Judge James C. Chalfant, Case 23STCV01723 2023-03-21 Tentative Ruling

Plaintiff Stephanie Espinoza (“Stephanie”) seeks a writ of possession and temporary restraining order (“TRO”) against Defendant Natalie Espinoza (“Natalie”) to recover two cats: “Luke” and “Leia.”[1]

The court has read and considered the moving papers, opposition, and reply,[2] and renders the following tentative decision.

Plaintiff Stephanie commenced this proceeding against her sister, Defendant Natalie, on January 26, 2023, alleging (1) conversion, (2) claim and delivery, and (3) intentional infliction of emotional distress. The Verified Complaint alleges as follows.

In 2016, Stephanie adopted Luke and Leia. Natalie wanted to adopt the cats but could not afford to do so because she was a full-time student at the time. The information cards from the shelter show “SEspinoza” as the adopting party.

Although Stephanie paid the adoption fees, she asked Natalie to pick up the cats from the shelter on Stephanie’s behalf. At the shelter, Natalie signed the microchip paperwork in her name instead of Stephanie’s. Since their adoption, Stephanie has paid for all the cats’ needs. The cats are registered in Stephanie’s name.

In 2017, Natalie moved out of the apartment, never returned, and left the cats to live with Stephanie. The parties agreed that the cats needed to stay with Stephanie because they were bonded to each other.

On July 8, 2022, while Stephanie was out of town on business, Natalie stole the cats in the presence of Stephanie’s mother. Natalie then filed a restraining order request against Stephanie, it was dismissed by the court.

Stephanie seeks an order compelling Natalie to return both cats and damages according to proof for their detention, the loss of companionship, pain, suffering, and emotional distress. Stephanie also seeks punitive damages, interest from the date of the incident at the legal rate, and attorney’s fees and costs.

On February 28, 2023, Stephanie filed notice of a related case, Espinoza v. Espinoza, no case number listed.

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.[3] 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).

Natalie has mental health issues and a long history of drug use. Stephanie Decl., ¶19; Diaz Decl., ¶5. Natalie is vindictive and a bad influence on others, which prompted a relative, Erika Gomez (“Gomez”), to end their friendship. Gomez Decl., ¶3. Stephanie has been kind and patient with Natalie, while Natalie took advantage of Stephanie. Gomez Decl., ¶4; Diaz Decl., ¶4.

In 2016, Stephanie adopted Luke and Leia. Stephanie Decl., ¶3. Stephanie paid the $75 adoption fee for each cat, and the information cards from the shelter show “SEspinoza” in handwritten ink as the adopting party. Stephanie Decl., ¶3, Ex. 1. At the time, her sister Natalie wanted to adopt Luke but could not afford to do so because she was a full-time student. Stephanie Decl., ¶4; Diaz Decl., ¶6. Stephanie adopted both Luke and Leia because the two were bonded. Stephanie Decl., ¶4.

Natalie was living with Stephanie at the time. Stephanie Decl., ¶4. Because of her work schedule, Stephanie asked Natalie to pick up the cats from the shelter on Stephanie’s behalf. Stephanie Decl., ¶4. While there, Natalie signed the microchip paperwork under her name instead of Stephanie’s name. Stephanie Decl., ¶4.

Since their adoption in 2016, Stephanie has paid for all the cats’ needs. Stephanie Decl., ¶¶ 4, 6. Her name is on all veterinary records and the cats are registered to her on the Department of Animal Care and Control (“Animal Control”) license receipt. Stephanie Decl., ¶6, Exs. 2-3. She also paid for all their food, medicine, veterinary bills, cat litter, and toys, which cost a total of $17,715 from 2016-2022. Stephanie Decl., ¶¶ 6-15, Ex. 4; Diaz Decl., ¶¶ 6-7.

In 2017, Natalie moved out of the apartment and the cats lived with Stephanie exclusively. Stephanie Decl., ¶5. The parties agreed that the cats needed to stay with Stephanie because they were bonded. Stephanie Decl., ¶5. Natalie never moved back into the house. Stephanie Decl., ¶5.

