A plaintiff may be concerned that even if the lawsuit succeeds, the defendant will have moved or disposed of assets before a judgment can be collected.
California law does provide prejudgment remedies in some cases. But filing a lawsuit does not generally give a plaintiff the right to freeze everything the defendant owns.
One important remedy is a prejudgment writ of attachment.
When Is Prejudgment Attachment Available?
Code of Civil Procedure section 483.010 limits attachment to particular types of claims.
Among other requirements, the claim must be for money, based on an express or implied contract, and for a fixed or readily ascertainable amount of at least $500, excluding costs, interest and attorney’s fees.
Additional restrictions apply. For example, when the defendant is a natural person, the claim generally must arise from the defendant’s conduct of a trade, business or profession. The statute also contains restrictions concerning claims secured by real property.
This means that attachment is not available merely because a plaintiff believes the defendant owes money or may be difficult to collect from later.
How Does a Plaintiff Obtain an Attachment?
A plaintiff may apply for a right-to-attach order and writ of attachment after the complaint has been filed. The ordinary procedure requires an application, supporting evidence and a hearing.
The plaintiff must establish the statutory requirements for attachment. The defendant also has an opportunity to oppose the application.
What if the Defendant Is Moving Assets Now?
California provides an ex parte attachment procedure in more limited circumstances.
Code of Civil Procedure section 485.010 requires evidence that great or irreparable injury would result if issuance were delayed until a noticed hearing. The statute identifies circumstances that can satisfy this requirement, including facts supporting an inference that property may be concealed, substantially impaired in value, or otherwise made unavailable for levy before the matter can be heard.
An ex parte application therefore requires more than a general concern that the defendant might move money.
Attachment Is Not the Same as Winning the Case
A writ of attachment is a provisional remedy intended to secure assets while litigation is pending. It does not determine who ultimately wins the lawsuit.
Whether attachment is available depends on the nature of the claim, the amount sought, the defendant, the property involved and the evidence supporting the application.
Authorities: Cal. Code Civ. Proc. §§ 483.010, 484.010 et seq., 485.010 et seq.
Related practice areas: Civil Litigation