TURLOCK POLICE DEPARTMENT v. OPENSHAW (1994)

OPINION

STATEMENT OF CASE AND FACTS

On the morning of November 28, 1992, a Turlock police officer responded to a domestic disturbance call at 691 Alpha Road, # 60.   Once at the scene, the officer met with appellant, her brother and her mother.   Appellant reported she had been out dancing with friends the previous evening when her husband of approximately 14 years, Wesley Openshaw, approached and grabbed her around the neck with his right hand.   He lifted appellant, by her neck, slightly off the floor.   He also yelled at her, although she could not hear or understand him due to the loud music.   The husband then put her down and ran away.

Appellant spent that night with her mother and brother at her mother's home.   She was awakened on the morning of November 28 by a banging noise.   Wesley was outside yelling at appellant to come out;  he wanted a handgun which appellant had in her possession.   He had unlocked her vehicle and was throwing items out of it in an effort to find the gun.   After telling her husband the gun was inside her mother's home, appellant retrieved the weapon, which was loaded, and handed it to him.   The husband then pushed appellant on the ground, took the gun, and left in his truck.

Appellant was undecided about whether to press charges against her husband for assault and battery.   The officer gave her an emergency resources handout and advised her to call the police in the event she wanted to retrieve any property from the couple's residence that day.   Appellant was afraid to go home.   She reported Wesley had numerous hunting rifles and handguns there.   She was uncertain what he would do in his state of mind.

Later that morning, appellant requested police assistance so that she could pick up a few items from her residence;  she planned to spend the next few days elsewhere.   The officer who took appellant's earlier report met her at the Openshaw residence.   Appellant gave the officer permission to enter the residence and remove the firearms and dangerous weapons from the house for a 72-hour hold under Penal Code section 12028.5.¹

While in the house, the officer found Appellant's husband asleep on a couch.   The officer awoke him to explain the situation.   The husband became irate and had to be restrained.   He was eventually taken into custody based on appellant's citizen's arrest for assault and battery.

Meanwhile, the officer seized 21 rifles, handguns, and knives from the residence.   Appellant agreed to the removal of the weapons with the officer's assurance that they would be kept only for 72 hours, for safekeeping.   She thought a “ ‘cooling off period’ ” might be useful to give her and her husband time to sort out their problems.

On or about December 2, 1992, more than 72 hours after the weapons were taken into police custody, appellant went to the Turlock police department to retrieve the items;  her request for their return was denied.   On December 7, appellant and her husband submitted formal written requests for return of the weapons.   They were informed they would have to wait until the department's supervisor of the crime prevention and community services unit returned from vacation.

On January 14, 1993, the Turlock City Police Department (Turlock) filed with the superior court and served upon appellant a petition for a hearing to determine whether the weapons should be returned (§ 12028.5, subd, (e)), along with a 30-day notice to respond (§ 12028.5, subd, (f)).   Turlock sought forfeiture of 14 of the weapons based on:  (1) the assertion that return of the weapons would likely result in endangering appellant;  and (2) the fact that Wesley was a convicted felon.²  The department had returned, at some undisclosed point, seven of the weapons because they were not covered by section 12028.5.   Turlock also requested that the court excuse the department's failure to initiate its petition within 10 days of the November 28th seizure.

In support of its petition, Turlock submitted the declaration of William Kimble, the department's supervisor of the crime prevention and community services unit.   Based upon the police report describing the November 27 and 28 incidents, Kimble's training and years of experience as a patrol officer, and his representation that domestic violence calls are the single most dangerous response for an officer to make, the supervisor urged the court not to return the weapons.   Kimble had “grave concern” for appellant and the public if the weapons were given back to appellant.   He cited the fact that Wesley would have access to them even though, as a convicted felon, he was not entitled to own or possess a firearm (§ 12021).   The officer also noted that the firearms and weapons had been confiscated initially because of Wesley's threatening actions.   As to the department's failure to timely file and serve the petition, Kimble professed ignorance of the 10-day limitations period contained in section 12028.5, subdivision (e).

