Ex Parte Application Filing Tips

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By Barbara Haubrich-Hass, ACP/CAS

Complex-Civil-LitigationYour attorney comes into your office to talk to you about a case development.  In that particular case, the pre-trial motion filing cut-off is only days away, and an unexpected discovery dispute has arisen.  Your attorney says, “I need a motion to compel the deposition of witness, I. C. Everything, and I need the motion heard next week!”  What do you do?  Thankfully, California Rules of Court (“CRC”) Rules 3.1200 through 3.1207 provide a way to request an ex parte application from the court for an order shortening time to file and serve a notice of motion for particular relief sought.

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.   CRC Rules 3.1200 through 3.1207 set forth very specific guidelines for when and how ex parte relief is to 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.

Background:

  1. Important Cut-Offs to Remember: California Code of Civil Procedure (“CCP”) § 2024.020(a) states that discovery in a civil matter must be completed on or before the 30th day before the initial trial date, and to have motions concerning discovery heard on or before the 15th day before trial.  Additionally,  CCP § 2024.030 states that expert witness discovery must be completed on or before the 15th day, and to have all motions concerning expert witnesses heard on or before the 10th day prior to the initial trial date.
  2. Motion Filing Requirements: CCP § 1005(b) states that all motions shall be served and filed at least 16 court days prior to the hearing.  If the notice is served by mail within California, the notice period shall be increased by five calendar days, 10 calendar days if either the place of mailing or the place of address is outside of California but within the United States, 20 calendar days if either the place of mailing or the place of address is outside the United States, and if the notice is served by facsimile or overnight mail, the notice period is increased by two calendar days.
  3. Ex Parte Application: CCP § 1005(b) and CRC Rule 3.1300(b) both state that the Court may prescribe a shorter time for filing and service of a Motion than the time specified in CCP § 1005.

Procedural Requirements:

Parties seeking ex parte relief must comply with all of the statutes and rules applicable to the specific relief being sought.  Below are a few of the essential requirements that parties must comply with:

  1. Required Documents: A request for ex parte relief must be in writing and must include all of the following documents:  “(1)An application containing the case caption and stating the relief requested; (2)A declaration in support of the application making the factual showing required under Rule 3.1202(c); (3)A declaration based on personal knowledge of the notice given under Rule 3.1204; (4)A memorandum; and (5)A proposed order.”  [CRC Rule 3.1201]
  2. Contents of the Application: “(a)  An ex parte application must state the name, address, and telephone number of any attorney known to the applicant to be an attorney for any party or, if no such attorney is known, the name, address, and telephone number of the party if known to the applicant.  (b)  If an ex parte application has been refused in whole or in part, any subsequent application of the same character or for the same relief, although made upon an alleged different state of facts, must include a full disclosure of all previous applications and of the court's actions.  (c) An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.”  [CRC Rule 3.1201]
  3. Time of Notice to Other Parties: “A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice.”  [CRC 3.1203]
  4. Content of Notice:  “When notice of an ex parte application is given, the person giving notice must:  (1)State with specificity the nature of the relief to be requested and the date, time, and place for the presentation of the application; and (2)Attempt to determine whether the opposing party will appear to oppose the application.”  [CRC Rule 3.1204(a)]
  5. Declaration Regarding Notice:   “An ex parte application must be accompanied by a declaration regarding notice stating:  (1)The notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected and that, within the applicable time under Rule 3.1203, the applicant informed the opposing party where and when the application would be made;  (2)That the applicant in good faith attempted to inform the opposing party but was unable to do so, specifying the efforts made to inform the opposing party; or  (3)That, for reasons specified, the applicant should not be required to inform the opposing party. If notice was provided later than 10:00 a.m. the court day before the ex parte appearance, the declaration regarding notice must explain the exceptional circumstances that justify the shorter notice.”  [Rule 3.1204(b)(c)]
  6. Service of papers: “Parties appearing at the ex parte hearing must serve the ex parte application or any written opposition on all other appearing parties at the first reasonable opportunity. Absent exceptional circumstances, no hearing may be conducted unless such service has been made.”  [Rule 3.1206]
  7. Personal Appearance Requirements: A party seeking ex parte relief must personally appear to present the application, unless the relief sought falls into three narrow categories:  “(1) Applications to file a memorandum in excess of the applicable page limit; (2) Applications for extensions of time to serve pleadings; (3) Setting of hearing dates on alternative writs and orders to show cause; and (4) Stipulations by the parties for an order.”  [Rule 3.1207]

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When my attorney comes to me and tells me that he needs a motion heard next week, what he is really telling me is that I need to write a draft motion and ex parte application for his review and to have it prepared and ready for filing immediately.  When faced with this task, this is how I go about it.   As always, do not implement these tips without your attorney’s approval.

  1. I check on the court’s website for the county within which I am filing the ex parte application to read the local rules of court for filing an ex parte application.  Each county has their own local rules of court that you must follow in order to file an ex parte application.
  2. I check my attorney’s calendar to see when he is available for the ex parte hearing.  This will provide me with an internal deadline to finalize and file the documents so that the hearing can be heard on a date that my attorney is already available.
  3. I do not call the court clerk to secure a date for the ex parte hearing until after I have prepared the motion and ex parte application, and the attorney approves it for filing.   The reason I wait until the documents are prepared is because once you obtain the date for the ex parte hearing, the clock starts ticking on the deadline to file the documents with the court.  For example, in Kern County Superior Court, the ex parte documents must be filed with the court no later than 12:00 noon the day before the scheduled hearing time.   Therefore, I wait until the documents are prepared, then I call the court to obtain the date, making it easier and less stressful to meet the very narrow filing deadline.
  4. The Ex Parte Application will require a filing fee.  If the court requires the actual motion to be filed at the same time as the Ex Parte Application, then you will need an additional filing fee for the motion.
  5. Twenty-Four (24) hours’ notice must be given to opposing counsel of the ex parte hearing.  When calling opposing counsel to place them on notice of the ex parte hearing, I first ask to speak to the attorney.  It is always best to try to speak with an attorney first.  If the opposing attorney is not available, the next person I ask to speak to is the opposing attorney’s paralegal.  If the paralegal is not available, I then ask to speak to a person authorized to accept ex parte hearing notification on behalf of the firm.  I jot down on a piece of paper the date and time that I made the telephone call, the name of the person that I spoke to and his or her capacity (such as an attorney, paralegal, or secretary) and the substance of the conversation.   This helps me when preparing the required declaration that notice has been given in a timely fashion.
  6. As a matter of professional courtesy, in addition to mailing a copy of the documents, I fax or scan and e-mail a copy of the Ex Parte Application and Motion to opposing counsel on the same day that I provided notice of the hearing.

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