Home security footage shows that on July 8, 2022, while Stephanie was out of town on business, Natalie stole the cats. Stephanie Decl., ¶16, Ex. 5. The mother of Stephanie and Natalie, Carmen Espinoza (“Mother”), was at the house and tried to stop Natalie because she knew that Stephanie owned the cats. Stephanie Decl., ¶16; Mother Decl., ¶6. Natalie did not listen. Stephanie Decl., ¶16. Natalie told Mother that she found the microchip papers for the casts that are in her name, so she claim they belong to her. Mother Decl., ¶6.

Mother called her sister Irma Cortez (“Aunt”) and told her what happened. Aunt Decl., ¶4. When Stephanie’s husband David Valenzuela (“David”) came home that afternoon, Mother told him what happened. Valenzuela Decl., ¶3. Valenzuela and Mother decided to tell Stephanie after she returned to town. Valenzuela Decl., ¶5. Until then, Mother called Natalie continuously and left voicemails asking her to return the cats but received no response. Valenzuela Decl., ¶5.

Natalie cannot care for the cats because she does not know their routine, food, medicine, or general needs. Stephanie Decl., ¶16. She did not take any of Luke’s medicine for his respiratory condition when she absconded with the pets. Stephanie Decl., ¶¶ 16, 19, Ex. 7.

Stephanie had recently asked Natalie to either transfer title of a car they owned as co-signers to Natalie’s own name or give the Vehicle to Stephanie. Gomez Decl., ¶4. Stephanie also had told Natalie that she would not allow Natalie and her boyfriend to rent a basement apartment without a rental contract. Gomez Decl., ¶4. Natalie may have taken the cats in retaliation. Gomez Decl., ¶4; Diaz Decl., ¶3.

Stephanie tried to retrieve the cats through her attorney and by filing a police report, but the police did not take any action to retrieve the cats. Stephanie Decl., ¶20; Valenzuela Decl., ¶6. The police officers advised Stephanie to try to obtain the cats peacefully, but all attempts failed. Valenzuela Decl., ¶6.

On July 11, 2022 at 7:00 p.m., Stephanie called the police again and spoke to Officer Rivas, who told her to go to Natalie’s house with a witness to ask for the cats back. Valenzuela Decl., ¶7. If that failed, Stephanie should contact the Temple City Sheriff Department[4] (“LASD”). Valenzuela Decl., ¶7.

At 8:00 p.m. Stephanie, Valenzuela, and friend Sharon Diaz (“Diaz”) went to Natalie’s house to get the cats. Diaz Decl., ¶8. Diaz called Natalie and left a voicemail that said she wanted to talk to Natalie calmly about the cats. Diaz Decl., ¶8. After Natalie did not respond, Stephanie called the police. Diaz Decl., ¶8. The police said they would dispatch an officer to meet outside the residence. Diaz Decl., ¶8. Stephanie and Diaz waited for hours. Diaz Decl., ¶8. TCSD arrived at 1:00 a.m. and explained that officers would knock on Natalie’s door and try to get the pets back. Valenzuela Decl., ¶9. After 15 minutes of knocking without a response, officers advised Stephanie to file a police report. Valenzuela Decl., ¶9; Stephanie Decl., ¶20, Ex. 8.

After she stole the cats, Natalie filed a restraining order request against Stephanie, but the court dismissed it after Natalie failed to make court appearances multiple times. Stephanie Decl., ¶17, Ex. 6.

Stephanie has determined that Natalie is living with the cats at a location on Rosemead Boulevard. Stephanie Decl., ¶21. On February 1, 2023, Stephanie and her husband David drove to Rosemead Blvd in Rosemead, California and saw Natalie’s car and her boyfriend’s truck in front of a house they suspected was Natalie’s residence. Stephanie Decl., ¶21.

The parties’ brother Daniel Espinoza (“Daniel”) considers Stephanie vindictive and a total liar. Daniel Decl., ¶4. He has feared for Mother’s safety as a result. Daniel Decl., ¶8. Carrie Ann Dimas Espinoza (“Carrie”), wife of the parties’ oldest brother David Espinoza (“David”), considers Stephanie to be controlling, impulsive, and a liar with inconsistent lies. Carrie Decl., p. 2.

When Stephanie was 20, she broke into a rental unit, stole the tenant’s dog, and sold it. Natalie Decl., p. 7. Stephanie was arrested and suffered a misdemeanor conviction, but her parents paid $10,000 to have the records expunged. Natalie Decl., p. 7; Cirilo Decl., p. 2.

