Banks v. Superior Court

Opinion

ROUSE, J.

Petitioners seek a writ of mandate to compel the Superior Court of the City and County of San Francisco to vacate its order denying a motion for a writ of attachment of real property of a nonresident defendant, made pursuant to Code of Civil Procedure, section 537, subdivision 3.

The record discloses that petitioners, partners in a travel agency located in San Francisco, brought an action against their former partner, now residing in Chicago, for damages caused by reason of the defendant’s fraudulent misappropriation of partnership funds. Contemporaneous with the filing of the complaint, petitioners filed a declaration for attachment of real property of the nonresident defendant located in San Bruno, California, pursuant to’ Code of Civil Procedure, section 537, subdivision 3, which authorizes a prejudgment attachment “In an action

against a defendant, not residing in this state,

or who has departed from the state,

[145]

or who cannot after due diligence be found within the state, or who conceals himself to avoid service of summons, to recover a sum of money as damages, arising from an injury to or death of a person, or damage to property in this state, in consequence of negligence, fraud, or other wrongful act.” (Italics added.) The court issued an ex parte order restraining the defendant from disposing of the property pending a. hearing on a motion for attachment.

Real party, the nonresident defendant, appeared and opposed the motion, asserting that Code of Civil Procedure, section 537, subdivision 3, was unconstitutional, in light of

Randone

v.

Appellate Department

(1971) 5 Cal.3d 536 [96 Cal.Rptr. 709, 488 P.2d 13]. After a hearing on the motion, the court denied the motion for writ of attachment and dissolved the temporary restraining order.

In

Randone