A writ of attachment may issue if a claim is for money based upon a contract (express or implied) in a fixed or readily ascertainable amount not less than $500 that is either unsecured or secured by personal property (not real property) and commercial in nature. (Code of Civ. Proc., § 483.010; Goldstein v. Barak Const. (2008) 164 Cal.App.4th 845, 852.)

“Upon the filing of [a] complaint or at any time thereafter, [a] 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.” (Code of Civ. Proc., § 484.010.) No writ of attachment may issue without a right to attach order; the order is based on a finding that the substantive prerequisites for an attachment exist and that plaintiff will more probably prevail in the action than not. (Code of Civ. Proc., §§ 484.010, 484.050, 484.090.) A right to attach order may be issued after notice and hearing. (Code of Civ. Proc., § 484.040.)

Legal Standard

The Attachment Law is subject to strict construction. (Pacific Decision Sciences Corp. v. Super. Ct. (2004) 121 Cal.App.4th 1100, 1106.) Unless otherwise provided for by the Attachment Law, no attachment procedure may be ordered by the court. (Id.) The court may issue a writ of attachment if it finds:

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 amount to be secured by the attachment is greater than zero; and
5. the defendant has failed to prove that all the property is exempt from attachment.

(Code of Civ. Proc., § 484.090; California Retail Portfolio Fund GmbH & Co. v. Hopkins Real Estate Group (2011) 193 Cal.App.4th 849, 856.)

“The moving party has the burden of establishing grounds for an attachment order.” (VFS Financing, Inc. v. CHF Express, LLC (C.D. Cal. 2009) 620 F.Supp.2d 1092, 1095.) “This is true ‘[w]hether or not the defendant appears in opposition.’” (Id. at 1096.) “To establish the ‘probable validity’ of the claim, the applicant must show ‘it is more likely than not’ it will obtain a judgment against the defendant on its claim.” (Id.) “The court's determinations shall be made upon the basis of the pleadings and other papers in the record.” (Goldstein v. Barak Construction (2008) 164 Cal.App.4th 845, 852-853.)

A trial court's findings on these issues will be upheld if supported by substantial evidence. (Lorber Industries v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 534-535; Nakasone v. Randall (1982) 129 Cal.App.3d. 757, 762.)

Procedure

Plaintiff must file an application for a writ of attachment under oath and include:

1. A statement showing that the attachment is sought to secure the recovery;
2. A statement of the amount to be secured by the attachment;
3. A statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based;
4. A statement that the applicant has no information or belief that the claim is discharged by the U.S. Bankruptcy Code;
5. A description of the property to be attached; and
6. An affidavit showing that the plaintiff on the facts presented would be entitled to a judgment.

(Code of Civ. Proc., § 484.020.)

Before the hearing on the writ, the defendant must be served with

1. a copy of the summons and complaint;
2. a Notice of Application and Hearing; and
3. a copy of the application and any affidavit in support thereof.

(Code of Civ. Proc., § 484.040.)

Before issuance of a writ of attachment, the plaintiff shall file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment. (Code of Civ. Proc., § 489.210.) Unless there is an objection to the undertaking, it shall be in the amount of $10,000. (Code of Civ. Proc., § 489.220.)

Opposition to Application

An opposition to the application must be filed and served upon the plaintiff no later than five court days prior to the date of the hearing; the opposition must be accompanied by an affidavit supporting any factual issues and a memorandum of points and authorities supporting any legal issues. (Code of Civ. Proc., § 484.060.) 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. (Id.)