An Injunction by Any Other Name: Mandatory and Prohibitory Preliminary Injunctions

• Publication year: 2015
• Citation: Vol. 28 No. 3
• Author: By Khai LeQuang

An Injunction by any Other Name: Mandatory and Prohibitory Preliminary Injunctions

By Khai LeQuang

Whether a proposed preliminary injunction appears to be mandatory or prohibitory can make all the difference when convincing a trial judge that she or he is doing the right thing in issuing or denying an injunction before trial. But not only is a mandatory injunction more difficult to obtain, it is automatically stayed on appeal and subject to closer appellate review. A party, therefore, should carefully consider what to ask for when seeking a preliminary injunction. While it may feel an aggressive mandatory injunction is necessary to protect all of its interests, it may be better to ask for less to secure an injunction that will last. That is because even if the trial court finds that a mandatory injunction is justified, the result may be a hollow victory if it issues an injunction that is automatically stayed for months or even longer during an appeal. On the flip side, a party opposing a preliminary injunction should always look closely at whether a proposed injunction, even if phrased in prohibitory terms, is mandatory in nature. Virtually any injunction can be described either as mandatory or prohibitory; the challenge lies in accurately identifying its true purpose and effect.

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What's in a Name? Why the Difference Makes a Difference

Although the decision to grant a preliminary injunction rests in the sound discretion of the trial court (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69), the Supreme Court long ago said that the granting of a mandatory preliminary injunction "is not permitted except in extreme cases where the right thereto is clearly established and it appears that irreparable injury will flow from its refusal." (Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 295-296, quoting Hagen v. Beth (1897) 118 Cal. 330, 331.) Mandatory injunctions, therefore, are "rarely granted." (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625.)

In the rare cases where a mandatory injunction issues, the injunction is automatically stayed by an appeal. (See Kettenhofen v. Superior Court (1961) 55 Cal.2d 189, 191.) Furthermore, on appeal, an appellate court will review a mandatory injunction "more closely for abuse of discretion" because the "judicial resistance to injunctive relief increases when the attempt is made to compel the doing of affirmative acts." (Davenport v. Blue Cross of Cal. (1997) 52 Cal.App.4th 435, 446.)

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