Filing an opposition to an application for a right to attach order in California is the topic of this blog post.
There are numerous grounds available for opposing such an
application which will be discussed below.
For example No right to attach order can be issued unless
the underlying debt or obligation is from a business transaction or loan. In
other words attachment cannot be requested if the underlying debt or obligation
is for personal, family or household purposes.
Once the right to attach order is issued a writ of
attachment is then issued by the clerk.
At least sixteen (16) Court days before the hearing the
defendant must be served with (a) A copy of the summons and complaint, (b) A
notice of application and hearing, (c) A copy of the application and of any
affidavit in support of the application. See Code of Civil Procedure § 484.040.
Note that if a defendant does not serve and file an
opposition within five (5) Court days before the hearing they will NOT be
permitted to oppose the issuance of the right to attach order. See Code of
Civil Procedure § 484.060(a).
Therefore, it is critical that an opposition be filed as
soon as possible. The defendant has the right to request a brief continuance to
enable them to oppose the issuance of the right to attach order. See Code of
Civil Procedure § 484.080(b). This means a defendant who needs more time to
prepare an effective opposition may include a request for a brief continuance
in their opposing papers.
Because the statutes relating to attachment law are purely
the creation of the legislature they are subject to strict construction. In
other words attachment is disfavored in the law. Plaintiff must prove each and
every element or their request will be denied.
The California Courts of Appeal have stated that it is well
settled that the attachment law statutes in California are subject to strict
construction.
Code of Civil Procedure § 482.040 states in pertinent part
that, “The facts stated in each affidavit filed pursuant to this title shall be
set forth with particularity.” The author has seen numerous applications for a
right to attach order where the facts stated in the affidavit were not stated
with particularity so any party opposing the issuance of an order should
carefully review everything submitted in support of the application, including
any exhibits attached to declarations. Code of Civil Procedure § 481.190 states
that, “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”.
Code of Civil Procedure § 484.030 states that, “The
application shall be supported by an affidavit showing that the plaintiff on
the facts presented would be entitled to a judgment on the claim upon which the
attachment is based.”
And the amount of the attachment must be based on easily
measurable damages whose basis is reasonable and certain.
The Court has great discretion in deciding whether a right
to attach order should issue. The trial court is not required to accept as true
the sworn testimony of any witness or undisputed affidavit testimony. It may
make contrary findings based on inferences drawn from other evidence. Bank of
America v. Salinas Nissan, Inc. (1989) 207 Cal.App. 3d 260, 273.
And if all, or a portion of, the amount being sought to be
attached is based on future damages the plaintiff must show that they have
taken reasonable steps to mitigate those damages as any plaintiff who suffers
damages as a result of a breach of contract or tort has a duty to take
reasonable steps to mitigate those damages. If they fail to do so they will not
be able to recover for any damages which could have been avoided.
Attorneys or parties
in California that would like to view a portion of an 11 page opposition to an
application for right to attach order containing brief instructions, a
memorandum of points and authorities with citations to case law and statutory
authority and proof of service by mail sold by the author can see below.
If you are in need of assistance with any California or
Federal litigation matters, Mr. Burman is available on a freelance basis. Mr.
Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