In response, appellant requested a hearing on the petition.   She challenged the timeliness of the petition as well as Turlock's allegation it had good cause to retain the weapons.   In her declaration, she claimed ownership or a right to possess all of the weapons in question.   She said that, as a result of the November 27th incident, her husband had entered a counseling program, which he would be completing within the next one and a half weeks.   In addition, she asserted that the problems which led to the November 27th incident had since been resolved.   Indeed, appellant claimed she had not felt any fear of harm since the incident, and that the major stress in her life was Turlock's refusal to return the firearms to her.

At the hearing, the trial court granted Turlock's petition and entered an order permitting it to retain the weapons.   In part, the court found that the return of the firearms would endanger appellant.

DISCUSSION

I. APPEALABILITY

Section 12028.5, subdivision (i) provides:

“(i) [i]f, at the hearing, the court does not order the return of the firearm or other deadly weapon to the owner or person who had lawful possession, that person may petition the court for a second hearing within 12 months from the date of the initial hearing.   If the owner or person who had lawful possession does not petition the court within this 12-month period for a second hearing or is unsuccessful at the second hearing in gaining return of the firearm or other deadly weapon, the firearm or other deadly weapon may be disposed of as provided in Section 12028.”  (emphasis added.)

Because this portion of the statute gives an individual, such as appellant, the right after 12 months to relitigate in the trial court the issue of whether a weapon should be returned, Turlock contends the trial court's order was not final and therefore not appealable.

We disagree.   There is nothing interlocutory about an order made after the first hearing under section 12028.5.   The police are authorized by the statute to dispose of seized weapons at the end of the 12-month period unless the owner or former possessor is successful at a second hearing.  (§ 12028.5, subd. (i).)  If the owner or possessor does not request a second hearing, and there is nothing in the statute which requires him or her to do so, no judicial act is left to be done after entry of the first order.  (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 67, p. 91.)   Thus, the initial order constitutes a final determination and is therefore appealable.  (Code Civ.Proc., § 904.1.3)

Subdivision (i) implies that a change of circumstances after the first hearing, such that the later return of a firearm would no longer pose a danger, would justify an order for such a return.   In this respect, a request for a second hearing resembles a motion for reconsideration in civil proceedings (Code Civ.Proc., § 1008) or a new trial motion (Code Civ.Proc., § 657) based on new evidence.   We know of no rule which compels a losing party to move for reconsideration or a new trial before appealing the original order or decision.

Alternatively, Turlock claims that even if the order was final, Code of Civil Procedure section 904.1 nonetheless does not authorize an appeal.   Turlock relies upon Jasper Constr., Inc. v. University Casework Systems, Inc. (1974) 39 Cal.App.3d 582, 585.

In Jasper, a subcontractor on a public works project filed a stop notice, claiming nonpayment by the prime contractor (Jasper) of over a quarter million dollars;  the state in turn withheld the amount claimed from money due Jasper.   The prime contractor filed a surety bond in order to obtain the release of the withheld money and initiated a summary proceeding pursuant to statute to decrease the amount of its bond.   The court ordered a reduction of the bond, and the subcontractor appealed.  (Jasper Constr., Inc., supra, 39 Cal.App.3d at pp. 583-584.)

The appellate court dismissed the case on the ground the order was not appealable.   It first described the special statutory procedures (Civ.Code, §§ 3179-3214) that protect creditors of a prime contractor for a public works project, which is not subject to mechanics' or materialmen's liens.   (Jasper Constr., Inc., supra, 39 Cal.App.3d at pp. 584-585.)   The court then stated:

“The statute makes no provision for appellate review of an order entered in such a summary proceeding.   No reported decision has considered the question whether an appeal may be taken from such an order.   The question must be resolved because the appellate jurisdiction of this court extends only to matters specified by statute.  (See 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 30, p. 4045.)   In civil actions or proceedings in which original jurisdiction lies in the superior court, appeals may be taken from a judgment and from certain orders specified in Code of Civil Procedure section 904.1.”

The court noted that the ruling in issue was expressly designated by statute as an “order” and not as a judgment.   It also pointed out that another portion of the relevant statutory scheme, Civil Code section 3205, stated that “ ‘[n]o determination in the summary proceedings under this article shall be res judicata․’ ”  (Jasper Constr., Inc., supra, 39 Cal.App.3d at p. 585.)   Thus, by explicit statutory command, an order in a section 3197 summary proceeding was not a final adjudication of the subcontractor's right to recover.

