Ex Parte Applications

Research Guide
Last Updated: January 2013

Scope:

This research guide assists parties seeking an ex parte hearing or proceeding. Normally, an
adverse party must be given notice twenty-one days prior to a pending hearing. However, ex
parte proceedings may be appropriate in circumstances where one of the parties seeks immediate
relief. For example, ex parte proceedings often occur where a party is fighting an eviction or
unlawful detainer action or where a party wants to “freeze” someone‟s bank account before he or
she empties it.

Note: The procedures for ex parte applications vary, depending upon whether you bring your
application in a regular court, Probate Court, or Family Court. Make sure that you follow the
correct notice and filing requirements for your venue. Double check and consult the applicable
law (most notably the Rules of Court) to make certain that you comply with the latest
requirements. These Rules are updated frequently and there may be changes since this
guide was written.

I. Notification Requirements for Ex Parte Application

Civil matters:

California Rules of Court, Rule 3.1203 states that “[a] party seeking an ex parte order must
notify all parties no later than 10:00 A.M. the court day before the ex parte appearance,
absent a showing of exceptional circumstances that justify a shorter time for notice.” (Emphasis
added). The rule also states that “[a] party seeking an ex parte order in an unlawful detainer
proceeding may provide shorter notice (than the 10:00 A.M. requirement) provided that the
notice given is reasonable.”

 Probate Court matters:

 Family Court matters:

San Diego County Superior Court Rules, Chapter Three, Rule 5.3.1 B states „parties must obtain
an emergency order hearing date by calling the court or by appearing in person at the court‟s
business office no later than 10:00 am the day before the requested hearing date. The telephone
numbers for the business office of each branch court can be found online” www.sdcourt.ca.gov

Please note that for family law matters, the San Diego Superior Court created a mandatory ex
parte application form, Form SDSC D-046 that must be used to request an ex parte proceeding.
The mandatory court form can be filed with supporting declarations and a proposed order. See
California Forms of Pleading and Practice, Chapter 372.

There are numerous specialty rules that apply to Family Court issues. Please carefully consult
San Diego County Superior Court Rules, Chapter Three, Rule 5.1.0 - 5.9.2.

 Juvenile Court matters:

The rule for Juvenile Court is slightly different. San Diego County Superior Court Rules, Rule
6.1.14 states “(a)ny party making an ex parte request for an order from the court in a dependency
matter must give 24 hours notice to all other parties or their counsel. A declaration that such
notice has been given to all other parties or their counsel must be set forth in the moving papers.”
The rule details exceptions also.

II. Checklist of Written Papers and Procedures Required for an Ex Parte Application:

 Call the calendar clerk of the court to obtain a hearing date. If the hearing has already
been assigned to a judge, ask the judge’s calendar clerk for a hearing date.

 Some judges require that you file all application paperwork the day before the hearing, so
always ask the clerk if the judge has any special filing requirements.

For Family Court matters, hearings are held at specific times. Consult San Diego County
Superior Court Rules, Chapter Three, Rule 5.3.1 .

 Application forms must be typed on pleading paper (i.e. with the line numbers down
the left side). (But see the Family Court requirement below). Word and WordPerfect
both have pleading templates. You can also purchase pleading paper at most office
supply stores, and the Reference Desk has a laminated sheet you can photocopy.

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 Prepare an Ex Parte Application. (California Rules of Court Rule 3.1201et seq). See one
of the practice guides listed in this guide for sample formats. A reference librarian can
assist you to find the practice guides. One of these is Litigation by the Numbers, Chapter
6, shelved behind the Reference Desk. The Library has also created a motion guide with
a sample Application which you can copy and change to fit your situation.

For family court matters, you must fill out a pre-printed “Ex Parte Application” form (SDSC D-
46 ).

For civil matters, you may use local form ADM- 252 Ex Parte Application and Order
(http://www.sdcourt.ca.gov/pls/portal/docs/page/sdcourt/generalinformation/forms/ADMINFOR
MS/ADM252.pdf ). Read the form carefully, and consult California Rules of Court Rule 3.1202
regarding Points and Authorities.

 All Applications for Ex Parte Orders in Probate Court must be reviewed by Probate
Examining before presentation to the judge. Examiners will be available just before the
court‟s ex parte hours for making this review. (See San Diego County Superior Court
Local Rules 4.7.5). Also, matters which may be heard ex parte in Probate Court are
limited, and explained at San Diego County Superior Court Local Rules 4.7.6.

 Your Ex Parte Application must also include a Declaration of Notice which shows that
you properly notified (or tried to notify) all other parties of the hearing. (See California
Rules of Court Rule 3.1201(3) and Rule 3.1204 (b)). The Declaration should identify the
person(s) whom you informed of the hearing and it should state the date, time, and manner
that you used to do so. The Declaration should also describe the relief you requested and
any response the other party or parties made.

Furthermore, the Declaration should indicate whether your opponent said he or she will
oppose the ex parte application. If you cannot locate your opponent, then the declaration
should describe your good faith attempts to do so. It should also state reasons why you
should therefore not be required to give notice.

 You must include facts showing that you will suffer irreparable harm or immediate
danger if you are not allowed to bring this motion without a regularly-scheduled hearing.
You can provide facts that show that you are entitled to the relief you seek through
notarized affidavits or signed declarations. (See California Rules of Court Rule 3.1202).

 You must include a Memorandum of Points and Authorities (See Rules of Court Rule
3.1201). Look in California Points and Authorities, KFC 1010.B4, for sample Points and
Authorities for various areas of law. Tailor your Memorandum according to the
particular facts of your dispute and be certain that all laws or cases you cite are current.

Ex Parte Applications
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 Include a proposed Order for the judge to sign granting the relief you have requested.
(See California Rules of Court, Rule 3.1201(5)). Consult a practice guide for sample
orders.

 On the day of the hearing, bring to court enough copies of your papers to file one with
the court, and to give copies to the judge and anyone else who appears at the hearing.
When you arrive at court, check with the bailiff for any sign-in or other requirements that
the judge may have.

 After the hearing, make photocopies of the judge‟s signed Order. File the signed Order
with the court, and serve copies of the Order on the other parties. Make sure to serve
copies of all the papers on any party who did not appear at the hearing.

Other useful resources: (be sure to check for the regular updates to these volumes)

California Forms of Pleading and Practice, Chapter 372 (Matthew Bender), KFC 1010.A65 C3.

Witkin California Procedure KFC 995. W52.

Weil and Brown; California Practice Guide: Civil Procedure Before Trial (The Rutter Group)
KFC 995 W4.

California Eviction Defense Manual KFC 1028.E9 M68.

Related material:

California Rules of Court – State, KFC 992.A24.

San Diego County Superior Court Rules, KFC 993.S26 A125.

Litigation By the Numbers, KFC 995. G67 2007, Chapter 6, Motions, Section 6.4, Ex Parte
Motions. Be sure to check the updates filed in the front of the book.

Disclaimer: This guide is not a substitute for your own legal research

Ex Parte Applications