Case Number: GC050561 Hearing Date: May 02, 2014 Dept: B

ATTENTION: THE COURT WILL BE DARK ON MAY 2, 2014.

TO ALL COUNSEL AND UNREPRESENTED PARTIES:
PLEASE REVIEW THE TENTATIVES BELOW, AND ADVISE THE CLERK OF THE COURT AT (818) 557-3472 WHETHER YOU SUBMIT TO THE TENTATIVE OR WISH TO SCHEDULE ANOTHER HEARING DATE. IF YOU WISH TO SCHEDULE ANOTHER HEARING DATE, PLEASE CONTACT ALL OPPOSING PARTIES AND AGREE ON A HEARING DATE OF MAY 16, MAY 23, OR MAY 30, AND INFORM THE CLERK OF THE SELECTED DATE.

Application for Writ of Possession for Staffordshire Terrier named “Monty”.

The Plaintiffs specialize in finding homes for rescued pets. The Plaintiff rescued a Staffordshire terrier, Monty, in December 2010. This case arises from the Plaintiffs’ claim that the Defendants breached a temporary adoption agreement for the Plaintiff’s dog, Monty, by refusing to return the dog. The Plaintiffs seek an order returning Monty and seeks damage for the conversion of the Plaintiffs’ dog and for the breach of contract.

Trial is set for June 2, 2014.

At this hearing, the Plaintiff requests a writ of possession in order to obtain possession of Monty. Monty has been in the possession of the Defendants since November of 2011, or more than two years.

This case was filed on November 28, 2012. It is unclear why the Plaintiff waited over one year and until one month before trial to seek a writ of possession.

The writ of possession is a statutory remedy that permits a plaintiff to obtain possession of tangible personal property prior to trial when the defendant has wrongful possession of the property. CCP section 512.060 permits the Court to issue a writ of possession when the Court finds the following:

1) The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property.
2) The undertaking requirements of Section 515.010 are satisfied.

An initial issue is that the Plaintiff did not draft the application with the mandatory forms. CCP section 516.020 states that the Judicial Council shall prescribe the form of the applications, notices, orders, and other documents required to seek a writ of possession. The Judicial Council has implemented this statute by created the following forms: CD 100 “Application for Writ of Possession”, CD-110 “Notice of Application for Writ of Possession and Hearing”, CD-120 “Order for Writ of Possession”, and CD-130 “Writ of Possession”. Under CRC rule 1.31, mandatory forms must be used by a party seeking the applicable relief.

The Plaintiff argues that the use of the word “mandatory” in CRC rule 1.31 indicates that the Court must accept the form. This argument is wholly unpersuasive because it ignores the express language of CRC rule 1.31(a):

“Forms adopted by the Judicial Council for mandatory use are forms prescribed under Government Code section 68511. Wherever applicable, they must be used by all parties and must be accepted for filing by all courts. In some areas, alternative mandatory forms have been adopted.”
(italics added).

The Plaintiff did not draft its application on the mandatory form for an application for a writ of possession. This is grounds to deny the Plaintiff’s application.

Further, a review of the Plaintiff’s application reveals that the Plaintiff has not provided sufficient facts to demonstrate the probable validity of the Plaintiff’s claim to possession of Monty. The Plaintiff argues that it has established the probable validity of its claim to possession of Monty because the written adoption agreement indicates that the Defendants were granted temporary possession of Monty.

The Plaintiff provides facts in the declaration of Linda Blair, who is the president of the Plaintiff. Ms. Blair states that a copy of the temporary adoption agreement is in untabbed exhibit B. The untabbed exhibit B is placed before the exhibit “A1”.

A review of untabbed exhibit B reveals that it is an adoption agreement. The word “temporary” was added in handwriting before the phrase “Adoption Agreement” at the top of the document. Further, there is a handwritten statement that the adoption agreement is temporary and for one week and it will be determined whether the adoption is agreed to by the Plaintiff. The handwritten phrase is initialed “DM” and “LB”. The initials refer to Diane Milich and Linda Blair.

The opposition papers assert that the handwritten portions that make the agreement temporary were added without the Defendants’ consent and that the agreement is a permanent adoption agreement. The Defendant, Diane Milich, states that a copy of the adoption agreement that she signed is attached to the opposition papers as exhibit A. A review of the document in exhibit A to the opposition papers reveals that it was drafted on the same form adoption agreement; however, it lacks the handwritten additions or any initials. The Defendant’s copy is signed by Linda Blair and Diane Milich. Ms. Milich states in her declaration that after she signed the adoption agreement, she left with Monty and the copy of the agreement that is in exhibit A to the opposition papers.

