Judge James C. Chalfant, Case Number: 24STLC07171, Date: 2025-02-18 Tentative Ruling

Nilo Bolden v. Nathan J. Heron,

24STLC07171

Tentative decision on application for writ of possession: denied

Plaintiff Nilo Bolden (“Bolden”) seeks a writ of possession and turnover order against Defendant Nathan J. Heron (“Heron”) to recover possession of a 4-year-old Wheaten Terrior named Huckleberry.

The court has read and considered the moving papers, opposition, and portions of Bolden’s reply declaration,[1] and renders the following tentative decision.

On October 9, 2024, Plaintiff Bolden filed the Complaint against Defendant Heron alleging causes of action for replevin and conversion. The Complaint alleges in pertinent part as follows.

Bolden is the owner of a 3½-year-old Soft-Coated Wheaten Terrier named Huckleberry (“Dog”). Compl., ¶2. Bolden purchased the Dog from Rick King in Newport Beach, California on February 27, 2021. Compl., ¶3. She paid all expenses for the Dog’s care through March 2024. Ibid. She also paid all veterinary bills and bought and prepared the Dog’s food. Ibid.

At the time Bolden purchased the Dog, Heron resided in Venice, California and Bolden resided in Santa Monica, California. Compl., ¶ 4. While Heron resided in Venice, Bolden and Heron agreed to share time with the Dog. Ibid.

Heron eventually moved to Wyoming in March 2024. Ibid. At that time, the parties agreed to continue to share time with the Dog, and Bolden allowed Heron to take the Dog to Wyoming. Ibid. Heron agreed he would return the Dog upon Bolden’s request. Ibid. When Bolden asked Heron to return the Dog in June 2024, Heron refused. Ibid.

The Dog is now located at 109 8th Avenue, La Grange, Wyoming 82221. Compl., ¶5. Heron has wrongfully detained the Dog because he believes he has a right to do so based his possession of the Dog and unilateral registration of the Dog with the American Kennel Club without Bolden’s prior knowledge or consent. Compl., ¶¶ 6-7.

The Dog’s monetary value is estimated at $3,000. Compl., ¶3. The Dog has not been taken under an execution or attachment against Bolden’s property. Compl., ¶8.

Bolden applied for a writ of possession and a temporary restraining order on January 3, 2025.

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. 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 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, (“Edwards”) (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).

Bolden and Heron were friends when Bolden purchased the Dog. Bolden Decl., ¶3. The Dog has always only belonged to Bolden. Bolden Decl., ¶4. She purchased the Dog for $3000 on February 27, 2021, from Richard King of McKenna & Macintosh’s Puppies. Bolden Decl., ¶3. The Dog is a Soft-Coated Wheaten Terrier who was approximately three and a half years old when the Complaint was filed. Bolden Decl., ¶4, Ex. 1 (purchase agreement), Ex. 2 (checks from Bolden payable to breeder). The Dog has never belonged to Heron or been jointly owned. Bolden Decl., ¶5.

At the time Bolden purchased the Dog, she lived in Santa Monica, California, and Heron lived in Venice, California. At that time, the parties agreed to share time with the Dog. Bolden Decl., ¶6.

Heron took the Dog for his “first puppy visit” to a veterinarian for Bolden because Bolden does not drive. Consequently, Heron’s name appears on the Dog’s earliest veterinary records. Bolden Decl., ¶7. Bolden has always paid for the Dog’s veterinary care. Bolden Decl., ¶7. The Dog did not require veterinary care from February 2021 until March 2024. Bolden Decl., ¶10. On March 2, 2024, Bolden had the Dog examined at Saddleback Animal Hospital, and he also received his shots and other services. Bolden Decl., ¶10, Ex. 5 (receipt for veterinary services). She brought the Dog back for a follow-up visit on March 16, 2024. Bolden Decl., ¶10, Ex. 6 (receipt). Bolden brought the Dog for a teeth cleaning at a veterinary clinic on February 5, 2024. Bolden Decl., ¶12, Ex. 7 (receipt).

Without Bolden’s prior knowledge or consent, Heron has registered the Dog with the American Kennel Club in his name. Bolden Decl., ¶8.

