You will want to file your motion in the same Court where your case is taking place. This Guide focuses on motions to be brought in San Diego County Superior Court.
The basic procedure for obtaining an Ex Parte Order is as follows:
1. 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.
2. Prepare an Ex Parte Application, which will include all components listed below.
3. Give all parties notice of the ex parte hearing no later than the legally required time, which is typically 10:00 a.m. the day before the ex parte appearance. However, the notification time period may be different depending on the court and the nature of the case, so be sure to research the relevant rules.
4. Serve copies of application on the other parties' attorney or directly to the party if they are unrepresented, by delivery or mail. If you are unable to serve copies before 10 a.m. the day before the hearing, you may notify the party by telephone.
5. Determine whether or not the opposing party will be present at the hearing to oppose the application.
6. Update your Ex Parte Application with information about whether you provided notice, and whether the opposing party will be present at the hearing.
7. Contact the court clerk to determine if you are required to file paperwork the day before the hearing, as required by some judges. Other judges will allow you to present the application at the hearing.
8. On the day of the hearing, bring enough copies to provide for the court and all opposing parties, and save one copy for yourself.
9. At the hearing, present papers to judge and request signing of the proposed order.
10. Serve copies of the signed order on other parties.
11. File signed original order and proof of service with the court.
The Ex Parte Application that you will present at the hearing should contain all of the following. The Sample Pleadings page of this guide provides templates to get you started.
(1) The case caption;
(2) A statement of the relief requested. In other words, a statement of what you are hoping the court will do (such as granting a temporary restraining order);
(3) Disclosure of any previous ex parte applications where you asked the court to make a similar motion, and how the court ruled on those applications;
(4) A declaration of the facts that demonstrate irreparable harm, immediate danger, or another statutory basis for granting ex parte relief;
(5) A statement with the name, address, and telephone number of any known attorney representing opposing parties, or if unrepresented, the contact information for the parties themselves;
(6) A declaration stating that notice was given or should be excused. You must state one of the following:
A) Within the legally required time period, the opposing party was given notice of the application. Generally, the requirement is no later than 10 a.m. the day before the ex parte hearing, but the required time period may differ depending on the court and the nature of the case. Be sure to research the requirements for your case. Specify the date, time, and manner in which you notified the party; OR
B) You provided notice, but it was later than 10 a.m. (or the required time) before the date of the ex parte appearance. You must provide reasons for the late notice; OR
C) You tried in good faith to provide notice but were unable to do so; OR
D) That for reasons specified, you should not be required to inform the opposing party. For example, you may state that providing notice would frustrate the purpose of the order, or that you would suffer immediate and irreparable harm if you provided notice.
(7) A statement of the response, if any, opposing parties made when notified of the motion;
(8) A supporting memorandum of points and authorities. Look in California Points and Authorities, at call number: KFC1010 .B4, for sample points and authorities for various areas of law. Certain motions, if filed on a Judicial Council Form, do not require a memorandum. Common examples of applications that do not require a memorandum include:
A) Application for appointment of a guardian ad litem;
B) Motion filed in a small claims case;
C) Petition for an injunction prohibiting harassment;
D) Petition for an order prohibiting abuse; and
E) Petition for withdrawal of funds from a blocked account.
(9) A proposed order.
In general, unless the Court orders otherwise, the person who prevails on the motion will serve a proposed order on the other party within 5 days of the ruling (see California Rules of Court 3.1312). If there is no objection by the other party within 5 days, the proposed order is then sent to the Court for signature.
However, Courts vary on whether formal orders are required or whether the Court simply issues a minute order. Please check your judge’s chamber rules here to determine whether or not they require a proposed order when you file your motion after the hearing, or if the minute order will suffice as the official order.