Code Section Group

Code of Civil Procedure - CCP

PART 2. OF CIVIL ACTIONS [307 - 1062.20]

  ( Part 2 enacted 1872. )

TITLE 7. OTHER PROVISIONAL REMEDIES IN CIVIL ACTIONS [501 - 574]

  ( Heading of Title 7 added by Stats. 1974, Ch. 1516. )

CHAPTER 2. Claim and Delivery of Personal Property [511.010 - 516.050]

  ( Chapter 2 added by Stats. 1973, Ch. 526. )

ARTICLE 2. Writ of Possession [512.010 - 512.120]
  ( Article 2 added by Stats. 1973, Ch. 526. )

512.010.
  

(a) Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought.

(b) The application shall be executed under oath and shall include all of the following:

(1) A showing of the basis of the plaintiff’s claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff’s claim is a written instrument, a copy of the instrument shall be attached.

(2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention.

(3) A particular description of the property and a statement of its value.

(4) A statement, according to the best knowledge, information, and belief of the plaintiff, of the location of the property and, if the property, or some part of it, is within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there.

(5) A statement that the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure.

(c) The requirements of subdivision (b) may be satisfied by one or more affidavits filed with the application.

(Added by Stats. 1973, Ch. 526.)

512.020.
  

(a) Except as otherwise provided in this section, no writ shall be issued under this chapter except after a hearing on a noticed motion.

(b) A writ of possession may be issued ex parte pursuant to this subdivision if probable cause appears that any of the following conditions exists:

(1) The defendant gained possession of the property by feloniously taking the property from the plaintiff. This subdivision shall not apply where the defendant has fraudulently appropriated property entrusted to him or obtained possession by false or fraudulent representation or pretense or by embezzlement.

(2) The property is a credit card.

(3) The defendant acquired possession of the property in the ordinary course of his trade or business for commercial purposes and:

(i) The property is not necessary for the support of the defendant or his family; and

(ii) There is an immediate danger that the property will become unavailable to levy by reason of being transferred, concealed, or removed from the state or will become substantially impaired in value by acts of destruction or by failure to take care of the property in a reasonable manner; and

(iii) The ex parte issuance of a writ of possession is necessary to protect the property.

The plaintiff’s application for the writ shall satisfy the requirements of Section 512.010 and, in addition, shall include a showing that the conditions required by this subdivision exist. A writ of possession may issue if the court finds that the conditions required by this subdivision exist and the requirements of Section 512.060 are met. Where a writ of possession has been issued pursuant to this subdivision, a copy of the summons and complaint, a copy of the application and any affidavit in support thereof, and a notice which satisfies the requirements of subdivisions (c) and (d) of Section 512.040 and informs the defendant of his rights under this subdivision shall be served upon the defendant and any other person required by Section 514.020 to be served with a writ of possession. Any defendant whose property has been taken pursuant to a writ of possession issued under this subdivision may apply for an order that the writ be quashed and any property levied on pursuant to the writ be released. Such application shall be made by noticed motion, and the provisions of Section 512.050 shall apply. Pending the hearing on the defendant’s application, the court may order that delivery pursuant to Section 514.030 of any property previously levied upon be stayed. If the court determines that the plaintiff is not entitled to a writ of possession, the court shall quash the writ of possession and order the release and redelivery of any property previously levied upon, and shall award the defendant any damages sustained by him which were proximately caused by the levy of the writ of possession and the loss of possession of the property pursuant to such levy.

(Added by Stats. 1973, Ch. 526.)

512.030.
  

(a) Prior to the hearing required by subdivision (a) of Section 512.020, the defendant shall be served with all of the following:

(1) A copy of the summons and complaint.

(2) A Notice of Application and Hearing.

(3) A copy of the application and any affidavit in support thereof.

(b) If the defendant has not appeared in the action, and a writ, notice, order, or other paper is required to be personally served on the defendant under this title, service shall be made in the same manner as a summons is served under Chapter 4 (commencing with Section 413.10) of Title 5.

(Amended by Stats. 2007, Ch. 15, Sec. 2. Effective January 1, 2008.)

512.040.
  

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 writ of possession.