In May 2019, the parties’ father Cirilo (“Father”) offered to pay for the down payment and first year on Natalie’s new Vehicle as a graduation gift. Father Decl., p. 2. Stephanie accompanied them to the dealership and used the money Father gave her to pay the down payment. Father Decl., p. 2. This put both sisters’ names on the lease to improve Stephanie’s credit and give Natalie the opportunity to qualify for an auto loan. Father Decl., p. 2. Father paid the first year of lease payments afterwards. Father Decl., p. 2.

Stephanie has represented that she is a Registered Nurse, but she was only ever a Licensed Vocational Nurse (“LVN”). Natalie Decl., p. 7. On September 19, 2019, the Board of Vocational Nursing and Psychiatric Technicians lodged an accusation against Stephanie. Natalie Decl., p. 7, Ex. K. The accusation stated that on her application to the New Mexico Board of Nursing on November 23, 2015, Stephanie lied under penalty of perjury that she had received a baccalaureate degree in nursing from the University of Belize. Natalie Decl., p. 7, Ex. K. On August 3, 2020, Stephanie stipulated that the accusation was correct and surrendered her LVN license. Natalie Decl., p. 7, Ex. K.

When Natalie filed for a restraining order against Stephanie, Stephanie complained to Father that this would make her lose her nursing career. Father Decl., p. 3. Father knew this was false because Stephanie already had to relinquish her LVN license. Father Decl., p. 3.

Although she has no license, Stephanie now operates an illegal botox and cosmetic surgery business that she advertises on social media. Natalie Decl., p. 8, Ex. L.

Father thinks Mother fears Stephanie and is under her control. Father Decl., p. 3.

When Natalie adopted Luke and Leia from the animal shelter, she paid the $80 joint adoption fee with her debit card. Natalie Decl., p. 2, Ex. A. She also received Leia’s biography card, a free pet exam voucher, an itemized receipt that included a microchip for Leia, Adoption Information, Leia’s medical history, and an Adoption Agreement for which she initialed every provision. Natalie Decl., p. 2, Exs. B-G. The Adoption Agreement held Natalie responsible for the cat’s care, even if she turned out to be unhealthy or sick unless within the first ten days of adoption. Natalie Decl., p. 2, Ex. E. Natalie received the same documents for Luke but has misplaced the original documents. Natalie Decl., p. 2.

Natalie brought the cats to her parent’s home at 455 Nassau Ave. David Decl., p. 1; Daniel Decl., ¶5; Cirilo Decl., p. 1. Everyone in the family referred to them as Natalie’s cats and knew which pets were hers and which were Stephanie’s. Cirilo Decl., p. 2; Carrie Decl., p. 2.

Natalie had the cats neutered on June 22, 2016. Natalie Decl., p. 2. The biography cards Stephanie presents in this case are from the neutering. Natalie Decl., pp. 2-3. The “SEspinoza” handwriting on each card is Stephanie’s handwriting. Natalie Decl., p. 4.

In 2016, Natalie paid for food, litter, the majority of Luke’s medicine and a small humidifier. Natalie Decl., p. 4. Stephanie only paid for one veterinarian visit for Luke, claiming that she did not want Natalie to worry about money and Natalie accepted her generosity. Natalie Decl., p. 4. Natalie paid for all of Luke’s other visits to the vet in 2016, and records from the Atlantic Animal Hospital list her as the cats’ owner. Natalie Decl., p. 5, Ex. M.

When Natalie left home to attend college in 2017, she left the cats at her parents’ home in Mother’s care. Natalie Decl., p. 5; Daniel Decl., ¶6; David Decl., p. 1. On Natalie’s regular visits home, she took the cats to the veterinarian. Natalie Decl., 5. Although Natalie paid for pet supplies at first, Mother assured her she would provide for the cats with money from the parents’ jointly owned rental units. Natalie Decl., p. 5. The parents always paid for pets in the home, and until 2022 there was never dispute about the owner of any pet. Daniel Decl., ¶6. Daniel and Father never saw Stephanie take responsibility for Luke, Leia, or any of Stephanie’s own pets that were living in the parents’ home. Daniel Decl., ¶7; Father Decl., p. 2.

