How To: Writs of Attachment in Financial Elder Abuse Litigation

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A plaintiff in a financial elder abuse action may seek attachment of the property of a defendant for any damages sought under California Welfare and Institutions Code section 15657.5.[1] Importantly, this includes not only compensatory damages,[2] but also attorney’s fees and costs,[3] as well as punitive damages.[4] Thus, when calculating the value of property to be attached, the plaintiff may take into account anticipated attorney’s fees and costs, and a reasonable multiplier for purposes of anticipating punitive damages.

There are, in effect, three requirements to obtaining a writ of attachment pursuant to California Welfare and Institutions Code section 15657.01: (1) the action must include a count for financial elder abuse; (2) there must be a readily ascertainable amount in dispute; and (3) the plaintiff must be able to demonstrate that it is more likely than not that the plaintiff will prevail on the claim of financial elder abuse.[5]

If these circumstances exist, a plaintiff may seek the issuance of a writ of attachment by following certain strictly construed procedures.

Step 1: Identify the Property to be Attached

As a preliminary step, a party seeking a writ of attachment should make certain that there exists readily identifiable, non-exempt property that is financially viable to attach.[6] More practically, however, a plaintiff should seek to identify parcels of real property, bank accounts or other property that is not only attachable, but financially viable to attach.

Step 2: Determine Whether to Give Notice or Appear Ex Parte Without Notice

Once property is identified, the plaintiff must decide how he or she will go about obtaining a right to attach order—the order that permits the court clerk to issue a writ of attachment. There are, in effect, two ways to obtain a right to attach order: (1) after a noticed hearing[7] or (2) at an unnoticed ex parte hearing.[8]

In order for a court to consider issuing a right to attach order ex parte without notice, the court must make certain findings, such as that “it may be inferred that there is a danger that the property sought to be attached would be concealed, substantially impaired in value, or otherwise made unavailable … if issuance … were delayed until the matter could be heard on notice,” or “[a]ny other circumstances showing that great or irreparable injury would result to the plaintiff if issuance of the order were delayed until the matter could be heard on notice.”[9]

In actions involving allegations of fraud or concealment, plaintiffs should take full advantage of this opportunity to attach property at the outset of a case before an opposing party has a chance to hide, dispose of or otherwise make unavailable property necessary to satisfy the possible judgment.

Step 3: Obtain the Factual Showing Necessary to Substantiate a Right to Attach Order

In order for the court to issue the right to attach order, it must determine that the plaintiff has made a showing that it is more likely than not that the plaintiff will prevail on the underlying claim.[10] As with any factual showing, the evidence to support such a claim must be admissible.

Usually, this showing will be made by a declaration from the plaintiff attaching any necessary documents (making certain that the plaintiff can lay a proper foundation for the documents). In instances where the underlying complaint or petition is verified, it is helpful to attach the underlying pleading and incorporate it into the moving papers.

Because the showings are complex and technical, it is usually helpful to use the Judicial Council forms, which track the myriad requirements.[11],[12]

Step 4: Prepare Your Right to Attach Order

Before appearing for your hearing, whether noticed or ex parte, the plaintiff should prepare his or her right to attach order.[13] The order varies based on type of hearing, and whether the defendant is a resident or non-resident. However, plaintiffs should make certain the defendant’s name appears exactly as it does on accounts, title to real property or any other property sought to be attached, and include as an attachment a list of all property ordered attached.

Step 5: Obtain Your Writ of Attachment

Once the right to attach order is issued, the plaintiff need only take the right to attach order to the clerk for filing, and the clerk will issue a writ of attachment.[14] Writs of attachment should be treated similarly to a summons when drafting: Make certain that all of the information matches perfectly to the right to attach order. The writ should be directed to the sheriff of the county in which the property is located, not necessarily the sheriff of the county where the writ is issued.[15]

It is important to note that an undertaking is necessary for the issuance of a writ of attachment. Without an undertaking, the right to attach order is void.[16] It is generally good practice to have the undertaking issued prior to applying for the right to attach order so the writ may be issued immediately.

