FAMILY RULE 5: LAW AND MOTION
A. EX PARTE/EMERGENCY APPLICATIONS AND ORDERS
B. SPECIAL PROCEDURES FOR CLETS RESTRAINING ORDERS
C. FAX FILING IN DOMESTIC VIOLENCE AND ELDER ABUSE CASES
E. PROOF OF SERVICE F. TIME LIMITS AND COUNTER-MOTIONS
H. LONG CAUSE HEARINGS
I. MATTERS TAKEN OFF CALENDAR OR RESOLVED BEFORE HEARING
K. TIME ESTIMATES
M. TENTATIVE RULINGS IN FAMILY LAW AND MOTION MATTERS
(1) ORDERS SHORTENING TIME
A request for an order shortening time must be submitted to the Court Specialist as an ex parte application on Form FL-300 and shall include all of the information and documentation required by Cal. Rules, Rule 5.151, including a declaration setting forth evidentiary facts which explain why a shorter notice period is necessary. An order shortening time will only be granted upon a showing of good cause.
(2) SUBMISSION OF EX PARTE APPLICATIONS
All applications for ex parte or emergency orders shall be submitted on Form FL-300 and shall include all of the information and documentation required by Cal. Rules, Rule 5.151. In Santa Clara County Family Court, all ex parte applications are handled on the documents submitted. No hearings are scheduled to argue ex parte applications. All ex parte requests shall be submitted to the Court Specialist with any filing fees due with the motion. The Court Specialist shall hold all applications (except requests for domestic violence restraining orders, elder abuse restraining orders, gun violence restraining orders, matters identified in State Rules, Rule 5.170, or properly supported requests not to give notice) for 24 hours before submission to the judicial officer. Notice of the applications must be given to the opposing attorney or self-represented party before 10:00 a.m. on the court day before the matter is to be considered by the Court. Except where otherwise specifically ordered by the Court, if the requesting party gives notice of the application after 10:00 a.m. or submits the application to the Court Specialist after 4:00 p.m., then notice will be deemed to have been given at 9:00 a.m. the next court day, and the application will be submitted to the judicial officer after 9:00 a.m. on the first court day after that.
Any Request for Order seeking temporary orders without prior notice to all parties, including orders shortening time (except for requests for domestic violence restraining orders, elder abuse restraining orders, gun violence restraining orders, or matters described in State Rules, Rule 5.170), must include a sworn statement of facts showing good cause not to give notice. The moving party may not rely on the declaration filed in support of the Request for Order to establish good cause not to give notice. The statement of good cause not to give notice may be provided on Attachment FM-1013, with attached pages if necessary, or may be provided through a sworn declaration submitted with Attachment FM-1013. Any party who does not provide a sworn statement or declaration of good cause not to give notice will be required to give notice before the request will be submitted to the APJ for consideration of the temporary orders. If the requesting party does not submit the required declaration of good cause or does not give notice within 48 hours of submitting the request for temporary orders, the Request for Order will be filed by the Court Specialist and set for hearing on the law and motion calendar without an order shortening time.
All ex parte applications must disclose:
(1) whether a requested ex parte order will result in a change of status quo; and
(2) whether orders are already in effect regarding the same issue, and
(3) all previous applications on the same issue by any party and whether any orders were made, even if an application was previously made upon a different state of facts. Previous applications include an order to shorten time for service of notice or an order shortening time for hearing.
(3) NOTICE OF APPLICATION
The moving attorney or self-represented party must submit a Declaration In Support of Ex Parte Application for Orders (attached form FM-1013 ) and must give notice of all ex parte applications to the opposing attorney or self-represented party before submitting the request, except under the following circumstances, which must be documented in detail in the application:
a. The application requests Domestic Violence Prevention Act (DVPA) gun violence or elder abuse restraining orders;
b. Giving notice would frustrate the purpose of the order;
c. Giving notice would result in immediate and irreparable harm to the applicant or the children who may be affected by the order sought;
d. Giving notice would result in immediate and irreparable damage to or loss of property subject to disposition in the case;
e. 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, and the applicant provides evidence of that agreement;
f. The 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; or
g. Notice is not required for the request at issue under Cal. Rules, Rule 5.170.
