 241 [disapproved on other grounds, People v. Sidener, 58 Cal.2d 645, 647, 25 Cal.Rptr. 697, 375 P.2d 641]; People v. Simpson, 66 Cal.App.2d 319, 329, 152 P.2d 339), and the order finding a prior conviction constitutionally invalid does not have the effect of wiping out the prior judgment of conviction. (People v. Burke, supra; Gonzalez v. Municipal Court, 32 Cal.App.3d 706, 712–713, 108 Cal.Rptr. 612.) The effect of such an order is merely to prevent the constitutionally invalid conviction from being used to enhance the punishment that may be imposed in the pending criminal proceeding or to increase the severity of the sanctions that may be administratively imposed. (Gonzalez v. Municipal Court, supra.)

We apprehend, therefore, that where prior convictions are declared constitutionally invalid by way of collateral attack so as to prevent their use to enhance punishment or to increase the sanctions that may be imposed the prior conviction still stands and there is no obligation to refund fines paid pursuant to such convictions. If defendant has no obligation to return the fines paid by plaintiffs and those similarly situated as a result of such prior convictions, plaintiffs and such others similarly situated have no valid cause of action for restitution. “The cause of action is simply the obligation sought to be enforced.' [Citations.]' (Colvig v. RKO General, Inc., 232 Cal.App.2d 56, 66, 42 Cal.Rptr. 473, 480.) The law creates an obligation only where one obtains a benefit which he may not justly retain; in such case the person is unjustly enriched and the law creates an obligation. (Branche v. Hetzel, 241 Cal.App.2d 801, 807, 51 Cal.Rptr. 188.) Without an unjust retention, no obligation is created.

In the instant case plaintiffs do not allege that fines were or are being withheld following the reversal of a conviction upon appeal, nor do they allege that there was a successful collateral attack on prior convictions. All that they allege is that subsequent to the date of conviction of the named plaintiffs and all other persons similarly situated courts in this state have declared their convictions unconstitutional and void. The thrust of plaintiffs' argument in their briefs is that all members of the purported class either pled guilty to or were convicted of driving under the influence of alcohol in violation of Vehicle Code section 23102, subdivision (a), and that subsequently their convictions were declared unconstitutional by the courts but their fines and/or penalty assessments were never returned. Restitution is predicated on this argument.

This court judicially notices that a substantial number of convictions for drunk driving have been declared unconstitutional upon collateral attack either because the prior convictions were obtained in violation of the right to counsel (see Thomas v. Department of Motor Vehicles, 3 Cal.3d 335, 338, 90 Cal.Rptr. 586, 475 P.2d 858; Hasson v. Cozens, 1 Cal.3d 576, 83 Cal.Rptr. 161, 463 P.2d 385) or because the convictions were obtained in violation of the rights enumerated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 (cert. den. 398 U.S. 911, 90 S.Ct. 1708, 26 L.Ed.2d 72). (See Gonzallez v. Municipal Court, supra, 32 Cal.App.3d 706, 709, 710, 108 Cal.Rptr. 612; Cooper v. Justice Court, 28 Cal.App.3d 286, 104 Cal.Rptr. 543 [hg. den. Dec. 20, 1972].) Plaintiffs do not allege that such prior convictions were declared unconstitutional on any such grounds by way of collateral attack. He they done so no cause of action would be stated in view of the holding of Burke and Gonzalez. They meticulously avoid stating in both their pleadings and their briefs whether the prior convictions were declared unconstitutional upon direct attack upon appeal.

In view of the distinction between constitutionally invalid prior convictions so declared upon direct attack by appeal and those so declared upon collateral attack it was incumbent upon plaintiffs, in order to state a cause of action for restitution, to plead that the prior convictions were declared to be constitutionally invalid as a direct result of an appeal from such convictions which resulted in a reversal of the conviction. It is only upon this basis that plaintiffs and those similarly situated may sue to obtain restitution of the fines and/or penalties imposed upon sentence for such convictions.

We note that defendants specially demurred to the amended complaint on the ground of uncertainty and that one of the specifications of uncertainty is plaintiffs' failure to make clear whether the prior convictions were declared unconstitutionally invalid on appeal from the convictions or on the basis of collateral attack. As already pointed out the demurrer was sustained on all grounds. Although, ordinarily, the objection of uncertainty does not go to the failure to allege sufficient facts but to doubt as to what the pleader means by the facts alleged (Butler v. Sequeira, 100 Cal.App.2d 143, 145–146, 223 P.2d 48; Brea v. McGlashan, 3 Cal.App.2d 454, 459–460, 39 P.2d 877), uncertainties with regard to matters not alleged which are essential to the cause of action, as is the case here, are grounds for general demurrer. (See Dumm v. Pacific Valves, 146 Cal.App.2d 792, 799, 304 P.2d 738.)

In the instant case plaintiffs were given an opportunity to amend the complaint. They declined to do so. It is the rule that when a plaintiff is given the opportunity to amend his complaint and elects not to do so, strict construction of the complaint is required and it must be presumed that the plaintiff has stated as strong a case as he can. (Mitchell v. National Auto. & Casualty Ins. Co., 38 Cal.App.3d 599, 603, 113 Cal.Rptr. 391; Straughter v. Safety Savings & Loan Assn., 244 Cal.App.2d 159, 162, 52 Cal.Rptr. 871.)

It is the rule that where the lower court sustains the defendant's demurrer with leave to amend and the plaintiff declines to do so, electing to stand on his complaint, the judgment of dismissal must be affirmed if the complaint is objectionable on any ground raised by the demurrer. (Hilltop Properties v. State of California, 233 Cal.App.2d 349, 361–362, 43 Cal.Rptr. 605; Sutter v. Gamel, 210 Cal.App.2d 529, 533, 26 Cal.Rptr. 880.)

Because the demurrer was properly sustained for the reasons we have indicated we need not reach the issue whether plaintiffs may properly maintain this case as a class action.

The judgment is affirmed.


1.  Code of Civil Procedure section 581 provides: ‘An action may be dismissed in the following cases: . . . 3. . . . when, after a demurrer to the complaint has been sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court, and either party moves for such dismissal. . . .’

2.  Defendant's characterization of the action as one in tort so as to bring it within the tort claims statute (Gov.Code, § 905.2) is not accurate. ‘A claim for the specific recovery of property has never been considered a claim for ‘money or damages' as used in section 905 and its predecessors.’ (Minsky v. City of Los Angeles, 11 Cal.3d 113, 121, 113 Cal.Rptr. 102, 108, 520 P.2d 726, 732.).

3.  Penal Code section 1262, in pertinent part, provides:‘. . . If a judgment against the defendant is reversed and the case is dismissed, or if the appellate court directs a final disposition of the action in defendant's favor, and defendant has theretofore paid a fine in the case, such act shall also be deemed an order of the court that the fine, including any penalty assessment thereon, be returned to defendant.’

MOLINARI, Presiding Justice.

SIMS and ELKINGTON, JJ., concur.