Attachment Not Available for Punitive Damages in Elder Abuse Claims

Timothy Kowal, Esq.
November 14, 2022

When a nonagenarian’s new 35-years-junior wife started liquidated his assets, his daughter, Lisa Royals, intervened. In her resulting lawsuit of Royals v. Lu (D1d4 Jul. 18, 2022) 81 Cal.App.5th 328., not only did Royals allege almost $1.1 million in financial elder abuse, she also sought a writ of attachment for three times that amount—apparently based on statutory penalties and attorney fees. And despite the requirement that attachments be based on retrospective rather than prospective debts, the trial court issued a $3.4 million attachment order.

The First District Court of Appeal reversed. Royals’s pleadings were “unclear what justified an attachment amount of more than three times the actual damages that Royals pleaded on information and belief.” And even after the appellate court’s request for supplemental briefing on that point, the court found “Royals’s elusiveness” to be “troubling.”

The trial court did not cover itself in glory either. The trial court “might have insisted upon an evidentiary and legal foundation” for the $3.4 million attachment request, but instead “did not question” the request “and simply rubber-stamped it.”

This is not now the attachment statutes work. (Code Civ. Proc., § 483.010 et seq.) The statutes require a sworn affidavit stating the requested amount, and stating that the amount is based on an existing indebtedness in a fixed or readily ascertainable amount. Pleading damages based on penalties and punitive damages, or in “an open-ended way” to justify an inflated damages award, cannot satisfy the attachment statutes.

The court suggests the correct way forward: “Had Royals supported her attachment request with competent proof and a sufficiently specific statement of the amount she sought to secure, her prayer for compensatory damages could be considered a claim for “indebtedness” subject to attachment, as could her prayer for attorney fees and costs, an additional mandatory item of recovery in a financial elder abuse action (Welf. & Inst. Code, § 15657.5., subd. (a)) that is expressly attachable under the Attachment Law (Code Civ. Proc., §§ 483.015, subd. (a)(2), 482.110). But a claim for punitive damages recovery is meant to deter and punish, not to make anyone whole.”

A trial court has no jurisdiction to vacate an order on appeal.

Royals got wise that the Court of Appeal was going to reverse her attachment order. So Royals asked the trial court to vacate it, which the trial court did. Royals then moved to dismiss the appeal of the attachment order on grounds that, now that the attachment was vacated, the appeal was moot.

No dice. The trial court’s vacatur of the attachment was a nullity: “a trial court has no jurisdiction to vacate, modify or otherwise change an order that is the subject of a pending appeal. (Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 12, 270 Cal.Rptr. 346 [“Until remittitur issues, the lower court cannot act upon the reviewing court's decision; remittitur ensures in part that only one court has jurisdiction over the case at any one time.”].)”

Royals argued that the trial court had jurisdiction to stay the attachment order pending appeal (upon posting a bond per Code of Civil Procedure section 917.65), so by extension the trial court had jurisdiction to vacate the order as well. “This logic is flawed,” the Court of Appeal concluded. “There is a material difference between enforcement and vacatur.”

So despite the trial court’s thinking better of the attachment order, the Court of Appeal denied the motion to dismiss as moot, kept the appeal, and issued a published opinion enforcing the affidavit and indebtedness requirements of the attachment statutes, and rejected the use of attachment orders to collect punitive damages prejudgment.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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