(4) MANNER OF NOTICE OF APPLICATION
Notice is provided by serving upon all self-represented parties and all attorneys of record the Declaration in Support of Ex Parte Application for Orders (attached form FM-1013 ), the proposed orders, and all moving papers before submitting the moving papers to the Court Specialist, in one of the ways below. Telephone notice alone is not sufficient.
a. Personal service or, upon written consent, by facsimile transmission with either a printed electronic confirmation of receipt, which shall be attached to the Declaration in Support of Ex Parte Application for Orders (attached form FM-1013 ), or the sender’s declaration that the recipient has acknowledged receipt; or
b. Service is by mail, but notice is not complete and the moving papers shall not be submitted to the Court Specialist until five calendar days after mailing. Where service is by next-day carrier, notice is not complete and the papers shall not be submitted until two calendar days after the carrier receives the papers to be served.
(5) OPPOSITION TO EX PARTE APPLICATION
Attorneys or self-represented parties shall serve on moving party and file with the Court Specialist any written response to the ex parte application within 24 hours of the ex parte application’s submission to the Court, unless the Court requests an expedited response.
(6) ONLINE STATUS OF EX PARTE APPLICATIONS
The Court will post on the Court’s website, www.scscourt.org, the status of ex parte matters that have been submitted to the Court for review and signature.
Any restraining orders under the Domestic Violence Prevention Act or Family Law Act shall be submitted to the Court on the CLETS forms or other Judicial Council approved forms. All ex parte requests for CLETS restraining orders shall include a completed Declaration in Support of Ex Parte Application for Orders (see attached form FM-1013 ). All personal conduct and stay away restraining orders in a judgment must be set forth separately on a CLETS or Judicial Council form and must include the expiration date, and good cause for granting the orders must be set forth in attached declarations.
All restraining order applications and orders after hearing shall be accompanied by the Confidential CLETS Information Form CLETS-001 and where applicant requests that the Sheriff serve the orders, by the Request for Sheriff to Serve and Sheriff’s Fee Statement (see attached form FM-1041 ), which shall not become part of the court file. The local form entitled How to Safely Turn in Firearms and Ammunition (see attached form FM-1047 ) shall be served with any CLETS temporary restraining order or restraining order after hearing. In the event that the Court issues mutual restraining orders following a hearing, such orders must be stated on two separate forms, one for each party. Pursuant to Family Code § 6380, the Court will transmit to the Sheriff’s Office for entry into the domestic violence restraining order system orders for personal conduct, residence exclusion, and stay away, as well as proofs of service of such orders and custody and visitation orders issued in these cases. Parties may also deliver certified copies of the orders and proofs of service to law enforcement agencies.
In cases where the Court allows for property removal as an exception to the restraining order, Attachment FM-1102 (Other Orders-Property Removal) may be used as an attachment to the Temporary Restraining Order (Judicial Council form DV-110 ) and Restraining Order After Hearing (Judicial Council form DV-130 ).
(1) EXISTING CRIMINAL PROTECTIVE ORDERS
a. The Family Court shall examine available databases for existing restraining or protective orders involving the same restrained parties before issuing CLETS Civil Restraining Orders. If the information is not available, the Court will ask the parties before issuing any such permanent CLETS Civil Restraining Orders.
(2) MODIFICATION OF CRIMINAL PROTECTIVE ORDERS
a. Any Court responsible for issuing custody or visitation orders involving minor children of a defendant/restrained person subject to a Criminal Protective Order- Domestic Violence (CLETS-CPO) (Judicial Council form CR-160 ), also known as Criminal Protective Order, may modify the Criminal Protective Order if all of the following circumstances are satisfied:
i. Both the defendant/restrained person and the victim/ protected person are subject to the jurisdiction of the Family, Juvenile, or Probate Court; both parties are present before the Court; and both agree to the modification.
ii. The defendant/restrained person has been convicted of or is currently charged with a domestic violence related offense in Santa Clara County and a Criminal Protective Order has issued and is still in effect.
