§65.6 Analysis

• Jurisdiction: Washington

§65.6ANALYSIS

This section provides analysis of CR 65 and the corresponding federal rule.

(1)Relationship to other rules and to statutes

The RCW contains over one hundred statutes providing for injunctions in specific situations ranging from apple advertising to veterinary practices. E.g., RCW 19.108.020 (injunction available to enjoin threatened misappropriation of trade secrets). Typically, these statutes entitle a party to enjoin conduct (such as practicing a profession without a license) prohibited or regulated by a state statute. CR 65 supplements rather than modifies these statutes; however, CR 65 prevails in any procedural conflict between the rule and a statute. CR 65(e).

RCW 7.40.010-.230 codify the court's constitutional power to grant injunctions. RCW 7.40.080 (injunction bond) was amended in 1994 to add the last sentence, which gives the court discretion to waive the bond whenever a person's health or life is in jeopardy. RCW 7.40.020 provides as follows:

Grounds for issuance. When it appears by the complaint that the plaintiff is entitled to the relief demanded and the relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce great injury to the plaintiff; or when during the litigation, it appears that the defendant is doing, or threatened, or is about to do, or is procuring, or is suffering some act to be done in violation of the plaintiff's rights respecting the subject of the action tending to render the judgment ineffectual; or where such relief, or any part thereof, consists in restraining proceedings upon any final order or judgment, an injunction may be granted to restrain such act or proceedings until the further order of the court, which may afterwards be dissolved or modified upon motion. And where it appears in the complaint at the commencement of the action, or during the pendency thereof, by affidavit, that the defendant threatens, or is about to remove or dispose of his property with intent to defraud his creditors, a temporary injunction may be granted to restrain the removal or disposition of his property.

Neither this statute nor CR 65 adequately describes the showing a party must make to obtain a temporary restraining order or preliminary injunction. Guidance on this question must come from case authority.

CR 65(c) refers to CR 65.1, entitled "Security—Proceedings Against Sureties." The latter rule prescribes procedures for asserting a claim against a surety for liability on a bond or undertaking required or permitted by the civil rules.

CR 52 alludes to CR 65 in providing that the court in granting or denying a "temporary injunction" shall enter findings of fact and conclusions of law. CR 52(a)(2)(A).

In addition, sections of the RCW address other prejudgment relief that is occasionally, and often erroneously, sought under the guise of an "injunction." Chapter 6.25 RCW addresses prejudgment attachment of a defendant's assets, and Chapter 6.26 RCW sets forth the requirements and procedures for seeking a prejudgment writ of garnishment.

(2)Nature and purpose of injunctive relief before trial

The types and purposes of injunctive relief available before trial are discussed below.

(a)Differences between temporary restraining orders and preliminary injunctions

CR 65 refers to two types of injunctive orders that may be entered before trial—the temporary restraining order and the preliminary injunction. Aside from different procedural mandates, such as the necessity of notice, the principal difference between the two is the duration of the relief. If the order remains effective for a specified length of time (not exceeding 14 days) and expires without further court order, it is a temporary restraining order; if it remains in effect until trial, it is a preliminary injunction.

Neither the civil rules nor Washington cases use the terms "preliminary injunction" and "temporary restraining order" consistently. See CR 52(a)(2)(A) (referring to a "temporary injunction," a term not used in CR 65). Some cases refer to "interlocutory injunction" and "injunction pendente lite," while others reference "preliminary injunction" or "temporary injunction." See, e.g., Davis v. Gibbs, 39 Wn.2d 180, 234 P.2d 1071 (1951).

Notice requirements are different for temporary restraining orders and preliminary injunctions. The former, under certain limited circumstances, may be obtained without notice; the preliminary injunction always requires prior notice. CR 65(a), (b). And, even if notice is given for a temporary restraining order, the notice may be less formal than the notice required for an application for a preliminary injunction. See §65.6(5)(a), below.

Finally, although the factors considered by the court in deciding whether to grant a temporary restraining order or preliminary injunction should be the same (see §65.6(3), below), as a practical matter it may be easier to persuade a court to enter an order that is effective for only a few days or weeks as opposed to an order that will remain in effect until a trial that may be months or years away. Thus, temporary restraining orders are often heard ex parte or, even if contested, based upon limited affidavits presented by only one side. By contrast, parties frequently support and oppose requests for preliminary injunctions with a detailed factual record that may include live testimony and extensive exhibits following expedited discovery under the civil rules.