Step 6: Contact the Sheriff

Once the writ is issued, the plaintiff should contact the sheriff in the county where the property to be attached is located. Many larger counties have divisions of the sheriff’s department dedicated to the implementation of such writs along with form letters of instruction to the sheriff explaining what property should be levied upon.

Smaller counties may lack these procedures and forms, and require the plaintiff to provide his or her own letter of instructions. When providing instructions to the sheriff, make certain to follow the terms of the writ exactly.

Sheriffs will also charge a fee for levying upon property. As a practical matter, this fee can make levying on certain property (particularly vehicles) impossible.[17]

Once the sheriff has levied on the property, a notice of attachment will be served and filed with the court. Depending on the county, this notice may be prepared by the officer or the plaintiff.

Final Considerations

The provisions of the financial elder abuse statutes allow for a plaintiff to shift the power dynamic of the litigation by securing the judgment sought. While the process can be complicated, the result frequently leads to early resolution, as the defendant can be divested of significant assets pending resolution of the proceedings.

Although this procedure can provide great power to plaintiffs, “with great power comes great responsibility:”[18] If a plaintiff is found to have wrongfully attached property, he or she can be liable for damages to the defendant. This generally occurs when a plaintiff loses the claim sued upon, or, even if they do win, the plaintiff failed to follow technical procedures.

While this article can create a good foundation for a practitioner, the underlying statutes should be carefully reviewed, as an article of this length cannot possibly convey all of the nuanced procedures necessary to properly attach property in a financial elder abuse action.


Andrew R. Verriere is a partner at Morrill Law Firm. Located in Walnut Creek, Morrill Law Firm specializes in financial elder abuse litigation, probate litigation (will and trust disputes and conservatorship disputes) and appellate work. For more information, visit www.morrillattorneys.com. You can contact the author at andy@morrillattorneys.com.


[1] Id.

[2] Cal. Welf. & Inst. Code § 15657.5(a).

[3] Id.

[4] Id. at §§ 15657.5(b), (d).

[5] See Novus Optimum Labs v. Tamayo, 2013 WL 3354566, at *10 (N.D. Cal., July 2, 2013).

[6] Cal. Civ. Proc. Code § 487.020.

[7] Cal. Civ. Proc. Code § 484.040.

[8] Cal. Civ. Proc. Code § 485.010.

[9] Cal. Civ. Proc. Code §§ 485.010(b)(1), (5).

[10] Cal. Civ. Proc. Code § 481.190; Kemp Bros. Const., Inc. v. Titan Elec. Corp., 146 Cal. App. 4th 1474, 1476 (2007).

[11] The form for an application for a right to attach order can be found at AT-105. These forms are also designed to streamline the application for a temporary protective order, which provides interim relief before the sheriff can levy upon attached property. Hearings on TPOs can occur simultaneously to right to attach order proceedings.

[12] It should be noted that even though the burden may be carried by the plaintiff, and a right to attach order is issued, the court’s determination that it is more likely than not that the plaintiff will prevail in the issuance of the right to attach order has no effect on the main proceeding. Cal. Civ. Proc. Code § 484.100.

[13] Judicial Council form AT-120, AT-125 or AT-130, depending on circumstances.

[14] Judicial Council form AT-135.

[15] Because there are frequently multiple pieces of property to be attached in multiple counties, more than one writ may need to be issued.

[16] Vershbow v. Reiner, 231 Cal. App. 3d 879, 882 (1991). The undertaking is statutorily set at $10,000, but can be increased at the discretion of the Court. Cal. Civ. Proc. Code § 489.220. This undertaking is designed to permit the defendant an avenue to obtain damages in the event the attachment is deemed wrongful.

[17] Generally, there will be a fee to levy on the vehicle, a fee to tow the vehicle, then a daily fee for storage of the vehicle. Unless judgment is quickly entered, these fees will quickly overtake the value of even the most exotic cars.

[18] Voltaire, Oeuvres de Voltaire, Vol. 48 (1832); see also Stan Lee, Amazing Fantasy #15 (August, 1962).

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