Judge: Frank M. Tavelman, Case: 22BBCV00573, Date: 2022-09-30 Tentative Ruling

Case Number: 22BBCV00573    Hearing Date: September 30, 2022    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

APPLICATION FOR WRIT OF POSSESSION AND

APPLICATION FOR A TEMPORARY RESTRAINING ORDER

ALLEGATIONS:

Plaintiff Mario Cesar Batres (“Plaintiff”) filed suit against Defendant Ashley Plotkin (“Defendant”), alleging that Plaintiff and Defendant were dating when they jointly fostered and adopted a dog, Blue, on January 2, 2018. On May 12, 2022, the parties ended their relationship and orally agreed to have joint custody of Blue. It is further alleged that Defendant breached the oral agreement by July 31, 2022 and refused to return Blue to Plaintiff.

Plaintiff filed a Verified Complaint on August 9, 2022, alleging the following four causes of action: (1) Breach of Oral and Implied Contract; (2) Conversion; (3) Claim and Delivery; and (4) Intentional Infliction of Emotional Distress.

HISTORY:

The Court received the Application for Writ of Possession filed by Plaintiff on August 23, 2022; the opposition filed by Defendant on September 20, 2022; and the reply filed by Plaintiff on September 9, 2022.

RELIEF REQUESTED:

Plaintiff seeks immediate and sole possession of Blue, a grey and white Pitbull dog, pursuant to CCP § 512.010 on the ground that he is Blue’s owner and Defendant has wrongfully detained Blue. Alternative, Plaintiff seeks the Court to impose a preliminary injunction pursuant to CCP §§ 525-527.

ANALYSIS:

As a preliminary matter, the Court notes that Plaintiff has submitted additional evidence along with his reply papers in the form of several declarations. Generally, new evidence and legal argument are not permitted within reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Moreover, in the context of a writ of possession pursuant to CCP § 512.010, new evidence and argument may only be considered based on good cause. (CCP § 512.050.) Upon review of Plaintiff’s reply, he has not established good cause for the new evidence that he seeks to include. It is noted that Plaintiff seeks to rebut Defendant’s accusations that he has been neglectful in caring for Blue in the past and/or unfit to care for Blue. However, as explained further below and based on the Court’s rulings on Plaintiff’s objections, those accusations are not relevant to the Court’s decision.

Writ of Possession

I.          LEGAL STANDARD

A writ of possession is issued as a provisional remedy in a cause of action for claim and delivery, also known as replevin. (See Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1288.) As a provisional remedy, the right to possession is only temporary, and title and the right to possess are determined in the final judgment.

Upon the filing of the complaint or at any time thereafter, a plaintiff may apply for an order for a writ of possession.  Unlike attachment, where Judicial Council forms are optional, the parties must use the mandatory approved Judicial Council forms in a claim and delivery proceeding.  (Judicial Council Forms CD-100 et seq.). 

A plaintiff must make a written application for a writ of possession. (CCP §512.010(a), (b); Mandatory Form CD-100.) A verified complaint alone is insufficient. (See 6 Witkin, California Procedure, (5th ed. 2008) §255, pg. 203.) The application may be supported by declarations and/or a verified complaint. (CCP §516.030.) The declarations or complaint must set forth admissible evidence except where expressly permitted to be shown on information and belief. (Id.)

 The court may order issuance of a writ of possession if both of the following are found: (1) The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property; and (2) The undertaking requirements of CCP § 515.010 are satisfied. (CCP §512.060(a).)  “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.”  (CCP §511.090.) This requires that the plaintiff establish a prima facie case; the writ shall not issue if the defendant shows a reasonable probability of a successful defense to the claim and delivery cause of action. (Witkin, California Procedure, (5th ed. 2008) §261, pg. 208.)  A defendant’s claim of defect in the property is not a defense to the plaintiff’s right to possess it.  (RCA Service Co. v. Superior Court (1982) 137 Cal.App.3d 1, 3.)

No writ directing the levying officer to enter a private place to take possession of any property may be issued unless the plaintiff has established that there is probable cause to believe that the property is located there.  (CCP §512.060(b).)  

The successful plaintiff may obtain a preliminary injunction containing the same provisions as a TRO that remains in effect until the property is seized by the levying officer. (CCP §513.010(c).)  However, if the court denies the plaintiff’s application for a writ of possession, any TRO must be dissolved. (Id.)

The court may also issue a “turnover order” directing the defendant to transfer possession of the property to the plaintiff (See Mandatory Form CD-120).  The order must notify the defendant that failure to comply may subject him or her to contempt of court. (CCP §512.070.) The turnover remedy is not issued in lieu of a writ, but in conjunction with it to provide the plaintiff with a less expensive means of obtaining possession.  (See Edwards v Superior Court (1991) 230 Cal.App.3d 173, 178.)

