2010 California Code

Code of Civil Procedure

Article 2. Writ Of Possession
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.

CODE OF CIVIL PROCEDURE

SECTION 585-587.5

585. Judgment may be had, if the defendant fails to answer the

complaint, as follows:
(a) In an action arising upon contract or judgment for the
recovery of money or damages only, if the defendant has, or if more
than one defendant, if any of the defendants have, been served, other
than by publication, and no answer, demurrer, notice of motion to
strike of the character specified in subdivision (f), notice of
motion to transfer pursuant to Section 396b, notice of motion to
dismiss pursuant to Article 2 (commencing with Section 583.210) of
Chapter 1.5 of Title 8, notice of motion to quash service of summons
or to stay or dismiss the action pursuant to Section 418.10, or
notice of the filing of a petition for writ of mandate as provided in
Section 418.10 has been filed with the clerk of the court within the
time specified in the summons, or within further time as may be
allowed, the clerk, upon written application of the plaintiff, and
proof of the service of summons, shall enter the default of the
defendant or defendants, so served, and immediately thereafter enter
judgment for the principal amount demanded in the complaint, in the
statement required by Section 425.11, or in the statement provided
for in Section 425.115, or a lesser amount if credit has been
acknowledged, together with interest allowed by law or in accordance
with the terms of the contract, and the costs against the defendant,
or defendants, or against one or more of the defendants. If, by rule
of court, a schedule of attorneys' fees to be allowed has been
adopted, the clerk may include in the judgment attorneys' fees in
accordance with the schedule (1) if the contract provides that
attorneys' fees shall be allowed in the event of an action thereon,
or (2) if the action is one in which the plaintiff is entitled by
statute to recover attorneys' fees in addition to money or damages.
The plaintiff shall file a written request at the time of application
for entry of the default of the defendant or defendants, to have
attorneys' fees fixed by the court, whereupon, after the entry of the
default, the court shall hear the application for determination of
the attorneys' fees and shall render judgment for the attorneys' fees
and for the other relief demanded in the complaint, in the statement
required by Section 425.11, or in the statement provided for in
Section 425.115, or a lesser amount if credit has been acknowledged,
and the costs against the defendant, or defendants, or against one or
more of the defendants.
(b) In other actions, if the defendant has been served, other than
by publication, and no answer, demurrer, notice of motion to strike
of the character specified in subdivision (f), notice of motion to
transfer pursuant to Section 396b, notice of motion to dismiss
pursuant to Article 2 (commencing with Section 583.210) of Chapter
1.5 of Title 8, notice of motion to quash service of summons or to
stay or dismiss the action pursuant to Section 418.10 or notice of
the filing of a petition for writ of mandate as provided in Section
418.10 has been filed with the clerk of the court within the time
specified in the summons, or within further time as may be allowed,
the clerk, upon written application of the plaintiff, shall enter the
default of the defendant. The plaintiff thereafter may apply to the
court for the relief demanded in the complaint. The court shall hear
the evidence offered by the plaintiff, and shall render judgment in
the plaintiff's favor for that relief, not exceeding the amount
stated in the complaint, in the statement required by Section 425.11,
or in the statement provided for by Section 425.115, as appears by

