Today’s Take: Ex Parte Relief—Important, But with Potential Pitfalls for the Unwary
Even with the most careful planning, every lawsuit will typically have at least one time when the attorney will want or need to seek judicial relief ex parte. Ex parte applications can be extremely useful—and important—tools, but it is crucial that the attorney know the rules of ex parte practice for the court he or she is in at the outset of litigation and be prepared when the need arises. Only then will the attorney be able to use this tool effectively.
The term ex parte is Latin (hence the italics) for “one side only,” and in the legal context simply means a judicial proceeding conducted for the benefit of only one party. In California Superior Court, ex parte practice is governed by California Rules of Court 3.1200 through 3.1207. These rules are fairly straightforward. If a party determines that emergency judicial relief is required, it can apply to the court on less than 24 hours notice to request that the court grant the desired relief. This requires two main steps. First, by no later than 10:00 AM the day prior, the party applying for judicial relief must give the other parties to the litigation notice of the relief sought and where/when the application will be made. Second, the applying party must assemble the application package, which includes an application requesting relief, a memorandum of law and facts in support of the request, a declaration showing why the circumstances require immediate relief, and a declaration that the applying party provided sufficient notice to any other party to the litigation giving that party an opportunity to appear and oppose the application. More than any other document filed with the court, the ex parte papers should be as clear and concise as possible. The application should tell the court exactly what relief is sought, the court’s legal authority for granting it, and the circumstances justifying the party’s applying to the court ex parte. The more streamlined the application is, the more likely the court is to grant the desired relief.
While the California Rules of Court apply generally to all superior courts, the courts of each county and even each judge, may have their own rules, often referred to as “local rules” or “local local rules.” The requirements of these rules are in addition to those of the Rules of Court. For example, some courts require that the ex parte application be filed with the court almost immediately after notice is given the day prior, rather than simply bringing them the day of the application. Some courts require that the applying party call the court to request and receive a date/time for the application. Many of these rules can be found through the court’s website or in a particular judge’s standing orders, particularly in federal court. Most often, however, the court clerk is the best source of this information, and a brief call to the clerk after a judge is assigned to the case can ensure that the preferred procedure is followed down the road.
Not knowing local practice leads to “lessons” that most attorneys will learn at least once during the course of their legal careers. For me, it was a quick and, luckily, painless lesson. I showed up at Santa Monica Superior Court first thing in the morning, papers in hand, and after being led through three different courtrooms finally found myself before a clerk who curtly informed me that I needed to tab the declaration showing notice and the proposed order so that the judge could quickly locate those parts of the application. Not a problem–I quickly complied. I was also told that notice by fax was not preferred as there was no way to ensure that the other party received the fax. One would have thought the fax confirmation sheet would have been sufficient. Nonetheless, I now make a point to call opposing counsel’s office to confirm that the fax was received, and make sure to include this additional step in my declaration to the court.
Knowing the preferred practice of each court comes with experience. In an emergency, local counsel familiar with the judge has an advantage. This gap, however, can be narrowed or completely closed by counsel who is thorough and makes an effort at the outset of a lawsuit to understand the tools in the litigation toolbox and how to use them in each court. Lawyers who know the rules will be most effective at making and winning ex parte applications—or at thwarting others who try to make them but don’t know the rules well enough.
Kevin J. Pavlik, Associate, Litigation and Employment Departments
Today’s Taste: Regardless of whether your judge takes ex parte applications before or after his regular morning calendar, you should be out of the courthouse by 11 with an order in hand. If you were persuasive in your papers, congratulations! Celebrate with a nice bottle of Tavel. This Rose, with hints of strawberry and minerals, is the perfect mid-day (if celebrating over lunch is an option) or early evening self-indulgence for when your hard work comes to fruition. Price range–$20, give or take a few bucks. If you were not successful, you’re likely headed back to the office, but keep this recommendation in mind for the next opportunity.
On Writs and Wine is the blog of ECJ’s Litigation Department, featuring our takes on a variety of litigation-related issues, plus a wine recommendation for your palate’s delight. Your feedback—on both the takes and the wine—is much appreciated. Enjoy!