The arrangement continued when Natalie moved to the San Francisco Bay area as a substitute teacher. Natalie Decl., p. 5. When Luke became sick in 2020, Natalie came south to accompany Stephanie and Mother to the hospital. Natalie Decl., p. 5. Natalie intended to pay for the visit, but Stephanie insisted on paying and Natalie was grateful. Natalie Decl., p. 5.

Natalie moved back to Southern California in December 2021 but chose to leave her parents’ home because she was intimidated by her sister. Natalie Decl., p. 5. While Natalie wanted to visit her cats and Mother over the next few months, Stephanie’s presence made her uncomfortable. Natalie Decl., p. 6.

Natalie had mentioned over the years taking the cats back, and Stephanie’s response was that Mother is so attached to them and “this is their home.” Natalie Decl., p. 6. Stephanie never said that Natalie could not take the cats because they did not belong to her. Natalie Decl., p. 6. Stephanie owns multiple pets, and Natalie never thought Stephanie would lie and say the cats were hers. Natalie Decl., p. 6.

On July 8, 2022, Natalie called Mother and said that she would come pick up the cats. Natalie Decl., p. 6. Mother agreed and helped her load the cats into her car. Natalie Decl., p. 6. When Stephanie, Valenzuela, and Diaz arrived at her house on July 11, 2022, Natalie was scared. Natalie Decl., p. 6. She had never told them where she lived, and she thought Stephanie might break in and hurt her. Natalie Decl., p. 6.

After Stephanie began to claim that the cats were hers, Natalie went back to the shelter and asked for all their records for both cats. Natalie Decl., p. 3. The records include Natalie’s name and list microchips as part of the medical history. Natalie Decl., p. 3, Exs. H-I. The cats’ microchips should also confirm that they belong to Natalie. Natalie Decl., p. 3.

Later that day, the shelter called Natalie and told her that Stephanie had visited and asked if she could change the adoption records to show that Stephanie owns the cats. Natalie Decl., p. 3. Natalie went back to the shelter on January 17, 2023 and asked for the adoption records to confirm that Stephanie had not succeeded. Natalie Decl., p. 3. The records still show Natalie as the owner but listed an updated age for the cats. Natalie Decl., p. 3.

Because of the chronic respiratory disease that caused Luke to suffer, Natalie put him down on November 23, 2022. Natalie Decl., p. 1, n. 1.

On February 29, 2023, counsel Natalie’s counsel issued a deposition subpoena to Animal Care for all records relevant to the cats. Beckman Decl., Ex. A. On March 6, 2023, counsel issued a deposition subpoena to LASD Detective Justin Waites about Stephanie’s complaint. Beckman Decl., Ex. B.

Stephanie acknowledges that the parents own “her” house, and that she called it hers colloquially. Stephanie Reply Decl., ¶6. She does not own a rabbit as Natalie asserts. Stephanie Reply Decl., ¶8.

The tenant’s dog taken by Stephanie was sick and malnourished. Diaz Reply Decl., ¶4. The tenant’s sister retrieved the puppy and gave it to Stephanie, who never entered the apartment. Stephanie Reply Decl., ¶10. Stephanie took the puppy to the ASPCA in Long Beach, saving its life. Diaz Reply Decl., ¶4. The district attorney charged Stephanie but later dropped all charges and apologized. Stephanie Reply Decl., ¶10.

Stephanie did not sign a co-lease with Natalie to improve her credit. Stephanie Reply Decl., ¶8. Father was not eligible to co-sign the lease for the Vehicle. Valenzuela Reply Decl., ¶7. Stephanie paid the $3000 down payment because she was proud that Natalie had graduated from college. Valenzuela Reply Decl., ¶7. Stephanie already had good credit. Stephanie Reply Decl., ¶8.

Stephanie only agreed to the 2019 revocation of her LVN license because of an issue with her school. Stephanie Reply Decl., ¶9. There was no adjudication on the merits of the case. Stephanie Reply Decl., ¶9.

Valenzuela doubts that Father wrote the declaration in his name in this application. Valenzuela Reply Decl., ¶8.

