ExParte Application for Order Shortening Time
Transcript of ExParte Application for Order Shortening Time
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Ken DOE1 XXX XXXSXXX & XXX LLPXYZXYZXYZXYZ
Attorney for Respondent JOHN DOE
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN ANDFOR THE COUNTY OF XYZ
JANE DOE, an individual,
Petitioner,
vs.
JOHN DOE, an individual,
Respondent
))))))))))))))))))))))
Case No.: X999999
NOTICE FOR EX PARTE APPLICATIONFOR ORDER SHORTENING TIMEAND SUPPORTING DECLARATIONS OFJOHN DOE; [PROPOSED] ORDERMEMORANDUM OF POINTS ANDAUTHORITIES;DECLARATION RE: ADVANCEDNOTICE;ANDORDER TO SHOW CAUSE,SUPPORTING DECLARATION OF JOHNDOE
Date : March 5, 2010 Time : 8:30 amDept : 33Judge :
TO PETITIONER AND HER ATTORNEY OF RECORD
NOTICE IS HEREBY GIVEN THAT on March 5, 2010 at 8:30am , in
Department 33 in the Hall of Justice Courthouse, Ventura Courthouse,
located at 800 South Victoria Blvd, Ventura, California, Attorney for
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Respondent, JOHN DOE, will be applying for an Order to shorten Time to hear
ORDER TO SHOW CAUSE FOR CHILD CUSTODY, CHILD VISITATION,
ATTORNEY FEES, SPOUSAL SUPPORT AND INJUNCTIVE ORDERS. In support of
this application, I can state the following based upon personal knowledge
and through the attached declarations of John Doe.
Attached to this application is a copy the Order to Show Cause which
can be filed and served upon Petitioner immediately upon the granting of
this Order.
The delay in hearing this matter after the normal time for service of
the above-described papers would cause a substantial hardship to
Respondent because Petitioner has obtained Ex-Parte Temporary Orders on
February 22, 2010, in which Petitioner has been stripped of his ability to
access his business and money, along with Petitioner obtaining Orders which
have frozen Bank Accounts that are critical to the functioning of the
community business, including paying payroll, vendors and building lease.
Defendant is unable to obtain an earlier date from the Court, other than the
middle of June 2010, in which to hear this Motion as Mediation is required
for this Motion to be heard. This application is further based on the Courts
inherent equitable powers.
This application is made on the grounds that Petitioner has made
statements to the Court in support of her obtaining the Temporary Order that
do not comport to any reasonable expectation of the truth.
This motion will be based on this Application, the declarations of John
Doe and Ken DOE1 attached hereto, Memorandum of points and authorities
served and filed herewith, [Proposed] Order and the Order to Show Cause,
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supporting declaration of JOHN DOE and on such oral and documentary
evidence as may be presented at the hearing on this Motion.
Counsel for Respondent has notified Petitioners Counsel, Ms. ABC, by
telephone at the phone number listed on the State Bar of California Bar,
Attorney Listing Website ((999) 999-0999), and spoke to her assistant Mr.
DCD at 8:55am on March 2, 2010. I informed him of this Ex Parte Hearing
for an Order Shortening Time to be held in Department 33 at 8:30am on
March 5, 2010. I further transmitted via facsimile a copy of this notice along
with moving papers to Counsel at (866) 9999-5999, the fax number State
Bar of California Bar, Attorney Listing Website.
Dated this 2nd day of March, 2010 atSimi Valley California
By:Ken DOE1Attorney for Respondent
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Ken DOE1 XXXXXXSXXX & XXX LLPXYZXYZXYZFAX 999-999-9999
Attorney for Respondent JOHN DOE
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN ANDFOR THE COUNTY OF XYZ
JANE DOE, an individual,
Petitioner,
vs.
JOHN DOE, an individual,
Respondent
)))))))))))))))))))
Case No.: X999999
APPLICATION FOR ORDERSHORTENING TIME
Date : March 5, 2010 Time : 8:30 amDept : 33Judge :
I, Ken DOE1, declare as follows;
1) I am the attorney retained for Respondent John Doe in this action, who
has been substituted in from previous counsel on March 1, 2010. I am
an attorney registered to practice in the State of California.
