2010 California CodeCode of Civil ProcedureArticle 2. Writ Of PossessionCODE OF CIVIL PROCEDURE SECTION 512.010-512.120

512.010. (a) Upon the filing of the complaint or at any timethereafter, the plaintiff may apply pursuant to this chapter for awrit of possession by filing a written application for the writ withthe court in which the action is brought. (b) The application shall be executed under oath and shall includeall of the following: (1) A showing of the basis of the plaintiff's claim and that theplaintiff is entitled to possession of the property claimed. If thebasis of the plaintiff's claim is a written instrument, a copy of theinstrument shall be attached. (2) A showing that the property is wrongfully detained by thedefendant, of the manner in which the defendant came into possessionof 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 ofits value. (4) A statement, according to the best knowledge, information, andbelief of the plaintiff, of the location of the property and, if theproperty, or some part of it, is within a private place which mayhave to be entered to take possession, a showing that there isprobable 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 anexecution 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 ormore affidavits filed with the application.

512.020. (a) Except as otherwise provided in this section, no writshall be issued under this chapter except after a hearing on anoticed motion. (b) A writ of possession may be issued ex parte pursuant to thissubdivision if probable cause appears that any of the followingconditions exists: (1) The defendant gained possession of the property by feloniouslytaking the property from the plaintiff. This subdivision shall notapply where the defendant has fraudulently appropriated propertyentrusted to him or obtained possession by false or fraudulentrepresentation or pretense or by embezzlement. (2) The property is a credit card. (3) The defendant acquired possession of the property in theordinary course of his trade or business for commercial purposes and: (i) The property is not necessary for the support of the defendantor his family; and (ii) There is an immediate danger that the property will becomeunavailable to levy by reason of being transferred, concealed, orremoved from the state or will become substantially impaired in valueby acts of destruction or by failure to take care of the property ina reasonable manner; and (iii) The ex parte issuance of a writ of possession is necessaryto protect the property. The plaintiff's application for the writ shall satisfy therequirements of Section 512.010 and, in addition, shall include ashowing that the conditions required by this subdivision exist. Awrit of possession may issue if the court finds that the conditionsrequired by this subdivision exist and the requirements of Section512.060 are met. Where a writ of possession has been issued pursuantto this subdivision, a copy of the summons and complaint, a copy ofthe application and any affidavit in support thereof, and a noticewhich satisfies the requirements of subdivisions (c) and (d) ofSection 512.040 and informs the defendant of his rights under thissubdivision shall be served upon the defendant and any other personrequired by Section 514.020 to be served with a writ of possession.Any defendant whose property has been taken pursuant to a writ ofpossession issued under this subdivision may apply for an order thatthe writ be quashed and any property levied on pursuant to the writbe released. Such application shall be made by noticed motion, andthe provisions of Section 512.050 shall apply. Pending the hearing onthe defendant's application, the court may order that deliverypursuant to Section 514.030 of any property previously levied upon bestayed. If the court determines that the plaintiff is not entitledto a writ of possession, the court shall quash the writ of possessionand order the release and redelivery of any property previouslylevied upon, and shall award the defendant any damages sustained byhim which were proximately caused by the levy of the writ ofpossession and the loss of possession of the property pursuant tosuch levy.

512.030. (a) Prior to the hearing required by subdivision (a) ofSection 512.020, the defendant shall be served with all of thefollowing: (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 supportthereof. (b) If the defendant has not appeared in the action, and a writ,notice, order, or other paper is required to be personally served onthe defendant under this title, service shall be made in the samemanner as a summons is served under Chapter 4 (commencing withSection 413.10) of Title 5.

