“Applications for emergency orders are also known as ex parte applications. The rules regarding ex parte procedures are set forth in CRC Rule 5.151. These rules are referred to as the emergency orders rules. Unless specifically stated, these rules do not apply to ex parte applications fo domestic violence restraining orders under the Domestic Violence Prevention Act.
The purpose of a request for emergency orders is to address matters that cannot wait to be heard on the court’s regular hearing calendar. In this type of proceeding, notice to the other party is shorter than in other proceedings. Notice to the other party can also be waived under exceptional circumstances, as provided in CRC Rule 5.151.
A party seeking emergency orders and a party providing written opposition must serve the papers on the other party or on the other party’s attorney at the first reasonable opportunity before the hearing. Absent exceptional circumstances, no hearing may be conducted unless such service has been made. The court may waive this requirement in extraordinary circumstances if good cause is shown and imminent harm is likely. This rule does not apply in cases filed under the Domestic Violence Prevention Act (CRC Rule 5.167).
If the judicial officer signs the applicant’s proposed emergency orders, the applicant must obtain and have the conformed copy of the orders personally served on all parties.
Pursuant to CRC Rule 5.169, courts may require all parties to appear at a hearing before ruling on a request for emergency orders. Courts may also make emergency orders based on the documents submitted without requiring the parties to appear at a hearing.
And finally, the court, on its own motion or on application for an order shortening time supporting by a declaration, showing good cause, may prescribe shorter times for the filing and service of papers other than the times specified in CCP 1005 (CRC Rule 5.94(a)).
The ex parte process is used to request that the court: (1) Make orders to help prevent an immediate danger or irreparable harm to a party or to the children involved in the matter; (2) Make orders to help prevent immediate loss or damage to property subject to disposition in the case; or (3) Make orders about procedural matters, such as setting a date for a hearing on the matter that is sooner than that of a regular hearing (granting an order shortening time for hearing) or shortening or extending the time required for the moving party to serve the other party with the notice of the hearing and supporting papers (grant an order shortening time for service) or continuing a hearing or trial (CRC Rule 5.151). A request for emergency orders must be in writing and must include all of the following completed documents when relevant to the relief requested: (1) Request for Order (form FL-300) the identifies the relief requested; (2) A current Income and Expense Declaration (form FL-150) or Financial Statement (Simplified) (form FL-155) and Property Declaration (form FL-160) (if there are financial issues); (3) Temporary Orders (FL-305) to serve as the proposed temporary order; (4) A written declaration regarding notice of application for emergency orders based on personal knowledge; and (5) Only if required, a memorandum of points and authorities.
The application and declaration for emergency orders must state the name, address and telephone number of any attorney known to the applicant to be an attorney for any party of, if no such attorney is known, the name, address and telephone number of the party, if known to the applicant (CRC Rule 5.151).
The declarations must contain facts within the personal knowledge of the declarant that demonstrate why the matter should be handled as an emergency hearing, as opposed to being on the court’s regular hearing calendar.
An applicant must make an affirmative factual showing of irreparable harm, immediate danger or any other statutory basis for granting relief without notice or with shortened notice to the other party. The applicant has a duty to disclose that an emergency order will result in a change in the current situation or status quo. Absent such disclosure, attorney fees and costs incurred to reinstate the status quo may be awarded.
Applications for emergency orders granting or modifying child custody or visitation (parenting time) under FC 3064 must provide a full, detailed description of the most recent incidents showing “immediate harm to the child or immediate risk that the child will be removed from the State of California.” (FC 3064)
If immediate harm to the child or immediate risk that the child will be removed from the State of California is not set forth in an ex parte declaration, the trial court should deny the request to shorten the time.
Additionally, the description in the ex parte request must specify the date of each incident and advise the court of the existing custody and visitation (parenting time) arrangements and how they would be changed by the request for emergency orders.
Notice of an ex parte appearance at a hearing to request emergency orders may be given by telephone, in writing or by voicemail message.”
[LW Greenberg, California Family Law]