the evidence to be just. If the taking of an account, or the proof of

any fact, is necessary to enable the court to give judgment or to
carry the judgment into effect, the court may take the account or
hear the proof, or may, in its discretion, order a reference for that
purpose. If the action is for the recovery of damages, in whole or
in part, the court may order the damages to be assessed by a jury; or
if, to determine the amount of damages, the examination of a long
account is involved, by a reference as above provided.
(c) In all actions where the service of the summons was by
publication, upon the expiration of the time for answering, and upon
proof of the publication and that no answer, demurrer, notice of
motion to strike of the character specified in subdivision (f),
notice of motion to transfer pursuant to Section 396b, notice of
motion to dismiss pursuant to Article 2 (commencing with Section
583.210) of Chapter 1.5 of Title 8, notice of motion to quash service
of summons or to stay or dismiss the action pursuant to Section
418.10, or notice of the filing of a petition for writ of mandate as
provided in Section 418.10 has been filed, the clerk, upon written
application of the plaintiff, shall enter the default of the
defendant. The plaintiff thereafter may apply to the court for the
relief demanded in the complaint; and the court shall hear the
evidence offered by the plaintiff, and shall render judgment in the
plaintiff's favor for that relief, not exceeding the amount stated in
the complaint, in the statement required by Section 425.11, or in
the statement provided for in Section 425.115, as appears by the
evidence to be just. If the defendant is not a resident of the state,
the court shall require the plaintiff, or the plaintiff's agent, to
be examined, on oath, respecting any payments that have been made to
the plaintiff, or to anyone for the plaintiff's use, on account of
any demand mentioned in the complaint, in the statement required by
Section 425.11, or in the statement provided for in Section 425.115,
and may render judgment for the amount that the plaintiff is entitled
to recover. In all cases affecting the title to or possession of
real property, where the service of the summons was by publication
and the defendant has failed to answer, no judgment shall be rendered
upon proof of mere occupancy, unless the occupancy has continued for
the time and has been of the character necessary to confer title by
prescription. In all cases where the plaintiff bases a claim upon a
paper title, the court shall require evidence establishing the
plaintiff's equitable right to judgment before rendering judgment. In
actions involving only the possession of real property where the
complaint is verified and shows by proper allegations that no party
to the action claims title to the real property involved, either by
prescription, accession, transfer, will, or succession, but only the
possession thereof, the court may render judgment upon proof of
occupancy by plaintiff and ouster by defendant.
(d) In the cases referred to in subdivisions (b) and (c), or upon
an application to have attorneys' fees fixed by the court pursuant to
subdivision (a), the court in its discretion may permit the use of
affidavits, in lieu of personal testimony, as to all or any part of
the evidence or proof required or permitted to be offered, received,
or heard in those cases. The facts stated in the affidavit or
affidavits shall be within the personal knowledge of the affiant and
shall be set forth with particularity, and each affidavit shall show
affirmatively that the affiant, if sworn as a witness, can testify
competently thereto.
(e) If a defendant files a cross-complaint against another

defendant or the plaintiff, a default may be entered against that

party on that cross-complaint if the plaintiff or that
cross-defendant has been served with that cross-complaint and has
failed to file an answer, demurrer, notice of motion to strike of the
character specified in subdivision (f), notice of motion to transfer
pursuant to Section 396b, notice of motion to dismiss pursuant to
Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title
8, notice of motion to quash service of summons or to stay or dismiss
the action pursuant to Section 418.10, or notice of the filing of a
petition for a writ of mandate as provided in Section 418.10 within
the time specified in the summons, or within another time period as
may be allowed. However, no judgment may separately be entered on
that cross-complaint unless a separate judgment may, in fact, be
properly awarded on that cross-complaint and the court finds that a
separate judgment on that cross-complaint would not substantially
delay the final disposition of the action between the parties.
(f) A notice of motion to strike within the meaning of this
section is a notice of motion to strike the whole or any part of a
pleading filed within the time which the moving party is required
otherwise to plead to that pleading. The notice of motion to strike
shall specify a hearing date set in accordance with Section 1005. The
filing of a notice of motion does not extend the time within which
to demur.

585.5. (a) Every application to enter default under subdivision (a)