512.040. The "Notice of Application and Hearing" shall inform thedefendant of all of the following: (a) A hearing will be held at a place and at a time, to bespecified in the notice, on plaintiff's application for a writ ofpossession. (b) The writ will be issued if the court finds that the plaintiff's claim is probably valid and the other requirements for issuing thewrit are established. The hearing is not for the purpose ofdetermining whether the claim is actually valid. The determination ofthe actual validity of the claim will be made in subsequentproceedings in the action and will not be affected by the decision atthe 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 evidencesufficient to defeat the plaintiff's right to issuance of the writ oran undertaking to stay the delivery of the property in accordancewith Section 515.020. (d) The notice shall contain the following statement: "If youbelieve the plaintiff may not be entitled to possession of theproperty claimed, you may wish to seek the advice of an attorney.Such attorney should be consulted promptly so that he may assist youbefore the time set for the hearing."

512.050. Each party shall file with the court and serve upon theother party within the time prescribed by rule any affidavits andpoints and authorities intended to be relied upon at the hearing. Atthe hearing, the court shall make its determinations upon the basisof the pleadings and other papers in the record; but, upon good causeshown, the court may receive and consider additional evidence andauthority produced at the hearing or may continue the hearing for theproduction of such additional evidence, oral or documentary, or thefiling of other affidavits or points and authorities.

512.060. (a) At the hearing, a writ of possession shall issue ifboth of the following are found: (1) The plaintiff has established the probable validity of theplaintiff'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 placeto take possession of any property shall be issued unless theplaintiff has established that there is probable cause to believethat the property is located there.

512.070. If a writ of possession is issued, the court may alsoissue an order directing the defendant to transfer possession of theproperty to the plaintiff. Such order shall contain a notice to thedefendant that failure to turn over possession of such property toplaintiff may subject the defendant to being held in contempt ofcourt.

512.080. The writ of possession shall meet all of the followingrequirements: (a) Be directed to the levying officer within whose jurisdictionthe property is located. (b) Describe the specific property to be seized. (c) Specify any private place that may be entered to takepossession of the property or some part of it. (d) Direct the levying officer to levy on the property pursuant toSection 514. 010 if found and to retain it in custody until releasedor sold pursuant to Section 514.030. (e) Inform the defendant of the right to object to the plaintiff'sundertaking, a copy of which shall be attached to the writ, or toobtain redelivery of the property by filing an undertaking asprescribed by Section 515.020.

512.090. (a) The plaintiff may apply ex parte in writing to thecourt in which the action was brought for an endorsement on the writdirecting the levying officer to seize the property at a privateplace not specified in the writ. (b) The court shall make the endorsement if the plaintiffestablishes by affidavit that there is probable cause to believe thatthe property or some part of it may be found at that place.

512.100. Neither the failure of the defendant to oppose theissuance of a writ of possession under this chapter nor his failureto rebut any evidence produced by the plaintiff in connection withproceedings under this chapter shall constitute a waiver of anydefense to plaintiff's claim in the action or any other action orhave any effect on the right of the defendant to produce or excludeevidence at the trial of any such action.

512.110. The determinations of the court under this chapter shallhave no effect on the determination of any issues in the action otherthan the issues relevant to proceedings under this chapter, norshall they affect the rights of any party in any other action arisingout of the same claim. The determinations of the court under thischapter shall not be given in evidence nor referred to in the trialof 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 forall damages sustained by the defendant which are proximately causedby operation of the temporary restraining order and preliminaryinjunction, if any, the levy of the writ of possession, and the lossof possession of the property pursuant to levy of the writ ofpossession or in compliance with an order issued under Section512.070.