The Dog is Bolden’s service dog. Bolden Decl., ¶9. On May 29, 2021, she registered the Dog with United Service Dog and received a Service Dog Certificate and Service Dog Card. Bolden Decl., ¶9, Ex. 3 (card and certificate). On June 1, 2021, Bolden received a recommendation from Loretta Parker, LMFT, that she have a service animal. Bolden Decl., ¶9.

In March 2024, Heron moved to Wyoming. Bolden Decl., ¶13. At that time, the parties agreed to continue sharing the Dog. Bolden allowed Heron to take the Dog to Wyoming with the agreement that Heron would return the Dog upon Bolden’s request. Bolden Decl., ¶13. In June 2024, Bolden asked Heron to return the Dog and Heron refused. Bolden Decl., ¶ 13.

On July 31, 2024, Bolden retained a firm called Empire Intelligence to retrieve the Dog from Heron in Wyoming. Bolden Decl., ¶14. On August 9, 2024, Bolden wrote to the Goshen County (Wyoming) Sheriff’s Office that Heron was illegally in possession of the Dog. Bolden Decl., ¶14, Ex. 8. On August 16, 2024, two investigators from Empire Intelligence went to Heron’s property in Wyoming and demanded return of the Dog. Bolden Decl., ¶15. Heron claimed to the agents that he received the Dog as a gift from Bolden. Bolden Decl., ¶15. One of the investigators called the Sheriff’s office. Bolden Decl., ¶15. The sheriffs declined to remove the Dog without a judgment from a California court. Bolden Decl., ¶15.

Bolden has not spoken with Heron, and he has not returned the Dog. Bolden Decl., ¶17. Heron and the Dog are now located in Freedom, Idaho, where Bolden served Heron with the Complaint in this action. Bolden Decl., ¶19.

In January 2021, Bolden offered to purchase the Dog for Heron as a gift. Heron Decl., ¶2. They agreed Heron would be the Dog’s owner and caretaker. Heron Decl., ¶2. There was never an agreement between Heron and anyone, Bolden or otherwise, that the Dog would be anything other than Heron’s sole and exclusive property. Heron Decl., ¶6.

Heron chose the Dog’s breed and selected the Dog from among a litter of puppies offered by a breeder. Heron Decl., ¶3, Ex. A (photo of Heron holding the new-born Dog). Bolden and Heron exchanged texts wherein Bolden stated she was “excited for [Heron]” to get his puppy and Bolden insisted she “get to play with the puppy too”. Heron Decl., ¶3, Ex. B.

Heron brought the Dog to live in his apartment in Brentwood in March 2021. Heron Decl., ¶5. Heron changed the Dog’s name from his breeder-given name (Blackie) to his current name, Mr. Huckleberry. Heron Decl., ¶5. Heron registered the Dog with the American Kennel Company under that name. Heron Decl., ¶5, Ex. C (AKC license). Bolden texted Heron around that time stating: “He’s official. So proud of you Nate.” Heron Decl., ¶5, Ex. D. Heron brought the Dog to a veterinarian in Tustin in April 2021 where his records were updated with his name change, reflecting Heron as his sole owner. Heron Decl., ¶7.

In May 2021, Heron leased an apartment in Venice and listed the Dog as his pet, paying a pet deposit fee. Heron Decl., ¶8, Ex. E (pet addendum). The Dog lived with Heron in Venice until March 2023, when the two of them moved into Heron’s girlfriend’s home in Marina Del Rey. Heron Decl., ¶8.

During this period, Bolden often helped Heron by dog-sitting. Heron Decl., ¶9. Bolden provided financial assistance for the Dog’s care, particularly by helping purchase special food conforming to the Dog’s dietary allergies. Heron Decl., ¶9. Each time Bolden cared for the Dog, the Dog was always returned to reside with Heron. Heron Decl., ¶9. Text messages between Bolden and Heron record Bolden asking to watch the Dog “as much as [Heron] will let [her]”. Heron Decl., Ex. F. Bolden also stated that the Dog “got really lucky” when he “picked [Heron] as his forever home”. Heron Decl., Ex. F. When Heron commented that the Dog “thinks he’s [Bolden’s] dog”, she replied: “I doubt that. He doesn’t mind being with me but as soon as it gets dark he’s waiting for you.” Heron Decl., Ex. F. Bolden also thanked Heron for “sharing [the Dog] with [her]” so much and stated that she “never realized [she] could love someone else’s dog so much”. Heron Decl., Ex. F.

