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Ex parte writ of attachment in California

by Stan Burman

An ex parte writ of attachment in California is the topic of this blog post.

An ex parte writ of attachment in California can be requested by a plaintiff or cross-complainant on the grounds that they would suffer great or irreparable injury if issuance of the right to attach order were delayed until the matter could be heard through the filing of a noticed motion..

Grounds for an ex parte writ of attachment in California.

An ex parte writ of attachment in California requires filing an application on an ex parte basis on the grounds that under the circumstances of the case it may be inferred that there is a danger that the property sought to be attached would be concealed, substantially impaired in value, or otherwise made unavailable to levy if issuance of the order were delayed until the matter could be heard on notice.

Statutory authorization for an ex parte writ of attachment in California.

The statutory authorization for an ex parte writ of attachment is found in Code of Civil Procedure section 485.010 which states that,

“(a) Except as otherwise provided by statute, no right to attach order or writ of attachment may be issued pursuant to this chapter unless it appears from facts shown by affidavit that great or irreparable injury would result to the plaintiff if issuance of the order were delayed until the matter could be heard on notice.

(b) The requirement of subdivision (a) is satisfied if any of the following are shown:

(1) Under the circumstances of the case, it may be inferred that there is a danger that the property sought to be attached would be concealed, substantially impaired in value, or otherwise made unavailable to levy if issuance of the order were delayed until the matter could be heard on notice.

(2) Under the circumstances of the case, it may be inferred that the defendant has failed to pay the debt underlying the requested attachment and the defendant is insolvent in the sense that the defendant is generally not paying his or her debts as those debts become due, unless the debts are subject to a bona fide dispute. Plaintiff’s affidavit filed in support of the ex parte attachment shall state, in addition to the requirements of Section 485.530, the known undisputed debts of the defendant, that the debts are not subject to bona fide dispute, and the basis for plaintiff’s determination that the defendant’s debts are undisputed.

(3) A bulk sales notice has been recorded and published pursuant to Division 6 (commencing with Section 6101) of the Commercial Code with respect to a bulk transfer by the defendant.

(4) An escrow has been opened pursuant to the provisions of Section 24074 of the Business and Professions Code with respect to the sale by the defendant of a liquor license.

(5) Any other circumstance showing that great or irreparable injury would result to the plaintiff if issuance of the order were delayed until the matter could be heard on notice.”

Requirements before requesting an ex parte writ of attachment in California.

Before requesting the issuance of an ex parte writ of attachment in California you must first file your summons and complaint and comply with the other provisions of Code of Civil Procedure section 485.210 which states that,

(a) Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.

(b) The application shall satisfy the requirements of Section 484.020 and, in addition, shall include a statement showing that the requirement of Section 485.010 is satisfied.

(c) The application shall be supported by an affidavit showing all of the following:

(1) The plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.

(2) The plaintiff would suffer great or irreparable injury (within the meaning of Section 485.010) if issuance of the order were delayed until the matter could be heard on notice.

(3) The property sought to be attached is not exempt from attachment.

(d) An affidavit in support of the showing required by paragraph (3) of subdivision (c) may be based on the affiant’s information and belief.”

Requesting an ex parte writ of attachment in California is very useful in cases where you can meet your burden of showing that great or irreparable injury would result to you if issuance of the order were delayed until the matter could be heard on notice as well as the other requirements discuss in this blog post.

Sample points and authorities in support of an ex parte writ of attachment  in California for sale.

Attorneys or parties in California that would like to view a portion of a sample 19 page memorandum of points and authorities in support of a request for an ex parte writ of attachment in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, and two sample declarations sold by the author can see below.

Sample Points and Authorities in Support of Ex Parte Application for a Right to Attach Order by Stan Burman on Scribd

 

 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr.  Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.

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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.

The 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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