2) I am the new counsel for the Respondent, and previous counsel has
not submitted any responses to Petitioners Order to Show Cause and
had not prepared any Orders to Show Cause to protect Respondents
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access to his children and his business. I am requesting an Order
shortening time in order to promote judicial economy and to protect
Respondents rights and to raise issues that should have been
presented to the Court during the Ex Parte Hearing held on February
22, 2010.
3) I have prepared an Order to Show Cause for child custody, visitation,
support and injunctive orders and have attached it herewith, and I am
seeking the Courts permission to reduce the time for service of this
Order.
4) It is necessary that time for service of the Order to Show Cause for
child custody, child visitation, attorney fees, spousal support and
injunctive orders, (said Order to Show Cause filed herewith), be
shortened so that this matter may be heard on March 21, 2010, which
is the date that the Court is set to hear oral arguments on the
remaining issues on Petitioners Order to Show Cause.
5) It is in the interest of judicial economy to hear these related actions
together and to set custody, visitation and support orders in a single
hearing.
6) It is also in the best interests of this Court to be able to have properly
prepared arguments on issues raised Petitioner in their Order to Show
Cause, said arguments not being presented in the Ex Parte Hearing of
February 22, 2010.
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7) Respondent, due to Court Rules, is unable to file an Order to Show
Cause regarding custody or visitation of his children for at least 3
months according to the filing clerk for family law, as mediation is
required and the first available mediation appointment is in the
middle of June. This Court has already made Temporary Orders
regarding custody and visitation solely based upon the Declaration of
Petitioner, said Declaration wrought with errors and misstatements of
facts.
8) There are also economic consequences of not hearing Respondents
Order to Show Cause to the family business within this time frame.
Currently, Respondent has been barred from the business, which is his
only source of income, and Petitioner has demonstrated that her
inability to conduct the family business in a profitable manner is
lacking.
9) I have given proper notice to Petitioners attorney as stated in my
declaration.
Dated : _______________
Law Offices of Ken DOE1
_________________________Attorney for Respondent
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Ken DOE1 XXXXXXSXXX & XXX LLPXYZXYZXYZFAX 999-999-9999
Attorney for Respondent JOHN DOE
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN ANDFOR THE COUNTY OF XYZ
JANE DOE, an individual,
Petitioner,
vs.
JOHN DOE, an individual,
Respondent
)))))))))))))))))))
Case No.: X999999
[PROPOSED] ORDER,
Date : March 5, 2010 Time : 8:30 amDept : 33 Judge : 0
Having read and considered the application requesting an order
shortening time for a hearing on Respondents Order to Show Cause and
good cause appearing therefore,
IT IS SO ORDERED THAT
1. The application is granted.
2. The hearing on Respondents Order to Show Cause shall take
place in Department 33 on March 21, 2010 at 8:30 am.
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3. The time for service of the Respondents Order to Show
Cause is shortened. Service of this order and the motion,
including the supporting documents shall be accomplished by
personal service or facsimile transmission no later than
____________ at __________.
4. All papers opposing the motion must be filed and served by
facsimile transmission no later than _______________ at
__________. Immediately below the date time and place of the
hearing, the opposition papers must include the following
notation:
OPPOSITION FILED ON ______________
PURSUANT TO EX PARTE O.S.T
ISSUED ON ___________ (date of order shortening
time)
5. Any reply papers must be filed and served by facsimile
transmission no later than _______________ at _____________.6. Proof of service of the motion and this order must be filed no
later than _______________ at _________.
Dated : ____________________ ________________________ 0Judge Superior Court
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MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF FACTS
The Respondent has a meritorious defense to the actions taken on
February 22, 2010, in that he did not get notice due to the circumstances of
service. Respondent was not informed of the Ex Parte Action of February 22,
2010, whereby he lost access to his business, which is only means of income,
and has lost access to see his Children, very drastic consequences when
Respondent did not have the opportunity to defend himself or to counter the
arguments made by the Petitioner.
