In Newsom v. Superior Court (Gallagher) (C092070, 2020 Cal.App. LEXIS 638, publication order July 10, 2020), the California Court of Appeal, Third Appellate District further clarified the framework by which relief through ex parte applications may be granted.
This matter involved Executive Order No. N-67-20 (hereinafter the “Executive Order”) executed by Governor Gavin Newsom on June 3, 2020. The Executive Order sought to implement improved mail-in-ballot procedures in advance of the November 3, 2020 general election due to the emergency occasioned by COVID-19.
The issue before the Court of Appeal concerned a June 12, 2020 order by the Sutter County Superior Court granting a temporary restraining order (“TRO”) against the Executive Order. The TRO was granted pursuant to an ex parte application filed by two members of the California State Assembly, James Gallagher and Kevin Kiley. The lower court ruled the Executive Order “constituted an impermissible use of legislative powers in violation of the California Constitution and the laws of the State of California.”
However, the Court of Appeal reversed finding that the procedures governing ex parte relief had not been followed. In doing so, the Court of Appeal ultimately reaffirmed the well-established criteria necessary for affording relief on an emergency ex parte basis. In citing to People ex rel. Allstate Ins. Co. v. Suh (2019) 37 Cal.App.5th 253, 257 and various California statutes, the Court endorsed the idiom that “a court will not grant ex parte relief ‘in any but the plainest and most certain of cases,’” and that any applicant seeking ex parte relief must “make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm [or] immediate danger. . . .”
Here, the Court of Appeal found the declaration provided by Mr. Gallagher in support of ex parte relief was devoid of any evidence of irreparable harm or imminent danger that issuance of the Executive Order would compel. Rather, it was based on speculative and unsubstantiated claims that election officials believed the Executive Order raised concerns over the administration of election procedures in the upcoming election. However, there was no specific information clarifying what those concerns were or the identities of the election officials raising them.
Compounding the issue was the lack of notice provided to Governor Newsom prior to the ex parte hearing. California Rule of Court 3.1203(c) provides that a party wishing to use the expedited ex parte hearing process must notify all parties no later than 10:00 a.m. the day before, absent a showing of exceptional circumstances. Here, notice was never properly provided to Governor Newsom. First, the real parties in interests, Mr. Gallagher and Mr. Kiley, improperly sent notice to the Department of Justice and not the Governor’s legal affairs department. When the Governor was ultimately given late notice (on the afternoon before the hearing), it did not include a copy of the proposed order which the underlying court ultimately executed in granting the TRO. These errors and omissions were deemed fatal to any ex parte relief sought.
Based on the foregoing findings, California’s Third Appellate District issued a peremptory writ of mandate that vacated the lower court’s June 12, 2020 order granting the TRO. A new order was entered that denied the ex parte application for a TRO.
The Newsom decision is one of several recent cases in light of the COVID-19 pandemic contemplating what constitutes proper emergency ex parte relief.
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