II. EVIDENTIARY OBJECTIONS

On September 22, 2022, Plaintiff filed a request to strike portions of the Declaration of Ashley Plotkin dated September 13, 2022. While this request is stylized as a motion to strike, a closer examination of the Exhibit A, enclosed within the request, indicates that they are evidentiary objections. Accordingly, the Court sustains objection nos. 2-5, 9-13, 18-21, 23, 26-27, 29 and overrules objection nos. 1, 6-8, 14-17, 22, 24-25, 28, 30-42.

III. MERITS

A.    Untimely Opposition Papers

It is noted that Defendant’s opposition was untimely filed on September 20, 2022. (CCP § 1005(b).) Nevertheless, the court has broad discretion to overlook late-served papers and to resolve the matter on the merits.  (E.g., Cal. Rules of Court, rule 3.1300(d); Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 168 [“(E)ven if the service had been untimely, the trial court was vested with discretion to overlook the defect”]; Bozzi v. Nordstrom (2010) 186 Cal.App.4th 755, 765.) Thus, the Court shall consider Defendant’s untimely opposition.

B.     Procedural Requirements

Before noticing a hearing, the plaintiff must serve the defendant with all the following: (1) A copy of the summons and complaint; (2) A Notice of Application and Hearing; and (3) A copy of the application and any supporting declaration.  (CCP §512.030(a).)  If the defendant has not appeared in the action, service must be made in the same manner as service of summons and complaint. (CCP §512.030(b).) 

The application must be executed under oath and include: (1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed.  If the plaintiff's claim is based on a written instrument, a copy of it must be attached; (2) A showing that the property is wrongfully detained by the defendant, how the defendant came into possession of it, and, the reasons for the detention based on the plaintiffs best knowledge, information, and belief; (3) A specific description of the property and statement of its value; (4) The location of the property according to the plaintiff’s best knowledge, information, and belief.  If the property, or some part of it, is within a private place which may have to be entered to take possession, a showing of probable cause to believe that the property is located there; and (5) A statement that the property has not been taken for (a) a tax, assessment, or fine, pursuant to a statute, or (b) an execution against the plaintiff’s property.  Alternatively, a statement that if the property was seized for one of these purposes, it is by statute exempt from such seizure. (CCP §512.010(b).) 

Here, the Court finds that Defendant has been properly served pursuant to CCP § 512.030(a) with the following documents: (1) the summons and complaint; (2) the notice of the application and hearing; and (3) a copy of application and supporting declaration. (See Proof of Service filed August 17, 2022; see also Proof Service filed August 31, 2022.)

Additionally, in terms of the application, the Court finds that it lacks any procedural defects. First, in terms of a basis for his right to possession and for Defendant’s wrongful detainment of Blue, Plaintiff relies on his verified complaint and the attached declarations from himself, Brendan Healy, Zachary Spound, Daniel Lazar, and Timothy C. Munoz. (CD-100 ¶¶ 3, 5.) Second, Plaintiff claims that Blue is located at Defendant’s home address of 316 N. Maple Street, Unit 239, Burbank, CA 91505, and Defendants concedes this fact. (CD-100 ¶ 6; Opposition at pg. 5.)  Third, Plaintiff asserts that Blue has not been taken for tax, assessment, or fine, which Defendant also concedes as true. (CD-100 ¶ 8; Opposition at pg. 5.) Fourth, Plaintiff has provided a description of Blue as a “nine year old grey and white rescue Pitbull dog.” (CD-100 ¶ 4.)

And fifth, in terms of the value of Blue, Defendant argues that Plaintiff has not provided information on this point, but the Court disagrees. (See Opposition at pp. 7-8.) Pursuant to Penal Code § 491, “[d]ogs are personal property, and their value is to be ascertained in the same manner as the value of other property.” As such, a dog’s value is based upon the fair market value. (Wells v. Brown (1950) 97 Cal.App.2d 361, 365.) Because Blue is a rescue, the closest indicator of his market value who would be the cost of his adoption fee, which was $83.50. (See Motion at pg. 3; Complaint ¶ 10; see also Opposition, Exh. 1.)

Accordingly, the Court now turns to the merits of the application for writ of possession.

C.     Probable Validity of the Plaintiff’s Claim to Possession and Assertion of Wrongful Detention

Plaintiff seeks a writ of possession to recover Blue from Defendant in connection with causes of action for breach of contract and claim and delivery. He contends that he is Blue’s owner, and therefore, he is entitled to possess it. Also, Plaintiff claims that Defendant has wrongfully detained Blue by breaching their informal pet sharing agreement.

