Do I file the application for Writ of Attachment after filing a complaint?
Does the proof of service have to be filed at the same time the complaint is filed?
A writ of attachment is a court order to "attach" or seize an asset. It is issued by a court to a law enforcement officer or sheriff. The writ of attachment is issued in order to satsify a judgment issued by the court. A prejudgment writ of attachment may be used to freeze assets of a defendant while a legal action is pending. Common grounds for obtaining a prejudgment writ of attachment are that a defendant has committed fraud or that a defendant is prepared to hide assets from the court.
A writ of attachment is not available in small claims court. Obtaining attachment can be time-consuming and expensive, particularly if the defendant vigorously resists the attempt to attach his assets.
Pursuant to California Code of Civil Procedure section 484.010, an application for right to attach order and writ of attachment may be filed "upon the filing of the complaint or any time thereafter...." Ordinarily you will need to file the application (motion), along with supporting papers. (See CCP section 484.030 which provides that "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.") The court will hold a hearing on the application and then issue a ruling. (See CCP section 484.040: "No order or writ shall be issued under this article except after a hearing....")
Disclaimer: This response is for information purposes only and does not constitute a legal advice. This response does not create an attorney-client relationship.
This is actually a fairly complicated procedure which you will likely need an attorney to assist you. But to answer your specific questions, you need to have a complaint filed before you can make a motion for a prejudgment writ of attachment. Your application must also be supported by a declaration showing that there is evidence for issuance of the writ.
In some instances, you might be able to obtain an ex parte writ of attachment, meaning you give little or no notice to the defendant. Ex parte writs are often filed on the same date the complaint is filed. Ex parte writs are rarely granted.
Otherwise, you will need to first file your complaint and get a case number assigned. Then make a noticed motion for the writ of attachment, providing at least 16 court days' notice. In Los Angeles Superior Court, you may need to reserve the motion hearing date ahead of time. Indicate the hearing date and time on your notice of motion.
You will not be filing a proof of service at the same time the complaint is filed because you have no case number yet when the complaint is filed. You will file your proof of service of summons after you effectuate service of process of the summons.
You will file a separate proof of service regarding your writ of attachment papers.
Real Estate Attorney
I agree that pre-judgment writs of attachment can be a bit tricky, and judges will be sticklers on details. One other point here: You can/should have the Notice of Motion for Writ served together with the Summons and Complaint. That way, it is all done at once, defendant is on full notice, and you can have the motion heard at the earliest possible time.
Richard A. Rodgers, Esq. (805) 230-2525
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