(b)Purposes of preliminary injunctions and temporary restraining orders

The oldest and most frequently cited purpose for a temporary restraining order or preliminary injunction is to preserve the status quo pending further court proceedings. As stated in State v. Lichtenberg, 4 Wash. 407,411, 30 P. 716 (1892): "The only purpose of such restraining order is to keep things in status quo until the matter can be brought regularly before the court." This same principle was reaffirmed in Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 415, 63 P.2d 397 (1936): "[The] obj ect and purpose is to preserve and keep things in status quo until otherwise ordered, and to restrain an act which, if done, would be contrary to equity and good conscience." See also McLean v. Smith, 4 Wn.App. 394, 399, 482 P.2d 798 (1971) ("The purpose of a preliminary injunction is to preserve the status quo of the subject matter of a suit until a trial can be had on the merits."). The status quo, preservation of which may be the purpose of a preliminary injunction, is the last, actual, peaceable, uncontested condition that preceded the pending controversy. State ex rel. Pay Less Drug Stores v. Sutton, 2 Wn.2d 523, 532,98P.2d680 (1940); Nw. Gas Ass'n v. Wash. Utils. &Transp. Comm'n, 141 Wn.App. 98, 114 n.16, 168P.3d443 (2007).

Practice Tip: Aside from the historical support for the proposition, courts are generally receptive to granting relief that will do nothing more than maintain the "status quo," and, whenever possible, it is best to frame the requested relief in this way. This is particularly true when seeking an ex parte restraining order, which should be cast as nothing more than a request to maintain the status quo for two weeks until the parties can be heard on the merits on a full evidentiary record.

In truth, preservation of the "status quo" is often not a very useful concept in injunction cases. It is often impossible to freeze a situation; one of the parties may obtain an advantage depending upon whether the injunction is granted or denied. Hence, even if a status quo can be denned, simply because that status is preserved does not guarantee that injury to all parties will be avoided. For example, if neighbors want to enjoin a rock concert, the concept of status quo is of little value in analyzing whether an injunction before trial should issue. Afar more useful criterion is the avoidance of irreparable injury.

Irreparable injury has been denned to include an injury whose resulting damages can be estimated only by conjecture and not by any accurate standard. Columbia Coll. of Music & Sch. of Dramatic Art v. Tunberg, 64 Wash. 19,23,116 P. 280 (1911). This definition suggests that if the resulting injury is a monetary loss, and the loss can be measured by a trier of fact, an injunction may not be justified. E.g., Foundry Servs., Inc. v. Beneflux Corp., 206 F.2d 214 (2d Cir. 1953); see Larsen v. Walton Plywood Co., 65 Wn.2d 1, 390 P.2d 677 (1964). The Washington Supreme Court endorsed this view in Kucera v. State Department of Transportation, 140 Wn.2d 200, 209, 995 P.2d 63 (2000), stating that "injunctive relief will not be granted where there is a plain, complete, speedy and adequate remedy at law." See also id. at 210 ("Because the property owners have an adequate remedy at law in the form of monetary damages, they have not demonstrated they are entitled to the extraordinary remedy of injunctive relief").

Comment: In Kucera, the Washington Supreme Court rather forcefully held that a movant seeking preliminary injunctive relief bears the burden of showing that there is no adequate remedy at law in the form of monetary damages for the conduct sought to be enjoined. Id. at 210-11. Although Kucera does not specifically require a showing of "irreparable harm," it does require courts to examine the adequacy of legal remedies, calling into question language in County of Spokane v. Local No. 1553, American Federation of State, County and Municipal Employees, 76 Wn.App. 765, 771, 888 P.2d 735 (1995), that "harm need not be irreparable" to support injunctive relief.

Even when monetary damages are calculable or theoretically adequate, the ability of the defendant to pay a money judgment may also be considered. In State v. Superior Court for Snohomish County, 119 Wash. 631, 206 P. 362 (1922), a property owner sought to...