BILL NUMBER: AB 1258 CHAPTERED
BILL TEXT
CHAPTER 222
FILED WITH SECRETARY OF STATE AUGUST 4, 1997
APPROVED BY GOVERNOR AUGUST 4, 1997
PASSED THE ASSEMBLY JULY 17, 1997
PASSED THE SENATE JULY 11, 1997
AMENDED IN SENATE JULY 7, 1997
AMENDED IN ASSEMBLY APRIL 17, 1997
INTRODUCED BY Assembly Member Ackerman
FEBRUARY 28, 1997
An act to amend Sections 483.020, 484.050, 484,090, 485.220, and
492.030 of, to amend and repeal Sections 483.010 and 483.015 of, and
to add Section 483.012 to, the Code of Civil Procedure, relating to
civil procedure.
LEGISLATIVE COUNSEL'S DIGEST
AB 1258, Ackerman. Civil procedure: attachment.
(1) Existing law generally permits the use of a prejudgment
attachment in civil actions to recover on certain obligations secured
by personal property, or secured by fixtures under the Commercial
Code or, in limited cases, secured by real property. Existing law
excludes from the amount that may be secured by attachment the value
of any security interest held by the plaintiff in the defendant's
property to secure the defendant's indebtedness to the plaintiff,
together with any decrease in the value of the security by reason of
acts of the plaintiff or person to whom the security interest was
transferred.
Under existing law these provisions would be repealed on January
1, 1998, and other provisions would become operative that, with
certain exceptions, preclude the use of a prejudgment attachment.
This bill would revise and recast these provisions, as specified.
This bill would provide that, in an action to foreclose a mortgage
or deed of trust on real property or an estate for years, pursuit of
any remedy authorized by the law relating to attachment shall not
constitute an action for the recovery of a debt secured by a mortgage
or deed of trust or a failure to comply with other specified
requirements to proceed first against the security.
(2) Existing law prescribes the procedures to obtain a writ of
attachment and to determine the amount that may be attached.
This bill would revise these provisions, as specified.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 483.010 of the Code of Civil Procedure, as
amended by Section 1 of Chapter 591 of the Statutes of 1995, is
amended to read:
483.010. (a) Except as otherwise provided by statute, an
attachment may be issued only in an action on a claim or claims for
money, each of which is based upon a contract, express or implied,
where the total amount of the claim or claims is a fixed or readily
ascertainable amount not less than five hundred dollars ($500)
exclusive of costs, interest, and attorney's fees.
(b) An attachment may not be issued on a claim which is secured by
any interest in real property arising from agreement, statute, or
other rule of law (including any mortgage or deed of trust of realty
and any statutory, common law, or equitable lien on real property,
but excluding any security interest in fixtures subject to Division 9
(commencing with Section 9101) of the Commercial Code). However, an
attachment may be issued where the claim was originally so secured
but, without any act of the plaintiff or the person to whom the
security was given, the security has become valueless or has
decreased in value to less than the amount then owing on the claim,
in which event the amount to be secured by the attachment shall not
exceed the lesser of the amount of the decrease or the difference
between the value of the security and the amount then owing on the
claim.
(c) If the action is against a defendant who is a natural person,
an attachment may be issued only on a claim which arises out of the
conduct by the defendant of a trade, business, or profession. An
attachment may not be issued on a claim against a defendant who is a
natural person if the claim is based on the sale or lease of
property, a license to use property, the furnishing of services, or
the loan of money where the property sold or leased, or licensed for
use, the services furnished, or the money loaned was used by the
defendant primarily for personal, family, or household purposes.
(d) An attachment may be issued pursuant to this section whether
or not other forms of relief are demanded.
SEC. 2. Section 483.010 of the Code of Civil Procedure, as amended
by Section 2 of Chapter 591 of the Statutes of 1995, is repealed.
SEC. 3. Section 483.012 is added to the Code of Civil Procedure,
to read:
483.012. Subject to the restrictions of Sections 580b and 580d,
in an action to foreclose a mortgage or deed of trust on real
property or an estate for years therein, pursuit of any remedy
provided by this title shall not constitute an action for the
recovery of a debt for purposes of subdivision (a) of Section 726 or
a failure to comply with any other statutory or judicial requirement
to proceed first against security.
SEC. 4. Section 483.015 of the Code of Civil Procedure, as amended
by Section 3 of Chapter 591 of the Statutes of 1995, is amended to
read:
483.015. (a) Subject to subdivision (b) and to Section 483.020,
the amount to be secured by an attachment is the sum of the
following:
(1) The amount of the defendant's indebtedness claimed by the
plaintiff.
(2) Any additional amount included by the court under Section
482.110.
(b) The amount described in subdivision (a) shall be reduced by
the sum of the following:
(1) The amount of any money judgment in favor of the defendant and
against the plaintiff that remains unsatisfied and is enforceable.
(2) 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.
SEC. 5. Section 483.015 of the Code of Civil Procedure, as amended
by Section 4 of Chapter 591 of the Statutes of 1995, is repealed.
