Judge James C. Chalfant, Case 22STLC05311 2022-09-29 Tentative Ruling

Plaintiff Nicholas Diiorio (“Diiorio”) seeks a writ of possession against Defendant Natalie Masini (“Masini”) to recover two cats: “Marzipan” and “Monkey.”

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Plaintiff Diiorio commenced this proceeding against Defendant Masini on August 11, 2022. The Complaint alleges as follows.

Diiorio adopted Monkey in 2014, three years before starting a relationship with Masini. The couple co-adopted Marzipan in 2018, but Diiorio was the only party who accepted responsibility for the cat. Diiorio’s agreement with the shelter, the Stray Cat Alliance (“SCA”), provides that Diiorio was not to sell or give Marzipan to an animal shelter, research facility, or permanent home without SCA’s written permission. Diiorio has been responsible for all expenses for both cats.

Although Marzipan has epilepsy, the veterinarian treating it, King Moon (“Moon”), has maintained that Diiorio can provide it with a satisfactory loving home despite Masini’s multiple attempts to get Moon to say otherwise.

Masini holds the cats purely because of the hostile end of their relationship. Diiorio moved out of their shared apartment on February 1, 2022 and signed a lease to a pet-friendly apartment on July 15, 2022. While Diiorio was a for-travel touring musician and Masini claims this lifestyle makes him unfit as a pet owner, he now works full-time in a recording studio and accepts responsibility for finding competent pet-sitters. Diiorio’s multiple demands for Masini to return the cats have failed.

Diiorio seeks return of his cats but is willing to discuss visitation if his relationship with Masini improves in the future.

On August 13, 2022, Diiorio personally served Masini with the Complaint and Summons.

On August 17, 2022, Diirorio filed an application for a writ of possession against Masini for the cats. The same day, Department 25 (Hon. Katherine Chilton), as a limited jurisdiction court, denied the application and transferred the case to Department 1 for reclassification. On August 18, 2022, Department 25 modified the order to reclassify the case as a civil unlimited jurisdiction case, pending payment of the reclassification fee.

On August 22, 2022, Diirorio filed an ex parte application for a writ of possession against Masini for the cats. This court denied the application because (1) there was no declaration of ex parte notice to Masini; (2) Diiorio failed to file a memorandum of points and authorities; and (3) there was a lack of evidence to support the relief.

On August 23, 2022, Diirorio filed an ex parte application for a writ of possession against Masini for the cats. The court denied the application for (1) failure to file a memorandum of points and authorities; (2) no declaration under penalty of perjury authenticating exhibits; (3) lack of a claim and delivery claim in the Complaint; and (4) no showing of emergency.

On September 7, 2022, Diiorio served Masini with the instant application for writ of possession at issue.

On September 14, 2022, the court issued a notice of reclassification of the case to civil unlimited jurisdiction and reassigned the case to Department 55 (Hon. Malcolm Mackey).

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.[1] 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).

Diiorio adopted Monkey in 2014, three years before starting a relationship with Masini. Diiorio Decl., ¶2. Diiorio , 4, Ex. A. Diiorio had Monkey neutered and is listed on the vet invoices for Monkey from Banfield Pet Hospital, Lake Balboa Veterinary Care (“Lake Balboa”), and Antech Diagnostics. Diiorio Decl., ¶4, Ex. A.

Diiorio adopted Marzipan in 2018 after his relationship with Masini began and before they moved in together. Diiorio Decl., ¶3. Diiorio and SCA entered into an Adoption Contract whereby Diiorio agreed to adopt Marzipan for $0 as a pet for its lifespan, and to return the cat to SCA if he cannot keep Marzipan. Diiorio Decl., ¶4, Ex. B. Under the Adoption Contract, Diiorio assumed full financial responsibility for Marzipan’s care and maintenance and promised to notify SCA of any change of residence within 30 days. Diiorio Decl., ¶4, Ex. B. The application for the Adoption Contract also identified him as the primary caregiver and said that Diiorio would keep Marzipan should his relationship with Masini change. Diiorio Decl., ¶4, Ex. B.

Marzipan is registered with “Found Animals” with Diiorio as the owner. Diiorio Decl., ¶4, Ex. C. Lake Balboa vet care and SCA also list Diiorio as Marzipan’s owner. Diiorio Decl., ¶4.2, Exs. D-E. Veterinarian King Moon (“Moon”) identifies Diiorio as the only person with whom Moon spoke about Marzipan’s health. Diiorio Decl., ¶4.2, Exs. D-F.