CODE OF CIVIL PROCEDURE SECTION 585-587.5

585. Judgment may be had, if the defendant fails to answer thecomplaint, as follows: (a) In an action arising upon contract or judgment for therecovery of money or damages only, if the defendant has, or if morethan one defendant, if any of the defendants have, been served, otherthan by publication, and no answer, demurrer, notice of motion tostrike of the character specified in subdivision (f), notice ofmotion to transfer pursuant to Section 396b, notice of motion todismiss pursuant to Article 2 (commencing with Section 583.210) ofChapter 1.5 of Title 8, notice of motion to quash service of summonsor to stay or dismiss the action pursuant to Section 418.10, ornotice of the filing of a petition for writ of mandate as provided inSection 418.10 has been filed with the clerk of the court within thetime specified in the summons, or within further time as may beallowed, the clerk, upon written application of the plaintiff, andproof of the service of summons, shall enter the default of thedefendant or defendants, so served, and immediately thereafter enterjudgment for the principal amount demanded in the complaint, in thestatement required by Section 425.11, or in the statement providedfor in Section 425.115, or a lesser amount if credit has beenacknowledged, together with interest allowed by law or in accordancewith the terms of the contract, and the costs against the defendant,or defendants, or against one or more of the defendants. If, by ruleof court, a schedule of attorneys' fees to be allowed has beenadopted, the clerk may include in the judgment attorneys' fees inaccordance with the schedule (1) if the contract provides thatattorneys' fees shall be allowed in the event of an action thereon,or (2) if the action is one in which the plaintiff is entitled bystatute to recover attorneys' fees in addition to money or damages.The plaintiff shall file a written request at the time of applicationfor entry of the default of the defendant or defendants, to haveattorneys' fees fixed by the court, whereupon, after the entry of thedefault, the court shall hear the application for determination ofthe attorneys' fees and shall render judgment for the attorneys' feesand for the other relief demanded in the complaint, in the statementrequired by Section 425.11, or in the statement provided for inSection 425.115, or a lesser amount if credit has been acknowledged,and the costs against the defendant, or defendants, or against one ormore of the defendants. (b) In other actions, if the defendant has been served, other thanby publication, and no answer, demurrer, notice of motion to strikeof the character specified in subdivision (f), notice of motion totransfer pursuant to Section 396b, notice of motion to dismisspursuant to Article 2 (commencing with Section 583.210) of Chapter1.5 of Title 8, notice of motion to quash service of summons or tostay or dismiss the action pursuant to Section 418.10 or notice ofthe filing of a petition for writ of mandate as provided in Section418.10 has been filed with the clerk of the court within the timespecified in the summons, or within further time as may be allowed,the clerk, upon written application of the plaintiff, shall enter thedefault of the defendant. The plaintiff thereafter may apply to thecourt for the relief demanded in the complaint. The court shall hearthe evidence offered by the plaintiff, and shall render judgment inthe plaintiff's favor for that relief, not exceeding the amountstated in the complaint, in the statement required by Section 425.11,or in the statement provided for by Section 425.115, as appears bythe evidence to be just. If the taking of an account, or the proof ofany fact, is necessary to enable the court to give judgment or tocarry the judgment into effect, the court may take the account orhear the proof, or may, in its discretion, order a reference for thatpurpose. If the action is for the recovery of damages, in whole orin part, the court may order the damages to be assessed by a jury; orif, to determine the amount of damages, the examination of a longaccount is involved, by a reference as above provided. (c) In all actions where the service of the summons was bypublication, upon the expiration of the time for answering, and uponproof of the publication and that no answer, demurrer, notice ofmotion to strike of the character specified in subdivision (f),notice of motion to transfer pursuant to Section 396b, notice ofmotion to dismiss pursuant to Article 2 (commencing with Section583.210) of Chapter 1.5 of Title 8, notice of motion to quash serviceof summons or to stay or dismiss the action pursuant to Section418.10, or notice of the filing of a petition for writ of mandate asprovided in Section 418.10 has been filed, the clerk, upon writtenapplication of the plaintiff, shall enter the default of thedefendant. The plaintiff thereafter may apply to the court for therelief demanded in the complaint; and the court shall hear theevidence offered by the plaintiff, and shall render judgment in theplaintiff's favor for that relief, not exceeding the amount stated inthe complaint, in the statement required by Section 425.11, or inthe statement provided for in Section 425.115, as appears by theevidence to be just. If the defendant is not a resident of the state,the court shall require the plaintiff, or the plaintiff's agent, tobe examined, on oath, respecting any payments that have been made tothe plaintiff, or to anyone for the plaintiff's use, on account ofany demand mentioned in the complaint, in the statement required bySection 425.11, or in the statement provided for in Section 425.115,and may render judgment for the amount that the plaintiff is entitledto recover. In all cases affecting the title to or possession ofreal property, where the service of the summons was by publicationand the defendant has failed to answer, no judgment shall be renderedupon proof of mere occupancy, unless the occupancy has continued forthe time and has been of the character necessary to confer title byprescription. In all cases where the plaintiff bases a claim upon apaper title, the court shall require evidence establishing theplaintiff's equitable right to judgment before rendering judgment. Inactions involving only the possession of real property where thecomplaint is verified and shows by proper allegations that no partyto the action claims title to the real property involved, either byprescription, accession, transfer, will, or succession, but only thepossession thereof, the court may render judgment upon proof ofoccupancy by plaintiff and ouster by defendant. (d) In the cases referred to in subdivisions (b) and (c), or uponan application to have attorneys' fees fixed by the court pursuant tosubdivision (a), the court in its discretion may permit the use ofaffidavits, in lieu of personal testimony, as to all or any part ofthe evidence or proof required or permitted to be offered, received,or heard in those cases. The facts stated in the affidavit oraffidavits shall be within the personal knowledge of the affiant andshall be set forth with particularity, and each affidavit shall showaffirmatively that the affiant, if sworn as a witness, can testifycompetently thereto. (e) If a defendant files a cross-complaint against anotherdefendant or the plaintiff, a default may be entered against thatparty on that cross-complaint if the plaintiff or thatcross-defendant has been served with that cross-complaint and hasfailed to file an answer, demurrer, notice of motion to strike of thecharacter specified in subdivision (f), notice of motion to transferpursuant to Section 396b, notice of motion to dismiss pursuant toArticle 2 (commencing with Section 583.210) of Chapter 1.5 of Title8, notice of motion to quash service of summons or to stay or dismissthe action pursuant to Section 418.10, or notice of the filing of apetition for a writ of mandate as provided in Section 418.10 withinthe time specified in the summons, or within another time period asmay be allowed. However, no judgment may separately be entered onthat cross-complaint unless a separate judgment may, in fact, beproperly awarded on that cross-complaint and the court finds that aseparate judgment on that cross-complaint would not substantiallydelay the final disposition of the action between the parties. (f) A notice of motion to strike within the meaning of thissection is a notice of motion to strike the whole or any part of apleading filed within the time which the moving party is requiredotherwise to plead to that pleading. The notice of motion to strikeshall specify a hearing date set in accordance with Section 1005. Thefiling of a notice of motion does not extend the time within whichto demur.

