How to successfully oppose an ex parte application.

How to Oppose an Ex Parte Application

I hate opposing ex parte applications.

I’m fine with the process if opposing counsel gives the required 24 hours notice, affording me the ability to file my opposition before the hearing so that it can be considered with the ex parte application. Far more often, however, even if opposing counsel provides the required notice that he or she intends to bring an ex parte application, the basis given for the request is so vague that I have no ability to prepare a meaningful opposition.

“Dear Judge:

Opposing counsel says he is seeking some unspecified relief regarding some unspecified discovery, and I really don’t think you should grant him whatever it is he wants.”

The actual ex parte papers will of course explain what is being sought, but I may not even have those in hand prior to the hearing. Under the rules, I’m supposed to be served with the ex parte papers “at the first reasonable opportunity.” (Rule of Court 3.1206.) Obviously they can’t be provided to me before they are ready, but the moment they are ready for filing, they should be served. Since most courts require the papers to be filed by 4:00 pm the day before the hearing, there is no justification for emailing them to me any later than that deadline.

But rules be damned. The self-help page of the Sacramento Superior Court perfectly illustrates the loose attitude toward the ex parte rules:

The Ex Parte Application documents must be filed by 4:00 pm the court day before the ex parte hearing. File with the clerk at the filing window. If you cannot file with the clerk by 4:00 pm, file them as early as possible the day of the hearing. The judge needs to review your documents before the hearing.

So, best case scenario, I receive the ex parte papers by 4:00 pm the day before the hearing. I can then prepare and electronically file the opposition that night. If it’s an afternoon hearing, the court may have it before then, but if it’s an early morning hearing, the court won’t have it. Alternatively, if I don’t receive the papers, I have to file an opposition based only on the description provided by opposing counsel.Under all scenarios, I always provide a courtesy copy of my opposition to the court the morning of the hearing. If I am appearing telephonically, I send it with a messenger (or some clerks will allow me to email a copy). Often, that is the only copy the judge will receive in advance of the hearing. By that time, the judge has already read the moving papers and has no time to read the opposition. A good judge should take the time to review the opposition before taking the bench, but if he or she happens to be in trial, with jurors waiting in the hall, the opposition may never be read.

My latest ex parte application opposition involved a request for a TRO, seeking to restrain my client from all sorts of things. The case is a standard attempt to keep my client from competing with his former employer, by filing an action and then trying to poison my client as to future employers, while at the same time trying to intimidate him with discovery and ex parte applications.

The ex parte application for a TRO was a sight to behold, running 20 pages and supported by five declarations. I prepared an equally impressive opposition, refuting all the false claims made in the declarations, but I knew there was little or no chance of the court having the time to read my opposition in detail.

You have no doubt learned the wisdom of lots of headings to make your papers easy for the court to scan. I take this to the next level, and in cases such as this create a list with bullet points on the first page of the opposition, explaining why the application should be denied. I sometimes wonder if that is overkill, but this instance showed how effective that technique can be. The hearing was set for 8:30 a.m., and the doors did not open until that time. I checked in and provided the courtesy copy of my opposition with the court clerk. She turned to take the motion to the judge, and I saw that she met him in the corridor, preparing to enter the courtroom. As I watched, he flipped to the first page of my points and authorities where I had my list, took about 30 seconds to scan it, and then entered the courtroom and took the bench. He used my list as a checklist, asking opposing counsel to respond to each point.

Ex parte application denied.

Be creative. Make life as easy as possible for the judge when you draft your papers, and you will have a far better shot at getting your argument in front of the court.

Why not object to the untimely ex parte papers?

Of course you are always free to object to any untimely application, and if the court agrees it was untimely, will almost certainly continue the hearing to the following day. But that can create its own problems and is not always the best strategy. If you are making a personal appearance, you’ll have to charge the client (or write off) the time to go to court a second time. Or perhaps you were available today, but not tomorrow. Or perhaps a necessarily rushed opposition provides cover as to why some issues are not addressed in detail. Think before you object.

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