of Section 585 shall include, or be accompanied by, an affidavit
stating facts showing that the action is or is not subject to Section
1812.10 or 2984.4 of the Civil Code or subdivision (b) of Section
395.
(b) When a default or default judgment has been entered without
full compliance with Section 1812.10 or 2984.4 of the Civil Code, or
subdivision (b) of Section 395, the defendant may serve and file a
notice of motion to set aside the default or default judgment and for
leave to defend the action in the proper court. The notice of motion
shall be served and filed within 60 days after the defendant first
receives notice of levy under a writ of execution, or notice of any
other procedure for enforcing, the default judgment.
(c) A notice of motion to set aside a default or default judgment
and for leave to defend the action in the proper court shall
designate as the time for making the motion a date prescribed by
subdivision (b) of Section 1005, and it shall be accompanied by an
affidavit showing under oath that the action was not commenced in the
proper court according to Section 1812.10 or 2984.4 of the Civil
Code or subdivision (b) of Section 395. The party shall serve and
file with the notice a copy of the answer, motion, or other pleading
proposed to be filed in the action.
(d) Upon a finding by the court that the motion was made within
the period permitted by subdivision (b) and that the action was not
commenced in the proper court, it shall set aside the default or
default judgment on such terms as may be just and shall allow such a
party to defend the action in the proper court.
(e) Unless the plaintiff can show that the plaintiff used
reasonable diligence to avoid filing the action in the improper
court, upon a finding that the action was commenced in the improper
court 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 the
defendant had failed to answer:
(1) If the complaint has been amended, and the defendant fails to
answer it, as amended, or demur thereto, or file a notice of motion
to strike, of the character specified in Section 585, within 30 days
after service thereof or within the time allowed by the court.
(2) If the demurrer to the complaint is overruled and a motion to
strike, of the character specified in Section 585, is denied, or
where only one thereof is filed, if the demurrer is overruled or the
motion to strike is denied, and the defendant fails to answer the
complaint within the time allowed by the court.
(3) If a motion to strike, of the character specified in Section
585, is granted in whole or in part, and the defendant fails to
answer the unstricken portion of the complaint within the time
allowed by the court, no demurrer having been sustained or being then
pending.
(4) If a motion to quash service of summons or to stay or dismiss
the action has been filed, or writ of mandate sought and notice
thereof given, as provided in Section 418.10, and upon denial of the
motion or writ, the defendant fails to respond to the complaint
within the time provided in that section or as otherwise provided by
law.
(5) If the demurrer to the answer is sustained and the defendant
fails to amend the answer within the time allowed by the court.
(6) (A) If a motion to transfer pursuant to Section 396b is denied
and the defendant fails to respond to the complaint within the time
allowed by the court pursuant to subdivision (e) of Section 396b or
within the time provided in subparagraph (C).
(B) If a motion to transfer pursuant to Section 396b is granted
and the defendant fails to respond to the complaint within 30 days of
the mailing of notice of the filing and case number by the clerk of
the court to which the action or proceeding is transferred or within
the time provided in subparagraph (C).
(C) If the order granting or denying a motion to transfer pursuant
to Section 396a or 396b is the subject of an appeal pursuant to
Section 904.2 in which a stay is granted or of a mandate proceeding
pursuant to Section 400, the court having jurisdiction over the
trial, upon application or on its own motion after the appeal or
mandate proceeding becomes final or upon earlier termination of a
stay, shall allow the defendant a reasonable time to respond to the
complaint. Notice of the order allowing the defendant further time to
respond to the complaint shall be promptly served by the party who
obtained 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 character
specified in Section 585, is granted without leave to amend, or if a
motion to strike the answer in whole or in part, of the character
specified in Section 585, is granted with leave to amend and the
defendant fails to amend the answer within the time allowed by the
court.
(8) If a motion to dismiss pursuant to Section 583.250 is denied
and the defendant fails to respond within the time allowed by the
court.

(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 under

subdivision (a), (b), or (c) of Section 585 or Section 586 shall
include an affidavit stating that a copy of the application has been
mailed to the defendant's attorney of record or, if none, to the
defendant at his or her last known address and the date on which the
copy was mailed. If no such address of the defendant is known to the
plaintiff or plaintiff's attorney, the affidavit shall state that
fact.
No default under subdivision (a), (b), or (c) of Section 585 or
Section 586 shall be entered, unless the affidavit is filed. The
nonreceipt of the notice shall not invalidate or constitute ground
for setting aside any judgment.
587.5. As used in this chapter, unless the context otherwise
specifically requires, the following terms apply:
(a) "Complaint" includes a cross-complaint.
(b) "Defendant" includes a cross-defendant.
(c) "Plaintiff" includes a cross-complainant.