Provisional remedies include:
The most popular of these are Writs of Attachment, which are used by a plaintiff suing a defendant for money to obtain a preliminary legal seizure of property to force compliance or create security for a decision which may be obtained in favor of the plaintiff later in the pending lawsuit. Before a final judgment is issued, the court may order the sheriff or other proper officer to seize any property, money, or othe valuable asset belonging to the defendant, in whatever hands they may be found, to satisfy the claim which the plaintiff has against the defendant.
The attachment remedy allows commercial creditors holding unsecured claims (or claims secured only by personal property) to create judicial liens on the defendant-debtors' property before final adjudication of the claims sued upon. Creditors must follow specific statutory guidelines in applying for attachments and establish a “prima facie” case that they will win the case.
The main purpose of attachment is to create a judicial lien on the debtor's attachable property. This protects a plaintiff's priority so that a judgment ultimately obtained will be enforceable against the attached property. Without an attachment lien, an unsecured creditor risks the money or property being hidden or being subordinated to other consensual or judicial liens imposed on the debtor's property before the creditor obtains a judgment. Such other priority liens could render the creditor's subsequent judgment effectively worthless.
Attachment is a purely statutory remedy. The attachment statutes are subject to strict construction--i.e., unless specifically provided for by the attachment law, no attachment procedure may be ordered by the court.
Generally, an attachment may issue only if the claim sued upon is:
- A "claim for money . . . based upon a contract, express or implied";
- Of a "fixed or readily ascertainable amount not less than $500";
- That is either unsecured or secured by personal property (including fixtures); and
- That is a commercial claim. [Ca Civ Pro § 483.010]
Parties subject to a contractual agreement to arbitrate their disputes may apply for attachment, provided they can show the arbitration award might be rendered ineffective without such provisional relief.
A prejudgment attachment may secure the amount of defendant's indebtedness as claimed by plaintiff, plus estimated costs and allowable attorney fees (below), as reduced by the total amount of:
Any unsatisfied and enforceable money judgment in defendant's favor against plaintiff; plus
Any indebtedness of plaintiff proven by defendant in a cross-complaint filed in the action if a writ of attachment could issue on the claim; plus
Any claim asserted as a defense in the answer upon which a writ of attachment could issue (tort claims cannot be used to reduce the attachment amount; plus
Any security interest held by plaintiff in defendant's property, together with any decrease in the value of the underlying security caused by plaintiff (or a prior security holder). [Ca Civ Pro § 483.015]
Property Which May Be Attached
Writs of attachment issued by California state courts can only reach property within California. Thus, defendant's property located outside California cannot be attached in a California action.
Property Owned By Business Entities: All property within California held by a corporation, partnership or unincorporated association is subject to attachment if there is a statutory method of levy for the property [CA Civ Pro § 487.010(a),(b)]
The attachment law does not provide a method of levy for copyrights, trademarks, patents and debtors' partnership and limited liability company interests. Accordingly, these assets are not subject to attachment.
Winsten Law Group has obtained and defended against numerous attachment, claim and deliver and receivership actions. Mike Winsten is an Orange County business lawyer who is committed to your peace of mind. Orange County Business Lawyers are found on this very informative business attorney site.
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