barristers tips

BY JAMES T. RYAN

Preparing for and Making an Ex Parte Application
In the Central District of Los Angeles, ex parte applications are EX PARTE RELIEF is requested when it is impractical or impossible to wait the minimum statutory period for the court to hear a regular heard at 8:30 A.M., most often in the department to which the case motion. California Rules of Court, Rules 3.1200-3.1207 contain is assigned. Hearing times may differ in other districts. Before an applivery specific guidelines for when and how ex parte relief should be cation will be heard and considered, several things need to occur. First, requested. A court will only grant ex parte relief for good cause. The the ex parte application must be file stamped at the main filing winparty seeking relief must demonstrate irreparable harm, immediate dow, which opens at 8 A.M. The application requires a filing fee. From danger, or some other statutory basis for granting relief. there, it may be necessary to go to the records room to check out the Under most circumstances, before a party can seek ex parte relief, most recent volume of pleadings to bring to the department. The best it must notify all parties not later than 10 A.M. the court day before course of action is to call the clerk of the day before to see if the departthe intended ex parte appearance. (Court days do not include week- ment has the recent pleadings file or if it should be provided. It is imporends or holidays.) The person giving notice must state with specificity the nature of the relief requested and the date, time, and place First, the ex parte application must be file stamped at the main 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 filing window, which opens at 8 A.M. The application requires Street). In addition, the party must attempt to determine whether any other party will appear and oppose the relief requested. a filing fee. From there, it may be necessary to go to the records Notice is best given by informing the other parties by phone. If it is clear that the other parties will not be opposing the ex parte relief, room to check out the most recent volume of pleadings. counsel should attempt to stipulate for an order. This way, the parties can avoid having to appear in court. However, if the other parties cannot be reached telephonically, leave a voice message and fol- tant to leave enough time to do this before the department opens its low up by sending a confirming e-mail or facsimile with all the per- doors. The court staff rarely accepts ex parte applications that are pretinent information. sented after 8:30 A.M. A request for ex parte relief from the court must be made in a written application. In addition, a declaration must accompany the appli- Additional Requirements cation that makes a factual showing of the need for ex parte relief as Ex parte applications are most often heard after the court’s morning well as a description of the notice given, including the date, time, man- calendar, so be prepared to wait. Counsel are required to lodge a proner, and name of the party informed and whether it is expected that posed order that specifies the exact relief sought. The proposed order anyone will appear and oppose. should also contain a few blank lines in the event the court wishes Ex parte applications should be drafted differently from regular to add anything. motions. The judge usually has little, if any, time to read the papers In addition, parties appearing at the ex parte hearing must serve before taking the bench, so it is crucial that the relief sought is clearly the ex parte application and any written opposition on all other stated on the caption page and in the memorandum of points and appearing parties at the first reasonable opportunity. In some cirauthorities, and that the papers be concise. cumstances, this may mean that the exchange should take place the A party seeking ex parte relief must personally appear to present night before the hearing. Most often, the application is not completed the application, unless the relief sought falls into three narrow cate- until after business hours the day before the hearing. Therefore, the gories: 1) permission to file a brief in excess of the page limit, 2) set- first reasonable opportunity may not be until the morning of the hearting hearing dates on alternative writs and orders to show cause, or ing. The court will not conduct a hearing unless the parties have had 3) stipulations by the parties for an order. the opportunity to read each other’s papers. A party opposing an ex parte application can orally oppose the Courts are already overburdened, so it is critical that a party relief without filing a written opposition. However, it is helpful to state seeking ex parte relief has a good reason to do so and that the rules in writing the reasons for opposing in the event the judge has time are precisely followed. ■ to consider them before hearing argument. Opposing papers may be filed directly with the clerk of the department on the morning of the James T. Ryan is an associate with the Feldhake Law Firm in Irvine, where he hearing. focuses on complex business litigation.
10 Los Angeles Lawyer March 2007

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