Opinion
Case No. CV 06-6979-GHK (CTx).
March 6, 2007
Proceedings (in Chambers): Order Re: Ex Parte Application
On February 26, 2007, attorney Dale K. Galipo, purporting to be acting on behalf of Plaintiffs in this case filed a document entitled "Plaintiffs' Request for Court Order for Permission to File Ex-Parte Application to Have the Court Order Substitution of Attorney and Transfer of File to New Attorney Dale K. Galipo." On March 2, 2007, attorney Steven Yagman, who is Plaintiffs' current counsel of record, filed a Response to Dale Galipo's Ex Parte Application.
The fact discovery completion date in this case is not until May 31, 2007. "There is thus no reason why [Mr. Galipo's] application . . . should be heard ex parte. Whatever the circumstances that allegedly give rise to [his] request . . ., they are not likely to change in the time necessary to notice a motion." In re Intermagnetics America, Inc., 101 B.R. 191, 194 (C.D. Cal. 1989).
Moreover, the application utterly fails to meet the procedural safeguards required of an ex parte application. It was served only by mail. Cf. This Court's FAQ's About Procedures and Schedules #5 ("Service of all ex parte applications and oppositions should be by personal delivery or fax."). Mr. Yagman claims that he was not even notified by telephone that the application was to be filed, much less served in person or by fax. The application does not contain the phone numbers of opposing counsel or of Mr. Yagman. L.R. 7-19. Thus, counsel failed to: (a) make a good faith effort to inform all other counsel of the date, time, and substance of the application; or (b) advise the Court of Mr. Yagman's or opposing counsel's position with respect to the substance of the application. L.R. 7-19.1.
This Court's FAQ's About Procedures and Schedules are available on the Court's website (www.cacd.uscourts.gov).
Additionally:
Properly designed ex parte motion papers . . . contain two distinct motions or parts. The first part should address only why the regular noticed motion procedures must be bypassed. The second part consists of papers identical to those that would be filed to initiate a regular noticed motion (except that they are denominated as a "proposed" motion and they show no hearing date.) These are separate, distinct elements for presenting an ex parte motion and should never be combined. The parts should be separated physically and submitted as separate documents.Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995) (emphasis omitted). The current "Request for Permission to File of Ex Parte Relief" entirely fails to adhere to this format.
The application is DENIED.
Both Mr. Galipo and Mr. Yagman have ethical obligations to the Plaintiffs that would appear to be best served by their meeting with Plaintiffs and jointly resolving this dispute. We suggest they do so as soon as possible.