Edgar Edusada v. Bank of America, N.A. et al

Filing 29

MINUTES OF IN CHAMBERS - ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION by Judge Dolly M. Gee: Plaintiff filed an Ex Parte Application to amend her complaint, seeking to add two new plaintiffs to a proposed second amended complaint to which Defe ndant had stipulated 25 , 26 is DENIED without prejudice to the filing of a stipulation or a properly noticed motion. Plaintiff's counsel shall read Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 492-93 (C.D. Cal. 1995) to familiarize herself with the proper use of an ex parte application. Court Reporter: Not Present. (gk)

O

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

Date

CV 12-06874 DMG (CWx)

Title Edgar Edusada v. Bank of America, N.A. et al.
Present:

April 23, 2013
Page

1 of 2

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

VALENCIA VALLERY
Deputy Clerk

NOT REPORTED
Court Reporter

Attorneys Present for Plaintiff(s)
None Present

Attorneys Present for Defendant(s)
None Present

Proceedings: IN CHAMBERS—ORDER DENYING PLAINTIFF’S EX PARTE
APPLICATION [DOC. # 25, 26]
On April 3, 2013, Plaintiff Soledad Corona filed the operative First Amended Complaint
against Defendant Bank of America, N.A., raising claims for violation of the Unfair Competition
Law, Cal. Bus. & Prof. Code § 17200, violation of the False Advertising Law, Cal. Bus. & Prof.
Code § 17500, and fraud, [Doc. # 23]. On April 18, 2013, Plaintiff filed an ex parte application
to amend her complaint, seeking to add two new plaintiffs to a proposed second amended
complaint to which Defendant had stipulated. [Doc. # 25, 26.]1
The Federal Rules explicitly authorize parties, for good cause, to seek relief via an ex
parte application for expedited ruling rather than through a regularly scheduled motion. Fed. R.
Civ. P. 6(c); see generally Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 49293 (C.D. Cal. 1995) (discussing proper use of the ex parte procedure). To justify ex parte relief,
an applicant must make two separate showings. “First, the evidence must show that the moving
party’s cause will be irreparably prejudiced if the underlying motion is heard according to
regular noticed motion procedures. Second, it must be established that the moving party is
without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a
result of excusable neglect.” Mission Power, 883 F. Supp. at 492. An ex parte application “is
the forensic equivalent of standing in a crowded theater and shouting, ‘Fire!,’” justifying the
need for the Court to drop everything and allow the ex parte applicant to “cut in line” in front of
every other litigant. Id.; see also Initial Standing Order at 9 [Doc. # 7].
Here, Plaintiff’s counsel has not attempted to satisfy either prerequisite. As Plaintiff’s
counsel points out herself, there is no trial date, and the motion for class certification has not
1

Doc. # 26 is a corrected version of Doc. # 25. Attached to the ex parte application as Exhibits 3 and 4 is a
“Stipulation for Order Granting Leave to File Second Amended Class Action Complaint” and a proposed order.
That stipulation and proposed order shall not be acted upon until the parties file it as a free-standing document on
the docket, rather than as an exhibit, and submit the proposed order in a manner consistent with the Initial Standing
Order [Doc. # 7 at 8].
CV 90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MS

O

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 12-06874 DMG (CWx)

Date

April 23, 2013

Title Edgar Edusada v. Bank of America, N.A. et al.

Page

2 of 2

been filed yet. (Decl. of Lenore Albert ¶ 3 [Doc. # 26]). There simply is no crisis justifying an
ex parte application.
Even were there a crisis to justify the application, Plaintiff has failed to comply with the
Local Rules. In particular, Local Rule 7-19 provides as follows:
An application for an ex parte order shall be accompanied by a
memorandum containing, if known, the name, address, telephone
number and e-mail address of counsel for the opposing party . . . .
C.D. Cal. L.R. 7-19. Local Rule 7-19.1 further requires the applicant to:
advise the Court in writing of efforts to contact other counsel and
whether any other counsel, after such advice, opposes the
application or has requested to be present when the application is
presented to the Court.
C.D. Cal. L.R. 7-19.1. Plaintiff’s application makes no mention of defense counsel’s contact
information and no mention whatsoever of efforts to contact opposing counsel to determine
whether Defendant would oppose the application.
Therefore, Plaintiff’s ex parte application is DENIED without prejudice to the filing of a
stipulation or a properly noticed motion. Plaintiff’s counsel shall read the Mission Power case to
familiarize herself with the proper use of an ex parte application.
IT IS SO ORDERED.

CV 90

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MS