Finally, the Jasper court concluded that the Legislature did not intend to provide for review by appeal of the summary order.   The court based this finding upon the contents of several Civil Code provisions which disclosed an intention that disputes regarding stop notices and bonds on public projects be speedily resolved.  (Jasper Constr., Inc., supra, 39 Cal.App.3d at pp. 586-587.)   Such a goal would be frustrated if appeals were permitted in such proceedings.   Moreover, appeals would disrupt the handling of claims in the not infrequent situation where several stop notice claims against a single construction fund are consolidated.  (Jasper Constr., Inc., supra, 39 Cal.App.3d at p. 587.)

We find nothing in Jasper which persuades us to hold that the order before us is not appealable.   The fact that a particular statutory scheme does not expressly provide for appellate review is not dispositive.   It simply requires us to look to the general rules pertaining to the application of Code of Civil Procedure section 903 et seq.   As we explained above, under these principles the order here was for all intents and purposes a final determination, unlike the order in Jasper.   In addition, the fact that a decision may be denominated an order and not a judgment is not decisive of whether it constitutes an appealable judgment for purposes of section 904.1.   We look to the effect of the ruling and not its label.  (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, §§ 44 & 67, pp. 68 & 91.)   Last, there is nothing in section 12028.5 which suggests the Legislature did not intend to permit review of the initial order by way of an immediate appeal.

II. TIMELINESS

In pertinent part, section 12028.5 provides:

“(b) ․ Except as provided in subdivision (e), if a firearm or other deadly weapon is not retained for use as evidence related to criminal charges brought as a result of the family violence incident or is not retained because it was illegally possessed, the firearm or other deadly weapon shall be made available to the owner or person who was in lawful possession 48 hours after the seizure or as soon thereafter as possible, but no later than 72 hours after the seizure․”

“(e) In those cases where a law enforcement agency has reasonable cause to believe that the return of a firearm or other deadly weapon would be likely to result in endangering the victim or the person reporting the assault or threat, the agency shall advise the owner of the firearm or other deadly weapon, and within 10 days of the seizure, initiate a petition in superior court to determine if the firearm or other deadly weapon should be returned.”

It is undisputed that Turlock filed its petition 46 days after the police seized the weapons.   Appellant therefore contends the superior court should have dismissed the action as untimely brought because section 12028.5 mandates that a petition be filed within 10-days of the seizure.   She also claims the court lacked the discretion to ignore the untimely filing and hear the petition.   She relies on the presence of the word “shall” in both subdivisions (b) and (e).

On the other hand, Turlock argues that the 10-day rule is directory, not mandatory.   Turlock analogizes the provision to the filing requirements contained in asset forfeiture statutes, which in many instances have been deemed directory rather than mandatory.

Whether a public official's failure to comply with a statutory procedure should have the effect of invalidating subsequent dependent governmental action has been traditionally characterized as a question of whether the statute should be accorded “mandatory” or “directory” effect.   As used in this context, the words “mandatory” and “directory” do not equate in meaning, respectively, to the words “permissive” or “obligatory.”   Rather, the terms simply denote whether failure to comply with the particular procedural step will annul the governmental action in question.  (People v. McGee (1977) 19 Cal.3d 948, 958-959.)

To determine whether a statutory requirement is mandatory or directory, the court must ascertain the legislative intent.   In the absence of express statutory language, the relevant intention must be gathered from (1) the terms of the enactment viewed as a whole, (2) the nature and character of the act to be done, and (3) the consequences flowing from the performance or lack of performance of the particular act at the required time.   When the object is to promote some public purpose, the provision may be held directory or mandatory as will best accomplish that goal.  (Pulcifer v. County of Alameda (1946) 29 Cal.2d 258, 262.)