The parties ended the relationship in October 2021, and Diiorio moved out in February 2022. Diiorio Decl., ¶4.[3] He temporarily stayed with a lifelong friend who had a cat allergy, so the parties agreed that the cats would stay with Masini until Diiorio found housing that accommodated them. Diiorio Decl., ¶¶ 4[4]-5. Masini also agreed that Diiorio would have visitation rights until then time. Diiorio Decl., ¶5. Masini broke that promise; since April 2022, she has prohibited Diiorio from visiting the cats. Diiorio Decl., ¶5.

In July 2022, Diiorio moved into a cat-friendly residence and asked Masini for the cats to join him. Diiorio Decl., ¶6, Ex. G[5]. Masini replied that she would return some of Diiorio’s material possessions, but the cats would stay with her. Ex. G. Diiorio responded that while he accepted that the relationship ended badly, he wanted them both to move forward with their lives and the cats meant a lot to him. Ex. G.

Masini responded in pertinent part as follows: “When we first talked about [the cats] in December, the agreement was they stay with me until you maybe got or own place, but that my lifestyle would ultimately be best for all of their care, especially Marz’s.” Ex. G. Masini said that she did not want to be cruel, but she believed that the cats were happy as is and would not be if they moved to live with a man who had rehearsals, gigs, and other events keeping him away from home. Diiorio Decl., ¶6, Ex. G. She would consider talking about this another day, but at the time she did not think a transfer was in the cats’ best interests. Ex. G. “And I say all this knowing you’ll probably call me cruel and some cat thief or whatever...but I know that I am ultimately doing what is truly best for the cats, as well as for myself.” Ex. G.

During or after this exchange, Masini texted a friend and explained that Diiorio had always wanted the cats back. Diiorio Decl., ¶7, Ex. I. The friend replied that the couple got the cats together and Diiorio had not cared for them since the split, and he had no standing to ask for them back. Ex. I. Masini agreed, asserting that she had financially supported the cats since the breakup. Ex. I. She further asserted that although Marzipan’s medical history and microchip showed Diiorio as the owner – something she wanted to change – Masini paid for it before Diiorio reimbursed her for half via Venmo. Ex. I. Masini also alleged that Diiorio provoked Monkey multiple times into attacking him and then slapped and pushed Monkey; he only cared about Marzipan. Ex. I.

On July 26, 2022, Masini asked Moon whether he through Marzipan would be safer with her or Diiorio, given that Diiorio travels and Masini has roommates that can look after her pets. Diiorio Decl., Ex. D. On July 30, Moon replied that Marzipan needed a loving home and for someone to manage his epilepsy with medication and regular monitoring. Ex. D. Neither party seemed to neglect or not love Marzipan, so he could not say one was a better guardian than the other. Ex. D.

Diiorio’s total earnings in June 2022 were $9,710. Diiorio Decl., Ex. H. As of August 9, 2022, Diiorio is a full-time recording artist at Courtney Ballard’s (“Ballard”) studio in West Hollywood and no longer relies on arena tours. Diiorio Decl., Ex. H.

Masini is a 29-year-old actress and singer as well as a modification processor for PennyMac. Masini Decl., ¶2. Since August 2022, she has pursued acting opportunities only in Los Angeles. Masini Decl., ¶2.

Although Diiorio was the applicant on Marzipan’s adoption application in November 2017, Diiorio stated that his girlfriend and he wanted to give the cat a loving home. Masini Decl., ¶5, Ex. A. Marzipan lived with Diiorio at his residence beginning December 2017. Masini Decl., ¶6. Marzipan stayed at Masini’s for a few weeks in early 2018 to have bonding time with her cat, Delilah. Masini Decl., ¶¶ 3, 6. On August 1, 2018, Diiorio and Masini then moved into a new residence together with Monkey, Marzipan, and Delilah. Masini Decl., ¶6.

On December 5, 2020, Masini awoke to Marzipan having an epileptic seizure. Masini Decl., ¶7. Marzipan has since needed medication twice a day and other care, which Masini has provided. Masini Decl., ¶7. Masini has paid for Marzipan’s care since her adoption and drafted a comprehensive cat care manual so that others could care for Marzipan in her absence. Masini Decl., ¶¶ 8-10, Exs. B-D.

