Attachments in California Civil Actions

Code of Civil Procedure, Part 2, Title 6.5, Chapter 2 provides general provisions for the use of attachments in civil actions. Section 482.010 titles Chapter 2 as “The Attachment Law.”

Section 482.030 allows the Judicial Council to provide by rule for the practice and procedure in proceedings under this title and that the JC is required to prescribe the form of the applications, notices, orders, and other documents required by this title.

Section 482.040 requires the facts stated in each affidavit filed to be set forth with particularity. Except where matters are specifically permitted by this title to be shown by information and belief, each affidavit must show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated therein.

In addition, as to matters shown by information and belief, the affidavit must state the facts on which the affiant’s belief is based, showing the nature of his information and the reliability of his informant. The affiant may be any person, whether or not a party to the action, who has knowledge of the facts. A verified complaint that satisfies the requirements of this section may be used in lieu of or in addition to an affidavit.

Section 482.050 provides that, if the plaintiff requests in writing at the time she files her complaint, the clerk of the court with whom the complaint is filed cannot make available to the public the records and documents in the action before either (1) 30 days after the filing of the complaint or (2) the filing pursuant to this title of the return of service of the notice of hearing and any temporary protective order, or of the writ of attachment if issued without notice, whichever event occurs first.

Section 482.060 specifies that the judicial duties to be performed under this title are subordinate judicial duties under the California Constitution and may be performed by appointed officers such as court commissioners. However, four types of judicial duties to be performed are deemed not to be subordinate judicial duties.

Section 482.070 states that legal process required or permitted to be served under this title may be served personally or by mail. The term “legal process” is defined, as well as “judgment debtor,” “judgment creditor,” “writ,” and “notice of levy.”

Section 482.080 provides that, if a writ of attachment is issued, the court may also issue an order directing the defendant to transfer to the levying officer possession of the property to be attached, or possession of documentary evidence of title to property of or a debt owed to the defendant that is sought to be attached. The order must be personally served on the defendant.

Section 482.090 states that several writs in the same form may be issued simultaneously or from time to time upon the same undertaking, whether or not any writ previously issued has been returned. After the return of the writ of attachment, or upon the filing by the plaintiff of an affidavit setting forth the loss of the writ of attachment, the clerk, upon demand of the plaintiff at any time before judgment, may issue an alias writ which is in the same form as the original without requirement of a new undertaking.

Section 482.100 allows the defendant to claim an exemption for property levied upon pursuant to a writ issued under this title if the right to the exemption is the result of a change in circumstances occurring after the denial of a claim of exemption for the property earlier in the action or the expiration of the time for claiming the exemption earlier in the action. A claim of exemption must follow the specified procedures, and the exemption may be claimed at the defendant’s option.

Section 482.110 states that the plaintiff’s application for a right to attach order and a writ of attachment pursuant to this title may include an estimate of the costs and allowable attorney’s fees. In the discretion of the court, the amount to be secured by the attachment may include an estimated amount for costs and allowable attorney’s fees.

Section 482.120 provides that, if the court determines at the hearing on issuance of a writ of attachment under this title that the value of the defendant’s interest in the property described in the plaintiff’s application clearly exceeds the amount necessary to satisfy the amount to be secured by the attachment, the court may direct the order of levy on the property described in the writ or restrict the amount of the property to be levied upon.