We conclude the 10-day rule should be accorded mandatory effect.   There is nothing in section 12028.5 which constitutes an explicit expression of a legislative desire that the 10-day rule be either mandatory or directory.   However, section 12028.5 is obviously aimed at protecting victims and peace officers from being harmed at the scene of an episode of family violence.   The statute's inclusion of 48- and 72-hour holding periods strongly suggests the Legislature intended to promote a cooling-off period for the involved family and household members.   These brief time frames also manifest a legislative recognition that the deprivation of private property, which may be legally owned and possessed, is at stake.   While this state's police power may well justify a brief detention of such property for the sake of immediate safety, law enforcement should not be permitted to unduly retain the property.   Thus, construing the 10-day rule of section 12028.5 as mandatory promotes the public protection purpose of the statute while at the same time guaranteeing that the state's intrusion into a private property right will be limited to what is legitimately and reasonably necessary.   Were we to hold the 10-day rule to be directory only, an agency could hold a seized weapon for a virtually unrestricted period of time, thereby compelling the property owner to sue the agency to obtain the weapon.   This sort of procedural scheme has already been rejected by the Legislature.⁴

Turlock relies upon People v. Property Listed in Exhibit One (1991) 227 Cal.App.3d 1.   At issue was whether Health and Safety Code section 11488.4, subdivision (j), which set a 30-day limitations period for the filing of a forfeiture petition, was jurisdictional.   The requirement was part of a statutory scheme (Health & Saf.Code, § 11470 et seq.) which governed the seizure of property and proceeds traceable to illegal narcotics transactions.   The appellate court found the 30-day rule to be directory only.

We find the opinion to be factually and legally distinguishable from the case before us.  Property Listed in Exhibit One, supra, dealt with the seizure of contraband, property to which the owner or possessor has no legal right.   All right, title and interest in property which is subject to forfeiture under the relevant Health and Safety Code sections vests in the state.  (Health & Saf.Code, § 11470, subd. (h).)  While there undoubtedly are many citizens who would prefer to see private ownership or possession of firearms abolished, the fact remains that as of this day the law of this state is otherwise.

In addition, the statutory scheme involved in Property Listed in Exhibit One, supra, imposed a one-year statute of limitations upon the initiation of forfeiture proceedings.   The only way the appellate court could reconcile the 30-day time limit with the 1-year limitations period was to view the 30-day time period as directory.  (Property Listed in Exhibit One, supra, 227 Cal.App.3d 1, 9.)   There is nothing of comparable import in this case.

III. OTHER ISSUES

Because Turlock's failure to comply with section 12028.5, subdivision (e) requires reversal of the trial court's order, it is unnecessary for us to address any of the other issues raised on appeal by the parties.   However, we will briefly comment on one of the alternate claims of error raised by appellant.

Even if we had held that the 10-day rule was directory, we would still have concluded a reversal is necessary because the record evidence is insufficient to support a determination by the trial court that “the return of the [firearms] ․ would result in endangering the victim or the person reporting the assault or threat․”  (Pen.Code, § 2028.5, subd. g.)

In support of its petition, Turlock relied on the circumstances surrounding the November 28th incident, husband's status as a convicted felon, the prohibition against such persons being in possession of firearms (§ 12020), and the serious nature of domestic violence in general.   While these factors may be relevant to the question of whether the weapons should be returned, they do not establish, standing alone, the statutory requirement that return of the weapons after the holding period expired would then jeopardize either the victim's or the reporter's safety.

The fact that appellant's husband is legally disabled from possessing firearms does not prohibit appellant from doing so.   In this regard, Turlock did not dispute the statement in appellant's declaration to the effect that she alone was entitled to the possession of all of the firearms in issue.   Turlock has cited no authority, and we have found none, which allows a trial court to indulge in a presumption that appellant would turn the weapons over to her husband if the court ordered them to be given back to her.   Indeed, from her declaration it appears appellant wanted the firearms so she could dispose of them by sale.

In addition, if law enforcement could rely alone upon the seriousness of domestic violence in general, or the past facts which gave rise to the seizure, to prove its petition, no weapon covered by section 12028.5 would ever be released and the provisions of section 12028.5 concerning restoration would be reduced to nothing more than window-dressing.   Instead, in addition to pertinent evidence relating to the events which led to the seizure of the weapon in issue, the statute requires the law enforcement agency to present evidence which clearly and convincingly (§ 12028.5, subd. g) establishes that under the circumstances existing at the time of the hearing it would be dangerous to the victim or the reporter to return the weapon to the claimant.

