Understanding Writs of Attachment and Writs of Possession in California Lawsuits

In the often lengthy process of California litigation, it can be critical that a plaintiff preserve the defendant’s assets pre-judgment.  This is where pre-judgment remedies come into play, offering powerful tools to secure and even reclaim assets long before the court renders its final decision.  Two of the most significant of these remedies are the Writ of Attachment and the Writ of Possession.

While both of these pre-judgment remedies protect a plaintiff's interests early in a lawsuit, they differ significantly in their purpose, the types of property they target and the circumstances under which they can be obtained.

The Writ of Attachment:  To Secure a Future Judgment

A Writ of Attachment allows the plaintiff to "attach" or seize a defendant's assets – such as bank accounts, real estate, or other valuable property – and hold them in legal custody pending the outcome of the litigation.  The goal is to ensure that if the plaintiff wins the lawsuit, there will be assets available to satisfy the judgment.

Pre-judgment attachments in California are generally limited to cases involving:

• Contractual claims for money:  The claim must be for a fixed or readily ascertainable amount, generally not less than $500.

• Unsecured claims:  Claims either unsecured or inadequately secured by real property.

• Commercial debts:  The assets of corporations, limited liability companies and general and limited partnerships are all subject to the attachment right.  For individual defendants, the claim must arise out of the conduct of the debtor’s/defendant’s trade, business or profession. Attachment is not an available remedy for consumer debts incurred for personal or household purposes.  

To obtain a Writ of Attachment, the plaintiff must demonstrate that:

1. The claim is one for which attachment is authorized:  This involves meeting specific statutory criteria.  (A claim based on contract, for more than $500.00 and for an unsecured commercial claim.)  

2. The claim has "probable validity":  The plaintiff must demonstrate a likelihood of success on the merits.

3. The attachment is not sought for an improper purpose.

4. A bond is posted:  The plaintiff is typically required to post a bond to protect the defendant in case the attachment is later found to be wrongful.

A Writ of Attachment can be a powerful deterrent against a defendant attempting to conceal, transfer or dispose of assets to avoid paying a potential judgment.  It effectively freezes assets, providing a strong incentive for the defendant to engage in settlement discussions or concede a meritorious claim.  Additionally, a party opposing the application must set forth facts, under oath, contesting the validity of the claim, which can be an effective discovery tool.

The Writ of Possession:  Reclaiming Property 

Imagine a situation where you have leased equipment to a business, or sold equipment to a business under a finance agreement, and the buyer or lessee defaults. Or perhaps you have sold goods under a conditional sales contract, and the buyer has stopped making installments.  In these situations, your primary goal may not necessarily be to get paid, but to get your specific property back.  This is where a Writ of Possession can be useful.

A Writ of Possession allows a plaintiff to recover specific personal property from the defendant's possession prior to a final judgment.  It is often used in cases involving:

• Breach of a lease, a secured sales agreement, or a conditional sales agreement:  Where the plaintiff seller retains a security interest in the property.

• Ownership disputes:  When there's a clear claim to specific personal property being wrongfully withheld.

• Replevin actions:  Lawsuits seeking the return of unlawfully taken property.

To obtain a Writ of Possession, the plaintiff must demonstrate a "probable validity" of its claim to immediate possession of the property.  This typically involves presenting evidence of ownership, a valid contract, and the defendant's wrongful retention.  Because this remedy allows for the deprivation of property before a full trial, due process requirements are strict, usually requiring notice to the defendant and an opportunity for a hearing.

The strategic advantage of a Writ of Possession is clear:  it can quickly shift the leverage in a dispute.  A defendant who suddenly loses control over a key asset may be more inclined to settle the case promptly rather than face ongoing disruption and legal fees.

Key Distinctions and Strategic Considerations

The core difference between these two remedies lies in their focus:

• Writ of Attachment:  Seeks to secure any available assets to satisfy a future monetary judgment.

• Writ of Possession:  Seeks to recover specific personal property that the plaintiff claims a right to possess.

Choosing the right pre-judgment remedy depends entirely on the nature of your claim and your objectives.  If your primary goal is to get your physical property back, a Writ of Possession is the direct route.  If you are pursuing a monetary debt and want to ensure collectability, a Writ of Attachment might be the more appropriate and impactful strategy.

Both remedies require careful legal analysis and strict adherence to California's procedural rules.  Due process considerations require the court to scrutinize applications to ensure the defendant's rights are protected.  Consulting with an experienced California attorney is crucial to determine if these pre-judgment tools are viable options for your specific legal situation and to navigate the complexities of obtaining them.  Used strategically, Writs of Possession and Writs of Attachment can significantly impact the ultimate outcome of a California lawsuit.