585.5. (a) Every application to enter default under subdivision (a)of Section 585 shall include, or be accompanied by, an affidavitstating facts showing that the action is or is not subject to Section1812.10 or 2984.4 of the Civil Code or subdivision (b) of Section395. (b) When a default or default judgment has been entered withoutfull compliance with Section 1812.10 or 2984.4 of the Civil Code, orsubdivision (b) of Section 395, the defendant may serve and file anotice of motion to set aside the default or default judgment and forleave to defend the action in the proper court. The notice of motionshall be served and filed within 60 days after the defendant firstreceives notice of levy under a writ of execution, or notice of anyother procedure for enforcing, the default judgment. (c) A notice of motion to set aside a default or default judgmentand for leave to defend the action in the proper court shalldesignate as the time for making the motion a date prescribed bysubdivision (b) of Section 1005, and it shall be accompanied by anaffidavit showing under oath that the action was not commenced in theproper court according to Section 1812.10 or 2984.4 of the CivilCode or subdivision (b) of Section 395. The party shall serve andfile with the notice a copy of the answer, motion, or other pleadingproposed to be filed in the action. (d) Upon a finding by the court that the motion was made withinthe period permitted by subdivision (b) and that the action was notcommenced in the proper court, it shall set aside the default ordefault judgment on such terms as may be just and shall allow such aparty to defend the action in the proper court. (e) Unless the plaintiff can show that the plaintiff usedreasonable diligence to avoid filing the action in the impropercourt, upon a finding that the action was commenced in the impropercourt the court shall award the defendant actual damages and costs,including reasonable attorney's fees.