To be entitled to a writ of possession, a plaintiff must demonstrate that she is entitled to possess the subject property. (CCP §512.010(b)(1).) A dog is considered personal property, and the owner generally is entitled to a writ of possession to recover it.  (See Edwards v. Superior Court (1991) 230 Cal.App.3d 171, 175-176.) In other words, the plaintiff is required to establish that they can prevail on their claim-and-delivery action.  This requires that the Plaintiffs establish: (1) a right to immediate possession of the Dog; and (2) the wrongful detention of the Dog by Defendant Salmeron.  (Law v. Heiniger (1955) 132 Cal.App.2d Supp. 898, 899; Home Payment Jewelry Co. v. Smith (1914) 24 Cal.App. 486, 488.

Plaintiff presents the following evidence as support for his claim of ownership. First, Plaintiff contends that he and Defendant jointly adopted Blue from East Valley Animal Shelter. (Motion at pg. 3; Compl. ¶ 10; Batres Decl. ¶ 4, Munoz Decl. ¶ 4; Lazar Decl. ¶ 3; Spound Decl. ¶ 5; Healy Decl. ¶ 4.) Further, because of Plaintiff’s status of permanent disability, Blue was registered as his service dog with the USAR and USDR. (Motion at pg. 4; Batres Decl. ¶ 6, Exh. 1.) Plaintiff further claims that certain responsibility concerning Blue’s wellbeing were shared between the others and others were solely his responsibility, such as training, feeding, and walking. (Motion at pg. 4; Batres Decl. ¶ 7.) Blue’s health insurance was maintained by Plaintiff, and veterinary records indict both parties’ names. (Batres Decl. ¶¶ 7-8, Exh. 2-3.) For instance, Defendant was listed as “Ashley Batres.” Following the end of their relationship, Plaintiff asserts that the parties agreed to co-own Blue starting in May 2022, which continued through July 2022. (Motion at pg. 4; Batres Decl. ¶ 9-21, Exhs. 4-8; Lazar Decl. ¶ 12; Spound Decl. ¶ 6) On July 31, 2022, Defendant unilaterally ended their informal pet sharing agreement and withheld Blue from Plaintiff, even by taking Plaintiff’s name off of certain accounts associated with Blue. (Motion at pp. 4-5; Batres Decl. ¶ 22-23, Exh. 9.) Plaintiff further claims significant emotional attachment to Blue and that he is in a better position to take care of Blue, which is why he should be given sole possession of Blue. (Motion at pp. 6-7; Batres Decl. ¶¶ 27-36.)

In opposition, Defendant equally contends ownership over Blue. She insists that she is the sole owner of Blue because the adoption paperwork is in her name as well as Blue’s licenses. (Plotkin Decl. ¶ 4, Exh. 1-2.) Further, Defendant explains that Blue was registered as Plaintiff’s service or emotional support animal in order to allow Blue to live in their shared apartment because their complex had a no dog policy. (Plotkin Decl. ¶ 5, Exh. 4.) Additionally, Defendant claims that she did not voluntarily enter into the informal pet sharing agreement after their breakup because she had suffered abuse by Plaintiff during the course of their relationship and Plaintiff had threated to commit suicide. (Plotkin Decl. ¶¶ 25, 30, 33.)

Based on the arguments and evidence presented by both sides, the Court finds that Plaintiff has not established probable validity of his claim. First, the evidence shows that the parties maintained joint ownership of Blue up until the parties ended their dating relationship in May 2022. During that time, the Court acknowledges that both parties provided for Blue in various ways and took joint responsibility over him. However, Defendant has presented evidence to show that the adoption paperwork and Blue’s license indicates she is the rightful owner. (Plotkin Decl. ¶ 4, Exh. 1-2.) It is noted that, beyond Plaintiff’s declaration, Plaintiff has not provided proof that he paid for half of Blue’s adoption fee. Also, while the Court does not question Plaintiff’s claim of permanent disability, the Plaintiff has failed to provide sufficient support that Blue’s registration as Plaintiff’s service animal was legitimate. For instance, although Plaintiff in Exhibit D to her motion includes a note from Lawrence R. Miller, M.D., the note is dated September 21, 2022.   In the submitted note, Plaintiff has not submitted evidence from his doctor at the time of the registration necessitating his need for a service or support animal. Furthermore, Defendant’s explanation that Blue was registered to circumvent their apartment’s no dog policy is not farfetched. (Plotkin Decl. ¶ 5, Exh. 4.)

