ATTACHMENTS AND JUDGMENTS

ATTACHMENTS AND JUDGMENTS

Property Subject to Attachment

Attachment is the process by which real or personal property of a defendant in a lawsuit is seized and retained
in the custody of the law as security for satisfaction of the judgment the plaintiff hopes to obtain in the pending
litigation. The plaintiff gets the lien before entry of judgment, and is somewhat more assured of availability of
the defendant’s property for eventual execution in satisfaction of the claim (if the judgment is awarded to the
plaintiff).

The purpose of an attachment is to protect a plaintiff who is a prospective judgment creditor against attempts by
the defendant/debtor to transfer or dissipate the property subject to the attachment, and thus, in so dissipating
the property, frustrate efforts to obtain satisfaction of a judgment subsequently obtained. The property seized
and held under the attachment process constitutes an asset, or assets, which a judgment creditor may cause to be
sold through execution proceedings in satisfaction of the judgment.

An attachment has always been referred to as a harsh remedy because it imposes a lien on the defendant’s
property and deprives him or her of absolute dominion and control over it for so long as it takes the court to
adjudicate the plaintiff’s claim. It is because of the deprivation of the defendant’s right to dispose of
defendant’s attached property that the procedural framework of the attachment process has not been adopted to
accommodate time consuming complex legal issues or disputes. Instead, the attachment process is based on the
theory that the existence of a debt owed by the defendant to the plaintiff is conceded and that the principal
function of the court is merely to ascertain the amount of that debt. This is why the right of a plaintiff to an
attachment lien before trial (a prejudgment attachment lien) has been historically confined to actions arising out
of contracts, express or implied, for the payment of money. Even in case of a claim arising out of a contract, the
courts have been reticent to issues orders for prejudgment attachment liens.

Section 488.720 of the Code of Civil Procedure introduces a novel method of tempering the harsh
consequences of an attachment lien and preventing its abuse. In noticed proceedings before the court, should
the value of the defendant’s interest in the property sought to be attached be shown to be clearly in excess of
the amount necessary to satisfy plaintiff’s claim, the court may order a release of as much of the property as it
considers excess security.

Prejudgment attachments of the property of a natural person (individual) have been limited by case law and
statute to claims arising out of the conduct of a business, trade, or profession. There are numerous other
limitations on obtaining a prejudgment attachment.

Property Exempt from Attachment and Execution

As a matter of public policy, certain property is exempt from attachment or execution where the defendant is a
natural person. The exemptions include, among others, property that is necessary for the support of the
defendant or the family of the defendant; “earnings” as provided for and defined in Code of Civil Procedure
Sections 706.010 and 706.011; interests in real property except leasehold estates with unexpired terms of less

than a year; accounts receivable of a trade, business, or profession conducted by the defendant, as defined;
equipment; farm products; inventory; money judgments arising out of the conduct of the defendant regarding a
trade, business, or profession; money on the premises where a trade, business, or professions is conducted by
the defendant, except the first $1000.00 located elsewhere, as defined; negotiable documents of title;
instruments; securities; and minerals or the like. Community property interests of the defendant are subject to
the attachment. A proper claim is to be made for the exemptions to apply. See Code of Civil Procedure Sections
487.010, 487.020, 487.030 and 706.010, et seq.

The most important exemption is the homestead, and the formalities of declaration of homestead by the owner
are discussed later in this chapter. See Code of Civil Procedures Section 487.025.

Judgment

A final judgment is the final determination of the rights of the parties in an action or proceeding by a court of
competent jurisdiction. Of course, the possibility exists that either party will appeal the judgment and,
following the appeal, the judgment might subsequently be reversed or amended. Notwithstanding the foregoing,
comparatively few judgments are appealed. Even for those judgments that are not appealed, the judgment is
enforceable until the time to appeal or seek other procedural legal relief has elapsed.

A simple money judgment does not automatically create a lien. However, as soon as a properly certified
abstract of the judgment is recorded with the recorder of any county, it becomes a lien upon all real property of
the judgment debtor located in that county. It extends in that county to all real property the debtor may
thereafter acquire before the lien expires. The lien of a lump sum money judgment normally continues for ten
years from the date of entry of the judgment or decree. See Code of Civil Procedure Section 664 et seq. As
with the lien on attachment, a judgment lien is discharged if enforcement of the judgment is stayed on appeal
and the defendant executes a sufficient undertaking (promise or security) or deposits in court the requisite
amount of money. See Code of Civil Procedure Sections 489.010 et. seq. and 515.010 et seq.

California Law has been amended to limit the inclusion of the social security number of the debtor on the
abstract of judgment to the last four digits of the number. However, the listing of the social security number and
the driver’s license number of the judgment debtor pursuant to Section 4506 of the Family Code applies to
abstracts of judgment recorded after January 1, 1979, unless otherwise limited pursuant to the previously
mentioned section of the Family Code.

The abstract of judgment is to contain the title of the court where the judgment is entered, the cause and number
of the action, and the date of the entry of the judgment in the records of the court. In addition, the name and last
know address of the judgment debtor and the name and address of the judgment creditor are to be included
along with the date of the issuance of the abstract. Generally, the priority of an abstract of judgment is the date
of recordation of the original abstract of judgment. Exceptions to this rule have been provided by law. See
Code of Civil Procedure Section 674.