Application of Right to Attach Order

An attachment may be issued if the claim sued upon is based upon a contract, for a fixed or readily ascertainable amount not less than $500, that is unsecured or secured by personal property, and that is a commercial claim. (Code Civ. Proc. § 483.010.) Damages must be measurable by reference to the contract itself, and the basis for computing damages must be reasonable and certain. (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 541.)

Defendants must be timely served with the respective notices of the application and hearing, and a copy of the applications and of the supporting declarations. (Code Civ. Proc., § 484.040.)

In addition, "[i]f the action is against a defendant who is a natural person, an attachment may be issued only on a claim which arises out of the conduct by the defendant of a trade, business, or profession.  An attachment may not be issued on a claim against a defendant who is a natural person if the claim is based on the sale or lease of property, a license to use property, the furnishing of services, or the loan of money where the property sold or leased, or licensed for use, the services furnished, or the money loaned was used by the defendant primarily for personal, family, or household purposes." (Code Civ. Proc., § 483.010(c).)

“If the defendant desires to oppose the issuance of the right to attach order sought by plaintiff or objects to the amount sought to be secured by the attachment, the defendant shall file and serve upon the plaintiff no later than five court days prior to the date set for the hearing a notice of opposition. … If the defendant fails to file a notice of opposition within the time prescribed, the defendant shall not be permitted to oppose the issuance of the order.” (Code Civ. Proc., § 484.060, subd. (a).)

A right to attach order and writ of attachment may only be issued after a properly noticed hearing by the Court. (Code Civ. Proc., § 484.040.) “At the hearing, the court shall consider the showing made by the parties appearing and shall issue a right to attach order, which shall state the amount to be secured by the attachment determined by the court in accordance with Section 483.015 or 483.020, if it finds all of the following:

1. The claim upon which the attachment is based is one upon which an attachment may be issued.
2. The plaintiff has established the probable validity of the claim upon which the attachment is based.
3. The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.
4. The amount to be secured by the attachment is greater than zero.”

(Code Civ. Proc., § 484.090, subd. (a).)

"In determining the probable validity of a claim where the defendant makes an appearance, the court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.” (Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120). “ ‘A claim has “probable validity” where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. [Citations.]” (Goldstein v. Barak Construction (2008) 164 Cal.App.4th 845, 852; Code Civ. Proc., ¶ 481.190.)

See AT-105 Application for Right to Attach Order, Temporary Protective Order, etc.

Issuance of Right to Attach Order

The amount to be secured by each of the attachments is determined in accordance with section 483.015. (Code Civ. Proc., § 484.090, subd. (a).) Code of Civil Procedure section 483.015 provides:

1. Subject to subdivision (b) and to Section 483.020, the amount to be secured by an attachment is the sum of the following:
1. The amount of the defendant’s indebtedness claimed by the plaintiff.
2. Any additional amount included by the court under Section 482.110.
2. The amount described in subdivision (a) shall be reduced by the sum of the following:
1. The amount of any money judgment in favor of the defendant and against the plaintiff that remains unsatisfied and is enforceable.
2. The amount of any indebtedness of the plaintiff that the defendant has claimed in a cross-complaint filed in the action if the defendant’s claim is one upon which an attachment could be issued.
3. The amount of any claim of the defendant asserted as a defense in the answer pursuant to Section 431.70 if the defendant’s claim is one upon which an attachment could be issued had an action been brought on the claim when it was not barred by the statute of limitations.
4. The value of any security interest in the property of the defendant held by the plaintiff to secure the defendant’s indebtedness claimed by the plaintiff, together with the amount by which the value of the security interest has decreased due to the act of the plaintiff or a prior holder of the security interest.”

Not a California Resident

The application for right to attach order is governed by the nonresident attachment provisions found in CCP §492.010 – 492.090.

Section 492.010 provides that an attachment may be issued in any action for the recovery of money brought against a natural person who does not reside in the state.

Section 492.020 requires that an application for right to attach order be supported by an affidavit showing that the action is one described in Section 492.010, is brought against a defendant described in Section 492.010, that the plaintiff would be entitled to a judgment on the claim upon which the attached is based, and “the property sought to be attached is subject to attachment pursuant to Section 492.040.”

Section 492.040 describes property subject to attachment, which includes “any property of a defendant for which a method of levy is provided by Article 2 (commencing with Section 488.300) of Chapter 8.” These provisions do not include a method of levying on real property located outside the state of California. (See Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1105-1109).

“The Attachment Law statutes are subject to strict construction, and where a court is required to exercise its jurisdiction in a particular manner or subject to certain limitations, an act beyond those limits is in excess of its jurisdiction and void.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.)

Issuance of Writ of Attachment

An attachment may be issued if the claim sued upon is based upon a contract, for a fixed or readily ascertainable amount not less than $500, that is unsecured or secured by personal property, and that is a commercial claim. Code Civ. Proc. § 483.010.

Damages must be measurable by reference to the contract itself, and the basis for computing damages must be reasonable and certain. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 541.

The court orders a writ of attachment to be issued upon the filing of the undertaking required by Code of Civil Procedure sections 489.210 and 489.220. (Code Civ. Proc., § 484.090, subd. (b).) Absent an objection, the amount of the undertaking is set by statute at $10,000 for each right to attach order. (Code Civ. Proc., § 489.220, subd. (a).) Plaintiff must file the required undertaking of $10,000. (Code Civ. Proc. § 489.220.)