The romantic relationship between Masini and Diiorio ended on approximately September 30, 2021, but they continued to live together until February 2022. Masini Decl., ¶11. When Diiorio moved out in February 2022, Masini had to keep the cats because Diiorio could not bring them to his new housing. Masini Decl., ¶11. He only visited the cats at his leisure, often being invited by her to do so. Masini Decl., ¶11.

On April 2022, the relationship deteriorated further and Masini did not hear from Diiorio until he demanded some of his possessions and the cats on July 15, 2022. Masini Decl., ¶12. This demand referenced a December 2021 conversation in which Diiorio admitted Masini was better suited to care for the cats. Masini Decl., ¶12.

After Diiorio’s visit to pick up his equipment on July 18, 2022, he sent Masini a text message threatening legal action if she did not surrender Monkey and Marzipan. Masini Decl., ¶13.

On August 23, 2022, Diiorio left a voice message with Masini’s father. Masini Decl., ¶14. On August 26, 2022, Masini’s father replied that Masini never disputed that Monkey was Diiorio’s cat. Masini Decl., ¶14. She would return Monkey to Diiorio at Lake Balboa once he chose a date and time; he did not choose one during that conversation. Masini Decl., ¶14.

Marzipan’s “foster mother”, Margaret Khrabrovitsky (“Khrabrovitsky”), observed that both parties cared for Marzipan but that as of September 6, 2022, Masini’s more constant presence made her the better guardian. Masini Decl., ¶9, Ex. C. While Marzipan gets along well with Delilah and Monkey, they are not “bonded” and there is no need to keep them together. Masini Decl., ¶9, Ex. C. Masini’s roommate, Katie Powers-Faulk, agrees. Masini Decl., ¶9, Ex. C. All three cats have been happy with Masini since August 2018. Masini Decl., ¶17, Ex. F.

Diiorio’s tour schedule includes four tours from August to November 2022, totaling 36 days, plus five days per tour for rehearsal and travel. Masini Decl., ¶15, Ex. E. The cat sitters that Diiorio would hire have never cared for Marzipan and have no experience with the cat’s medical condition. Masini Decl., ¶16.

Masini argues that she was entitled to 16 court days’ notice of the application under CCP section 1005. Diiorio served the application on September 7, 2022, giving her only 15 court days’ notice because one of the days was a court holiday. Opp. at 5. This is true. As Masini filed a timely opposition, however, she was not prejudiced by this error. The untimely application is not grounds for denial.

As Masini notes in her opposition, the court in part denied Diiorio’s application for writ of possession on August 23, 2022 because the Complaint does not plead a cause of action for claim and delivery. Opp. at 5. To date, Diiorio has not amended his Complaint to cure this defect. Diiorio should have amended the Complaint to allege a legal theory of claim and delivery. Nonetheless, the Complaint clearly states facts supporting claim and delivery and the denomination of a cause of action by that name is not required. CCP §425.10 (complaint must contain “a statement of the facts constituting the cause of action”).

“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.[6]

In order to be entitled to a writ of possession, Diiorio must demonstrate that he is entitled to possess Marzipan. See CCP §512.010(b)(1). Diiorio’s theory of his right to possess is based on ownership. A cat is a domestic animal and considered personal property. Civil Code §§654-55. The owner generally is entitled to a writ of possession to recover it. See Edwards v. Superior Court, (1991) 230 Cal.App.3d 171, 175-76.

Diiorio’s right to possess Monkey is not at issue. Masini acknowledges that Diiorio owns Monkey and has offered to return him to Diiorio through her father. Masini Decl., ¶14. Diiorio asserts that these recent offers were made in bad faith given that he asked for Monkey for four months. Reply at 5. All this means is that a writ of possession is still a proper remedy. At issue is whether Diiorio can succeed on his claim to possess Marzipan.

The evidence is compelling that Diiorio is the owner of Marzipan. He was the applicant on Marzipan’s adoption application in November 2017. While Diiorio stated that his girlfriend and he wanted to give the cat a loving home and that they were “co-parenting”, he also says that he will be the primary caregiver and that Marzipan would remain with him should their relationship change. Masini Decl., ¶5, Ex. A. Diiorio then entered into the Adoption Contract with SCA whereby he agreed to adopt Marzipan as a pet for its lifespan and to return the cat to SCA if he could not keep Marzipan. Diiorio Decl., ¶4, Ex. B. He registered Marzipan with “Found Animals” as the cat’s owner. Diiorio Decl., ¶4, Ex. C. Lake Balboa animal care clinic and SCA also list Diiorio as Marzipan’s owner. Diiorio Decl., ¶4.2, Exs. D-E.

