Legal Question in Real Estate Law in California

Re: Can daughter retrieve personal items from estranged father's home without se

This is really a difficult situation, and maybe in the long run the best answer is to endure the confrontation. Of course, if there is a possibility of physical violence, she should either not do it at all or confront with a strong male companion.

The first problem is that she can't legally enter the father's house when he isn't there and take the items, even if they belong to her. This wouldn't be burglary if her intent is truly to take only her own property, but it would be some kind of trespass, possibly criminal.

The next problem is that the description of the items (birth certificate and tax papers) does not clearly identify them as your daughter's property. For example, an original birth certificate, issued at a child's birth, is the parents' property, not the child's (I believe). The same reasoning might apply to the tax papers. Were they prepared by the daughter, or by a tax preparer at her expense? If so, they are hers. But otherwise, there is a strong possibility that these papers legally belong to the father, even if they relate, in whole or in part, to the daughter's tax liability.

This is not to say these or other items do or do not "belong" to your daughter in either a legal or moral sense. It's just to suggest the difficulty she may face in trying to get a judge to sign an order.

The most legally-proper path to rcovering personal property in the possession of another is to use the claim-and-delivery provisions of the Code of Civil Procedure, sections 511 - 516. This requires filing a lawsuit for something, e.g. trespass to chattels or replevin in which the plaintiff asserts a legal right to possession of the property. Then, at the time of filing or soon thereafter, you apply for a writ of possession. If the court grants possession (because the judge is convinced the plaintiff is entitled to possession and is likely to win the suit at trial), the writ will be issued and then, if necessary, the sheriff can seize the property.

This is a moderately complex and moderately expensive process, and a lawyer's assistance will probably be necessary.

One practical solution might be to retain a lawyer to write to the father, explaining this process, and demanding voluntary return of the property as an alternative to the institution of claim-and-delivery proceedings.