CJEO Formal Opinion No. 2014-004 — Judicial Screening of Ex Parte Applications for Non-Domestic-Violence Emergency Family Law Orders

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street, Room 1144A
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Formal Opinion No. 2014-004
[Issued January 16, 2014]
JUDICIAL SCREENING OF EX PARTE APPLICATIONS FOR NON-
DOMESTIC-VIOLENCE EMERGENCY FAMILY LAW ORDERS
I. Issue Presented
The Committee on Judicial Ethics Opinions (CJEO) has been asked to provide an
opinion on the following question:
A local rule authorizes judicial officers to review all requests for non-
domestic-violence emergency orders in family law matters, in order to
determine the necessity for an emergency hearing, even where the request is
made without prior notice to the other party or without a request for waiver of
notice and a signed explanation of why notice should not be given. Does this
local rule facilitate the violation of the Code of Judicial Ethics?
II. Summary of Conclusions
A local rule setting up a procedure by which a judicial officer screens all requests
for emergency non-domestic-violence family law orders without regard to whether notice

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has been given to the other party or whether a request has been made for waiver of notice
and a signed explanation has been provided showing why such notice should not be
required is not authorized by the rules of court governing family law emergency orders
and therefore contravenes the prohibition against considering ex parte communications in
canon 3B(7) of the Code of Judicial Ethics. Therefore, a local rule that purports to
authorize such screening facilitates the violation of canon 3B(7) of the Code of Judicial
Ethics.
III. Relevant Facts
A local rule1 provides that when a party in a family law proceeding seeks to have a
request for an order (i.e., a motion or request for order) considered for emergency
hearing, the clerk is to forward the request to a judicial officer for review. During that
review, the judicial officer screens the papers to determine whether they set forth facts
showing the necessity for an emergency hearing.2 If the judicial officer determines that
good cause for an emergency hearing exists, a date and time for the emergency hearing is
set, and the party seeking relief is required to give notice of the emergency hearing to the
other party.3 Under the local rule, no notice to the other party of the application for an
1 For purposes of this opinion, the local rule is described by its operative and
relevant features. Providing the text of the local rule would identify a party whose
inquiry or conduct the committee is required to maintain as confidential. (Cal. Rules of
Court, rule 9.80(h).)
2 Specifically, the judicial officer is to determine whether an emergency hearing is
necessary (1) to avoid immediate danger or irreparable harm to a party or to the children
involved in the matter, (2) to help prevent the immediate loss or damage to property
subject to disposition in the case, or (3) to make orders concerning any of the matters set
forth in rule 5.170 of the California Rules of Court (see post, footnote 8 and
accompanying text).
3 The local rule does not specify the procedure that follows a determination that
good cause for an emergency hearing does not exist, except to say that the request for
order must be filed in any event.

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emergency hearing is required before the judicial officer screens the application to
determine if good cause for an emergency hearing exists, nor does the moving party have
to request a waiver of notice and show why notice should not be given before that
screening. Instead, as a matter of course, the screening of the application to determine if
good cause for an emergency hearing exists occurs without prior notice to the other party.
IV. Authorities
A. Applicable Canons4
Canon 3B(7): “A judge shall accord to every person who has a legal interest in a
proceeding, or that person’s lawyer, full right to be heard according to law. . . . A judge
shall not initiate, permit, or consider ex parte communications, that is, any
communications to or from the judge outside the presence of the parties concerning a
pending or impending proceeding, and shall make reasonable efforts to avoid such
communications, except as follows:
“[¶] . . . [¶]
“(b) A judge may initiate, permit, or consider ex parte communications, where
circumstances require, for scheduling, administrative purposes, or emergencies that do
not deal with substantive matters provided:
“(i) the judge reasonably believes that no party will gain a procedural or tactical
advantage as a result of the ex parte communication, and
“(ii) the judge makes provision promptly to notify all other parties of the substance
of the ex parte communication and allows an opportunity to respond.
“(c) A judge may initiate, permit, or consider any ex parte communication when
expressly authorized by law to do so or when authorized to do so by stipulation of the
parties.
“(d) If a judge receives an unauthorized ex parte communication bearing upon the
substance of a matter, the judge shall make provision promptly to notify the parties of the
substance of the communication and provide the parties with an opportunity to respond.”
4 All further references to canons are to the California Code of Judicial Ethics
unless otherwise indicated.

