Ex Parte Applications for Order by nxp55576

VIEWS: 189 PAGES: 1

More Info
									barristers tips                                                                                                                  BY JAMES T. RYAN




Preparing for and Making an Ex Parte Application

EX PARTE RELIEF is requested when it is impractical or impossible to            In the Central District of Los Angeles, ex parte applications are
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 appli-
very 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 win-
party 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 depart-
the intended ex parte appearance. (Court days do not include week- ment has the recent pleadings file or if it should be provided. It is impor-
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.,       First, the ex parte application must be file stamped at the main
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          filing window, which opens at 8 A.M. The application requires
determine whether any other party will appear
and oppose the relief requested.
    Notice is best given by informing the other          a filing fee. From there, it may be necessary to go to the records
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               room to check out the most recent volume of pleadings.
order. This way, the parties can avoid having
to appear in court. However, if the other par-
ties 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 pre-
tinent information.                                                         sented after 8:30 A.M.
    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- 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 pro-
ner, 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 cir-
authorities, 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 hear-
ting 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

								
To top