586. (a) In the following cases the same proceedings shall be had,and judgment shall be rendered in the same manner, as if thedefendant had failed to answer: (1) If the complaint has been amended, and the defendant fails toanswer it, as amended, or demur thereto, or file a notice of motionto strike, of the character specified in Section 585, within 30 daysafter service thereof or within the time allowed by the court. (2) If the demurrer to the complaint is overruled and a motion tostrike, of the character specified in Section 585, is denied, orwhere only one thereof is filed, if the demurrer is overruled or themotion to strike is denied, and the defendant fails to answer thecomplaint within the time allowed by the court. (3) If a motion to strike, of the character specified in Section585, is granted in whole or in part, and the defendant fails toanswer the unstricken portion of the complaint within the timeallowed by the court, no demurrer having been sustained or being thenpending. (4) If a motion to quash service of summons or to stay or dismissthe action has been filed, or writ of mandate sought and noticethereof given, as provided in Section 418.10, and upon denial of themotion or writ, the defendant fails to respond to the complaintwithin the time provided in that section or as otherwise provided bylaw. (5) If the demurrer to the answer is sustained and the defendantfails to amend the answer within the time allowed by the court. (6) (A) If a motion to transfer pursuant to Section 396b is deniedand the defendant fails to respond to the complaint within the timeallowed by the court pursuant to subdivision (e) of Section 396b orwithin the time provided in subparagraph (C). (B) If a motion to transfer pursuant to Section 396b is grantedand the defendant fails to respond to the complaint within 30 days ofthe mailing of notice of the filing and case number by the clerk ofthe court to which the action or proceeding is transferred or withinthe time provided in subparagraph (C). (C) If the order granting or denying a motion to transfer pursuantto Section 396a or 396b is the subject of an appeal pursuant toSection 904.2 in which a stay is granted or of a mandate proceedingpursuant to Section 400, the court having jurisdiction over thetrial, upon application or on its own motion after the appeal ormandate proceeding becomes final or upon earlier termination of astay, shall allow the defendant a reasonable time to respond to thecomplaint. Notice of the order allowing the defendant further time torespond to the complaint shall be promptly served by the party whoobtained the order or by the clerk if the order is made on the court's own motion. (7) If a motion to strike the answer in whole, of the characterspecified in Section 585, is granted without leave to amend, or if amotion to strike the answer in whole or in part, of the characterspecified in Section 585, is granted with leave to amend and thedefendant fails to amend the answer within the time allowed by thecourt. (8) If a motion to dismiss pursuant to Section 583.250 is deniedand the defendant fails to respond within the time allowed by thecourt. (b) For the purposes of this section, "respond" means to answer,to demur, or to move to strike.

587. An application by a plaintiff for entry of default undersubdivision (a), (b), or (c) of Section 585 or Section 586 shallinclude an affidavit stating that a copy of the application has beenmailed to the defendant's attorney of record or, if none, to thedefendant at his or her last known address and the date on which thecopy was mailed. If no such address of the defendant is known to theplaintiff or plaintiff's attorney, the affidavit shall state thatfact. No default under subdivision (a), (b), or (c) of Section 585 orSection 586 shall be entered, unless the affidavit is filed. Thenonreceipt of the notice shall not invalidate or constitute groundfor setting aside any judgment.

587.5. As used in this chapter, unless the context otherwisespecifically requires, the following terms apply: (a) "Complaint" includes a cross-complaint. (b) "Defendant" includes a cross-defendant. (c) "Plaintiff" includes a cross-complainant.