(b) The writ will be issued if the court finds that the plaintiff’s claim is probably valid and the other requirements for issuing the writ 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 decision at the hearing on the application for the writ.

(c) If the defendant desires to oppose the issuance of the writ, he shall file with the court either an affidavit providing evidence sufficient to defeat the plaintiff’s right to issuance of the writ or an undertaking to stay the delivery of the property in accordance with Section 515.020.

(d) The notice shall contain the following statement: “If you believe the plaintiff may not be entitled to possession of the property claimed, you may wish to seek the advice of an attorney. Such attorney should be consulted promptly so that he may assist you before the time set for the hearing.”

(Added by Stats. 1973, Ch. 526.)

512.050.
  

Each party shall file with the court and serve upon the other party within the time prescribed by rule any affidavits and points and authorities intended to be relied upon at the hearing. At the hearing, the court shall make its determinations upon the basis of the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider additional evidence and authority produced at the hearing or may continue the hearing for the production of such additional evidence, oral or documentary, or the filing of other affidavits or points and authorities.

(Added by Stats. 1973, Ch. 526.)

512.060.
  

(a) At the hearing, a writ of possession shall issue if both of the following are found:

(1) The plaintiff has established the probable validity of the plaintiff’s claim to possession of the property.

(2) The undertaking requirements of Section 515.010 are satisfied.

(b) No writ directing the levying officer to enter a private place to take possession of any property shall be issued unless the plaintiff has established that there is probable cause to believe that the property is located there.

(Amended by Stats. 2002, Ch. 68, Sec. 1. Effective January 1, 2003.)

512.070.
  

If a writ of possession is issued, the court may also issue an order directing the defendant to transfer possession of the property to the plaintiff. Such order shall contain a notice to the defendant that failure to turn over possession of such property to plaintiff may subject the defendant to being held in contempt of court.

(Amended by Stats. 1976, Ch. 145.)

512.080.
  

The writ of possession shall meet all of the following requirements:

(a) Be directed to the levying officer within whose jurisdiction the property is located.

(b) Describe the specific property to be seized.

(c) Specify any private place that may be entered to take possession of the property or some part of it.

(d) Direct the levying officer to levy on the property pursuant to Section 514. 010 if found and to retain it in custody until released or sold pursuant to Section 514.030.

(e) Inform the defendant of the right to object to the plaintiff’s undertaking, a copy of which shall be attached to the writ, or to obtain redelivery of the property by filing an undertaking as prescribed by Section 515.020.

(Amended by Stats. 1982, Ch. 517, Sec. 118.)

512.090.
  

(a) The plaintiff may apply ex parte in writing to the court in which the action was brought for an endorsement on the writ directing the levying officer to seize the property at a private place not specified in the writ.

(b) The court shall make the endorsement if the plaintiff establishes by affidavit that there is probable cause to believe that the property or some part of it may be found at that place.

(Added by Stats. 1973, Ch. 526.)

512.100.
  

Neither the failure of the defendant to oppose the issuance of a writ of possession under this chapter nor his failure to rebut any evidence produced by the plaintiff in connection with proceedings under this chapter shall constitute a waiver of any defense to plaintiff’s claim in the action or any other action or have any effect on the right of the defendant to produce or exclude evidence at the trial of any such action.

(Added by Stats. 1973, Ch. 526.)

512.110.
  

The determinations of the court under this chapter shall have no effect on the determination of any issues in the action other than the issues relevant to proceedings under this chapter, nor shall they affect the rights of any party in any other action arising out of the same claim. The determinations of the court under this chapter shall not be given in evidence nor referred to in the trial of any such action.

(Added by Stats. 1973, Ch. 526.)

512.120.
  

If the plaintiff fails to recover judgment in the action, he shall redeliver the property to the defendant and be liable for all damages sustained by the defendant which are proximately caused by operation of the temporary restraining order and preliminary injunction, if any, the levy of the writ of possession, and the loss of possession of the property pursuant to levy of the writ of possession or in compliance with an order issued under Section 512.070.

(Added by Stats. 1973, Ch. 526.)

CCPCode of Civil Procedure - CCP2.