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  1. #1

    Default Notice/Service of Ex Parte Hearing for TRO, Writ of Possession

    This is in the state of California.

    An elderly friend of mine is being sued over some property. The plaintiff filed a motion for an ex parte hearing to issue a TRO and a Writ of Possession. My friend found out about the lawsuit and the TRO and Writ hearing several hours after the hearing was held, when the Sheriff visited his house, served the papers and searched it looking for the property.

    Timing:

    1) Day 1, they file the applications for the ex parte hearing

    2) Day 2, 10:30 am, the hearing is held and the TRO and Writ are granted

    3) Day 2, 3:00 pm, my friend comes home from staying elsewhere overnight, finds a packet of papers in his mailbox (not postmarked), and the Sheriff is there to search his house and hands him the complaint and the TRO and Writ.

    Isn't there supposed to be some sort of NOTICE before an ex parte hearing is held? And aren't you supposed to serve the defendant personally? I have not been able to find the specific section of the municipal or state code on-line regarding notice for ex parte hearings.

    My friend was not personally served, there was no phone call. He just found some papers in his mailbox. The earliest the plaintiff could have gotten copies of the application, signed by the court, was at 9:30 on day 1, and then they would have had to go across town and drop them in his mailbox immediately to have them there by 10 am. The hearing was barely 24 hours later!

    I realize this is a very specific question and the answer may vary depending on the county within California.

    So here's a more generic question. If - IF - there was improper service, is it possible to object to the TRO and Writ and get them thrown out due to lack of proper service?

  2. #2
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    Default Re: Notice/Service of Ex Parte Hearing for TRO, Writ of Possession

    If you had notice and an opportunity to appear at the ex parte hearing, by definition it wouldn't be ex parte. You told us that he was served. The documents served upon him should include instructions on how to challenge the ex parte order; if he is not happy with the order, he should follow those instructions.

  3. #3

    Default Re: Notice/Service of Ex Parte Hearing for TRO, Writ of Possession

    Apparently in our jurisdiction the legal requirement of notice for an ex parte hearing is to serve the other party either in person or by phone, no later than 10 am of the business day before the date of the hearing.

    I was able to get a copy of the ex parte application and find out that my friend was served by voicemail notice on his cell phone, which he had misplaced at the time, so he didn't receive the notice. However, he recently found his cell phone and after we looked at the ex parte application and saw that the plaintiff's lawyer said he had called my friend, we checked his voicemail and there was indeed a message from the plaintiff's lawyer.

    Apparently where we live, ex parte doesn't mean "completely without notice to the other party."

    He has a lawyer now, thank goodness!

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