(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.
(Added by Stats. 1973, Ch. 526.)
Last modified: October 25, 2018