Between The Pot And A Hard Place.

Pursuant to a search warrant, police seized 12 seven-foot tall marijuana plants, freezer bags containing a total of about five ounces of marijuana, a tray of loose marijuana and rolling papers which plaintiff used for medicinal purposes. The court denied plaintiff’s first motion to return his property.  Criminal charges were filed, police destroyed most of the evidence and the prosecutor requested the charges be dismissed. What marijuana was not destroyed was then ordered returned to plaintiff.  Plaintiff made a claim under the theft provision of his homeowners policy.  The claim was denied and he sued for breach of contract and breach of the implied covenant of good faith and fair dealing.  The Court of Appeal affirmed the grant of summary judgment, stating destruction of the insured’s marijuana and marijuana plants did not constitute a “theft,” or criminal conduct that would support a claim marijuana was “stolen.”  Furthermore, the insurance company was not required to delay its determination of the claim until the criminal proceedings concluded.  Barnett v. State Farm General Insurance Company   (Cal. App. Fourth Dist., Div. 3;  October 31, 2011) 200 Cal.App.4th 536, [132 Cal.Rptr.3d 742].