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B. Other Authorities
California Rules of Court, rules 3.1200 et seq., 5.151-5.170, 9.80
Abramson, The Judicial Ethics Of Ex Parte And Other Communications (Winter
2000) 37 Hous. L.Rev. 1343, 1354, 1370
V. Discussion
A. Rules of Court Governing Emergency Orders5
In family law cases, applications for emergency orders -- also known as ex parte
applications -- are governed by rules 5.151 and 5.165 through 5.170 of the California
Rules of Court, which are known as the emergency orders rules.6 (Cal. Rules of Court,
rule 5.151(a).) “The purpose of a request for emergency orders is to address matters that
cannot be heard on the court’s regular hearing calendar.” (Id., rule 5.151(b).) More
specifically, “[t]he 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.” (Ibid.)
5 This opinion addresses only those matters that fall under the rules of court
governing family law emergency orders.
6 These rules generally do not apply to ex parte applications for domestic-violence
restraining orders under the Domestic Violence Prevention Act. (See Cal. Rules of
Court, rule 5.151(a).)

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The declarations in support of a request for emergency orders “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.” (Cal. Rules of Court, rule 5.151(d)(2).) Additional
requirements apply to requests for emergency orders relating to child custody and
visitation. (Id., rule 5.151(d)(5).) In either case, however, the evidence submitted in
support of a request for emergency orders must demonstrate that the issuance of an
emergency order is necessary to achieve the purposes of the rule.
When a request for emergency orders is made, “notice to the other party is shorter
than in other proceedings.” (Cal. Rules of Court, rule 5.151(b).) Generally, “[a] party
seeking emergency orders under this chapter must give notice to all parties or their
attorneys so that it is received no later than 10:00 a.m. on the court day before the matter
is to be considered by the court.” (Id., rule 5.165(b).) “Notice of appearance at a hearing
to request emergency orders may be given by telephone, in writing, or by voicemail
message.” (Id., rule 5.165(a).) When notice of an emergency hearing has been given, the
moving party must include with the request for emergency orders a written declaration
based on personal knowledge regarding the details of the notice given.7 (Id., rule
5.151(c)(4); see id., rule 5.151(e)(2)(A).) If notice of the emergency hearing was given
later than 10:00 a.m. the court day before the hearing, that declaration must also include a
request that “the court approve the shortened notice” and must provide facts showing
“exceptional circumstances that justify the shorter notice.” (Id., rule 5.165(b)(1).)
Notice to the other party of the request for emergency orders can be “waived under
exceptional and other circumstances as provided in the [emergency orders] rules.” (Cal.
Rules of Court, rule 5.151(b).) Like shortened notice, waiver of notice requires court
approval. To ask the court to waive notice of the request for emergency orders, “the
7 Specifically, the declaration must describe “[t]he 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[.]”
(Cal. Rules of Court, rule 5.151(e)(2)(A).)

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party [seeking the waiver] must file a written declaration signed under penalty of perjury
that includes facts showing good cause not to give the notice.” (Id., rule 5.165(b)(2).)
Situations in which the court may find good cause not to give notice of the emergency
hearing include the following:
“(A) Giving notice would frustrate the purpose of the order;
“(B) Giving notice would result in immediate and irreparable harm to the applicant
or the children who may be affected by the order sought;
“(C) Giving notice would result in immediate and irreparable damage to or loss of
property subject to disposition in the case;
“(D) The parties agreed in advance that notice will not be necessary with respect
to the matter that is the subject of the request for emergency orders[.]” (Ibid.)
If the party seeking the emergency hearing tried to give notice of the hearing but
could not, the declaration regarding notice must state that “the applicant in good faith
attempted to inform the opposing party but was unable to do so” and must “specify[] the
efforts made to inform the opposing party.” (Cal. Rules of Court, rule 5.151(e)(2)(B).)
In such a case, the court may waive notice for good cause if it finds that “[t]he party
made reasonable and good faith efforts to give notice to the other party, and further
efforts to give notice would probably be futile or unduly burdensome.” (Id., rule
5.165(b)(2)(E).)
The emergency orders rules also specify certain situations in which a party may
always request an order without notice to the other party.8 (See Cal. Rules of Court, rule
5.170.)
From the foregoing, it is apparent that California law permits a party in a family
law proceeding to seek emergency orders from the court without notice to the opposing
8 Those situations are as follows: “[a]pplications to restore a former name after
judgment”; “[s]tipulations by the parties”; “[a]n order or judgment after a default court
hearing”; “[a]n earnings assignment order based on an existing support order”; “[a]n
order for service of summons by publication or posting”; “[a]n order or judgment that the
other party or opposing counsel approved or agreed not to oppose”; and an “[a]pplication
for an order waiving filing fees.” (Cal. Rules of Court, rule 5.170.)