Finally, we are not unmindful that the person who wants us to order the weapons returned to her is the very person who was the victim of the domestic violence which led to the seizure of the weapons in the first place.   Although under the provisions of section 12028.5 we have no choice but to objectively implement the law and enforce appellant's claim to the weapons, we frankly question the subjective wisdom of her desire to retake possession of them, notwithstanding her professed desire to sell them.

DISPOSITION

The judgment (order) is reversed.   The trial court on remand shall enter an order denying the petition and directing Turlock to return the seized firearms to appellant.   Pursuant to section 12028.5, subdivision (b), appellant shall recover her reasonable attorney's fees expended in connection with the proceedings in the trial court as well as on this appeal, as determined by the trial court on remand.   Appellant shall also recover her costs on appeal.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise indicated.Section 12028.5 provides in pertinent part:“(a) As used in this section, the following definitions shall apply:“(1) ‘Abuse’ means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself, herself, or another.“(2) ‘Family violence’ has the same meaning as domestic violence as defined in subdivision (b) of Section 13700, and also includes any abuse perpetrated against a family or household member.“(3) ‘Family or household member’ means a spouse, former spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any person who regularly resides or who regularly resided in the household.“The presumption applies that the male parent is the father of any child of the female pursuant to the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code).“(4) ‘Deadly weapon’ means any weapon, the possession or concealed carrying of which is prohibited by Section 12020.“(b) A ․ police officer ․ while acting in the course and scope of his or her employment as a peace officer, ․ who is at the scene of a family violence incident involving a threat to human life or a physical assault, may take temporary custody of any firearm or other deadly weapon in plain sight or discovered pursuant to a consensual search as necessary for the protection of the peace officer or other persons present.   Upon taking custody of a firearm or other deadly weapon, the officer shall give the owner or person who possessed the firearm a receipt.   The receipt shall describe the firearm or other deadly weapon and list any identification or serial number on the firearm.   The receipt shall indicate where the firearm or other deadly weapon can be recovered and the date after which the owner or possessor can recover the firearm or other deadly weapon.   No firearm or other deadly weapon shall be held less than 48 hours.   Except as provided in subdivision (e), if a firearm or other deadly weapon is not retained for use as evidence related to criminal charges brought as a result of the family violence incident or is not retained because it was illegally possessed, the firearm or other deadly weapon shall be made available to the owner or person who was in lawful possession 48 hours after the seizure or as soon thereafter as possible, but no later than 72 hours after the seizure.   In any civil action or proceeding for the return of firearms or ammunition or other deadly weapon seized by any state or local law enforcement agency and not returned within 72 hours following the initial seizure, except as provided in subdivision (c), the court shall allow reasonable attorney's fees to the prevailing party.“․“(e) In those cases where a law enforcement agency has reasonable cause to believe that the return of a firearm or other deadly weapon would be likely to result in endangering the victim or the person reporting the assault or threat, the agency shall advise the owner of the firearm or other deadly weapon, and within 10 days of the seizure, initiate a petition in superior court to determine if the firearm or other deadly weapon should be returned.“(f) The law enforcement agency shall inform the owner or person who had lawful possession of the firearm or other deadly weapon, at that person's last known address by registered mail, return receipt requested, that he or she has 30 days from the date of receipt of the notice to respond to the court clerk to confirm his or her desire for a hearing, and that the failure to respond shall result in a default order forfeiting the confiscated firearm or other deadly weapon.   For the purposes of this subdivision, the person's last known address shall be presumed to be the address provided to the law enforcement officer by that person at the time of the family violence incident.   In the event the person whose firearm or other deadly weapon was seized does not reside at the last address provided to the agency, the agency shall make a diligent, good faith effort to learn the whereabouts of the person and to comply with these notification requirements.“(g) If the person requests a hearing, the court clerk shall set a hearing no later than 30 days from receipt of that request.   The court clerk shall notify the person, the law enforcement agency involved, and the district attorney of the date, time, and place of the hearing.   Unless it is shown by clear and convincing evidence that the return of the firearm or other deadly weapon would result in endangering the victim or the person reporting the assault or threat, the court shall order the return of the firearm or other deadly weapon and shall award reasonable attorney's fees to the prevailing party.“․“(i) If, at the hearing, the court does not order the return of the firearm or other deadly weapon to the owner or person who had lawful possession, that person may petition the court for a second hearing within 12 months from the date of the initial hearing.   If the owner or person who had lawful possession does not petition the court within this 12-month period for a second hearing or is unsuccessful at the second hearing in gaining return of the firearm or other deadly weapon, the firearm or other deadly weapon may be disposed of as provided in Section 12028.”

