Judge James C. Chalfant, Case 22STCV01943 2022-10-04 Tentative Ruling

Marcello Ciminelli v. Jennifer Ciminelli, 22STCV01943

Tentative decision on application for writ of possession: denied

Plaintiff Marcello Ciminelli (“Marcello”) seeks a writ of possession against Defendant Jennifer Ciminelli (“Jennifer”) to recover two dogs: (1) a mixed breed Boxer, Labrador and Retriever canine named “Monte”, and (2) a mixed breed Labrador, Retriever and German Shepherd named “Hudson” (collectively, the “Dogs”).

The court has read and considered the moving papers and opposition[1] and renders the following tentative decision.

Plaintiff Marcello commenced this proceeding on January 18, 2022, alleging causes of action against Defendant Ciminelli for (1) conversion, (2) trespass to chattels, and (3) intentional infliction of emotional distress. The unverified Complaint alleges in pertinent part as follows.

Marcello and Jennifer were married but divorced and moved to different domiciles on August 20, 2018. On July 5, 2019, Marcello purchased Monte, whose license lists Marcello as the sole owner. Marcello and Jennifer maintained a relationship and moved in together on September 1, 2019. They moved to Los Angeles in February 2020, with Marcello as sole owner. On June 26, 2020, Marcello bought Hudson and paid the price himself.

On October 16, 2021, Marcello and Jennifer ended their relationship, and Jennifer left with both dogs. On December 15, 2021, Marcello asked for the dogs back. Jennifer has since indicated she will not return them.

Marcello seeks (1) a declaration that he is the Dogs’ legal owner and Jennifer must return them; (2) compensatory, general, special, exemplary, and punitive damages; and (3) costs of the suit.

Also on March 10, 2022, Jennifer filed a motion to strike false matters in the Complaint and the demand for punitive damages. Department 20 (Hon. Kevin C. Brazile) denied the motion on April 21, 2022.

On May 20, 2022, Marcello filed the instant application for a writ of possession for the Dogs.

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.

A writ of possession is available in any pending action. It also is available where an action has been stayed pending arbitration, so long as the arbitration award may be ineffectual without provisional relief. See CCP §1281.7.

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); CCP §512.010(a). A verified complaint alone is insufficient. 6 Witkin, California Procedure, (5th ed. 2008) §255, p.203. As a proceeding “on application before trial for an order,” a writ of possession qualifies as a Law and Motion. Cal. Rules of Court, Rule 3.1103(a). As such, it must also be accompanied by a memorandum in support of the motion. Cal. Rules of Court, Rule 3.1112(a)(3), 3.1113(a). The application may also 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 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 plaintiff’s 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).

Before noticing a hearing, the plaintiff must serve the defendant with all of 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).

Each party shall file with the court and serve upon the other party any declarations and points and authorities intended to be relied upon at the hearing. CCP §512.050. At the hearing, the court decides the merits of the application based on the pleadings and declarations. Id. Upon a showing of good cause, the court may receive and consider additional evidence and authority presented at the hearing, or may continue the hearing for the production of such additional evidence, oral or documentary, or the filing of other affidavits or points and authorities. 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 section 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, p.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.[2] CCP §513.010(c).

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.

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 section 515.020(b). CCP §515.010(b).

Plaintiff Marcello seeks a writ of possession to recover the Dogs from Defendant Jennifer.

An application for a writ of possession is a law and motion matter. CRC 3.1103(a)(2). All law and motion matters require a memorandum of points and authorities detailing the basis for the motion. CRC 3.1113(a). The absence of a memorandum may be construed as an admission that the motion is not meritorious. CRC 3.1113(a).

Plaintiff failed to file a supporting memorandum of points and authorities with his application. He has merely attached a written declaration and exhibits to the application without any supporting legal authority.

In opposition, Defendant Jennifer presents evidence that (1) the City’s Department of Animal Services lists her as the Dogs’ licensee (Opp. Ex. C); (2) she filed for a domestic violence restraining order after Marcello used force to take the Dogs from her dogsitter while they were on a walk (RJN Ex. A; Cordaro Decl., ¶¶ 11-14); and (3) the court granted a temporary restaining order against Marcello for possession of the Dogs on August 9, 2022 (Opp. Ex. A).[3]

The application is procedurally defective. Moreover, the Cordaro declaration shows that Marcello exercised self-help, the Dogs are in his possession, and the application is moot. The application is denied.

[1] Defendant failed to lodge courtesy copies of the opposition in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Her counsel is admonished to provide courtesy copies in all future filings.

[2] If the court denies the plaintiff’s application for a writ of possession, any TRO must be dissolved. CCP §513.010(c).

[3] Jennifer contends that this order was extended on September 2, 2022 (Opp. at 5), but she does not provide a complete version of the signed September 2 order. Opp. Ex. A.