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party only under very limited circumstances. Additionally, before a court may consider a
request for emergency orders without notice, the applicant must ask for waiver of notice
and “make an affirmative factual showing of irreparable harm, immediate danger, or
[an]other statutory basis for granting relief without notice.” (Cal. Rules of Court, rule
5.151(d)(2); see id., rule 5.165(b)(2).) Absent the requisite showing, notice is required.
With that in mind, we turn to the ethical rules regarding ex parte communications
between the parties and the court.
B. Ethical Rules
Canon 3B(7) codifies the judge’s ethical obligation to protect the right of every
party to due process of law. The first sentence of canon 3B(7) states: “A judge shall
accord to every person who has a legal interest in a proceeding, or that person’s lawyer,
full right to be heard according to law.” Ex parte communications, defined as “any
communications to or from the judge outside the presence of the parties concerning a
pending or impending proceeding,” inherently infringe on that right. (ibid.) It is
understood, of course, that ex parte communications are sometimes necessary to prevent
immediate danger or irreparable harm. Those circumstances are narrowly defined,
however, to ensure the critical right of every party to be heard.
Because of the important role judges play in protecting the right of every party to
be heard, with certain exceptions (discussed below), canon 3B(7) prohibits judges from
initiating, permitting, or considering ex parte communications and also requires judges to
make reasonable efforts to avoid ex parte communications. In effect, the canon generally
precludes a judge from engaging in a communication about a “pending or impending
proceeding” with a party to that proceeding when the other party is not present and has
not received notice of the communication. (Ibid., see Abramson, The Judicial Ethics Of
Ex Parte And Other Communications (Winter 2000) 37 Hous. L.Rev. 1343, 1354
(Abramson) [“An otherwise proper communication becomes a prohibited ex parte
communication when matters relevant to a proceeding circulate among or are discussed

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with fewer than all the parties who are legally entitled to be present or notified of the
communication ….”].)
Exceptions to the prohibitions against ex parte communications are recognized in
the following situations:
(1) “where circumstances require, for scheduling, administrative purposes, or
emergencies that do not deal with substantive matters”;9
(2) “when expressly authorized by law to do so or when authorized to do so by
stipulation of the parties.” (Canon 3B(7)(b) & (c).)10
We now apply these emergency order rules of court and ethical rules to the present
facts.
C. Application to the Facts and the Local Rule
Specifically, the question before us is this: If a local rule sets up a procedure by
which judges review all requests for non-domestic-violence emergency orders in family
law matters in order to determine whether the moving papers show the necessity for an
emergency hearing, and that review occurs without notice to the other party or without a
request for waiver of notice with a signed explanation of why notice should not be given,
does the rule facilitate or permit ex parte communications in violation of the Code of
Judicial Ethics? In the committee’s opinion, the answer to that question is yes.
9 The application of this exception is subject to the following conditions: “(i) the
judge reasonably believes that no party will gain a procedural or tactical advantage as a
result of the ex parte communication; and [¶] (ii) the judge makes provision promptly to
notify all other parties of the substance of the ex parte communication and allows an
opportunity to respond.” (Canon 3B(7)(b).)
10 The exception for ex parte communications “expressly authorized by law” permits
judges to hear the many ex parte applications that come before them seeking emergency
relief, such as ex parte applications brought pursuant to California Rules of Court 3.1200
et seq., which apply in civil cases generally, and those brought pursuant to California
Rules of Court, rule 5.151, et seq., which apply in family law cases.

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The first step in the analysis is to determine whether a judge’s review of the
application papers under the procedure specified in the local rules involves an ex parte
communication. It clearly does, because the rule allows a party in a family law matter to
present a request for emergency orders to the court for review without first notifying the
other side that the request will be presented to the court. It does not matter, for purposes
of determining whether an ex parte communication has occurred, that the request is to be
reviewed at this stage only to determine whether good cause exists to set an emergency
hearing. What matters is that one party is communicating to the judge concerning a
pending proceeding without notice to the other party. Such a communication is, by
definition, an ex parte communication.
Given that an ex parte communication is involved, the next step in the analysis is
to determine whether that communication implicates the prohibitions in the canons.11 It
does. It is true that a judge in this situation does not violate the prohibition against
initiating ex parte communications, because the communication -- i.e., the request for
emergency orders -- is initiated by the moving party, not the judge. Nonetheless, the
canons also prohibit permitting and considering ex parte communications, and both of
these prohibitions are implicated by the procedure established by the local rule. A rule
authorizing a judge to review a request for emergency orders for the purpose of
determining whether it demonstrates good cause for an emergency hearing is one that
permits a judge to consider an ex parte communication.
The final step in the analysis is to determine whether the procedure authorized by
the local rule falls within any of the exceptions found in the canons. It does not. Under
the first exception, a judge may permit or consider an ex parte communication “where
circumstances require, for scheduling, administrative purposes, or emergencies that do
not deal with substantive matters,” provided certain conditions (set out above) are met.
(Canon 3B(7)(b).) This exception is a narrow one. The phrase, “where circumstances
require,” “strongly suggests that this exception must be considered on a case-by-case
11 At this point, we do not consider whether the communication falls within one of
the exceptions provided for in the canons. That analysis follows below.

