SECTIONS 512.010-512.120 - California Statutes

CODE OF CIVIL PROCEDURE

SECTION 512.010-512.120

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.

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.

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.

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."

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.

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.

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.

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.

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.

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.

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.

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.