§ 512.040.Notice of Application and Hearing

Title 7. Other Provisional Remedies In Civil Actions · Chapter 2. Claim and Delivery of Personal Property · Article 2. Writ of Possession · Enacted 1973 · no amendments on record · Last verified July 28, 2026

In one sentenceSection 512.040 spells out what the Notice of Application and Hearing must tell the defendant -- the hearing's time and place, that it decides only probable validity, how to oppose the writ through an affidavit or undertaking, and the recommendation to consult an attorney promptly.

Full Text of § 512.040

Text sizeJump to: (a) (b) (c) (d)

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."

Plain-English Summary

This notice is the defendant's roadmap for the upcoming hearing. It must state the time and place set for the hearing on the plaintiff's application, and it must explain, in terms the statute itself dictates, that the writ will issue if the court finds the plaintiff's claim probably valid and the other statutory requirements met — but that the hearing does not decide the claim's merits. That determination comes later, in the action itself, and stays unaffected by whatever the court decides at the writ hearing.

The notice must also tell the defendant how to fight back: file either an affidavit with evidence sufficient to defeat the plaintiff's right to the writ, or an undertaking to stay delivery of the property under § 515.020. Finally, subdivision (d) requires the notice to include the statute's own suggested language urging the defendant to consult an attorney promptly, well before the hearing date.

Frequently Asked Questions

Does the hearing on a writ of possession decide whether the plaintiff's claim is valid on the merits?

No. Section 512.040(b) requires the notice to explain that the hearing decides only probable validity; the merits are determined later in the action and unaffected by the hearing's outcome.

How can a defendant oppose the issuance of a writ of possession?

By filing an affidavit with evidence sufficient to defeat the plaintiff's right to the writ, or by filing an undertaking to stay delivery of the property under § 515.020.

Does the notice have to mention consulting an attorney?

Yes, § 512.040(d) requires the notice to include language recommending the defendant consult an attorney promptly, before the hearing.

Amendment History

Added by Stats. 1973, Ch. 526.

Source & verification. Section text is reproduced verbatim from the Deering's California Codes Annotated / vLex. Enacted by the California Legislature. Last verified July 28, 2026. · Official source

Also known as: notice of application and hearing writ of possession california