Author: Michael S. Dorsi
California law permits plaintiffs to file a complaint and seek a temporary restraining order on an ex parte basis the day the plaintiff files the complaint. This is not for every case, but it is an important procedure when time is of the essence. Sometimes judges attempt to cajole the parties into an agreement that will hold until the judge can decide a fully briefed preliminary injunction, and sometimes judges will issue a TRO on the papers submitted on day one.
But to get to a day-one temporary restraining order, you must get past the clerk’s office.
San Francisco Superior Court adopted rules that make getting past the clerk difficult. For most civil cases, parties represented by an attorney file their complaint in hard copy, then all subsequent filings must be online via the e-filing system. This includes papers for ex parte appearances.
After filing, it takes time before the e-filing system allows attorneys (or, let’s be honest, their paralegals and office staff) to file online. If you do not file your ex parte papers first, the judge will not hear your ex parte application. If you wait for the system to let you file online, you might miss the ex parte hearing time (and assuming you followed the California Rules of Court, you would have given the defendants notice of the time by 10:00 a.m. the day before).
So, what to do?
Right now, it seems like the answer is simply to explain this problem to the clerk and insist that the papers be “filed at the insistence of the litigant.” It is not a particularly satisfying answer, given that any clerk on any day might refuse. Being respectful but persistent can help (maybe the author is speaking from experience). Hopefully the San Francisco Superior Court will clarify as it addresses more cases under this system.
I’d love to hear from attorneys who did day one ex parte applications in San Francisco and other counties, and how they navigated this problem.