Cal. Civ. Code § 1861.6

Current through the 2024 Legislative Session.

Section 1861.6 - Issuance of writ

(a) Except as otherwise provided in this section, no writ shall be issued under this article 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 the following conditions exist:

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

(2) 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 the premises of the motel, hotel, inn, boardinghouse, or lodginghouse, 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

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

(4) The plaintiff establishes the probable validity of the plaintiff's claim.

The plaintiff's application for the writ shall satisfy the requirements of Section 1861.5 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 1861.5 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 (b) and (c) of Section 1861.8 and informs the defendant of his rights under this subdivision shall be served upon the defendant, and any other person required by Section 1861.8 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 1861.9 shall apply. Pending the hearing of the defendant's application, the court may order that delivery pursuant to Section 1861.19 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 the defendant which were proximately caused by the levy of the writ of possession and the loss of possession of the property pursuant to such levy.

Ca. Civ. Code § 1861.6

Added by Stats. 1979, Ch. 964.