iii. The Family, Juvenile, or Probate Court identifies a Criminal Protective Order issued against the defendant, which is inconsistent with a proposed Family, Juvenile, or Probate Court Order, such that the Family, Juvenile, or Probate Order is/will be more restrictive than the Criminal Protective Order or there is a proposed custody or visitation order which requires recognition in the Criminal Protective Order (item 16 on the Criminal Protective Order form).
iv. The defendant signs an appropriate waiver of rights form or enters a waiver of rights on the record.
v. Both the victim/protected person and the defendant/ restrained person agree that the Criminal Protective Order may be modified to a more restrictive order or to add Box 13 or 14 or both to the Criminal Protective Order.
b. The Family, Juvenile, or Probate Court may not modify existing Criminal Protective Orders to be less restrictive. Only if children are not listed as protected persons, a modification of the Criminal Protective Order to check item 16 on the Criminal Protective Order shall not be considered less restrictive.
c. The Family, Juvenile, or Probate Court may, on its own motion or at the request of a defendant, protected person, or other interested party, calendar a hearing before the Criminal Court on the issue of whether a Criminal Protective Order should be modified. The Family, Juvenile, or Probate Court shall provide the Criminal Court with copies of existing or proposed Orders relating to the matter. Notice of the hearing will be provided to all counsel and parties.
a. SERVICE PROVIDER
“Service provider” means an entity authorized by the Court to provide fax filing services to the public and the Court for domestic violence, gun violence and elder abuse cases, to transfer filings and messages to and from the Court, and to pay any applicable filing fees to the Court.
“Fax” and fax filing shall be as defined in Cal. Rules, Rule 2003.
(2) DIRECT FILING
a.Pursuant to Cal. Rules, Rule 2.304, et seq., authorized service providers may directly file domestic violence, gun violence and elder abuse restraining order applications, temporary restraining orders, and proofs of personal service by fax. Such filings shall be submitted to a number to be designated by the Court.
b. A facsimile filing shall be accompanied by a Domestic Violence Facsimile Filing Cover Sheet (Attachment FM-1000) or an Elder Abuse Facsimile Filing Cover Sheet (Attachment FM-1036). This shall be the first page transferred, to be followed by any special handling instructions required. If the domestic violence restraining order application is submitted with initial documents which require the payment of a filing fee, such as a dissolution or paternity action, the facsimile filing shall also be accompanied by a Judicial Council Facsimile Filing Cover Sheet with the applicable credit card information. This shall be the second page transmitted in that event. The Court is not required to keep a copy of the cover sheet and attachment. Any credit card information will be kept confidential by the Court.
c. Each document transmitted for direct filing with the Court shall contain the phrase “by fax” immediately below the title of the document. Each service provider shall also include its applicable PIN number where indicated on the Domestic Violence Facsimile Filing Cover Sheet or the Elder Abuse Facsimiling Filing Cover Sheet).
d.There shall be no facsimile filing fee for the filing of domestic violence, gun violence or elder abuse restraining orders.
a. A person who files or serves a signed document by fax pursuant to the Code of Civil Procedure and this rule represents that the original signed document is in his or her possession and control.
b. At any time after the filing or service of a signed facsimile document, any other party may serve a demand for production of the original physically signed document. The demand for production shall be served on all other parties but shall not be filed with the Court.
c. Notwithstanding any other provision to the contrary, including Sections 255 and 260 of the Evidence Code, a signature produced by facsimile transmission is an original.
(4) SERVICE PROVIDERS
a. Service providers shall be required to sign a Memorandum of Understanding with the Court and attend periodic training sessions regarding domestic violence restraining orders and court procedures.
b. The Court shall maintain a list of approved service providers for facsimile filing of domestic violence cases. Each approved service provider shall be assigned a PIN number for identification purposes.
All stipulations must be signed by both parties and if represented, any attorney of record.
Unless the Court has granted an order shortening time, proof of service of the moving papers shall be filed no later than five court days before the hearing. If a responding party fails to appear at a hearing and the moving party does not submit to the Court proof of timely service, the matter will be taken off calendar or reissued for service. If the responding party fails to appear and proof of service is submitted, the Court may enter orders based on the pleadings and evidence of the moving party, or continue the hearing and award attorney’s fees.
