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Obtaining a right to attach order in California

Obtaining a right to attach order, and the issuance of a writ of attachment in California is the topic of this blog post. The relevant statutes regarding the attachment remedy are found in Title 6.5, Chapters 1 through 13, comprising sections 481.010 through 493.060 of the Code of Civil Procedure. No writ of attachment can be issued unless a right to attach order has been obtained, and a bond in the amount required by law has been posted.

The right to attach order can be obtained either through the traditional noticed motion procedure, or in certain cases by ex-parte application. This blog post will only discuss the noticed motion procedure as the ex-parte application can only be obtained by a strong showing of great or irreparable injury if the application if not granted on an ex-parte basis.

Attaching the assets of a defendant can be a powerful lever to convince a defendant to make a favorable settlement offer as many of the enforcement procedures used by a judgment creditor in California can also be used by a party who has obtained a writ of attachment such as examination of judgment debtor, third party judgment debtor examinations, etc.

And even if a favorable settlement offer is not obtained, attachment can still allow an unsecured creditor to seize property before any trial and judgment.

As stated by a California Court of Appeal, the basic purpose of the pre-judgment remedy of attachment, is to aid in the collection of a money demand by seizure of property in advance of trial and judgment, as security for eventual satisfaction of the judgment. See National General Corp. v. Dutch Inns of America, Inc. (1971)15 Cal. App 3d 490, 495, 496.

If the defendant is not a natural person as would be the case with a corporation, limited liability company or similar entity, they are not entitled to any exemptions, and all property for which a method of levy is provided for in the attachment statutes may be used.

However, a defendant who is a natural person may claim that certain property sought to be attached is exempt.

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).

It is very important that any affidavits or declarations filed and served in support of the application contain specific as opposed to vague allegations. This is due to the fact that 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.”

The plaintiff must show to the satisfaction of the Court that their claim has probable validity.

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.”

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.

However, where the prerequisites of attachment are met, attachment must issue as a matter of right without regard to judicial favor or discretion. Halstead v. Halstead (1946) 72 Cal. App.2d 832, 836.

“The primary purpose of the remedy of attachment is to allow unsecured creditors a procedure ancillary to their action by which to ensure that the alleged debtor’s assets are not dissipated prior to the time the creditor can obtain and enforce the anticipated judgment on his claim.” North Hollywood Marble v. Superior Court (1984) 157 Cal. App. 3d 683, 690. (internal citations omitted).

The issuance of a right to attach order and writ of attachment allows an unsecured commercial creditor to instruct the levying officer, either the sheriff, marshal or constable of a given country, to seize and hold the debtor’s assets during the pendency of the main action until judgment is rendered in the case, irrespective of the solvency of the debtor or the absence of great or irreparable injury. Code of Civil Procedure § 484.030; see also Lorber Industries v. Turbulence, Inc. (1985) 175 Cal. App.3d 532, 536.

An attachment will lie on a cause of action for damages for breach of contract where the damages are readily ascertainable by reference to the contract and the basis for the computation of damages appears to be reasonable and definite. See Force v. Hart (1928) 205 Cal. 670, 673.

It is unnecessary to support an attachment that the complaint show the entire amount due or that the amount owing be fixed with absolute certainty. Thus, an attachment is proper even though the exact amount due is unknown to the attaching party. Peninsula Properties Co. v. Santa Cruz County (1950) 34 Cal. 2d 626, 631.

A claim for money based upon a contract, express, or implied that is either unsecured or secured is subject to attachment. Code of Civil Procedure §483.010.

An attachment may issue only upon a claim for money based upon an express or implied contract such as a common count. Code of Civil Procedure §483.010(a). Thus, attachment may issue on a contract claim even though the complaint contains other alternative non contract claims. Samuels v. Super.Ct. (Hoffman) 276 Cal.App. 2d 264, 267.

A common count can be basis for the issuance of a writ of attachment. Klein v. Benaron (1967) 247 Cal. App.2d 607, 610. (Defrauded plaintiff entitled to attachment on implied contract theory of money had and received.)

Attorneys or parties in the State of California who wish to view a portion of a sample points and authorities in support of an application for a right to attach order in California, including supporting declarations 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 points and authorities in support of an application for a right to attach order can use the link shown below.

California law and motion litigation document package

Attorneys or parties in California that would like more information on a super litigation documents package containing a sample points and authorities in support of an application for a right to attach order in California as well as over 200 other sample legal documents for California and Federal litigation can use the link shown below.

Super litigation documents 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 enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm

View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro

Copyright 2012 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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