Purpose and Scope of Application to Set Aside Right to Attach Order

Any time after a defendant's property is attached under writ of attachment, defendant may bring a motion to set aside the right to attach order, quash the writ of attachment and have the attached property released from levy. (Civ. Code Sec. 485.240(a).) On a showing of “clear and convincing” reasons, courts have inherent power to vacate ex parte attachments without any notice (i.e., on defendant's application). (Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal.App.3d 1108, 1116-1117.)

At the hearing, the plaintiff bears the burden of proving that the attachment was proper. (Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1116; Western Steel & Ship Repair, Inc. v. RMI, Inc., supra, 176 Cal.App.3d at 1113.) The sole questions for the court are whether plaintiff is entitled to the right to attach order, or whether the amount to be secured by the attachment should be reduced. (Civ. Code Sec. 485.240(c).)

Grounds for Set Aside/Discharge

The grounds for a motion to discharge attachment included:

1. the case is not one in which attachment may properly issue,
2. failure of the complaint, tested by pleading rules, to state any cause of action;
3. defects in the undertaking or affidavit; or
4. issuance of the writ for an amount greater than stated in the affidavit.

(Burke v. Superior Court of Sacramento County, 71 Cal.2d 276, 279 (1969); see also Peck v. Hagen, (1989) 214 Cal.App.3d 1242, 608-09, stating that attachment may be discharged if it is improperly or irregularly issued or if terminated by operation of law.) The first category — improper issuance — encompassed a trial court’s erroneous determination of the probable validity of a plaintiffs’ claim. (Robinson v. Varela, (1977) 67 Cal.App.3d 611, 618.)

In 1977, the Attachment Law was comprehensively revised. Western Steel & Ship Repair v. RMI, (1986) 176 Cal.App.3d 1108, 1115. The authority for a motion to discharge based on improper issuance was based on former section 556, which set forth an “improper and irregular” standard for discharge of a writ. The Attachment Law no longer has this standard, and consequently there is no continued statutory basis for a motion to discharge.

Elements for Attachment

An attachment may issue only where the claim sued upon is:

1. a “claim... for money, ...based upon a contract, express or implied”;
2. of a “fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees”;
3. that is either unsecured or secured by personal property; and
4. that is a commercial claim.

(Civ. Code. Sec. 483.010(a).)

Attachment is expressly authorized under Civil Code section 3439.07, subdivision (a)(2), which provides that in an action for relief under the UVTA the creditor may obtain “[a]n attachment or other provisional remedy against the asset transferred or other property of the transferee” “in accordance with the procedures described in Title 6.5 (commencing with Section 481.010) of Part 2 of the Code of Civil Procedure.” In other words, a prejudgment attachment must meet all the ordinary requirements for a writ of attachment.

Property Subject to Attachment: Where the defendant is a natural person, the following property is subject to attachment:

1. “Interests in real property except leasehold estates with unexpired terms of less than one year.
2. Accounts receivable, chattel paper, and general intangibles arising out of the conduct by the defendant of a trade, business, or profession, except any such individual claim with a principal balance of less than one hundred fifty dollars ($150).
3. Equipment.
4. Farm products.
5. Inventory.
6. Final money judgments arising out of the conduct by the defendant of a trade, business, or profession.
7. Money on the premises where a trade, business, or profession is conducted by the defendant and, except for the first one thousand dollars ($1,000), money located elsewhere than on such premises and deposit accounts, but, if the defendant has more than one deposit account or has at least one deposit account and money located elsewhere than on the premises where a trade, business, or profession is conducted by the defendant, the court, upon application of the plaintiff, may order that the writ of attachment be levied so that an aggregate amount of one thousand dollars ($1,000) in the form of such money and in such accounts remains free of levy.
8. Negotiable documents of title.
9. Instruments.
10. Securities.
11. Minerals or the like (including oil and gas) to be extracted.”

(CCP § 487.010(c)).

Commercial Claim and Exception

Ordinarily, a claimant may obtain a right to attach order and writ of attachment in an action against an individual defendant if the claim arises out of the conduct by the defendant of a trade, business, or profession. (Civ. Code, Sec.Sec. 483.010(c).) However, notwithstanding Civ. Code, Sec. 483.010, “an attachment may be issued in any action for financial elder abuse. (W&I Code Sec. 15657.01.)

Alternative Action - Substitute an Undertaking for Attached Property

Undertaking: Another reason for discharging the attachment and protective order is the lack of undertaking. Before issuance of a writ of attachment or a temporary protective order, 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. (Civ. Code, Sec. 489.210.) The amount of the undertaking is $10,000 unless, “upon objection to the undertaking, the court determines the probable recovery for wrongful attachment exceeds the amount of the undertaking….” (Civ. Code, Sec. 489.220.) Absent the prerequisite undertaking, a writ of attachment is void ab initio. (Vershbow v. Reiner, 231 Cal.App.3d 879, 883 (1991).)

When a writ of attachment is issued, the defendant may, by noticed motion, apply for an order permitting the defendant to substitute an undertaking for any property that has been attached or is subject to being attached, (Civ. Code, Sec. 489.310 (a); First v, Armes (1983) 146 Cal.App.3d 633, 636.) The application must identify the property to be released from attachment or protected from attachment. (Civ. Code, Sec. 489.310(b).) If the motion is granted, the defendant must file an undertaking to pay the plaintiff the value of the property released, not exceeding the amount of any judgment that may be obtained in the action. (Civ. Code, Sec. 489.310(c).) A defendant may also obtain the release of a temporary protective order conditioned upon the filing of a similar undertaking. (Civ. Code, Sec. 489.320,) The undertaking must be in an amount equal to the lesser of the value of the property released or prevented from being attached and the amount specified in the Writ to be secured by the attachment. (Civ. Code, Sec. 489.310 (c).)