Valenzuela and Stephanie cannot understand why David and his wife are scared of Stephanie. Valenzuela Reply Decl., ¶9; Stephanie Reply Decl., ¶14. She babysat their children on request and is their emergency contact. Valenzuela Reply Decl., ¶9; Stephanie Reply Decl., ¶14.

Stephanie never took any paperwork from Natalie or added her name to the cats’ biography cards. Stephanie Reply Decl., ¶4. Stephanie admits that Natalie signed the adoption paperwork in her name, but the cats were never hers. Stephanie Reply Decl., ¶6. It is noteworthy that Natalie does not include any receipts for the cats’ food, toys, and supplies. Stephanie Reply Decl., ¶6.

Natalie never took the cats up north with her, even as she drove from Berkeley just to pick up a pug dog she bought on Craigslist for $2,000. Stephanie Reply Decl., ¶7. Natalie never told anyone she would retrieve the cats, and Mother did not say she could. Mother Reply Decl., ¶7.

Father moved to Mexico in 2008, before the adoption of the cats. Stephanie Reply Decl., ¶11; Mother Reply Decl., ¶6. He never lived in the home when the cats were there. Stephanie Reply Decl., ¶11. In the time that David lived with Mother and Stephanie, Father never lived in the home, bought pet supplies, or paid for any of the cats’ medical bills. Valenzuela Reply Decl., ¶5. Father visited occasionally, but the only time David saw Father and Stephanie at home at the same time was when Natalie leased her car. Valenzuela Reply Decl., ¶5.

When Stephanie told Father about the theft of the cats, he said he would come into town and help her get them back. Stephanie Reply Decl., ¶12. Father then was served with divorce papers by Mother, and he told the other siblings that he did not want to be involved. Stephanie Reply Decl., ¶12. He has since told other siblings that he did not sign anything (declaration) and does not want to be involved. Stephanie Reply Decl., ¶12.

Although Mother helped care for the cats, Stephanie was their primary caregiver. Valenzuela Reply Decl., ¶5. David observed Natalie visit and lock herself in her room without ever helping with the cats. Valenzuela Reply Decl., ¶6.

Stephanie’s friend, Diaz, has seen Stephanie bottle feed Luke and has never seen Natalie care for the cats. Diaz Reply Decl., ¶3.

After Natalie filed her opposition, Daniel denied that he ever signed a declaration in her favor. Stephanie Reply Decl., ¶15; Mother Reply Decl., ¶5. Daniel has emailed Stephanie’s counsel from Temaca1981@live.com to the same effect. Thompson Decl., ¶4, Ex. 1.

Daniel informed Stephanie for the first time that Luke was dead. Stephanie Reply Decl., ¶15. Daniel said that Natalie refused to pay for expensive surgery that could have saved his life. Stephanie Reply Decl., ¶15. Luke was happy and stable for seven years with Stephanie after a vet told her he would not live for one year. Stephanie Reply Decl., ¶15. If he died after only a few months with Natalie, Stephanie is concerned about Leia’s safety. Stephanie Reply Decl., ¶15.

Despite Luke’s passing in November 2022, Natalie’s January 2023 application for a Domestic Violence Restraining Order (“DVRO”) listed Luke as one of the pets she wanted to protect. Thompson Decl., ¶5, Ex. 2. On March 10, 2023, the court in Natalie v. Stephanie, Case No. 23PDRO00075, denied Natalie’s request for a DVRO for failure to sustain the applicable burden of proof. RJN Ex. A.

Plaintiff Stephanie seeks an order for a writ of possession and a TRO for Luke and Leia. As Luke has died, the application and TRO are only for Leia.

“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. In order to be entitled to a writ of possession, Stephanie must demonstrate that she is entitled to possess Leia. See CCP §512.010(b)(1). California treats domestic animals as personal property. Civil Code §655. 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. The value of a pet is determined like any property. Wells v. Brown, (1950) 97 Cal.App.2d 361, 365.

The issue of ownership and the right to possess the cats in this case turns on credibility. It is difficult to assess the witness’s credibility on paper.

