The rules in this chapter govern applications for emergency orders (also known as ex parte applications) in family law cases, unless otherwise provided by statute or rule. These rules may be referred to as "the emergency orders rules." Unless specifically stated, these rules do not apply to ex parte applications for domestic violence restraining orders under the Domestic Violence Prevention Act.
The purpose of a request for emergency orders is to address matters that cannot 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 and other circumstances as provided in these rules. The 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, including the following:
(A) 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);
(B) 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); and
(C) Continuing a hearing or trial.
(c) Required documents.
A request for emergency orders must be in writing and must include all of the following completed documents:
(1) Request for Order (form FL-300) that identifies the relief requested.
(2) When relevant to the relief requested, a current Income and Expense Declaration (form FL-150) or Financial Statement (Simplified) (form FL-155) and Property Declaration (form FL-160).
(3) Temporary Emergency (Ex Parte) Orders (form FL-305) to serve as the proposed temporary order.
(4) A written declaration regarding notice of application for emergency orders based on personal knowledge. Declaration Regarding Notice and Service of Request for Temporary Emergency (Ex Parte) Orders (form FL-303), a local court form, or a declaration that contains the same information as form FL-303 may be used for this purpose.
(5) A memorandum of points and authorities only if required by the court.
(Subd (c) amended effective July 1, 2016.)
(d) Contents of application and declaration.
(1) Identification of attorney or party
An application 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 or, if no such attorney is known, the name, address, and telephone number of the party, if known to the applicant.
(2) Affirmative factual showing required in written declarations
The declarations must contain facts within the personal knowledge of the declarant that demonstrate why the matter is appropriately 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.
(3) Disclosure of previous applications and orders
An applicant should submit a declaration that fully discloses all previous applications made on the same issue and whether any orders were made on any of the applications, even if an application was previously made upon a different state of facts. Previous applications include an order to shorten time for service of notice or an order shortening time for hearing.
(4) Disclosure of change in status quo
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's fees and costs incurred to reinstate the status quo may be awarded.
(5) Applications regarding child custody or visitation (parenting time)
Applications for emergency orders granting or modifying child custody or visitation (parenting time) under Family Code section 3064 must:
(A) Provide a full, detailed description of the most recent incidents showing:
(i) Immediate harm to the child as defined in Family Code section 3064(b); or
(ii) Immediate risk that the child will be removed from the State of California.
(B) Specify the date of each incident described in (A);
(C) Advise the court of the existing custody and visitation (parenting time) arrangements and how they would be changed by the request for emergency orders;
(D) Include a copy of the current custody orders, if they are available. If no orders exist, explain where and with whom the child is currently living; and
(E) Include a completed Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (FL-105) if the form was not already filed by a party or if the information has changed since it was filed.
(e) Contents of notice and declaration regarding notice of emergency hearing.
(1) Contents of notice
When notice of a request for emergency orders is given, the person giving notice must:
(A) State with specificity the nature of the relief to be requested;
(B) State the date, time, and place for the presentation of the application;
(C) State the date, time, and place of the hearing, if applicable; and
(D) Attempt to determine whether the opposing party will appear to oppose the application (if the court requires a hearing) or whether he or she will submit responsive pleadings before the court rules on the request for emergency orders.
(2) Declaration regarding notice
An application for emergency orders must be accompanied by a completed declaration regarding notice that includes one of the following statements:
(A) The notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected and that, within the applicable time under rule 5.165, the applicant informed the opposing party where and when the application would be made;
(B) That the applicant in good faith attempted to inform the opposing party but was unable to do so, specifying the efforts made to inform the opposing party; or
(C) That, for reasons specified, the applicant should not be required to inform the opposing party.
Rule 5.151 amended effective July 1, 2016; adopted effective January 1, 2013.
Title 5, Family and Juvenile Rules-Division 1, Family Rules-Chapter 7, Request for Emergency Orders (Ex Parte Orders)-Article 2, Notice, Service, Appearance; adopted January 1, 2013.