§ 6212. Motion papers; undertaking; filing; demand; damages.
452 words·~2 min read·
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Rule 6212. Motion papers; undertaking; filing; demand; damages.
Affidavit; other papers. On a motion for an order of attachment, or for
an order to confirm an order of attachment, the plaintiff shall show, by
affidavit and such other written evidence as may be submitted, that
there is a cause of action, that it is probable that the plaintiff will
succeed on the merits, that one or more grounds for attachment provided
in section 6201 exist, and that the amount demanded from the defendant
exceeds all counterclaims known to the plaintiff.
(b)Undertaking. On a motion for an order of attachment, the plaintiff
shall give an undertaking, in a total amount fixed by the court, but not
less than five hundred dollars, a specified part thereof conditioned
that the plaintiff shall pay to the defendant all costs and damages,
including reasonable attorney's fees, which may be sustained by reason
of the attachment if the defendant recovers judgment or if it is finally
decided that the plaintiff was not entitled to an attachment of the
defendant's property, and the balance conditioned that the plaintiff
shall pay to the sheriff all of his allowable fees. The attorney for the
plaintiff shall not be liable to the sheriff for such fees. The surety
on the undertaking shall not be discharged except upon notice to the
sheriff.
(c)Filing. Within ten days after the granting of an order of
attachment, the plaintiff shall file it and the affidavit and other
papers upon which it was based and the summons and complaint in the
action. Unless the time for filing has been extended, the order shall
be invalid if not so filed, except that a person upon whom it is served
shall not be liable for acting upon it as if it were valid without
knowledge of the invalidity.
(d)Demand for papers. At any time after property has been levied
upon, the defendant may serve upon the plaintiff a written demand that
the papers upon which the order of attachment was granted and the levy
made be served upon him. Not more than one day after service of the
demand, the plaintiff shall cause the papers demanded to be served at
the address specified in the demand. A demand under this subdivision
shall not of itself constitute an appearance in the action.
(e)Damages. The plaintiff shall be liable to the defendant for all
costs and damages, including reasonable attorney's fees, which may be
sustained by reason of the attachment if the defendant recovers
judgment, or if it is finally decided that the plaintiff was not
entitled to an attachment of the defendant's property. Plaintiff's
liability shall not be limited by the amount of the undertaking.