Writ Of Claim and Delivery
I recently read an article about the dispute over a 1959 Remy Martin guitar once owned by Kurt Cobain, which discussed the efforts of Courtney Love to recover this guitar from her daughter’s ex-husband. It reminded me of a procedure sometimes used by parties in disputes over personal property called a “writ of possession” or a “writ of claim and delivery”.
This procedure is governed by Code of Civil Procedure, Section 512.010 et seq., and is typically used to obtain possession of some type of personal property prior to the time of trial, where, for example, the ownership of the property is in dispute, or to reclaim borrowed or leased items that have not been returned.
The plaintiff must show the right to immediate possession of the tangible personal property, and that the property is being wrongfully withheld by the defendant. Code of Civil Procedure, Section 512.010; Englert v. IVAC Corp. (1979) 92 Cal. App. 3d 178, 184. Sometimes, this application may even be granted on an ex parte basis.
A plaintiff would usually prefer the Court determine the defendant has no interest in the property at the time of this hearing, otherwise the plaintiff must post a bond (“undertaking”) for twice the value of the defendant’s interest in the property. Even at that, the defendant may completely defeat a plaintiff’s application by posting a counterbond, and thus retain possession of the subject property until such time as any judgments are issued following trial of the matter. Code of Civil Procedure, Section 515.020(a).
Although the counterbond can overcome the writ of possession, there are still times when the application is worthwhile, such as when the defendant’s financial condition renders him or her unable to fight the application process or post bond.