Ex Parte Relief: What You Always Wanted
To Know But Were Afraid To Ask
By Judge Loren McMaster

Applications for ex parte relief often cause confusion. This column is designed to lift the shroud of mystery. The checklists provided may be consulted any time a potential ex parte matter presents itself. My usual disclaimer applies. Nothing that appears below should be attributed to any other judge or to the Sacramento County Superior Court. Nothing that I say should be construed as being an unpublished local rule -- only one judge’s views.

Apart from those matters that are authorized by statute or rules of court, ex parte appointments are for disputes that cannot be heard on regular notice due to factors beyond counsel’s control. If a party will be severely prejudiced if regular notice is required, the court may set the matter to be heard on shortened notice, provided the proper application is made. As a general rule, absent truly extraordinary circumstances established by admissible evidence, the court will not order substantive relief in a contested matter at the ex parte conference. However, if the proper showing is made, a court may order the issuance of a temporary restraining order or other temporary relief.

From an attorney’s perspective, a request for ex parte relief offers an opportunity to (1) obtain speedy resolution, albeit temporary, of a client’s problem, (2) receive a hearing date on shortened notice, or (3) have a matter handled without the necessity of more formal and lengthy proceedings.

From the judge’s perspective, a request for ex parte relief often (1) places unrealistic demands on the judge to decide complicated matters in a few minutes, (2) severely impacts the court’s calendar, or (3) constitutes a waste of the court’s limited time and resources. Obviously, there is a happy medium between the two contrasting views. The challenge is to find it.

Whenever an attorney contemplates requesting ex parte relief, he/she should review rule 391 of the California Rules of Court, Local Rules 2.04 and 3.14, and 2 Weil and Brown, Civil Procedure Before Trial, section 9:345 et seq. Given its pressing and continuous workload of reviewing motion papers, preparing tentative rulings, hearing oral argument, and ruling on submitted matters, the court has very limited time to consider matters presented ex parte. For this reason, the court requires counsel to comply with all applicable statutes and rules, and to make a clear showing in the papers presented why extraordinary ex parte relief is necessary and why the matter cannot wait to be heard on noticed motion.

If counsel has decided that the matter is a proper one for ex parte relief, the first step is to make sure that the necessary documents are prepared for presentation to the court. The following checklist sets forth the documents that the court expects to have before it at the time of the ex parte conference:

1. An application setting forth the relief requested, the basis for entitlement for such relief, the identity of opposing counsel/parties whether the same ex parte relief was previously refused in whole or in part by any judge. (Cal. Rules of Court, rule 379(f).)
2. A declaration setting forth (1) the factual basis for the claimed emergency; i.e. why the matter cannot be heard on regular notice, and other facts constituting “good cause” (CRC 379(g)) and (2) that notice was properly given to other parties in compliance with applicable rules, or a detailed list of attempts to so notify. (CRC 379(f).) (Note: CRC 379(b) requires that all parties be notified not later than 10:00 a.m. the day prior to the ex parte conference; Local Rule 2.04 requires a 24-hour notice.)
3. Admissible evidence showing entitlement to the relief requested. (CRC 379(g).)
4. The proposed order.
5. A memorandum of points and authorities supporting the request made.
6. The motion papers, if the nature of the ex parte relief requested is to shorten time.
7. The moving party must also “attempt to determine” if other parties will oppose the application. (CRC 379(e)(1).)

It is extremely important that all required procedural steps are satisfied. The consequences for noncompliance may be to set aside any relief obtained. For example, the failure to give the required 24-hour notice will render invalid any court order that is issued, since the opposing party is denied the right to present his/her/its side of the issue. (Datig v. Dove Books, Inc. (1999) 73 Cal App 4th 964, 976.)

The declaration must set forth facts showing entitlement to relief, i.e., the existence of irreparable harm, immediate danger, or other statutory basis why the matter should be heard ex parte rather than on noticed motion. (CRC 379(g).)

