SECTIONS 491.110-491.200 - California Statutes

CODE OF CIVIL PROCEDURE

SECTION 491.110-491.200

491.110. (a) Upon ex parte application by the plaintiff and proof
by the plaintiff by affidavit or otherwise to the satisfaction of the
proper court that the plaintiff has a right to attach order and that
a third person has possession or control of property in which the
defendant has an interest or is indebted to the defendant in an
amount exceeding two hundred fifty dollars ($250), the court shall
make an order directing the third person to appear before the court,
or before a referee appointed by the court, at a time and place
specified in the order, to answer concerning the property or debt.
The affidavit in support of the plaintiff's application may be based
on the affiant's information and belief.
(b) Not less than 10 days prior to the date set for the
examination, a copy of the order shall be:
(1) Served personally on the third person.
(2) Served personally or by mail on the defendant.
(c) If the property or the debt is described in the affidavit or
application for an order under subdivision (a) in a manner reasonably
adequate to permit it to be identified, service of the order on the
third person creates a lien on the defendant's interest in the
property in the third person's possession or control or on the debt
owed by the third person to the defendant. The lien continues for a
period of one year from the date of the order unless extended or
sooner terminated by the court.
(d) The order shall contain the following statement in 14-point
boldface type if printed or in capital letters if typed: "NOTICE TO
PERSON SERVED. If you fail to appear at the time and place specified
in this order, you may be subject to arrest and punishment for
contempt of court and the court may make an order requiring you to
pay the reasonable attorney's fees incurred by the plaintiff in this
proceeding."
(e) The order is not effective unless, at the time it is served on
the third person, the person serving the order tenders to the third
person fees for the mileage necessary to be traveled from the third
person's residence to the place of examination. The fees shall be in
the same amount generally provided for witnesses when legally
required to attend civil proceedings in the court where the
examination proceeding is to be conducted.

491.120. In any proceeding for the examination of a third person
under this article, witnesses, including the defendant, may be
required to appear and testify before the court or referee in the
same manner as upon the trial of an issue.

491.130. (a) The examination proceedings authorized by this article
may be conducted by a referee appointed by the court. The referee
may issue, modify, or vacate an order authorized by Section 491.190,
may make a protective order authorized by Section 491.180, and may
issue a warrant authorized by Section 491.160, and has the same power
as the court to grant adjournments, to preserve order, and to
subpoena witnesses to attend the examination, but only the court that
ordered the reference has power to do any of the following:
(1) Punish for contempt for disobeying an order of the referee.
(2) Make an award of attorney's fees pursuant to Section 491.160.
(3) Determine a third-party claim under Section 491.170.
(b) Only a member of the State Bar of California is eligible for
appointment as a referee pursuant to this article.
(c) Nothing in subdivision (a) limits the power of a court to
appoint a temporary judge pursuant to Section 21 of Article VI of the
California Constitution.

491.140. (a) If a corporation, partnership, association, trust, or
other organization is served with an order to appear for an
examination, it shall designate to appear and be examined one or more
officers, directors, managing agents, or other persons who are
familiar with its property and debts.
(b) If the order to appear for an examination requires the
appearance of a specified individual, the specified individual shall
appear for the examination and may be accompanied by one or more
officers, directors, managing agents, or other persons familiar with
the property and debts of the corporation, partnership, association,
trust, or other organization.
(c) If the order to appear for the examination does not require
the appearance of a specified individual, the order shall advise the
corporation, partnership, association, trust, or other organization
of its duty to make a designation under subdivision (a).
(d) A corporation, partnership, association, trust, or other
organization, whether or not a party, may appear at an examination
through any authorized officer, director, or employee, whether or not
the person is an attorney.

491.150. (a) Except as otherwise provided in this section, the
proper court for examination of a person under this article is the
court that issued the writ of attachment.
(b) A person sought to be examined may not be required to attend
an examination before a court located outside the county in which the
person resides or has a place of business unless the distance from
the person's place of residence or place of business to the place of
examination is less than 150 miles.
(c) If a person sought to be examined does not reside or have a
place of business in the county where the court that issued the writ
is located, the superior court in the county where the person resides
or has a place of business is a proper court for examination of the
person.
(d) If the plaintiff seeks an examination of a person before a
court other than the court that issued the writ, the plaintiff shall
file an application that shall include all of the following:
(1) A certified copy of the complaint in the pending action.
(2) An affidavit in support of the application stating the place
of residence or place of business of the person sought to be
examined.
(3) Any necessary affidavit or showing for the examination as
required by Section 491.110.
(4) The filing fee for a motion as provided in subdivision (a) of
Section 70617 of the Government Code.