Before Heron departed for Wyoming, Bolden stated she was “trying to wiggle in as much time [with the dog] as [she] can before [the Dog is] gone”. Heron Decl., Ex. F. Bolden also stated she was “going to ask [Heron] for as much time [with the Dog] as [Heron] was willing to give [her]”. Heron Decl., Ex. F. She acknowledged via text before Heron moved that she was spending “her last day with [the Dog]”. Heron Decl., Ex. F.

Bolden purchased a card online identifying the Dog as her service animal. Heron Decl., ¶23. The Dog is not a service animal and has not been trained as one. Heron Decl., ¶23.

Heron and his girlfriend moved to Wyoming in March 2024. Heron Decl., ¶10. Bolden planned, attended, and helped pay for a going-away party in Santa Monica. Heron Decl., ¶10.

Heron’s girlfriend registered the Dog in Wyoming on April 9, 2024, identifying Heron as the Dog’s sole owner. Heron Decl., ¶10.

Bolden and her husband visited Heron and the Dog in Wyoming in April 2024. Heron Decl., ¶12. They returned to California without the Dog. Heron Decl., ¶12.

Between April and July 2024, Bolden asked several times to visit Heron in Wyoming again. Heron Decl., ¶¶ 14-16. For personal reasons, including the birth of his child in May 2024, Heron asked her to delay any visit. Heron Decl., ¶16.

Around July 31, 2024, Heron received an email from the American Kennel Association stating that Bolden was attempting to change the Dog’s registered owner to herself. Heron Decl., ¶17. Heron completed and submitted forms demonstrating that he owned the Dog and submitted a sample of the Dog’s DNA. Heron Decl., ¶17. Heron attempted to contact Bolden, who stated that she was unavailable. Heron Decl., ¶17. They have not directly communicated since. Heron Decl., ¶17.

A private investigator appeared at Heron and his girlfriend’s home in Wyoming around August 16, 2024. Heron Decl., ¶18. The investigator produced outdated court documents Bolden had filed in 2016 and demanded possession of the Dog. Heron Decl., ¶18. He accused Bolden and Heron of drug abuse and threatened to call a government agency to take custody of their infant child. Heron Decl., ¶18. They asked the investigator to leave the property. Heron Decl., ¶18. Later the same day, the investigator returned to Heron’s home accompanied by deputy sheriffs. Heron Decl., ¶19. After speaking with both Heron and the investigator, the deputies escorted the investigator off Heron’s property. Heron Decl., ¶ 19.

Heron, his girlfriend, their child, and their two dogs (including the Dog) have since relocated to western Wyoming. Heron Decl., ¶ 21.

Plaintiff Bolden seeks a writ of possession for the Dog. 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. The remedy is available in any action in which a plaintiff asserts a present right to the possession of personal property. Costello v. Bell, (1915) 27 Cal.App. 102, 104. As a provisional remedy, the right to possession is only temporary, and title and the right to possess are determined in the final judgment. McFaddin v. H.S. Crocker Co., (1963) 219 Cal.app.2d 585, 590.

In order to be entitled to a writ of possession, Bolden must demonstrate that she is entitled to possess the Dog. CCP §512.010(b)(1). Bolden’s theory of her right to possess is based on ownership. 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, 175-76.

Bolden’s application must be denied for lack of subject matter jurisdiction over the Dog, which is in Wyoming or Idaho. The court may only issue a writ of possession for property located in California. The court cannot issue a writ of possession for property outside California. The fact that a levying officer (deputy sheriff) must execute the writ demonstrates this fact. See CCP §512.060(b) (authorizing levying officer to enter private place when plaintiff has established probable cause). A California deputy sheriff cannot execute a writ of possession in Wyoming or Idaho.

Bolden presumably could obtain injunctive relief against Heron, whether by preliminary injunction or after trial. The court does have jurisdiction over him. However, based on the parties’ competing evidence, it is likely that the matter must go to a trial where witness credibility will be evaluated.

[1] Significant portions of the reply declaration are not responsive to the opposition and are improperly presented for the first time in reply. See Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333 (new evidence raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded).

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