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basis, without establishing a comprehensive exception to the general rule.” (Abramson,
supra, 37 Hous. L. Rev., at p. 1370.) Here, however, the local rule establishes a
procedure to be followed in every family law case in which a party seeks non-domestic-
violence emergency orders. In each and every such case, the judge reviews the request
without prior notice to the other side, and without regard to whether there is any showing
that good cause existed not to give such notice. Circumstances do not “require” this sort
of blanket screening in every family law case. Further, non-domestic-violence
emergency orders are an “emergency” by definition, so the application papers required
for requesting such orders deal with substantive matters. Accordingly, this exception
does not apply.
Under the second exception, a judge may permit or consider an ex parte
communication “when expressly authorized by law to do so or when authorized to do so
by stipulation of the parties.” (Canon 3B(7)(c).) Just like the first one, this exception
does not apply. As for “stipulation of the parties,” nothing in the local rule predicates the
judge’s review of a request for emergency orders on whether the parties have stipulated
to such review; the review occurs without notice and without any prior stipulation to the
lack of notice. As for what is “expressly authorized by law,” nothing in the local rule
predicates the judge’s review on whether notice has been given or a request for waiver of
notice has been made.
Under the family law rules permitting ex parte applications, “[a] party seeking
emergency orders . . . must give notice to all parties or their attorneys so that it is
received no later than 10:00 a.m. on the court day before the matter is to be considered by
the court.” (Cal. Rules of Court, rule 5.165(b).) Nothing in the rules excludes from this
concept of consideration a judge’s determination of whether an emergency hearing
should be held on the request for emergency orders. In making that determination, the
judge must review the moving papers to see if they “demonstrate why the matter is
appropriately handled as an emergency hearing, as opposed to being heard on the court’s
regular hearing calendar.” (Id., rule 5.151(d)(2).) Thus, in conducting the review
provided for by the local rule, the judge “considers” the matter presented by the request

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for emergency orders, even if the court does not ultimately resolve the request on its
merits at that time.
The emergency orders rules do, however, allow a judge to consider requests to
waive notice of the ex parte application. (Cal. Rules of Court, rule 5.165(b)(2).) To
make such a request, “the party must file a declaration signed under penalty of perjury
that includes facts showing good cause not to give the notice.” (Ibid.) The rule provides
that a judge may waive notice for “good cause,” which may include that notice would
result in harm to the applicant, children, or property at subject in the case. (Ibid.)
Thus, a judge is authorized by this rule to consider application papers that have not
been served on the other side and necessarily contain ex parte communications when two
requirements have been met: (1) a party requests that notice not be given, and (2) a
declaration or other signed explanation is provided to support this request. In practical
terms, determining which ex parte applications meet these two requirements is an
administrative task that must precede judicial consideration of whether the application
papers include facts showing good cause not to give notice. Once an ex parte application
for an emergency order has been filed that asks for waiver of notice and provides a signed
explanation of why notice should not be given, the application papers may be taken to the
judge to determine the sufficiency of the explanation and whether notice may be
waived.12
The local rule here includes none of these requirements for judicial review of ex
parte applications. Instead, all applications are taken to the judge for review without
regard to notice or requests for waiver of notice. This screening process allows the judge
to consider application papers containing ex parte communications that are not authorized
by law, and, by doing so, violates canon 3B(7)(c).
12 The committee is aware of forms used by some courts that allow self-represented
and represented parties to request waiver of notice by checking a box, filling in an
explanation, and signing on a signature line that includes a penalty of perjury affirmation.
Such forms allow easy identification of the applications that may be taken to the judge
for a determination of whether the applicant’s papers, including those that accompany the
form, meet the requirements of the rule and show good cause for waiver on notice.

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VI. Conclusion
Under the emergency orders rules, “[c]ourts 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.” (California Rules of Court, rule 5.169.) A local rule setting up a
procedure by which a judicial officer reviews all requests for non-domestic-violence
emergency orders for the purpose of determining whether an emergency hearing should
be held without the moving party first providing notice to the other side or requesting
waiver of notice and showing good cause for such waiver is not expressly authorized by
law. Such a local rule, in the committee’s opinion, would facilitate a violation of the
prohibitions in the Code of Judicial Ethics against permitting and considering ex parte
communications.

This opinion is advisory only (Cal. Rules of Court, rules 9.80(a), (e); Cal. Com.
Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rules 1(a), (b)). It is based
on facts and issues, or topics of interest, presented to the California Supreme Court
Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court,
rule 9.80(i)(3); CJEO rules 2(f), 6(c)), or on subjects deemed appropriate by the
committee (Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)).