Writs of Attachment

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. 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. (West's Ann.Cal.C.C.P. § 483.010)

To attach real property, the levying officer shall comply with all recording requirments and the recorder shall index the copy of the writ of attachment and a notice of attachment. (West's Ann.Cal.C.C.P. § 488.315) To attach tangible personal property in the possession or under the control of the defendant, the levying officer shall take the property into custody. (West's Ann.Cal.C.C.P. § 488.335) To attach a deposit account, the levying officer shall personally serve a copy of the writ of attachment and a notice of attachment on the financial institution with which the deposit account is maintained. The attachment lien that arises upon service of a writ of attachment and notice of attachment reaches only amounts in a deposit account at the time of service on the financial institution, including the amount of any deposit not yet finally collected, unless the deposit is returned unpaid to the financial institution. (West's Ann.Cal.C.C.P. § 488.455)

The amount of a Writ of Attachment shall be $10,000. (West's Ann.Cal.C.C.P. § 489.220)

A Writ of Attachment is also available as against a guarantor if the "sum total of the circumstances justifies the conclusion that the guarantor occupied himself to a substantial degree and on a continuing basis in promoting his own profit through provision of credit or management to the primary obligor." Advance Transformer Co. v. Superior Court, 44 Cal. App. 3d 127, 118 Cal Rptr. 350 (1974). For example, a Writ of Attachment is not available against a signing spouse who has no involvement in the company or a relative or friend, who provides the start of capital for the business. A creditor is normally entitled to a Writ of Attachment against the primary obligor for the unsecured balance (the difference between the fair market value of the equipment and the amount of the debt). For example, if the equipment is worth $100,000 and the debt is $120,000, the Writ of Attachment would be for $20,000. The obligation of a guarantor is considered to be a separate obligation from that of the primary obligor and is therefore wholly unsecured. Consequently, a Writ of Attachment may be granted for the entire contract balance, without regard to the value of the equipment, if there is a waiver contained in the guarantee of the right to compel the creditor to first look to the collateral securing the primary obligation. Bank of America, N.A. v. Stonehaven Manor, LLC, et al., 186 Cal.App.4th 719, 113 Cal. Rptr.3d 57 (2010); Engelmann v. Bookasta 264 Cal. App. 2d 915. 71 Cal Rptr. 120 (1968).

The benefits to a Right to Attach Order are numerous. An attachment is a very strong tool in forcing an early settlement of cases. Without the right to an attachment, a creditor may wait years before its lawsuit is brought to conclusion and a judgment obtained. By then the assets of the guarantor may be long gone. Furthermore, if the creditor is ultimately awarded a judgment, the judgment lien will be effective as of the date of the attachment lien and will prevail as against intervening consensual and non consensual encumbrancers. If debtor files bankruptcy within 90 days of the judgment lien but more than 90 days from the attachment lien, the lien will not be avoided, to the extent there is equity in the property, because it relates back to the time of the attachment lien. Another benefit is that upon receiving a Writ of Attachment, a creditor may conduct discovery into the assets of the debtor, including sending interrogatories, taking depositions, etc. Cal. Civ. Pro. § 485.230. Without the Order for Attachment, discovery before trial is limited to issues on the merits.