The court does not find the parties’ character assassinations of each other based on drug use, mental disorder, bullying, or theft of a tenant’s dog to be particularly significant. See, e.g., Stephanie Decl., ¶19; Diaz Decl., ¶¶ 4-5; Gomez Decl., ¶4; Daniel Decl., ¶4; Carrie Decl., p. 2. Moreover, character evidence is inadmissible to prove conduct on a specific occasion. Evid. Code §1101. A person's character trait refers to a person's general disposition or propensity to engage in certain types of conduct. See Bowen v Ryan (2008) 163 Cal.4th 916, 926. Evidence of habit and custom is admissible to prove conduct on a specific occasion (Evid. Code §1105), but it requires a consistent response to a repeated situation. Id.

Stephanie’s loss of her LVN license because she lied on her application under penalty of perjury does affect her credibility. See Natalie Decl., Ex. K. Father’s credibility is implicated by the fact that he never lived in the home after the cats were adopted, yet he claimed that he was the sole provider for the cats and that the cats were left in the “care of myself and my wife” are seriously undermined. This appears to be false.

Stephanie also questions the authenticity of Father’s and Daniel’s declarations. Reply at 3. She submits an email purportedly from Daniel denying that he wrote the “letter” about the cats. Thompson Decl., ¶4, Ex. 1. Stephanie also asserts that Father first supported her then said he wanted no part of this case after Mother served divorce papers. Stephanie Reply Decl., ¶12. Neither Daniel nor Father submits a declaration to assert their declaration was falsified. This contention has not been proven, but if it were proven that Natalie presented false evidence that may be dispositive of the case. As it is, particularly Daniel’s declaration is questionable.

Natalie acknowledges that Luke has passed away. Natalie Decl., p. 1, fn. 1. Stephanie asserts that no one told her that Luke had died until Natalie filed her opposition. Stephanie Reply Decl., ¶15; Thompson Decl., ¶6. Luke was happy and stable for seven years in Stephanie’s care after a vet told her that he would not live for one year. Stephanie Reply Decl., ¶15. Yet, Luke died after only a few months in Natalie’s care and Stephanie is concerned about Leia’s safety. Stephanie Reply Decl., ¶15. Stephanie asserts that the court should rely on the Family Code as persuasive authority to grant Stephanie custody of Leia for the cat’s own safety. See Family Code §2605.

The Family Code applies to marriage, and Stephanie acknowledges that the cats are not community property. The court will not grant the application solely to protect Leia.

Stephanie asserts that Natalie wanted to adopt Luke, but she did not have the financial means to do so. Stephanie Decl., ¶4. Stephanie decided to adopt both cats because they were bonded, and she asked Natalie to pick them up from the shelter for her. Stephanie Decl., ¶4. Stephanie later learned that Natalie signed the paperwork under her name instead of Stephanie’s name. Stephanie Decl., ¶4. Stephanie asserts without supporting documentary evidence that she paid the $75 adoption fee per cat. Stephanie Decl., ¶3.

Natalie provides a receipt that she paid the $80 joint adoption fee with her debit card. Natalie Decl., p. 2, Ex. A. She also received an itemized receipt that included a microchip for Leia. Natalie Decl., p. 2, Ex. D. Natalie signed an animal adoption agreement that held her responsible for Leia’s care even if she turned out to be unhealthy or sick unless within the first ten days of adoption. Natalie Decl., p. 2, Ex. E.

The information cards from the shelter state “SEspinoza” in handwritten ink. Stephanie Decl., ¶3, Ex. 1. Natalie asserts that those information cards were created when she had the cats neutered five months after they were adopted. Natalie Decl., pp. 3-4. She believes that Stephanie took the cards from her (Natalie’s) records and added “SEspinoza” in her own handwriting. Natalie Decl., p. 4. Stephanie denies stealing any paperwork. The paperwork was in her home, and she did not write her name or date of birth on it. Stephanie Reply Decl., ¶4.

After Stephanie began to argue the cats are hers, Natalie went back to the shelter and asked for all their records for both cats. Natalie Decl., p. 3. All of the shelter’s records are in Natalie’s name. Natalie Decl., p. 3, Exs. H-I. These facts favor Natalie.

