California Search and Seizure: Motion for Return of Seized Property: Jurisdiction and Procedure

In which Court do I file my Motion?

Generally, you will file your Motion in the Court of the jurisdiction in which your property was seized. For example, if the San Diego Sheriff seized your property, you would file your Motion in San Diego Superior Court.

Federal agencies have a different jurisdiction and procedure. This Guide addresses motions to be brought in a California Superior Court.

Motions are a form of legal pleading (or brief, or court papers) in which you ask the Court to do something. You are moving the Court to take action for you.

Motions generally are comprised of several different parts. Each part is necessary, and serves a specific purpose.

• The Notice of Motion informs the Court of what it is you are asking them to do, and informs any party to the action where and when the Motion is going to be heard.
• The Memorandum of Points and Authorities informs the Court of the law upon which you are basing your Motion. In other words, the basis for your right to ask the Court to do something.
• The Declaration is the portion in which you set forth your statement of facts. You will sign this section under penalty of perjury.
• The Order is for the judge to sign. You will write out what you wish the Court to do or order, and if the Judge agrees with you and rules in your favor, the Judge will sign the Order and it will serve as the Court's direction in the matter. It generally will allow you to retake your property.

  • In general, unless the Court orders otherwise, the person who prevails on the motion will serve a proposed order on the other party within 5 days of the ruling (see California Rules of Court 3.1312). If there is no objection by the other party within 5 days, the proposed order is then sent to the Court for signature. 

  • However, Courts vary on whether formal orders are required or whether the Court simply issues a minute order. Please check your judge’s chamber rules here to determine whether or not they require a proposed order when you file your motion after the hearing, or if the minute order will suffice as the official order.

After you draft all these different parts, you will assemble them in one packet. This packet is the Motion.

You will also need to serve the parties and this will require a Proof of Service form.

1. Prepare your own motion papers using the sample briefs as a guide. The sample pleadings show you where to insert your own unique information and what kind of information to provide.

Note: do NOT fill in the information about the time, place, and date of the hearing until you actually file the papers at the courthouse. Leave a blank for those areas so you can write or type it in after the court clerk gives you a reservation date for the hearing.

2. After you have prepared your pleadings, make two copies. You should have a total of three copies: an original and two duplicates. The original is filed with the court clerk; one copy is for your records; and the third copy is served on the opposing party.  For further guidance on formatting your paperwork, see California Rules of Court, Rule 2.100 - 2.119.

3. Take all three copies to the court clerk at the Business Office of the appropriate San Diego Superior Court. Hand all three copies to the clerk and tell the clerk you are filing a motion and you want to request a court date. The clerk will assign you a date, time, and court room (department) in which you will be heard. Fill in the assigned date, time, and department number on all three sets of your papers.

• According to local San Diego Superior Court Rule 3.2.1, for criminal motions (made by a defendant after charges have been filed) you have to give at least 15 days notice to the other party and allow an extra 5 days for the papers to reach them by mail. So ask for a date about 20 days away.
• Under California Code of Civil Procedure §1005(b) and California Rules of Court, Rule 3.1300(a) for civil motions (where no criminal charges have ever been filed or motions made by a non-defendant where charges have been filed), you have to give at least 16 court days of notice to the other parties and allow an additional 5 days for the papers to reach them by mail if the place of mailing and place of address are within California. So, ask for a date about 22 days away.

4. The court clerk will take all three copies and file stamp them. This shows they were received by the court. The clerk will hand you back the two copies. The clerk puts the original in the court's file.

5. Keep one of the file-stamped copies for yourself. The other copy must be served on the agency who prosecuted you. This is what keeps the process fair. The delivery has to be done by someone over 18 years of age who is not a party to the case. You cannot do it yourself, but a friend, neighbor, or co-worker can do the delivery for you. You will need a Proof of Service form to prove that you served the agency. There are several forms, and they are specific to whether service is being done personally, or by mail.

6. Take the Proof of Service form and type the top part with your name, the case title, case name, etc. Check off the box showing the County Courthouse's address. Fill in the name of the person who will do the delivery (or "service") for you. List the documents being sent. Then have the delivery person check to make sure that each of the listed documents goes in to the envelope, that the envelope is sealed, and correctly addressed. Include a dated but unsigned copy of the Proof of Service form in the packet.

7. Your friend/neighbor/colleague then drops the packet in the mail, or delivers it in person, and signs the original Proof of Service form. This certifies under penalty of perjury that service of papers has been carried out properly.

8. Take the completed form, make a copy, and take both copies down to the clerk. Have the clerk file-stamp the forms. The clerk will put one in the court's file and give one back to you. Keep your file-stamped copy as a receipt.

9. Go to the hearing. Adhere to the Court's requirements for appearances.