California Code of Civil Procedure. California

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СКАЧАТЬ The amount of any indebtedness of the plaintiff that the defendant has claimed in a cross-complaint filed in the action if the defendant’s claim is one upon which an attachment could be issued.

      (3) The amount of any claim of the defendant asserted as a defense in the answer pursuant to Section 431.70 if the defendant’s claim is one upon which an attachment could be issued had an action been brought on the claim when it was not barred by the statute of limitations.

      (4) The value of any security interest in the property of the defendant held by the plaintiff to secure the defendant’s indebtedness claimed by the plaintiff, together with the amount by which the value of the security interest has decreased due to the act of the plaintiff or a prior holder of the security interest.

      (Amended (as amended by Stats. 1995, Ch. 591, Sec. 3) by Stats. 1997, Ch. 222, Sec. 4. Effective January 1, 1998.)

      483.020. (a) Subject to subdivisions (d) and (e), the amount to be secured by the attachment in an unlawful detainer proceeding is the sum of the following:

      (1) The amount of the rent due and unpaid as of the date of filing the complaint in the unlawful detainer proceeding.

      (2) Any additional amount included by the court under subdivision (c).

      (3) Any additional amount included by the court under Section 482.110.

      (b) In an unlawful detainer proceeding, the plaintiff’s application for a right to attach order and a writ of attachment pursuant to this title may include (in addition to the rent due and unpaid as of the date of the filing of the complaint and any additional estimated amount authorized by Section 482.110) an amount equal to the rent for the period from the date the complaint is filed until the estimated date of judgment or such earlier estimated date as possession has been or is likely to be delivered to the plaintiff, such amount to be computed at the rate provided in the lease.

      (c) The amount to be secured by the attachment in the unlawful detainer proceeding may, in the discretion of the court, include an additional amount equal to the amount of rent for the period from the date the complaint is filed until the estimated date of judgment or such earlier estimated date as possession has been or is likely to be delivered to the plaintiff, such amount to be computed at the rate provided in the lease.

      (d) Except as provided in subdivision (e), the amount to be secured by the attachment as otherwise determined under this section shall be reduced by the amounts described in subdivision (b) of Section 483.015.

      (e) Where the plaintiff has received a payment or holds a deposit to secure (1) the payment of rent and the performance of other obligations under the lease or (2) only the performance of other obligations under the lease, the amount of the payment or deposit shall not be subtracted in determining the amount to be secured by the attachment.

      (Amended by Stats. 1997, Ch. 222, Sec. 6. Effective January 1, 1998.)

      CHAPTER 4.

      Noticed Hearing Procedure for Obtaining Writ of Attachment

      ARTICLE 1. Right to Attach Order; Issuance of Writ of Attachment

      484.010. 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.

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

      484.020. The application shall be executed under oath and shall include all of the following:

      (a) A statement showing that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued.

      (b) A statement of the amount to be secured by the attachment.

      (c) A statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.

      (d) A statement that the applicant has no information or belief that the claim is discharged in a proceeding under Title 11 of the United States Code (Bankruptcy) or that the prosecution of the action is stayed in a proceeding under Title 11 of the United States Code (Bankruptcy).

      (e) A description of the property to be attached under the writ of attachment and a statement that the plaintiff is informed and believes that such property is subject to attachment. Where the defendant is a corporation, a reference to “all corporate property which is subject to attachment pursuant to subdivision (a) of Code of Civil Procedure Section 487.010” satisfies the requirements of this subdivision. Where the defendant is a partnership or other unincorporated association, a reference to “all property of the partnership or other unincorporated association which is subject to attachment pursuant to subdivision (b) of Code of Civil Procedure Section 487.010” satisfies the requirements of this subdivision. Where the defendant is a natural person, the description of the property shall be reasonably adequate to permit the defendant to identify the specific property sought to be attached.

      (Amended by Stats. 1982, Ch. 1198, Sec. 30. Operative July 1, 1983, by Sec. 70 of Ch. 1198.)

      484.030. 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.

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

      484.040. No order or writ shall be issued under this article except after a hearing. At the times prescribed by subdivision (b) of Section 1005, the defendant shall be served with all of the following:

      (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.

      (Amended by Stats. 1989, Ch. 693, Sec. 2.)

      484.050. The notice of application and hearing shall inform the defendant of all of the following:

      (a) A hearing will be held at a place and at a time, to be specified in the notice, on plaintiff’s application for a right to attach order and a writ of attachment.

      (b) The order will be issued if the court finds that the plaintiff’s claim is probably valid and the other requirements for issuing the order are established. The hearing is not for the purpose of determining whether the claim is actually valid. The determination of the actual validity of the claim will be made in subsequent proceedings in the action and will not be affected by the decisions at the hearing on the application for the order.

      (c) The amount to be secured by the attachment is determined pursuant to Sections 482.110, 483.010, 483.015, and 483.020, which statutes shall be summarized in the notice.

      (d) If the right to attach order is issued, a writ of attachment will be issued to attach the property described in the plaintiff’s application unless the court determines that such property is exempt from attachment or that its value clearly exceeds the amount necessary to satisfy the amount to be secured by the attachment. However, additional writs of attachment may be issued to attach other nonexempt property of the defendant on the basis of the right to attach order.

      (e) If the defendant desires to oppose the issuance of the order, the defendant shall file with the court and serve on the plaintiff a СКАЧАТЬ