It’s early in the morning, you’ve only just started your first cup of coffee, and your first few sips of java have not yet percolated your brain into full gear. Suddenly, your cellphone vibrates, a call is coming. You do not recognize the number, but you answer anyway. Hello? You have just been provided notice of an ex parte hearing in the probate department. A what?!?!
What is an ex parte hearing?
An “ex parte” hearing is a fancy way of saying “emergency” hearing. Like many fancy-sounding terms in the law (e.g., res ipsa loquitor, nunc pro tunc, sui generis) it comes from Latin. Its translation means “by a party” or “from a party,” but what it really means is one-sided involvement with the court. In this context, it means that one party to a lawsuit is unilaterally scheduling an emergency hearing with the court to have a judge decide some issue that the party believes is urgent. In a typical ex parte hearing in a California court, you might have less than 24 hours’ notice of a hearing, or, in extremely rare circumstances, no notice at all.
When are ex parte hearings appropriate?
In order to receive relief in an ex parte hearing, you must provide the court with a sworn statement demonstrating some “irreparable harm” or “immediate danger” that will result if the court does not hear the matter on an emergency basis. One local judge says that in order to receive ex parte relief there must be “blood on the wall” – a significant risk of danger indeed!
Like many things in the law, what is “irreparable harm” or “immediate danger” to one person might not be interpreted that way by another.
One key issue is how long it would take to get a hearing date under both the statutory notice periods as well as any calendaring backlog that may exist at the court. For example, while a petition in a trust matter requires 30 days’ notice under California Probate Code section 17203, the Sacramento Superior Court probate unit (Department 129 located at 3341 Power Inn Road in Sacramento) currently has a backlog that results in some petitions being set out 60-90 days for hearing. Thus, if you urgently need to get the court to take some action sooner than three months, you may have to present an ex parte petition.
There is no hard and fast rule about what is “enough” danger to entitle someone to relief–
- If you learn that your sister, the trustee of your mother’s trust, has entered into a contract to sell your mother’s Elk Grove home at a significantly less than market rate price, the closing is scheduled for next Tuesday, and she has made a purchase of flights to Mexico for Tuesday afternoon, an ex parte hearing is very likely appropriate to stop or postpone the sale.
- If the sale of real estate requires probate court approval, and the closing is set to occur in 50 days, but the next available hearing date is not for 90 days, you might file an ex parte application to accelerate the hearing date to receive probate court approval prior to the scheduled closing.
- But, if you would really just like your brother to hurry up and make final distributions from your father’s trust because you are tired of waiting and he has taken way too long, an ex parte application to compel him to complete trust administration is unlikely to be approved.
You must use best judgment is deciding whether to pursue ex parte relief.
The Rules of Court
The general procedural rules concerning ex parte hearings are contained in the California Rules of Court, starting at Rule 3.1200. For example, per Rules of Court Rule 3.1201, a request for ex parte relief must be in writing and it must contain (a) an application; (b) a declaration describing the irreparable harm or immediate danger; (c) a declaration describing the notice provided of the ex parte hearing; (d) a memorandum of points and authorities laying our your case; and (e) a proposed order for the court to enter if it grants your application.
In order to proceed on an ex parte basis, you must give all parties notice of the hearing “no later than 10 a.m. the court day before the ex parte appearance.” (Cal. Rules of Court, rule 3.1203.) This notice is typically provided via telephone, and, hence, the early morning call from the unrecognizable number. In exceptional (and rare) circumstances, no advance notice is required at all. (Cal. Rules of Court, rule 3.1204.)
The applying party must serve their written application “at the first reasonable opportunity.” This exchange may occur the day before the hearing, but it could take place in the courtroom in the moments before the hearing. Because of the emergency nature of ex parte hearings, written arguments sometimes are not finally prepared until the last minute and are not ready to serve until moments before the hearing. Nevertheless, as discussed below, the timing of when you submit your written ex parte papers and when the hearing is held varies from county to county.
In addition to the generally applicable California Rules of Court concerning ex parte hearings, there are various local rules that have been adopted by the counties across the State that modify the way in which ex parte applications are handled. For example:
- In Sacramento County probate cases, the party seeking ex parte relief generally must provide notice by 10:00 a.m. the court day before the hearing to the interested parties and their counsel, but there is no need to schedule a reservation with the court or to file paperwork a day in advance of the hearing. Under a recent change to the ex parte process, ex parte papers are now filed directly in Department 129 with the courtroom clerk on the morning of the hearing instead of waiting in line to file the paperwork “at the window” with the probate department filing clerks.
- In San Joaquin County, Local Rule 3-106 requires the moving party to schedule an ex parte hearing when its written papers are filed. This means that the written arguments have to be completed before the hearing can be scheduled. There may be several days between when the paperwork is filed and when the hearing ultimately takes place.
- In Placer County, where probate matters are heard in Department 40 at the Bill Santucci Justice Center in Roseville, Local Rule 10.8 requires an advance reservation (or “appointment”) for an ex parte hearing. Unlike San Joaquin County, the moving party is not required to file its papers when the appointment is set, but rather the moving party may file papers just prior to the hearing.
To successfully prevail on an ex parte hearing you must check your jurisdiction’s local rules to ensure compliance with all of the procedural hurdles associated with an ex parte hearing.
If you are the party who accepts the early morning call from the unknown number, ex parte hearings can be stressful given the expedited nature of the proceedings. But, as long as you stay up to date on your procedural rules, ex parte hearings are an extremely useful and often necessary tools for a trust and estate attorney in order to accomplish the client’s litigation goals.