It is undisputed that Natalie left home in 2017 to go to college and then the Bay area and never returned to care for the cats for six years. Both parties present evidence on the care of the cats between 2016 and the July 8, 2022 date that Natalie took them. Stephanie contends that she paid for all the pets’ needs and provides veterinary records in her name and pet supplies that she bought for total of $17,715. Stephanie Decl., ¶¶ 6-15, Ex. 4; Diaz Decl., ¶7. Stephanie is directly supported on this position by declarations from Mother, her husband David, friend Diaz, and relative Gomez.

On July 8, 2022, Natalie stole the cats while Stephanie was out of town. Stephanie Decl., ¶16. Stephanie asserts that Natalie knows nothing about the pets’ care because she did not even take Luke’s medicine with her when she took the cats away. Stephanie Decl., ¶¶ 16, 19, Ex. 7. She is supported on the theft by declarations from Mother, David, and Aunt.

Natalie responds that she initially paid for the cats’ food, litter, and some of Luke’s medicine in 2016, everyone in the home knew that the cats belonged to her, the money for their care came from her parents, and Mother cared for the pets while she was at school or working in the Bay area as a substitute teacher. Natalie Decl., p. 5; Daniel Decl., ¶6; David Decl., p. 1. Natalie concedes that Stephanie paid for one veterinarian visit for Luke in 2016 and for an emergency visit in 2020. Natalie Decl., pp. 4-5. Natalie is directly supported on Mother’s care for the pets by declarations from Daniel and Father, neither of whom saw Stephanie take responsibility for Luke, Leia, or any of Stephanie’s own pets living with the parents. Daniel Decl., ¶7; Father Decl., p. 2. However, it is worth repeating that the declarations of Daniel and Father are suspect.

Stephanie admits in reply that Mother does help in pet care. Stephanie Reply Decl., ¶6; Valenzuela Reply Decl., ¶5. She still asserts that she was the primary caregiver. Valenzuela Reply Decl., ¶5; Diaz Reply Decl., ¶3. Natalie did not care for the cats even when she was there. David observed Natalie visit and lock herself in her room without ever helping with the cats. Valenzuela Reply Decl., ¶6. Natalie also never took the cats up north with her, and yet drove from Berkeley just to pick up a pug dog she bought on Craigslist for $2,000. Stephanie Reply Decl., ¶7.

These facts favor Stephanie who, with Mother’s help, cared for the cats and paid for their care for six years.

Stephanie presents evidence that security footage shows that on July 8, 2022, while Stephanie was out of town on business, Natalie stole the cats. Stephanie Decl., ¶16, Ex. 5. Mother was at the house and tried to stop Natalie because she knew that Stephanie owned the cats. Stephanie Decl., ¶16; Mother Decl., ¶6. Natalie did not listen. Stephanie Decl., ¶16. Natalie told Mother that she found the microchip papers for the cats that are in her name, so she could claim they belong to her. Mother Decl., ¶6.

Mother called her sister (Aunt) in tears and told her what happened. Aunt Decl., ¶4. When Stephanie’s husband David came home that afternoon, Mother told him what happened. Valenzuela Decl., ¶3. David and Mother decided to tell Stephanie after she returned to town. Valenzuela Decl., ¶5. Until then, Mother called Natalie continuously and left voicemails asking her to return the cats but received no response. Valenzuela Decl., ¶5.

On July 11, 2022 at 7:00 p.m., Stephanie called the police again and was told to go to Natalie’s house with a witness to ask for the cats back. Valenzuela Decl., ¶7. If that failed, Stephanie should contact LASD. Valenzuela Decl., ¶7. At 8:00 p.m. Stephanie, Valenzuela, and friend Diaz went to Natalie’s house to get the cats. Diaz Decl., ¶8. Diaz called Natalie and left a voicemail that said she wanted to talk to Natalie calmly about the cats. Diaz Decl., ¶8. After Natalie did not respond, Stephanie called the police. Diaz Decl., ¶8. When LASD officers arrived and knocked without a response, they told Stephanie to file a police report. Valenzuela Decl., ¶9; Stephanie Decl., ¶20, Ex. 8.

Natalie presents evidence that, on July 8, 2022, Natalie called Mother and said that she would come pick up the cats. Natalie Decl., p. 6. Mother agreed and helped her load the cats into her car. Natalie Decl., p. 6. When Stephanie, David, and Diaz arrived at her house on July 11, 2022, Natalie was scared. Natalie Decl., p. 6. She had never told them where she lived, and she thought Stephanie might break in and hurt her. Natalie Decl., p. 6. Natalie does not explain why she did not open the door for the LASD officers.

