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Filing an opposition to an application for a right to attach order in California

Filing an opposition to an application for a right to attach order in California is the topic of this blog post.  No right to attach order can be issued unless the underlying debt or obligation is from a business transaction or loan. In other words attachment cannot be requested if the underlying debt or obligation is for personal, family or household purposes.

At least sixteen (16) Court days before the hearing the defendant must be served with (a) A copy of the summons and complaint, (b) A notice of application and hearing,   (c) A copy of the application and of any affidavit in support of the application. See Code of Civil Procedure § 484.040.

Note that if a defendant does not serve and file an opposition within five (5) Court days before the hearing they will NOT be permitted to oppose the issuance of the right to attach order.  See Code of Civil Procedure § 484.060(a). Therefore, it is critical that an opposition be filed as soon as possible.

The defendant has the right to request a brief continuance to enable them to oppose the issuance of the right to attach order.  See Code of Civil Procedure § 484.080(b).  This means a defendant who needs more time to prepare an effective opposition may include a request for a brief continuance in their opposing papers.

Because the statutes relating to attachment law are purely the creation of the legislature they are subject to strict construction.  In other words attachment is disfavored in the law.  Plaintiff must prove each and every element or their request will be denied.

It is well settled that the Attachment Law Statutes are subject to strict construction. .

In discussing the Attachment Law statutes, the Court of Appeal stated that, “The code contains a variety of safeguards, including the requirement of a noticed hearing to prevent the evil of depriving debtors of “much-needed assets for protracted periods of time during possibly meritless litigation.” Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 79 (citing text).

Code of Civil Procedure § 482.040 states in pertinent part that, “The facts stated in each affidavit filed pursuant to this title shall be set forth with particularity.”

I have seen numerous applications for a right to attach order where the facts stated in the affidavit were not stated with particularity so any party opposing the issuance of an order should carefully review everything submitted in support of the application, including any exhibits attached to declarations.

Code of Civil Procedure § 481.190 states that, “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”, see also Kemp Bros. Const., Inc. v. Titan Elec. Corp. (2007) 146 Cal.App. 4th 1474, 1476; Goldstein v. Barak Const. (2008) 164 Cal.App. 4th 845, 852.

Code of Civil Procedure § 484.030 states that, “The application shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.”

And the amount of the attachment must be based on easily measurable damages whose basis is reasonable and certain.

“Although damages need not be liquidated, they must be measurable by reference to the contract sued upon, and their basis must be reasonable and certain.” Kemp Bros., supra at 1481, fn 5. (Citing text).

And the Court has great discretion in deciding whether a right to attach order should issue.

The trial court is not required to accept as true the sworn testimony of any witness or undisputed affidavit testimony. It may make contrary findings based on inferences drawn from other evidence. Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal.App. 3d 260, 273.

And if all, or a portion of the amount being sought to be attached is based on future damages the plaintiff must show that they have taken reasonable steps to mitigate those damages.

“A plaintiff who suffers damage as a result of either a breach of contract or a tort has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could have been thus avoided.” Shaffer v. Debbas (1993) 17 Cal.App.4th 33, 41.

Opposing an application for a right to attach order is extremely important as failing to do so can result in the Court granting the order.

Attorneys or parties in the State of California who wish to view a sample opposition to an application for a right to attach order for California that contains a memorandum of points and authorities with citations to case law and statutory authority sold by the author can see below.

 

Attorneys or parties in California that would like more information on a California law and motion litigation document package containing over 55 sample documents including a sample opposition to an application for a right to attach order for California can use the link shown below.

California law and motion litigation document package

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

If you would like to subscribe to his weekly legal newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm

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