Applying for an Ex Parte Motion in California

What You Need to Know About Applying for an Ex Parte Motion in California

Sometimes you need to file a motion in a court case, but there is not enough time to do a standard motion. Here’s everything you need to know about applying for an ex parte motion in California.

“Ex parte” is a Latin legal term for “from (by or for) one party.” An Ex Parte Application is used by one party to ask the court for an order, such as an order to change a hearing date, without the usual notice to other involved parties. Ex parte applications are used in emergency situations when there is not enough time for a standard motion, which typically take about four weeks (16 court days minimum). Not all requests can be handled ex parte. In fact, there are some requests that can never be handled ex parte, and some requests that are always handled ex parte.

Due to the design of notice requirement of motions, ex parte applications are highly disfavored and are granted only if absolutely necessary. This is because the notice requirement of motions is designed to ensure the fairness of procedures. Ex parte applications can sometimes throw this fairness off, and do not allow the other party to have a fair warning of the motion. Therefore, before filing an ex parte application, the filing party should ask the other party if they will agree to their request. If they do, the filing party should file a stipulation instead.

The ex parte application procedure is a very complicated one with many steps, and the filing party will be expected to follow all the same rules that a lawyer would. They will need to do extensive research and writing, go to court, and speak in front of the judge. If the filing party feels that this might be overwhelming, they should hire an attorney.

Step 1: Researching and Writing the Papers

The filing party will need to research and prepare the following:

(1) “Ex Parte Application,” stating what they are requesting and when the hearing will be

(2) “Memorandum of Points and Authorities,” explaining the relevant laws and how they apply to the facts

(3) “Declaration” under penalty of perjury explaining the facts of the case, and why the matter is so urgent it should be heard ex parte

(4) “Declaration re Notice” explaining if and how they gave notice to the other parties. They must also write a “Proposed Order” for the judge to sign if they agree.

Step 2: Scheduling the Hearing and Notifying the Other Parties

The applicant must schedule the ex parte hearing ahead of time with the court department. Paperwork must be filed prior to 10 a.m. the day before the hearing. In many counties, different departments handle different types of motions, including ex parte applications on those matters. For example, in Sacramento, there are four different scenarios in which one would have their hearing with:

The Presiding Judge (Dept. 47) hears all motions for consolidation, coordination, severance, bifurcation, intervention, pretrial conference, change of venue, or to advance or continue trial.
Case Management Program (CMP) judges (Depts. 30 and 36) hear all CMP motions, including matters regarding judicial arbitration, redesignation of a case, for extension of time to answer a complaint, for relief from CMP rules, or certification for short cause.
Law and Motion: Department 53 (odd-numbered cases) or Department 54 (even-numbered cases) hear most other types of motions.
If a judge has been assigned to a case for all purposes, then that judge hears all motions for the case.

The applicant must give the other party notice before 10 a.m. the day before the hearing, unless they can prove exceptional circumstances that justify a shorter time for notice. After they do this, the applicant must write the “Declaration re Notice” stating whether the opposing party is represented by counsel, whether that party has been contacted and has agreed to the requested order, or why the order should be issued without such notice. This Declaration must be submitted to the department before 10 a.m. the day before the hearing. There is also a filing fee unless parties have a fee waiver.

Step 3: Attending the Hearing

The applicant should arrive at the appropriate department early and bring a copy of all relevant paperwork to the hearing. They must pay the fee if they have not already, and bring the receipt to the hearing. If the judge has any additional questions, they may ask the applicant to come into chambers to answer questions. If the applicant’s evidence is sufficient, the judge will sign their Proposed Order. The judge may also deny the Ex Parte Application, but set the matter for hearing later. The applicant should serve any signed orders on the other parties and file the original order and proof of service at court.

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