LASC’s Just-Issued New Rules Regarding Ex Parte Procedures Eliminate Surprises, But Come at the Cost of More Work

August 7, 2019

By Muhammed T. Hussain, Esq.

For well over a decade, the busiest and largest state court system in the world, Los Angeles County Superior Court, had one of the most liberal local rules for ex parte applications in the state when it came to notice. The only requirement was to provide “notice” of the time, date, and place of the application, and the “nature of the relief requested” to the other side by 10:00 a.m. the day prior to the intended date of the ex parte hearing via telephone (as required by CRC 3.1204). Counsel seeking ex parte relief had until 8:00 a.m. the next day to get their actual briefs polished up, and would line up outside the courthouse to be let in for the priority filing between 8:00 and 8:30 a.m. at the clerk’s office and to pay the necessary fees. Counsel then would work their way to the courtroom for the ex parte hearing and hang out in the hallway waiting for the doors to open. The opposing counsel would need to grab them in the hallway and request a copy of the actual briefing that was being presented to the Court and offer copies of any opposing briefing.

The result of the process on moving counsel was that they could give notice before they even had begun preparing their briefs. They could work into the wee hours of the morning, getting the briefs finished before the 8:00 a.m. day-of deadline. The result of this process on attorneys was that opposing counsel merely had a general sense of what would happen and had to draft their opposition papers mostly in the dark. They had to cross their fingers and hope that they had hit all of the necessary points, while at the same time not revealing to the other side any arguments that the other side may not have thought of.

Plenty of counsel have learned that an opposition that attacks an argument not made by moving party can sometimes peak the judge’s interest in those arguments, and that argument can become the argument that wins the day. The effect on the courts were of course, not seeing papers until minutes before the ex parte hearing, and often having briefing sets with mis-matched arguments. The whole thing was something between a game of chess and a game of dice. Or, using more colorful metaphors, between a circus and a zoo. Moreover, because it was drenched in uncertainty and ripe for abuse, it was an anachronism. Most other counties adopted more civilized procedures. Take Orange County, for example, where the ex parte papers must be filed the day before the ex parte hearing, usually prior to noon or 2:00 p.m. Well, times have changed at the Los Angeles County Superior Court. They have become more civil and more burdensome.

Starting in May 2019 (per its updated Standing Order), the Court has changed the rules for ex parte applications. Now, the ex parte papers have to be e-filed before 10:00 a.m. the day prior to the ex parte hearing, which is also the deadline for providing notice to the other side. As it stands now, the ex parte papers have to be ready to be filed when notice of the ex parte application is provided to the other side.

The result is that moving parties have to get moving sooner, and opposing parties now know exactly what they are opposing, and the Judge can have some advance idea of what exactly he or she is going to be asked to do the day before the day of the hearing.

This new process may relieve the stress on the clerk’s office, which will no longer have to accommodate the 8:00 a.m. ex parte rush. However, the downside is that a moving party has to plan out an ex parte application at least two days in advance so their paperwork can be completed and filed timely. If the matter is truly time-sensitive and the issue arises, say, Wednesday afternoon, then as a practical matter, because the paperwork can’t be completed until Thursday afternoon (after the 10:00 a.m. filing deadline), the ex parte hearing can’t be heard on Friday as under the prior rules, and the aggrieved party will have to wait until Monday (five days after the issue arose). The new rule makes it much harder for a party to have an emergency issue decided by the court in a timely fashion.

Please contact the author at muhammed@encorelaw.com.

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