All matters on the law and motion calendar are limited to hearings of 30 minutes or less. A responding party may set a counter-motion on the law and motion calendar for the same date only if (1) the counter-motion will not cause the hearing to exceed 30 minutes; and (2) space is available on the calendar or the APJ approves an application submitted to the Court Specialist.
(1) FIRST CONTINUANCE
Before the first hearing date, if the moving papers have already been served and if the parties agree, one continuance may be obtained by faxing to or filing at the Clerk’s Office, at least two court days before the hearing, (1) a stipulation signed by both attorneys or self-represented parties; or (2) a letter signed by the requesting attorney or self-represented party confirming that the other party agrees to continue the hearing. This procedure for continuing the first hearing date shall not apply to hearings on requests for domestic violence or other restraining orders.
If the Court had issued an order shortening time for the filing, service, and original hearing date, and the hearing date is then continued by stipulation of the parties, the continuance will not affect the dates for filing and service set by the original order shortening time unless the Court specifically so orders.
(2) ADDITIONAL CONTINUANCES
No additional continuances will be granted except by a written request submitted to the APJ no later than 9:00 a.m. on the court day before the hearing, based on a showing of good cause.
A “long cause” hearing is any hearing other than a trial that will take longer than 30 minutes. The Court may calendar long cause hearings from the law and motion calendar or from a CRC. If a party believes that a law and motion matter requires a long cause hearing, the attorney or self-represented party shall confer with the other attorney or self-represented party and schedule a CRC. If a party intends to request a long cause hearing at the law and motion calendar, all parties shall be prepared to go forward with the hearing in the event the Court denies the request, or be prepared to address temporary orders pending the long cause hearing. Attorneys or self-represented parties shall notify the Court of an intended request or agreement to schedule a long cause hearing at the earliest opportunity and no later than 9:00 a.m. on the court day before the scheduled law and motion hearing.
(1) After service of the moving papers, no matter shall be taken off calendar without notice to the responding party. The responding party must agree to take any matter off calendar when the responding party has requested affirmative relief.
(2) Attorneys or self-represented parties shall notify the Court at the earliest opportunity of any agreement or request to take a hearing off calendar or if all issues to be considered at the hearing have been resolved. At least one of the parties or counsel must leave a voicemail message for the Courtroom Clerk that the hearing will be a “no-read” matter no later than 9:00 a.m. on the court day before the hearing. At the same time, a voicemail message must be left for the Duty Clerk at (408) 534-5644 , with the caller’s name, the case name, number, hearing date and department, and reason for the message. If a message is left that the parties have agreed to continue the hearing, the parties should be prepared to proceed with the hearing if the Court does not agree to continue the matter.
Except for documents that impeach the truthfulness of a party or witness, a party shall provide a copy of each document to be offered to the Court before any hearing to all counsel and self-represented parties. Parties shall bring to court three copies of any document to be offered at the hearing. Parties shall also be prepared to provide to the Court at the hearing copies of all pleadings, proofs of service, and earlier orders.
At the hearing, parties shall provide the Court with reasonable and accurate time estimates. If either party’s time estimate is exceeded, the Court may, in its discretion, rule without further hearing, defer the matter to the end of the calendar if time permits, continue the matter, declare a mistrial for the hearing, or order the matter off calendar.
(1) APPOINTMENT OF COUNSEL
If a party cited for contempt appears without an attorney, one continuance will be granted to permit the citee to retain counsel or if indigent, to be referred to the appropriate office to determine financial eligibility and representation. The citee will be ordered to attend the continued hearing.
After the contempt hearing, the moving party shall prepare an order for the Court’s signature, using the Judicial Council form, setting forth the Court’s findings and orders. If the citee is self-represented, the moving party shall submit the order directly to the Court, without the citee’s approval as to form and content. A copy of the proposed order shall be provided to the other party at the same time it is sent to the Court. If the citee is taken into custody at the conclusion of the hearing, the order shall be filed before 4 p.m. the next court day.
For judges choosing to issue tentative rulings in law and motion matters, tentative rulings will be posted on the day of the hearing, or announced orally at the time of oral argument.