SEC. 6. Section 483.020 of the Code of Civil Procedure is amended
to read:
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.
SEC. 7. Section 484.050 of the Code of Civil Procedure is amended
to read:
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
notice of opposition and supporting affidavit as required by Section
484.060 not later than five court days prior to the date set for
hearing.
(f) If the defendant claims that the personal property described
in the application, or a portion thereof, is exempt from attachment,
the defendant shall include that claim in the notice of opposition
filed and served pursuant to Section 484.060 or file and serve a
separate claim of exemption with respect to the property as provided
in Section 484.070. If the defendant does not do so, the claim of
exemption will be barred in the absence of a showing of a change in
circumstances occurring after the expiration of the time for claiming
exemptions.
(g) The defendant may obtain a determination at the hearing
whether real or personal property not described in the application or
real property described in the application is exempt from attachment
by including the claim in the notice of opposition filed and served
pursuant to Section 484.060 or by filing and serving a separate claim
of exemption with respect to the property as provided in Section
484.070, but the failure to so claim that the property is exempt from
attachment will not preclude the defendant from making a claim of
exemption with respect to the property at a later time.
(h) Either the defendant or the defendant's attorney or both of
them may be present at the hearing.
(i) The notice shall contain the following statement: "You may
seek the advice of an attorney as to any matter connected with the
plaintiff's application. The attorney should be consulted promptly
so that the attorney may assist you before the time set for hearing."
SEC. 8. Section 484.090 of the Code of Civil Procedure is amended
to read:
484.090. (a) At the hearing, the court shall consider the showing
made by the parties appearing and shall issue a right to attach
order, which shall state the amount to be secured by the attachment
determined by the court in accordance with Section 483.015 or
483.020, if it finds all of the following:
(1) The claim upon which the attachment is based is one upon which
an attachment may be issued.
(2) The plaintiff has established the probable validity of the
claim upon which the attachment is based.
(3) The attachment is not sought for a purpose other than the
recovery on the claim upon which the attachment is based.
(4) The amount to be secured by the attachment is greater than
zero.
(b) If, in addition to the findings required by subdivision (a),
the court finds that the defendant has failed to prove that all the
property sought to be attached is exempt from attachment, it shall
order a writ of attachment to be issued upon the filing of an
undertaking as provided by Sections 489.210 and 489.220.
(c) If the court determines that property of the defendant is
exempt from attachment, in whole or in part, the right to attach
order shall describe the exempt property and prohibit attachment of
the property.
(d) The court's determinations shall be made upon the basis of the
pleadings and other papers in the record; but, upon good cause
shown, the court may receive and consider at the hearing additional
evidence, oral or documentary, and additional points and authorities,
or it may continue the hearing for the production of the additional
evidence or points and authorities.
SEC. 9. Section 485.220 of the Code of Civil Procedure is amended
to read:
485.220. (a) The court shall examine the application and
supporting affidavit and, except as provided in Section 486.030,
shall issue a right to attach order, which shall state the amount to
be secured by the attachment, and 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 all of the following:
(1) The claim upon which the attachment is based is one upon which
an attachment may be issued.
(2) The plaintiff has established the probable validity of the
claim upon which the attachment is based.
(3) The attachment is not sought for a purpose other than the
recovery upon the claim upon which the attachment is based.
(4) 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.
(5) The plaintiff will suffer great or irreparable injury (within
the meaning of Section 485.010) if issuance of the order is delayed
until the matter can be heard on notice.
(6) The amount to be secured by the attachment is greater than
zero.
(b) If the court finds that the application and the supporting
affidavit do not satisfy the requirements of Section 485.010, it
shall so state and deny the order. If denial is solely on the ground
that Section 485.010 is not satisfied, the court shall so state and
such denial does not preclude the plaintiff from applying for a right
to attach order and writ of attachment under Chapter 4 (commencing
with Section 484.010) with the same affidavits and supporting papers.
SEC. 10. Section 492.030 of the Code of Civil Procedure is amended
to read:
492.030. (a) The court shall examine the application and
supporting affidavit and shall issue a right to attach order, which
shall state the amount to be secured by the attachment, and 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 all of the
following:
(1) The claim upon which the attachment is based is one upon which
an attachment may be issued.
(2) The plaintiff has established the probable validity of the
claim upon which the attachment is based.
(3) The defendant is one described in Section 492.010.
(4) The attachment is not sought for a purpose other than the
recovery on the claim upon which the attachment is based.
(5) The affidavit accompanying the application shows that the
property sought to be attached, or the portion thereof to be
specified in the writ, is subject to attachment pursuant to Section
492.040.
(6) The amount to be secured by the attachment is greater than
zero.
(b) If the court finds that the application and supporting
affidavit do not satisfy the requirements of this chapter, it shall
so state and deny the order. If denial is solely on the ground that
the defendant is not one described in Section 492.010, the judicial
officer shall so state and such denial does not preclude the
plaintiff from applying for a right to attach order and writ of
attachment under Chapter 4 (commencing with Section 484.010) with the
same affidavits and supporting papers.