There is no right to oral argument in an ex parte proceeding; the judge may properly decide the matter on the papers presented. (See Wilburn v. Oakland Hospital (1989) 213 Cal.App.3d 1107, 1111.) As Local Rule 2.04 (A) states, “The adequacy of the application for temporary relief will be determined on the papers submitted.” However, the court will rarely, if ever, grant affirmative relief without permitting opposing party or counsel who appears at the ex parte to be heard. Conversely, the court will often deny the requested relief after reviewing the papers. For such reason, it is vital that all required information be included in the moving papers. Do not expect to be able to “supplement” the papers by oral argument. Appearance by phone, i.e., being on telephone standby to either support or oppose the application for ex parte relief, is acceptable. Counsel may call the court at the numbers set forth below to arrange for a telephonic appearance.

Ex parte applications for relief may be made in Sacramento County by appointment only. (Local Rules 2.04 and 3.14.) In order to secure an appointment, counsel must call the following telephone numbers: 874-7858 for Department 53 (law and motion odd numbered cases), 874- 7848 for Department 54 (law and motion even numbered cases), or 874-5487 (presiding judge). All other parties to the matter must be given at least 24 hours notice. (Local Rule 2.04 (A).)

The following checklist is offered to guide counsel in how one judge approaches ex parte applications.

1. Is this a proper matter for ex parte relief?
2. Is emergency relief required, i.e. has a true unavoidable emergency situation been presented?
3. Has there been proper notification of opposing counsel?
4. Could this matter be resolved by meeting and conferring, and if so, has there been a good faith attempt to do so?
5. Is there a sufficient evidentiary showing made to entitlement to the relief requested?
6. If there is some emergency, can it be resolved by hearing the matter on shortened notice?
7. For motions presented on the eve of trial, is this a matter that can be heard and decided by the trial judge?

Factors the court considers in determining whether a true emergency exists include the following:

1. Will a party be prejudiced if the matter is heard at a later date?
2. Is the prejudice or irreparable harm due to the conduct (or lack thereof) of the moving party or counsel?
3. Was the party or counsel diligent in seeking relief?
4. Has there been an attempt to resolve the matter by meeting and conferring?
5. Will hearing the matter on shortened noticed notice solve the immediate problem?
6. Is a hearing on shortened time really necessary, or may the matter be heard by way of a regularly noticed motion without causing undue prejudice?

If counsel represents a party against whom ex parte relief is sought, opposition papers should be prepared with the above checklists in mind. Bear in mind that it is helpful to the court to have opposition papers to review, so an effort should be made to prepare such. If possible, all papers, moving and opposing, should be submitted to the court the afternoon prior to the ex parte appointment. This will give the judge a chance to have more than ten minutes to review them. This writer makes it a practice to take ex parte papers home for review the evening prior to the next day’s scheduled appointment.

A common request for ex part relief is an order permitting a motion to be heard on shortened time. Such requests should not be made lightly, since they place extra burdens on the court and counsel alike. For this reason, and for the further reason that orders shortening time adversely affect the court’s calendar, they are not routinely granted; a showing of real necessity must be made. Counsel should bear in mind in preparing a request for an order shortening time that the matter must be set so that the reply papers (or last paper filed, if not reply) must be filed no later than 9:00 a.m. two court days prior to the hearing. (Local Rule 2.04(B).) For example, if a matter is set on shortened time for a Monday, the reply papers must be filed no later than 9:00 a.m. the preceding Thursday. Counsel often overlook that the court does require time to review the papers and post the tentative ruling the court day prior to the hearing.

Ex parte motions will usually be denied if the papers do not show that there is a true emergency, or if the requesting party or counsel has not acted diligently. Examples of requests for ex parte relief that have been presented and denied out of hand include these: counsel wishes to obtain a default judgment immediately because a Case Management Department Judge has imposed a deadline due to prior inaction; counsel wishes to have his/her motion heard at the earliest possible time for personal convenience; without seeking a protective order, counsel wishes the court to rule on objections prior to responding to discovery requests so counsel can avoid potentially unnecessary work; counsel or a party desires the court to render an advisory opinion; counsel would like to argue further about a decision that was previously rendered on a noticed motion.

The next time counsel is faced with a client demanding immediate action, counsel can consult the checklists set forth above to determine if the matter is appropriate for ex parte relief, prepare the necessary papers, and understand how the judge is likely to approach his/her application. A party opposing such relief can review the checklists to use as a guide in preparing opposition.

Hopefully this information will prove useful when preparing for the next ex parte appearance no matter which side you represent.