2.   Although the petition did not disclose the particulars of Wesley's prior felony, it appears from the record that in 1970, when he was 19 years old, Wesley was convicted of second degree burglary.

FN3. Code of Civil Procedure, section 904.1 provides in relevant part:“(a) An appeal may be taken from a superior court in the following cases:“(1) From a judgment, except (A) an interlocutory judgment, other than as provided in paragraphs (8), (9), and (11), (B) a judgment of contempt which is made final and conclusive by Section 1222, (C) a judgment on appeal from a municipal court or a justice court or a small claims court, or (D) a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition directed to a municipal court or a justice court or the judge or judges thereof which relates to a matter pending in the municipal or justice court.   However, an appellate court may, in its discretion, review a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition, or a judgment or order for the payment of monetary sanctions, upon petition for an extraordinary writ.“(2) From an order made after a judgment made appealable by paragraph (1).“(3) From an order granting a motion to quash service of summons or granting a motion to stay or dismiss the action on the ground of inconvenient forum.“(4) From an order granting a new trial or denying a motion for judgment notwithstanding the verdict.“(5) From an order discharging or refusing to discharge an attachment or granting a right to attach order.“(6) From an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction.“(7) From an order appointing a receiver.“(8) From an interlocutory judgment, order, or decree, hereafter made or entered in an action to redeem real or personal property from a mortgage thereof, or a lien thereon, determining the right to redeem and directing an accounting.“(9) From an interlocutory judgment in an action for partition determining the rights and interests of the respective parties and directing partition to be made.“(10) From an order made appealable by the provisions of the Probate Code or the Family Code.“(11) From an interlocutory judgment directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).“(12) From an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).”.  FN3. Code of Civil Procedure, section 904.1 provides in relevant part:“(a) An appeal may be taken from a superior court in the following cases:“(1) From a judgment, except (A) an interlocutory judgment, other than as provided in paragraphs (8), (9), and (11), (B) a judgment of contempt which is made final and conclusive by Section 1222, (C) a judgment on appeal from a municipal court or a justice court or a small claims court, or (D) a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition directed to a municipal court or a justice court or the judge or judges thereof which relates to a matter pending in the municipal or justice court.   However, an appellate court may, in its discretion, review a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition, or a judgment or order for the payment of monetary sanctions, upon petition for an extraordinary writ.“(2) From an order made after a judgment made appealable by paragraph (1).“(3) From an order granting a motion to quash service of summons or granting a motion to stay or dismiss the action on the ground of inconvenient forum.“(4) From an order granting a new trial or denying a motion for judgment notwithstanding the verdict.“(5) From an order discharging or refusing to discharge an attachment or granting a right to attach order.“(6) From an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction.“(7) From an order appointing a receiver.“(8) From an interlocutory judgment, order, or decree, hereafter made or entered in an action to redeem real or personal property from a mortgage thereof, or a lien thereon, determining the right to redeem and directing an accounting.“(9) From an interlocutory judgment in an action for partition determining the rights and interests of the respective parties and directing partition to be made.“(10) From an order made appealable by the provisions of the Probate Code or the Family Code.“(11) From an interlocutory judgment directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).“(12) From an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).”

4.   Before 1991, section 12028.5 in effect gave the claimant a right of action, and provided for an award of attorney's fees to the prevailing party, if a seized weapon was “not returned within 72 hours.”   (See Historical and Statutory Notes to § 12028.5.)   The provision in section 12028.5 placing the burden on the public agency to file a petition within 10 days if it does not believe a seized weapon should be returned to the claimant was added in 1991.

DIBIASCO, Associate Justice.

ARDIAZ, P.J., and SILVEIRA,† J. Assigned, concur.