7/29/2019 Exparte Application

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10 Los Angeles LawyerMarch 2007

EX PARTE RELIEF is requested when it is impractical or impossible to

wait the minimum statutory period for the court to hear a regular

motion. California Rules of Court, Rules 3.1200-3.1207 contain

very specific guidelines for when and how ex parte relief should be

requested. A court will only grant ex parte relief for good cause. The

party seeking relief must demonstrate irreparable harm, immediate

danger, or some other statutory basis for granting relief.

Under most circumstances, before a party can seek ex parte relief,

it must notify all parties not later than 10 A.M. the court day before

the intended ex parte appearance. (Court days do not include week-

ends or holidays.) The person giving notice

must state with specificity the nature of the

relief requested and the date, time, and place

that an application will be made for relief (e.g.,

8:30 A.M. in Department 34 of the Los Angeles

Superior Court located at 111 North Hill

Street). In addition, the party must attempt to

determine whether any other party will appear

and oppose the relief requested.

Notice is best given by informing the other

parties by phone. If it is clear that the other par-

ties will not be opposing the ex parte relief,

counsel should attempt to stipulate for an

order. This way, the parties can avoid havingto appear in court. However, if the other par-

ties cannot be reached telephonically, leave a voice message and fol-

low up by sending a confirming e-mail or facsimile with all the per-

tinent information.

A request for ex parte relief from the court must be made in a writ-

ten application. In addition, a declaration must accompany the appli-

cation that makes a factual showing of the need for ex parte relief as

well as a description of the notice given, including the date, time, man-

ner, and name of the party informed and whether it is expected that

anyone will appear and oppose.

Ex parte applications should be drafted differently from regular

motions. The judge usually has little, if any, time to read the papers

before taking the bench, so it is crucial that the relief sought is clearly

stated on the caption page and in the memorandum of points and

authorities, and that the papers be concise.

A party seeking ex parte relief must personally appear to present

the application, unless the relief sought falls into three narrow cate-

gories: 1) permission to file a brief in excess of the page limit, 2) set-

ting hearing dates on alternative writs and orders to show cause, or

3) stipulations by the parties for an order.

A party opposing an ex parte application can orally oppose the

relief without filing a written opposition. However, it is helpful to state

in writing the reasons for opposing in the event the judge has time

to consider them before hearing argument. Opposing papers may be

filed directly with the clerk of the department on the morning of the

hearing.

In the Central District of Los Angeles, ex parte applications are

heard at 8:30 A.M., most often in the department to which the case

is assigned. Hearing times may differ in other districts. Before an appli-

cation will be heard and considered, several things need to occur. First,

the ex parte application must be file stamped at the main filing win-

dow, which opens at 8 A.M. The application requires a filing fee. From

there, it may be necessary to go to the records room to check out the

most recent volume of pleadings to bring to the department. The best

course of action is to call the clerk of the day before to see if the depart-

ment has the recent pleadings file or if it should be provided. It is impor-

tant to leave enough time to do this before the department opens its

doors. The court staff rarely accepts ex parte applications that are pre-

sented after 8:30 A.M.

Additional Requirements

Ex parte applications are most often heard after the courts morning

calendar, so be prepared to wait. Counsel are required to lodge a pro-

posed order that specifies the exact relief sought. The proposed order

should also contain a few blank lines in the event the court wishes

to add anything.

In addition, parties appearing at the ex parte hearing must serve

the ex parte application and any written opposition on all other

appearing parties at the first reasonable opportunity. In some cir-

cumstances, this may mean that the exchange should take place the

night before the hearing. Most often, the application is not completed

until after business hours the day before the hearing. Therefore, the

first reasonable opportunity may not be until the morning of the hear-

ing. The court will not conduct a hearing unless the parties have had

the opportunity to read each others papers.

Courts are already overburdened, so it is critical that a party

seeking ex parte relief has a good reason to do so and that the rules

are precisely followed.

barristers tips BY JAMES T. RYAN

Preparing for and Making an Ex Parte Application

First, the ex parte application must be file stamped at the main

filing window, which opens at 8 A.M. The application requires

a filing fee. From there, it may be necessary to go to the records

room to check out the most recent volume of pleadings.

James T. Ryan is an associate with the Feldhake Law Firm in Irvine, where he

focuses on complex business litigation.