Ex parte practice in California: the mechanics that sink applications

1. Confirm ex parte is available

The showing has to be in a declaration, on personal knowledge. Urgency asserted in a memorandum is not enough.

Rule 3.1202(c) requires an affirmative factual showing of irreparable harm, immediate danger, or another statutory basis for granting relief ex parte. Newsom v. Superior Court (2020) 51 Cal.App.5th 1093, 1098 vacated a TRO partly because the declaration lacked exactly that, and repeated the rule: a court should deny an application absent the showing.

Run the CCP 1005(b) math before drafting. Sixteen court days, plus two under CCP 1010.6 for electronic service. If the earliest noticed hearing date falls after the deadline you are protecting, put those dates in the papers. If it does not, you want an order shortening time.

2. Reserve the hearing first

Local practice, and it varies. Reserve before you finish drafting, because notice and filing both run backward from the hearing date.

San Diego Local Rule 2.1.19 requires a reservation through the court's online system or the assigned judge's calendar clerk. An application without one will not be heard.

3. Give notice that actually counts

Notice to all parties no later than 10:00 a.m. the court day before, absent exceptional circumstances. Content matters as much as timing.

Rule 3.1204(a) requires you to state with specificity the nature of the relief to be requested and the date, time and place for the presentation of the application, and to ask whether the other side will oppose.

Three consequences

A meet and confer letter is not notice. Neither is "we will be going in ex parte as soon as the court will allow." No date, no time, no department, no specified relief.

This is what worked in Parker: counsel told a deponent they were noticing an ex parte appearance on Wednesday at 8:30 a.m. before a named judge, to seek a protective order requiring the deponent to return. Oral, two court days out, sufficient. Day, time, judge, relief.

Notice must cover every form of relief, including alternatives. In Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1062, counsel noticed the primary relief but not the alternative request for an order shortening time. Denial affirmed as to the part left out.

Newsom adds a fourth. Notice to someone who cannot accept it is not notice, and late correction does not save it. Real parties emailed the Department of Justice minutes before 10:00 a.m. The Department replied that it was not authorized to accept service for the Governor and that he had to be served through his legal affairs department. They did not do that until the afternoon before the hearing.

Two defects compounding, not one. Wrong recipient and late. Confirm who is authorized to accept before the clock matters.

4. Paper the notice

Rule 3.1204(b) wants six facts and a timing representation. Draft it as a checklist.

A separate declaration stating the notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected, plus that you informed the other side where and when within the rule 3.1203 window.

If you could not reach anyone, state the good faith efforts. If notice went out after 10:00 a.m. the prior court day, rule 3.1204(c) requires the declaration to explain the exceptional circumstances.

5. File all five documents

Application, supporting declaration, notice declaration, memorandum, proposed order. Rule 3.1201.

In Newsom the proposed order was not the problem so much as its service: the court found the Governor had not been served with a copy, and treated that as an independent defect under rule 3.1201.

Rule 3.1202(a) wants contact information for every known counsel. Rule 3.1202(b) requires full disclosure of any prior refused application for the same relief. One line saying there has been none costs nothing.

If you are opposing

Object to defective notice before you argue the merits.

Levine v. Berschneider (2020) 56 Cal.App.5th 916, 923 held the objection waived where counsel opposed on the merits without raising it below.