Ms. Milich states that several weeks later, Linda Blair produced the altered adoption agreement and claimed that the agreement was a temporary one week adoption. Ms. Milich states in paragraph 6 that the handwritten language was not in the agreement when she signed it and that she did not consent to the addition. Further, Ms. Milich states in paragraph 6 that she did sign the initials “DM” on the agreement. Also, Ms. Milich states that she did not consent to Linda Blair adding the initials “DM” to the agreement.

At her deposition, Linda Blair admitted that she added the handwritten portions to the adoption agreement and that she placed the initials “DM” on the agreement. At her deposition, Linda Blair testified:

Q. Who wrote “temporary” and “one week only” on it?
A. I did.
(opposition exhibit C, 16:15-17).

Q. And then there’s two initial — sets of initials at the bottom of that handwriting, one says, “DM”, the other one says “LB”.
A. That is correct.
Q. Who wrote those in?
A. I did.
(opposition exhibit C, 17:7-12).

Ms. Blair testified that she put the initials “DM” with the consent of Ms. Milich because Ms. Milich was holding Monty (18:2-10).

The Plaintiff’s moving papers neglected to mention any of these additional facts, i.e., that Linda Blair added the handwritten parts that transformed the written agreement into a temporary adoption agreement or that Linda Blair placed the initials “DM” on the form. Further, the moving papers offer no explanation for the Defendant having possession of an adoption agreement that lacks the handwritten portions that purportedly made the agreement into a temporary adoption.

In the reply papers, the Plaintiff attempts to argue that an email exchange indicates that the adoption agreement was temporary. The Plaintiff argues that the use of the subject line “Re: temporary agreement Monty” in the email indicates that Diane Milich agreed that the adoption was temporary.

However, a review of the email reveals it was drafted by Linda Blair (see reply, untabbed exhibit A). The email does not state in its text that the adoption agreement is temporary. Instead, it concerns the angry response of Kirk Adkins, Jr. to an attempt to obtain Monty.

Diane Milich replied to the email and stated that she was surprised at the Defendant’s reaction to the Plaintiff’s attempt to obtain Monty. There is no language in Ms. Milich’s reply in which she agreed that the adoption was temporary.

It is mere speculation to claim that Diane Milich was agreeing that the adoption was temporary based on the subject line in an email drafted by Linda Blair. The gravamen of the emails did not concern the adoption agreement or any term that made it temporary. Instead, the email exchange concerned the strong reaction of Kirk Adkins, Jr. to an attempt to take Monty. It cannot be determined that Diane Milich’s replies indicate that she was consenting to Linda Blair’s phrases in the subject line.

Further, in a subsequent email dated December 8, 2011, Ms. Milich states that she should not have adopted Monty (see untabbed exhibit B). There is no indication in her email that Ms. Milich considered the adoption temporary.

The Plaintiff also argues that the adoption agreement did not permit Kirk Adkins, Jr., or Kirk Adkins, Sr., to take possession of Monty. However, the adoption agreement indicated that if for any reason “Diane Milich/Kirk Adkins” are unable to keep Monty, they will arrange for his return. Further, the adoption agreement includes a provision that “Diane Milich/Kirk Adkins” agree to notify the Plaintiff if their residence or contact information changes. These provisions indicate that the parties contemplated that Kirk Adkins would have possession of Monty. Accordingly, the Plaintiff has not established that the adoption agreement did not permit Kirk Adkins, Jr. to take possession of Monty.

The Plaintiff’s evidence is insufficient to demonstrate the probable validity of its claim that the adoption agreement was temporary. The Defendant has offered facts to demonstrate that she signed a permanent adoption agreement and she offers a copy of the permanent adoption agreement that she signed. Further, the Defendant states that she did not consent to the additions that transformed the agreement into a temporary agreement. The fact that the Defendant has a copy of an unmodified adoption agreement is substantial evidence that the adoption agreement provided by the Plaintiff was not the agreement to which the parties agreed. As noted above, the Plaintiff offered no facts in their moving papers regarding Linda Blair’s admission that she made the handwritten additions, regarding Linda Blair’s admission that she placed the initials “DM” on the agreement, or regarding the Defendant’s copy of the agreement that lacks the handwritten additions. This indicates that the Plaintiff cannot establish the probable validity of its claim.

Therefore, the Court denies the Plaintiff’s application for a writ of possession because the application was not drafted on the mandatory form and because the Plaintiff has not provided sufficient evidence to establish the probable validity of its claim. Under CCP section 512.110, the determinations of the Court on the Plaintiff’s application have no effect on the determination of any issues in the action other than the issues relevant to the Plaintiff’s application.