Beginning December 2017 and with the exception of a few weeks in early 2018 to bond with Marsini’s cat (Delilah), Marzipan lived alone with Diiorio for eight months until August 1, 2018, when Diiorio and Masini moved in together. Masini Decl., ¶6. Diiorio and Masini lived together with all three cats until February 2022, when Diiorio moved out and could not take either Monkey or Marzipan with him. From February 2022 until April 2022, the two cats lived with Masini and Diiorio only visited them. Masini Decl., ¶11.

In a series of text messages between the parties, Masini essentially admitted that Marzipan belongs to Diiorio and that their agreement was that she would temporarily take him until Diiorio lived in a different location: “When we first talked about [the cats] in December, the agreement was they stay with me until you maybe got or own place, but that my lifestyle would ultimately be best for all of their care, especially Marz’s.” Diiorio Decl., Ex. G (emphasis added).

This evidence shows that Diiorio applied to adopt Marzipan, entered into a contract to do so, lived with Marzipan alone for eight months, and only temporarily gave up custody of the cat until he found his own place. Diiorio owns Marzipan.

Masini’s opposition is based on her contention that she has paid for Marzipan’s expenses, takes extraordinary care of the cats, and she would be the best caregiver for Marzipan because Diiorio is unable to provide a stable home environment for Marzipan because of his frequent and extended work-related travel. Opp. at 4-5; Masini Decl., ¶¶ 15-17.

In her texts with Diiorio, Masini said that she did not want to be cruel, but she believed that the cats were happy as is and would not be if they moved to live with a man who had rehearsals, gigs, and other events keeping him away from home. Diiorio Decl., ¶6, Ex. G. She would consider talking about this another day, but at the time she did not think a transfer was in the cats’ best interests. Ex. G. “And I say all this knowing you’ll probably call me cruel and some cat thief or whatever...but I know that I am ultimately doing what is truly best for the cats, as well as for myself.” Ex. G.

Diiorio asserts that the evidence provided for these claims are Word documents of dubious authenticity, and that the purported tour schedule is speculation based on the artist’s social media posts and inflates the number of preparation days each tour takes. Reply at 4. He further asserts that he is willing to compensate Masini for expenses she incurred. Reply at 7.

Masini labors under a misapprehension. Pet ownership is an emotional issue, but the right to possess a pet is generally based on ownership. Unlike child custody, a pet is not awarded to the person best able to provide care and a stable environment. At least where there is no evidence that the owner will torture or kill a pet – and Masini admits that Diiorio loves the cats – the ownership of a pet is dispositive of the right to possess it, and the issue of which party will be the better caretaker is irrelevant.

Masini argues that Diiorio has not posted a bond under CCP section 512.010(a). Opp. at 6. He is not required to do so until the court sets the bond. The undertaking shall be in an amount not less than twice the value of the defendant's interest in the property. CCP §512.010(a). As Masini has no legal interest in Marzipan, the bond arguably is waived. The court must include in the order for issuance of the writ the amount of the defendant’s counterbond sufficient to satisfy the requirements of CCP section 515.020(b). CCP §515.010(b). The court will discuss the issue with the parties.

The application for a writ of possession is granted. Diiorio has not submitted a right to possession order and is directed to do so in the next two court days.

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

[2] Masini notes Diiorio’s declaration is unsigned (Opp. at 5), but the court-filed copy of the declaration is signed.

[3] Diiorio’s declaration references two paragraphs as the fourth; this refers to the second.

[4] Diiorio’s declaration references two paragraphs as the fourth; this refers to the second.

[5] Due to the blurry nature of the text message screenshots, some parts of the exchange may be missing.

[6]Diiorio asserts that Family Code section 2605 gives courts the authority to assign custody of Monkey and Marzipan. App. at 2. Notwithstanding any other law, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, the court may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal. Family Code §2605. The Family Code applies to marriage, which a personal relation arising out of a civil contract between two persons. Family Code §300. The parties were in a romantic relationship without marriage or contract. Opp. at 6. The Family Code does not apply to this action.