UndertakingsUndertaking to Obtain Release of Attachment Or Protective Order

Section § 489.310

Explanation

This law allows a defendant whose property is at risk of being seized to ask the court to replace it with a financial guarantee, called an undertaking. The defendant must provide a sworn statement about the property and agree to pay the plaintiff if they lose in court. The guarantee amount must be the lesser of the property's value or the amount specified by the writ. If multiple defendants are involved, any one of them can apply for substitution, but it doesn't affect any other defendant's property rights. If several defendants share the same property, they must file a joint application.

(a)CA Civil Procedure Code § 489.310(a) Whenever a writ is issued, a defendant who has appeared in the action may apply by noticed motion to the court in which the action is pending for an order permitting the defendant to substitute an undertaking for any of his property in the state which has been or is subject to being attached.
(b)CA Civil Procedure Code § 489.310(b) In a case (1) where the defendant applies for an order to release a portion of property which has been attached or (2) where the defendant applies for an order preventing the attachment of property and the amount of the undertaking to be given is less than the amount to be secured by the attachment, the application shall include a statement, executed under oath, describing the property to be so released or so protected from attachment.
(c)CA Civil Procedure Code § 489.310(c) The defendant shall file an undertaking to pay the plaintiff the value of the property released not exceeding the amount of any judgment which may be recovered by the plaintiff in the action against the defendant. The amount of the undertaking filed pursuant to this section shall be equal to the lesser of (1) the value of the property attached or prevented from being attached or (2) the amount specified by the writ to be secured by the attachment. The court shall issue such order upon the condition that a sufficient undertaking be filed.
(d)CA Civil Procedure Code § 489.310(d) Where an action is against more than one defendant, any defendant may make such application. The filing of an undertaking by such defendant shall not subject him to any demand against any other defendant; however, the levying officer shall not be prevented thereby from attaching, or be obliged to release from attachment, any property of any other defendant. Where all the defendants do not join in the application, the application shall include a statement, executed under oath, describing the character of the defendant’s title to the property and the manner in which the defendant acquired such title and stating whether any other defendant who has not joined in the application has an interest in the property. Where two or more defendants have an interest in the same property, a joint application and undertaking shall be filed to secure the release of such property.
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Section § 489.320

Explanation

This law allows a defendant, who has received a temporary protective order and has appeared in court, to request that the court cancels the order against them. To do this, the defendant must notify the court and file a guarantee to pay any judgment the plaintiff might win. The guarantee must be equal to the amount the plaintiff wants secured by the order. If the defendant meets these conditions, the court will cancel the temporary protective order.

(a)CA Civil Procedure Code § 489.320(a) A defendant who has been served with a temporary protective order and who has appeared in the action may apply by noticed motion to the court in which the action is pending for an order terminating the temporary protective order with respect to that defendant.
(b)CA Civil Procedure Code § 489.320(b) The defendant shall file an undertaking to pay the plaintiff the amount of any judgment recovered by the plaintiff in the action against the defendant. The amount of the undertaking filed pursuant to this section shall be equal to the amount sought to be secured by the attachment. The court shall issue the order terminating the temporary protective order with respect to the defendant upon the condition that a sufficient undertaking be filed.
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