Moreover, upon the parties’ breakup, they entered into an informal pet sharing agreement, but there is a question of whether the informal pet sharing agreement was valid. As Defendant asserts, she did not voluntarily enter into that agreement because of the abuse she allegedly suffered from by Plaintiff. (Plotkin Decl. ¶¶ 25, 30, 33.) If true, this would likely void the agreement. Defendant would need to prove that Plaintiff “intentionally exerted an unlawful pressure on the injured party to deprive [her] of contractual volition and induce [her] to act to [her] own detriment.” (Goldstein v. Enoch (1967) 248 Cal.App.2d 891, 894-895.) Otherwise, Defendant’s actions cannot be based on her “speculation upon or anticipation of a future event suggested to [her] by [Plaintiff] but not threatened to induce [her] conduct. (Id.)  Thus, at this stage of the proceedings, prior to a trial, it cannot be determined that Plaintiff is clearly Blue’s co-owner. Regardless, even if Plaintiff had established that he is Blue’s co-owner, his request for sole ownership would not be appropriate under the circumstances. This is because Plaintiff’s argument that his residence and custody is preferable than Defendant’s is not a factor to consider under California law.  

Second, Plaintiff has not established that Defendant’s current possession of Blue is wrongful for similar reasons. Plaintiff asserts that the wrongful detention occurred when Defendant breached their informal pet sharing agreement. However, as stated above, there is serious question of whether the agreement is void.

Accordingly, the Court finds that Plaintiff has not establish a probable validity of his claim for possession and of Defendant’s unlawful detention of Blue.

D.    Undertaking

Generally, the court cannot issue an order for a writ of possession until the plaintiff has filed an undertaking with the court (Mandatory Form CD-140 for personal sureties).  CCP §515.010(a).  The undertaking shall provide that the sureties are bound to the defendant for the return of the property to the defendant, if return of the property is ordered, and for the payment to the defendant of any sum recovered against the plaintiff. (Id.)  The undertaking shall be in an amount not less than twice the value of the defendant's interest in the property or in a greater amount.  (Id.) The value of the defendant's interest in the property is determined by the market value of the property less the amount due and owing on any conditional sales contract or security agreement and all liens and encumbrances on the property, and any other factors necessary to determine the defendant’s interest in the property. (Id.)

However, where the defendant has no interest in the property, the court must waive the requirement of the plaintiff’s undertaking and include in the order for issuance of the writ the amount of the defendant’s undertaking sufficient to satisfy the requirements of CCP § 515.020(b). (CCP §515.010(b).)

Here, Plaintiff’s claims that an undertaking is not required because Defendant has no legal interest in Blue based on her violation of the parties’ pet sharing agreement. However, Plaintiff fails to cite to any legal authority for this proposition. Furthermore, as stated above, there is a question of whether this agreement is invalid. Therefore, an undertaking is required, which Plaintiff has failed to provide.

E.     Alternative Request for Injunction

Plaintiff alternatively seeks the Court to impose a preliminary injunction against Defendant for the immediate return of Blue. The Court finds this request to be lacking for several reasons. First, because Plaintiff was not successful in his writ of possession, he would not be entitled to a preliminary injunction that contains the same provisions of this TRO. (CCP §513.010(c).)  

Second, Plaintiff’s seeks a mandatory injunction. (Feinberg v. Doe¿(1939) 14 Cal.2d 24, 27 [“[A] mandatory injunction ‘is an order compelling affirmative action on the part of the defendants.’”].)¿  It is well-settled that a mandatory preliminary injunction which alters the status quo pending trial is¿rarely¿granted and is subject to a stricter review on appeal. (Paramount Pictures Corp. v. Davis¿(1964) 228 Cal.App.2d 827, 839.) Furthermore, to grant a preliminary injunction, the moving party must show “(1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction.” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.)

In this instance, Plaintiff fails to present sufficient arguments as to why he is likely to prevail on the merits. If Plaintiff relies solely on the argument presented in connection with his writ of possession, then the Court finds that Plaintiff has failed to meet his burden. Instead, Plaintiff focuses on the harm that he would face if he is not given possession of Blue and how he is better suited to care for him. (Motion at pp. 7-13.) This is insufficient because the burden of proof is on the plaintiff as the moving party “to show all elements necessary to support issuance of a preliminary injunction.” (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) 

Accordingly, because Plaintiff has failed to establish all elements to support the issuance of a mandatory injunction, the Court denies Plaintiff’s alternative request.

IV.       CONCLUSION

The Court denies Plaintiff’s application for writ of possession in its entirety. Consequently, Plaintiff’s TRO must be denied. (CCP § 513.010(c).) Additionally, the Court denies Plaintiff’s alternative request for a mandatory preliminary injunction.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff Mario Cesar Batres’ Application for Writ of Possession came on regularly for hearing on September 30, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE APPLICATION FOR WRIT OF POSSESSION, AND APPLICATION FOR TEMPORARY RESTRAINING ORDER IS DENIED.

IT IS SO ORDERED.

DATE:  September 30, 2022                          _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles