California attachment: contract claims over $500, a noticed hearing, and an undertaking before the writ

Attachment lets a plaintiff freeze a defendant's property before judgment. Because that is a serious thing to do to someone who has not yet lost, California confines it narrowly: only certain claims qualify, the hearing is on notice except in a defined emergency, and the plaintiff must post security first.

Which claims qualify

CCP 483.010(a):

Except as otherwise provided by statute, an attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees.

Four requirements, all of which must hold:

• money, not other relief;
• based upon a contract, express or implied — so tort claims are out;
• a fixed or readily ascertainable amount; and
• at least $500, excluding costs, interest and fees.

Secured claims are excluded — subdivision (b): no attachment "on a claim which is secured by any interest in real property arising from agreement, statute, or other rule of law," including a mortgage or deed of trust and any statutory, common law or equitable lien on real property — but excluding a security interest in fixtures under Commercial Code Division 9.

With an exception for lost security: an attachment may issue "where the claim was originally so secured but, without any act of the plaintiff or the person to whom the security was given, the security has become valueless or has decreased in value to less than the amount then owing." In that case the amount secured by the attachment "shall not exceed the lesser of the amount of the decrease or the difference between the value of the security and the amount then owing."

Individual defendants — subdivision (c): where the action is against a defendant who is a natural person, an attachment may be issued only on a claim meeting the further conditions the subdivision sets — which is why attachment is in practice a commercial remedy rather than a consumer one.

The ordinary route: apply, then a noticed hearing

Applying — CCP 484.010: "Upon the filing of the complaint or at any time thereafter, the plaintiff may apply … 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."

Two documents are sought together: the right to attach order (the ruling) and the writ (the instrument).

What the application must contain — CCP 484.020, executed under oath:

• (a) A statement showing that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued.
• (b) A statement of the amount to be secured.
• (c) A statement that the attachment is not sought for a purpose other than the recovery on the claim.
• (d) A statement that the applicant has no information or belief that the claim is discharged in a bankruptcy proceeding or that the prosecution of the action is stayed in one.
• (e) A description of the property to be attached and a statement that the plaintiff is informed and believes that such property is subject to attachment.

Shortcut descriptions for entities: where the defendant is a corporation, a reference to "all corporate property which is subject to attachment pursuant to subdivision (a) of Code of Civil Procedure Section 487.010" satisfies subdivision (e). A comparable reference works for a partnership or other unincorporated association.

For an individual defendant, no such shortcut exists — the property has to be described.

The hearing — CCP 484.040:

No order or writ shall be issued under this article except after a hearing. At the times prescribed by subdivision (b) of Section 1005, the defendant shall be served with all of the following: (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.

The CCP 1005(b) cross-reference means the ordinary 16 court days' notice, plus service extensions. So the standard attachment route is not fast, and a defendant gets the papers and a hearing before anything is frozen.

The emergency route: ex parte

CCP 485.210 provides for an application without notice, and it demands more.

Subdivision (b): the application must satisfy CCP 484.020 and, in addition, include "a statement showing that the requirement of Section 485.010 is satisfied" — the great-or-irreparable-injury standard.

Subdivision (c) — the supporting affidavit must show all of:

(1) The plaintiff on the facts presented would be entitled to a judgment on the claim. (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.

Subdivision (d): the affidavit supporting paragraph (3) "may be based on the affiant's information and belief" — but paragraphs (1) and (2) are not given that latitude.

What the court must find — CCP 485.220(a): the court examines the application and affidavit and, except as CCP 486.030 provides, shall issue a right to attach order stating the amount to be secured, and order a writ to issue upon the filing of an undertaking, if it finds all of:

• (1) the claim is one upon which an attachment may be issued;
• (2) the plaintiff has established the probable validity of the claim;
• (3) the attachment is not sought for a purpose other than recovery on the claim;
• (4) the affidavit shows the property "is not exempt from attachment";
• (5) the plaintiff will suffer great or irreparable injury if issuance is delayed until the matter can be heard on notice;
• (6) the amount to be secured is greater than zero.

Subdivision (b): if the application and affidavit do not satisfy CCP 485.010, the court "shall so state and deny the order." Where denial is solely on that ground, the section provides what follows — in substance, the plaintiff is not shut out of the noticed route.

"Probable validity" is the merits threshold and it appears in both routes. It is a real showing, not a pleading standard.

The temporary protective order

CCP 486.010(a): at the time of applying for a right to attach order under the noticed procedure, the plaintiff may also apply for a temporary protective order.

Subdivision (b): the application "shall state what relief is requested and shall be supported by an affidavit, which may be based on information and belief, showing that the plaintiff would suffer great or irreparable injury … if the temporary protective order were not issued."

This is the bridge across the 16 court days. It restrains dealings with the property while the noticed attachment application is pending, on a lower evidentiary footing than the ex parte writ — information and belief will do.

Security first

CCP 489.210:

Before issuance of a writ of attachment, a temporary protective order, or an order under subdivision (b) of Section 491.415, the plaintiff shall file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action.

No undertaking, no writ. And the undertaking is not a formality — it is the defendant's remedy if the attachment turns out to have been wrongful, and it is the reason attachment is not used casually.

The two routes compared

A short checklist

1. Test the claim first. Contract, money, fixed or readily ascertainable, at least $500 net of costs, interest and fees. A tort claim never qualifies.
2. Check for real property security. A secured claim is excluded unless the security has become valueless or fallen in value without your doing — and then only to the shortfall.
3. If the defendant is an individual, check CCP 483.010(c) before assuming attachment is available.
4. Draft the application under oath, with all five CCP 484.020 statements — including the bankruptcy statement, which is easy to omit.
5. Describe the property. Corporate and partnership defendants have a statutory shortcut; individuals do not.
6. Serve the summons, complaint, notice, application and affidavits together, on 16 court days' notice plus any service extension.
7. If you need protection in the meantime, ask for a temporary protective order with the application — the affidavit may rest on information and belief.
8. For an ex parte writ, prove the injury from delay. That is the element that distinguishes the two routes, and information and belief will not carry it.
9. Arrange the undertaking before you need the writ. CCP 489.210 makes it a precondition to issuance.

Where these sections live

• CCP 483.010 — Claims on which attachment may issue
• CCP 484.010 — Application for a right to attach order
• CCP 484.020 — Contents of the application
• CCP 484.040 — Hearing and service requirements
• CCP 485.210 — Ex parte application
• CCP 485.220 — Findings required for an ex parte order
• CCP 486.010 — Temporary protective order
• CCP 489.210 — Undertaking before issuance
• CCP 695.010 — Property subject to enforcement
• CCP 1005 — Notice periods for motions

This page explains what the Code says. It isn't legal advice, and CCP 487.010, which lists the property subject to attachment, is cited here but not reproduced on this page.