Writs of Attachment

One of the most frustrating things a businessperson or entrepreneur faces is trying to recover monies from a party who has breached a contract.  The business is already out money and is now confronted with having to pay more money to lawyers to try to recover the sums owed by a party who has proven his or her unwillingness to pay in the first place.  The situation is far worse if the business’s claim is unsecured.

Fortunately, the law in California provides a mechanism to create security for the claim by operation of something called “the Attachment Law.”  That body of law allows a court to issue an order—called a writ of attachment—that seizes the defendant’s property until the case goes to trial.  When the business prevails on its claim in trial (or by motion for summary judgment), the attached property can be used to satisfy the judgment.

Attachment is an important tool that helps prevent the otherwise unsecured creditor from having his or her claim subordinated to other liens imposed on the debtor’s property.  More importantly, often times the mere granting of a writ of attachment will force a stubborn debtor to settle up with his or her creditor.

The procedure is painstakingly detailed and sometimes costly, but in the right circumstances it can be a powerful tool.  This post discusses the background applicable to filing a motion for a writ of attachment.  This post is an excerpt of our Info Brief on writs of attachment.  To read the entire Info Brief, which contains this background plus a discussion of the procedural requirements to obtain a writ of attachment, click here to download the pdf.

Background

According to Black’s Law Dictionary, a writ is a “written judicial order to perform a specified act, or giving authority to have it done.”[1]  Attachment is a provisional remedy issued by a court that allows a creditor to have a lien recorded against real property, the debtor’s assets seized and held until final adjudication at trial, or both.[2]

The attachment remedy is not the basis of a distinct proceeding.  It may only be applied as an auxiliary to an action at law.[3]  In other words, a creditor cannot initiate a lawsuit for attachment, but can file a lawsuit for breach of contract (or some other specified cause of action) and file a motion for a writ of attachment as part of that lawsuit.

The reason is because attachment is a provisional remedy, not an ultimate remedy.  A provisional remedy refers to a remedy whose purpose is to preserve the status quo until final disposition of the case.  The basic purpose of the remedy of pre-judgment attachment is to aid in the collection of a money demand by seizing property in advance of trial and judgment, as security for eventual satisfaction of the judgment.[4]  If the creditor wins the lawsuit, the court will then allow the creditor to enforce the judgment out of the seized property.  Pre-judgment attachment affords an unsecured creditor security for his demand.[5]

When a creditor files a motion for a writ of attachment, the court is required to make a preliminary determination of the merits of the dispute.  The order will be granted if the creditor meets two conditions: (1) the creditor follows all of the statutory requirements of the Attachment Law; and (2) the creditor establishes a prima facie claim.[6]

The remedy of attachment is strictly governed by the Attachment Law, set forth in California Code of Civil Procedure[7] § 481.010, et seq.[8] The provisions of the law are construed by very specific statutorily defined terminology.[9]

For example, one of the key terms in the Attachment Law is “probable validity,” which refers to a creditor-claim “where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.”[10]  This definition, which is explored later in this article, forms the test for whether the creditor meets the second condition of the Attachment Law.

To continue reading, click here to download the pdf.


[1] Black’s Law Dictionary 1608 (6th Ed. 1990).

[2] Lorber Industries v. Turbulence, Inc., 175 Cal. App. 3d 532, 535 (1985).

[3] J. C. Peacock, Inc. v. Hasko, 184 Cal. App. 2d 142 (1960).

[4] National General Corp. v. Dutch Inns of America, Inc., 15 Cal. App. 3d 490 (1971).

[5] Utley, v. United States, 304 F.2d 746 (9th Cir. 1962).

[6] Lorber Industries, at 535.

[7] All code sections are to the California Code of Civil Procedure (“CCP”) unless otherwise indicated from Deering’s 2011  edition.

[8] See Bank of America v. Salinas Nissan, Inc., 207 Cal. App. 3d 260, 270 (1989).

[9] CCP §§ 481.020-481.225.

[10] CCP § 481.190; Kemp Bros. Construction, Inc. v. Titan Electric Corp., 146 Cal. App. 4th 1474, 1481, n.5 (2007).

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