California Code of Civil Procedure. California

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СКАЧАТЬ does not file and serve a notice of opposition as provided in this section, no writ of attachment shall be issued as to the property claimed to be exempt. If all of the property described in the plaintiff’s application is claimed to be exempt and the plaintiff does not file and serve a notice of opposition as provided in this section, no hearing shall be held and no writ of attachment shall be issued.

      (c) If the plaintiff files and serves a notice of opposition to the claim as provided in this section, the defendant has the burden of proving that the property is exempt from attachment.

      (Added by Stats. 1974, Ch. 1516.)

      484.370. The hearing shall be conducted in the manner prescribed in Section 484.090 and the court shall order a writ of attachment to be issued upon the filing of an undertaking as provided by Sections 489.210 and 489.220, if it finds both of the following:

      (a) A right to attach order has been issued in the action pursuant to Article 1 (commencing with Section 484.010) or the court has found pursuant to Section 485.240 that the plaintiff is entitled to a right to attach order.

      (b) The defendant has failed to prove that the property sought to be attached, or the portion thereof to be described in the writ, is exempt from attachment.

      (Amended by Stats. 1976, Ch. 437.)

      ARTICLE 3. Ex Parte Procedure for Obtaining Additional Writs

      484.510. (a) At any time after a right to attach order has been issued under Article 1 (commencing with Section 484.010) or after the court has found pursuant to Section 485.240 that the plaintiff is entitled to a right to attach order, the plaintiff may apply for a writ of attachment under this article by filing an application which meets the requirements of Section 484.320 with the court in which the action is brought.

      (b) The application shall be accompanied by an affidavit showing that the property sought to be attached is not exempt from attachment. Such affidavit may be based on the affiant’s information and belief.

      (Added by Stats. 1974, Ch. 1516.)

      484.520. The court shall examine the application and supporting affidavit and shall order a writ of attachment to be issued upon the filing of an undertaking as provided by Sections 489.210 and 489.220, if it finds both of the following:

      (a) A right to attach order has been issued in the action pursuant to Article 1 (commencing with Section 484.010) or the court has found pursuant to Section 485.240 that the plaintiff is entitled to a right to attach order.

      (b) The affidavit accompanying the application shows that the property sought to be attached, or the portion thereof to be described in the writ, is not exempt from attachment.

      (Amended by Stats. 1976, Ch. 437.)

      484.530. (a) The defendant may claim an exemption as to real or personal property levied upon pursuant to a writ issued under this article by following the procedure set forth in Article 2 (commencing with Section 703.510) of Chapter 4 of Division 2 of Title 9, except that the defendant shall claim the exemption as to personal property not later than 30 days after the levying officer serves the defendant with the notice of attachment describing such property. For this purpose, references in Article 2 (commencing with Section 703.510) of Chapter 4 of Division 2 of Title 9 to the “judgment debtor” shall be deemed references to the defendant, and references to the “judgment creditor” shall be deemed references to the plaintiff.

      (b) The defendant may claim the exemption provided by subdivision (b) of Section 487.020 within the time provided by subdivision (a) of this section either (1) by following the procedure set forth in Article 2 (commencing with Section 703. 510) of Chapter 4 of Division 2 of Title 9 or (2) by following the procedure set forth in subdivision (c) of Section 482.100 except that the requirement of showing changed circumstances under subdivision (a) of Section 482.100 does not apply.

      (c) Notwithstanding subdivisions (a) and (b), a claim of exemption shall be denied if the claim has been denied earlier in the action and there is no change in circumstances affecting the claim.

      (Amended by Stats. 1982, Ch. 1198, Sec. 39. Operative July 1, 1983, by Sec. 70 of Ch. 1198.)

      CHAPTER 5.

      Ex Parte Hearing Procedure for Obtaining Writ of Attachment

      ARTICLE 1. Great or Irreparable Injury Requirement

      485.010. (a) Except as otherwise provided by statute, no right to attach order or writ of attachment may be issued pursuant to this chapter unless it appears from facts shown by affidavit that great or irreparable injury would result to the plaintiff if issuance of the order were delayed until the matter could be heard on notice.

      (b) The requirement of subdivision (a) is satisfied if any of the following are shown:

      (1) Under the circumstances of the case, it may be inferred that there is a danger that the property sought to be attached would be concealed, substantially impaired in value, or otherwise made unavailable to levy if issuance of the order were delayed until the matter could be heard on notice.

      (2) Under the circumstances of the case, it may be inferred that the defendant has failed to pay the debt underlying the requested attachment and the defendant is insolvent in the sense that the defendant is generally not paying his or her debts as those debts become due, unless the debts are subject to a bona fide dispute. Plaintiff’s affidavit filed in support of the ex parte attachment shall state, in addition to the requirements of Section 485.530, the known undisputed debts of the defendant, that the debts are not subject to bona fide dispute, and the basis for plaintiff’s determination that the defendant’s debts are undisputed.

      (3) A bulk sales notice has been recorded and published pursuant to Division 6 (commencing with Section 6101) of the Commercial Code with respect to a bulk transfer by the defendant.

      (4) An escrow has been opened pursuant to the provisions of Section 24074 of the Business and Professions Code with respect to the sale by the defendant of a liquor license.

      (5) Any other circumstance showing that great or irreparable injury would result to the plaintiff if issuance of the order were delayed until the matter could be heard on notice.

      (c) Upon a writ being issued solely on a showing under paragraph (2) of subdivision (b), if the defendant requests the court to review the issuance of the writ, the court shall conduct a hearing within five court days after the plaintiff is served with notice of the defendant’s request. A writ issued solely on a showing under paragraph (3) of subdivision (b) shall be limited to the property covered by the bulk sales notice or the proceeds of the sale of such property. In addition to any other service required by this title, such writ shall be served by the levying officer on the transferee or auctioneer identified by the bulk sales notice not more than five days after the levy of such writ. A writ issued solely on a showing under paragraph (4) of subdivision (b) shall be limited to the plaintiff’s pro rata share of the proceeds of the sale in escrow.

      (Amended by Stats. 1988, Ch. 727, Sec. 1.)

      ARTICLE 2. Order Determining Right to Attach; Issuance of Writ of Attachment

      485.210. (a) Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article 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.

      (b) The application СКАЧАТЬ