California Code of Civil Procedure. California

Чтение книги онлайн.

СКАЧАТЬ Article 2 (commencing with Section 485.210).

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

      (c) The plaintiff will suffer great or irreparable injury (within the meaning of Section 485.010) if issuance of the writ of attachment is delayed until the matter can be heard on notice.

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

      ARTICLE 4. Claim of Exemption

      485.610. (a) The defendant may claim an exemption as to real or personal property levied upon pursuant to a writ of attachment issued under this chapter 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 and may claim an exemption for real property within the time provided in Section 487.030. 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.

      (Amended by Stats. 1984, Ch. 538, Sec. 2.)

      CHAPTER 6.

      Temporary Protective Order

      486.010. (a) At the time of applying for a right to attach order under Chapter 4 (commencing with Section 484.010), the plaintiff may apply pursuant to this chapter for a temporary protective order by filing an application for the order with the court in which the action is brought.

      (b) The application shall state what relief is requested and shall be supported by an affidavit, which may be based on information and belief, showing that the plaintiff would suffer great or irreparable injury (within the meaning of Section 485.010) if the temporary protective order were not issued.

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

      486.020. The court shall examine the application, supporting affidavit, and other papers on record and shall issue a temporary protective order, which shall state the amount sought to be secured by the attachment under the application for the right to attach order, upon the filing of an undertaking as provided by Sections 489.210 and 489.220, if it finds all of the following:

      (a) The claim upon which the application for attachment is based is one upon which an attachment may be issued.

      (b) The plaintiff has established the probable validity of the claim upon which the application for the attachment is based.

      (c) The order is not sought for a purpose other than the recovery upon the claim upon which the application for the attachment is based.

      (d) The plaintiff will suffer great or irreparable injury (within the meaning of Section 485.010) if the temporary protective order is not issued.

      (Amended by Stats. 1982, Ch. 1198, Sec. 42.5. Operative July 1, 1983, by Sec. 70 of Ch. 1198.)

      486.030. (a) In any case where the plaintiff has applied for a right to attach order and writ of attachment under Chapter 5 (commencing with Section 485.010), the court may in its discretion deny the application for the order and writ and issue instead a temporary protective order under this chapter if it determines that the requirements of Section 485.220 are satisfied but that the issuance of the temporary protective order instead of the right to attach order and writ would be in the interest of justice and equity to the parties, taking into account the effect on the defendant of issuing a writ of attachment ex parte, the effect on the plaintiff of issuing the temporary protective order instead of the writ, and other factors that bear on equity and justice under the circumstances of the particular case.

      (b) If the court issues a temporary protective order under this section, the plaintiff’s application for a right to attach order and writ shall be treated as an application for a right to attach order and writ under Article 1 (commencing with Section 484.010) of Chapter 4 and the plaintiff shall comply with the requirements of service provided in Section 484.040.

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

      486.040. The temporary protective order issued under this chapter shall contain such provisions as the court determines would be in the interest of justice and equity to the parties, taking into account the effects on both the defendant and the plaintiff under the circumstances of the particular case.

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

      486.050. (a) Except as otherwise provided in Section 486.040, the temporary protective order may prohibit a transfer by the defendant of any of the defendant’s property in this state subject to the levy of the writ of attachment. The temporary protective order shall describe the property in a manner adequate to permit the defendant to identify the property subject to the temporary protective order.

      (b) Notwithstanding subdivision (a), if the property is farm products held for sale or is inventory, the temporary protective order shall not prohibit the defendant from transferring the property in the ordinary course of business, but the temporary protective order may impose appropriate restrictions on the disposition of the proceeds from that type of transfer.

      (Amended by Stats. 2008, Ch. 179, Sec. 35. Effective January 1, 2009.)

      486.060. (a) Notwithstanding any terms of the temporary protective order, the defendant may issue any number of checks against any of the defendant’s accounts in a financial institution in this state to the extent permitted by this section.

      (b) The defendant may issue any number of checks in any amount for the following purposes:

      (1) Payment of any payroll expense (including fringe benefits and taxes and premiums for workers’ compensation and unemployment insurance) falling due in the ordinary course of business prior to the levy of a writ of attachment.

      (2) Payment for goods thereafter delivered to the defendant C.O.D. for use in the defendant’s trade, business, or profession.

      (3) Payment of taxes if payment is necessary to avoid penalties which will accrue if there is any further delay in payment.

      (4) Payment of reasonable legal fees and reasonable costs and expenses required for the representation of the defendant in the action.

      (c) In addition to the checks permitted to be issued by subdivision (b), the defendant may issue any number of checks for any purpose so long as the total amount of the checks does not exceed the greater of the following:

      (1) The amount by which the total amount on deposit exceeds the sum of the amount sought to be secured by the attachment and the amounts permitted to be paid pursuant to subdivision (b).

      (2) One thousand dollars ($1,000).

      (Amended by Stats. 1982, Ch. СКАЧАТЬ