1Dear [FIRSTNAME], The topic of the newsletter this week is a brief discussion regarding the filing of an opposition to an application

for a right to attach order in California. No right to attach order can be issued unless the underlying debt or obligation is from a business transaction or loan. In other words attachment cannot be requested if the underlying debt or obligation is for personal, family or household purposes. The right to attach order is a prerequisite to the issuance of a writ of attachment. At least sixteen (16) Court days before the hearing the defendant must be served with (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. See Code of Civil Procedure 484.040. Note that if a defendant does not serve and file an opposition within five (5) Court days before the hearing they will NOT be permitted to oppose the issuance of the right to attach order. See Code of Civil Procedure 484.060(a). Therefore, it is critical that an opposition be filed and served as soon as possible. The defendant has the right to request a brief continuance to enable them to oppose the issuance of the right to attach order. See Code of Civil Procedure 484.080(b). This means a defendant who needs more time to prepare an effective opposition may include a request for a brief continuance in their opposing papers. Because the statutes relating to attachment law are purely the creation of the legislature they are subject to strict construction as stated by the California Courts of Appeal in several decisions. In other words attachment is disfavored in the law. Plaintiff must prove each and every element or their request will be denied. It is well settled that the Attachment Law Statutes are subject to strict construction. See Pacific Decision Sciences Corp. v. Sup.Ct. (Maudlin) (2004) 121 Cal.App. 4th 1100, 1106 (citing text). Our starting point is the rule that the Attachment Law statutes (Code Civ.Proc., 481.010 et seq.) are subject to strict construction because they are purely the creation of the Legislature. In discussing the Attachment Law statutes, the Court of Appeal stated that, The code contains a variety of safeguards, including the requirement of a noticed hearing to prevent the evil of depriving debtors of "much-needed assets for protracted periods of time during possibly meritless litigation." Code of Civil Procedure 482.040 states in pertinent part that, The facts stated in each affidavit filed pursuant to this title shall be set forth with particularity. The author has seen numerous applications for a right to attach order where the facts stated in the affidavit were not stated with particularity so any party opposing the issuance of an order should

carefully review everything submitted in support of the application, including any exhibits attached to declarations. The plaintiff must show to the satisfaction of the Court that their claim has probable validity. Code of Civil Procedure 481.190 states that, A claim has probable validity where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. Code of Civil Procedure 484.030 states 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 amount of the attachment must be based on easily measurable damages whose basis is reasonable and certain. Although damages need not be liquidated, they must be measurable by reference to the contract sued upon, and their basis must be reasonable and certain. Several California Court of Appeal decisions further define some of the issues in deciding whether a right to attach order should issue The trial court is not required to accept as true the sworn testimony of any witness or undisputed affidavit testimony. It may make contrary findings based on inferences drawn from other evidence. And if all, or a portion of the amount being sought to be attached is based on future damages the plaintiff must show that they have taken reasonable steps to mitigate those damages. A plaintiff who suffers damage as a result of either a breach of contract or a tort has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could have been thus avoided." Opposing an application for a right to attach order is vitally important as failing to do so can result in the Court granting the order. If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. The author's website:

http://www.legaldocspro.net View numerous sample document sold by the author: http://www.scribd.com/legaldocspro Copyright 2012 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice. These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.