491.160. (a) If an order requiring a person to appear for an
examination was served by a sheriff, marshal, a person specially
appointed by the court in the order, or a registered process server,
and the person fails to appear:
(1) The court may do either of the following:
(A) Pursuant to a warrant, have the person brought before the
court to answer for the failure to appear and may punish the person
for contempt.
(B) Issue a warrant for the arrest of the person who failed to
appear as required by the court order, pursuant to Section 1993.
(2) If the person's failure to appear is without good cause, the
plaintiff shall be awarded reasonable attorney's fees incurred in the
examination proceeding.
(b) A person who willfully makes an improper service of an order
for an examination which subsequently results in the arrest pursuant
to subdivision (a) of the person who fails to appear is guilty of a
misdemeanor.

491.170. (a) Subject to subdivision (b), if a third person examined
pursuant to this article claims an interest in the property adverse
to the defendant or denies the debt, the court may, if the plaintiff
so requests, determine the interests in the property or the existence
of the debt. Such a determination is conclusive as to the plaintiff,
the defendant, and the third person, but an appeal may be taken from
the determination in the manner provided for appeals from the court
in which the proceeding takes place. The court may grant a
continuance for a reasonable time for discovery proceedings, the
production of evidence, or other preparation for the hearing.
(b) The court may not make the determination provided in
subdivision (a) if the third person's claim is made in good faith and
any of the following conditions is satisfied:
(1) The court would not be a proper court for the trial of an
independent civil action (including a creditor's suit) for the
determination of the interests in the property or the existence of
the debt, and the third person objects to the determination of the
matter under subdivision (a).
(2) At the time an order for examination pursuant to this article
is served on the third person a civil action (including a creditor's
suit) is pending with respect to the interests in the property or the
existence of the debt.
(3) The court determines that the interests in the property or the
existence of the debt should be determined in a creditor's suit.
(c) Upon application of the plaintiff made ex parte, the court may
make an order forbidding transfer of the property to the defendant
or payment of the debt to the defendant until the interests in the
property or the existence of the debt is determined pursuant to
subdivision (a) or until a creditor's suit may be commenced and an
order obtained pursuant to Section 491.340. An undertaking may be
required in the discretion of the court. The court may modify or
vacate the order at any time with or without a hearing on such terms
as are just.
(d) Upon application of the plaintiff upon noticed motion, the
court, if it determines that the defendant probably owns an interest
in the property or that the debt probably is owed to the defendant,
may make an order forbidding the transfer or other disposition of the
property to any person or forbidding payment of the debt until the
interests in the property or the existence of the debt is determined
pursuant to subdivision (a) or until a creditor's suit may be
commenced and an order obtained pursuant to Section 491.340. The
court shall require the plaintiff to furnish an undertaking as
provided in Section 529. The court may modify or vacate the order at
any time after notice and hearing on such terms as are just.

491.180. In any proceeding under this article, the court may, on
motion of the person to be examined or on its own motion, make such
protective orders as justice may require.

491.190. (a) Except as provided in subdivision (b), at the
conclusion of a proceeding pursuant to this article:
(1) The court may order the defendant's interest in the property
in the possession or under the control of the third person or a debt
owed by the third person to the defendant to be attached in the
manner and under the conditions provided by this title or to be
delivered or paid to the levying officer if the levying officer has a
writ of attachment permitting the attachment of the property or
debt. After the property or debt has been attached, the order may be
enforced as provided in Section 491.360. The order creates a lien on
the property or debt. The lien continues for a period of one year
from the date of the order unless the court extends or reduces the
period of the existence of the lien.
(2) If the property or debt has previously been attached, the
court may make an order determining the third person's liability, and
the order may be enforced as provided in Section 491.360.
(b) If a third person examined pursuant to this article claims an
interest in the property adverse to the defendant or denies the debt
and the court does not determine the matter as provided in
subdivision (a) of Section 491.170, the court may not make an order
under subdivision (a) of this section, but may make an order pursuant
to subdivision (c) or (d) of Section 491.170 forbidding transfer or
payment to the extent authorized by that section.

491.200. A lien created under this article continues on property
subject to the lien notwithstanding the transfer or encumbrance of
the property subject to the lien unless the transfer or encumbrance
is made to a person listed in Section 697.740.