There is a clear difference between the two version of events and Stephanie’s version is more credible. As reflected in the declaration of Mother and corroborated by the declarations of David and Aunt, Mother did not want Natalie to take the cats and was distressed when she did so. They left voicemails and LASD knocked on Natalie’s door without effect. It is not believable that Natalie feared for her safety and her home if she answered the door for Stephanie. She also provides no explanation why she did not respond to voicemails or LASD officers.

The reasonable conclusion is that Natalie is not telling the truth about July 8, 2022. If she is not telling the truth about the events of that time, then she may not be offering the truth about ownership of the cats. Moreover, there is was reason to steal the cats unless she knew that Stephanie claimed ownership.[7]

The right to ownership, and therefore possession, of Leia is not entirely clear. While the paperwork favors Natalie, Stephanie’s longstanding care for the cats and the abrupt manner in which Natalie took them on July 8, 2022 supports Stephanie’s right to possession. This evidence suggests that Stephanie is correct that Natalie took them in a fit of pique or for retaliation and not because they belonged to her. In this regard, Stephanie’s alleged theft of a tenant’s dog to protect it from sickness and malnutrition may work in her favor. Knowing that Stephanie is an animal lover (Stephanie Reply Decl., ¶10), Natalie may have taken the pets to punish her.

The court must award possession of Leia to one of the parties, and at this stage Stephanie has shown a probability of success. The application and the TRO are granted. Stephanie has not provided an order for writ of possession on the mandatory Judicial Council form and is ordered to do so in two court days or it will be waived.

Stephanie shows probable cause that Leia is located at an address on Rosemead Boulevard, but she does not provide specific evidence of the address. She seeks entry into 3826 #A, Rosemead Boulevard, Ca., 91770. Assuming that is Natalie’s residence, the levying officer may enter that property to recover Leia.

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). 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).

No undertaking is required because Natalie has no legal interest in Leia. Natalie may prevent Stephanie from taking possession of Leia by posting a $10,000 bond, cash or corporate surety.

[1] It is undisputed that Luke has died. Although the application calls the other cat “Leah,” the information card has the correct spelling. Stephanie Decl., ¶3, Ex. 1.

[2] Natalie failed to lodge courtesy copies of the opposition. So did Stephanie for the reply. Both have violated the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Counsel is admonished to provide courtesy copies in all future filings.

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

[4] This is probably the Los Angeles County Sheriff’s Department as cities do not have sheriffs.

[5] Natalie and several declarants in support of her opposition failed to number the paragraphs in their declarations.

Stephanie asks the court to strike portions of Natalie’s supporting declarations. A motion to strike is not a proper vehicle for evidentiary objections and the court has declined to rule on them.

[6] Stephanie seeks judicial notice of the minute order in Natalie v. Stephanie, Case No. 23PDRO00075. RJN Ex. A. The request is granted. Evid. Code §452(d).

[7] Stephanie asserts that, assuming arguendo that Natalie was the owner, she abandoned the cats at her parent’s home, relying on Civil Code section 1834.5. Reply at 5.

“Pet abandonment” occurs when an animal is delivered to a veterinarian, or any other animal care facility pursuant to a written or oral agreement, and the owner of the animal does not pick up the animal within 14 calendar days after the day the animal was initially due to be picked up. Civil Code §1834.5(a). Reply at 5. Stephanie provides no authority that the court can apply this definition by analogy to to a domestic pet situation.

Stephanie also quotes the definition of abandonment as “a virtual throwing away without regard as to who may take over or carry on.” Schaffner, Joan and Fershtman, Julie, Litigating Animal Law Disputes, A Complete Guide for Lawyers (2009) ABA, at p. 87. “Evidence of abandonment must be ‘direct, affirmative, or reasonably beget the exclusive inference of throwing away.’” Id. at 88. Stephanie fails to provide that level of evidence. Natalie asserts she left the cats in her parents’ home when she went to school because her parents always cared for all the family’s pets. Daniel Decl., ¶6. This does not beget an exclusive inference that Natalie disavowed all responsibility of the cats and so abandoned them.