Respondent is attempting to be heard on issues that are necessary to
be before this Court but his only avenue is to file his own Order to Show
Cause, which would not be heard until the middle of June, due to Court Rules
regarding mediation.
I.
COURT HAS JURISDICTION
This Court has the jurisdiction to rule on this Ex Parte Application along
with the accompanying Order to Show Cause.
Ventura County Rules of Court 15.01 states that an application for anex parte order shall be presented to the judge to whom the matter isassigned.
Venue is not being objected to by the Respondent and Respondent
is not challenging the jurisdiction of this court
II.
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COURT HAS POWER TO ALLOW FOR A SHORTERAMOUNT OF TIME TO REPLY TO A MOTION
A hearing date on an OSC "must be selected to comply with the
CCP 1005(b) minimum notice period . . ., absent an order shortening
time." (Hogoboom & King, Cal. Practice Guide: Family Law, supra, 17:367,
p. 17-90 (rev. #1, 2005).) An order shortening time may be requested
when filing the OSC. "The request should be made on the appropriate
application form . . ., setting forth evidentiary facts why a shorter notice
period is necessary." (Id., 5:349, p. 5-133 (rev. # 1, 2005), as cited in In
re Marriage of Seagondollar, 139 Cal. App. 4th 1116, 43 Cal.Rptr.3d 575
(Cal. App., 2006) .
Rule 3.1300 of the California Rules of Court, states the time filing
and service of motion papers shall be in accordance with the California
Code of Civil Procedure section 1005. The Court does, under subsection (b)
of the same Rule, have power on its own motion or on application for an
order shortening time supported by a declaration showing good cause, to
prescribe shorter times for the filing and service of papers than the times
specified in Code of Civil Procedure section 1005. Respondent seeks for
the Court to exercise its powers and reduce the amount of time for service
of Respondents Order to Show Cause, so that Respondents Order can be
heard at the same time of Petitioners Order to Show Cause on March 21,
2010.
It is in the best interest of justice to have both Orders heard at the
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same time. The matters are closely intertwined and the Respondent would
have to wait until the middle of June to be heard elsewise. It is also shown
in the attached declarations that Respondents business has been taken
from him based on improper grounds and without any opportunity to be
heard on the issues. Immediacy of hearing this issue of his removal his
family and from his only source of income must be heard sooner rather
than later. As previously stated, Petitioners OSC, which caused
Respondents loss of business access, is scheduled to be heard on March
21, 2010, and Respondent is asking for the same date so that his OSC can
be heard.
III.
PETITIONER WILL NOT BE PREJUDICED BY THEGRANTING OF THE ORDER SHORTENING TIME
Though the Courts not do have a definitive listing of criterion on which
to base whether a Motion for an Order Shortening Time should be granted, at
least one case parallels issues in this current matter. In the Farrar, the
Plaintiff already had papers for a Motion already pending before the court
and when the Defendant wanted to shorten the time for response to a 583(a)
Motion, the Court did not find that the trial court abused their discretion in
granting the Motion for Shortening Time based upon the previously filed
Motion. Here, plaintiff already had such a motion on file, so that he was
unaffected by the shortened notice of defendant's motion; he suffered no
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prejudice thereby." (Farrar v. McCormick, 102 Cal.Rptr. 190, 25 Cal.App.3d
701, 705 (Cal. App. 2 Dist., 1972).
To use the same precepts, Petitioner already has their Motion
scheduled for March 21, 2010, and by granting this Motion, Petitioner will
have more than 15 days to prepare any opposition to Respondents Motion,
which is primarily based upon refuting Petitioners claims introduced in
Petitioners Motion. Respondent demonstrates that Petitioner will not be
prejudiced by the granting of this Motion to shorten time.
IV.CONCLUSION
Based upon the foregoing analysis of the current law and updated
Rules of Court, Respondent respectfully requests that the Court grant this
Order to Shorten Time and hear Respondents Order to Show Cause at the
same time of Petitioners Order to Show Cause, March 21, 2010.
Dated : _______________
Law Offices of Ken DOE1
_________________________Attorney for Respondent
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