Temporary Restraining Orders and Preliminary Injunctions

AuthorRobert F. Kane/Donald G. Rez
Pages933-1008
Chapter 16
Temporary Restraining Orders
and Preliminary Injunctions
QUICK VIEW
Definitions: A temporary restraining order (TRO) maintains the status quo between parties to a suit until the
court can hold a hearing to determine whether to issue a preliminary injunction. A preliminary injunction (PI)
maintains the status quo between parties to a suit until the suit is finally resolved.
Scope of Chapter: Grounds for obtaining and opposing preliminary injunctive relief; proper and improper
subjects for preliminary injunctive relief; how to obtain and oppose a TRO or PI; dissolution, modification, and
enforcement of TROs and PIs; appellate review; remedies for wrongful injunction.
Strategies and Tactics: Counsel should devote just as much preparation to hearings on temporary matters as to
trial on the merits. Temporary orders are not intended as a substitute for a trial on the merits, but they sometimes
have that effect. And the ruling may create interim hardships for the losing party and have a significant effect on
the range of settlement offers.
Statutes and Rules: CCP §526 ff; CC §3420 ff; CRC 3.1150, 3.1200-3.1207.
Related Topics: Motion Practice, Ch 14; Venue and Forum Non Conveniens, Ch 8; Parties, Ch 12.
Forms in Digital Access: See digital access for the following forms:
Form 16:10 Notice of Pendency of Action
Form 16:20 Ex Parte Application for Temporary Restraining Order and Order to Show Cause re
Preliminary Injunction.
Form 16:30 Declaration re Notice.
Form 16:40 Declaration in Support of Temporary Restraining Order and Preliminary Injunction.
Form 16:50 Temporary Restraining Order and Order to Show Cause re Preliminary Injunction.
Form 16:60 Memorandum of Points and Authorities in Support of Temporary Restraining Order and
Preliminary Injunction.
California Pretrial Practice & Forms 16-2
TABLE OF CONTENTS
I. OVERVIEW
A. GENERAL POINTS
§16:01 Definition
§16:02 Purpose
§16:03 Types of Injunctions
§16:04 Temporary Restraining Order (“TRO”)
§16:05 Preliminary Injunction (“PI”)
§16:06 Permanent Injunction
§16:07 Prohibitory vs. Mandatory Injunctions
§16:08 Mandatory Injunctions Disfavored
§16:09 Mandatory Injunction Automatically Stayed on Appeal
§16:10 Importance of Temporary Relief
§16:11 Caveat: Family Law Cases Governed by Different Rules
B. DISTINGUISHED FROM OTHER PRE-JUDGMENT ORDERS
§16:20 Attachment
§16:21 Claim and Delivery
§16:22 Lis Pendens
§16:23 Receivership
§16:24 Inherent Power
C. ADVANTAGES AND DISADVANTAGES OF PRELIMINARY INJUNCTIONS
1. Advantages
§16:30 Prevention of Irreparable Harm
§16:31 Strategic and Tactical Weapon
§16:32 Early Resolution Possible
§16:33 Opportunity for Meaningful Decision at Trial
§16:34 Apprise Court of Issues
2. Disadvantages
§16:40 Costly
§16:41 Risk of Losing on Incomplete Record
§16:42 Premature Disclosure of Factual Basis of Claim
§16:43 Undertaking
II. GROUNDS AND DEFENSES
A. REQUIREMENTS
§16:50 Overview
§16:51 General Injunction Statute
§16:52 Two Part Test
§16:53 Burden of Proof
§16:54 Discretion
§16:55 Exception: Statutory Injunctions
§16:56 Examples of Statutory Injunctions
B. EQUITABLE CONSIDERATIONS
1. General Points
§16:70 Injunction Equitable Remedy
§16:71 Injunction Should Be Least Disruptive
2. Likelihood of Success
§16:80 Probable Right to Relief
§16:81 Determination Not Law of Case
3. Threat of Irreparable Injury
§16:90 Irreparable Injury
§16:91 Adequacy of Damages
16-3 Temporary Restraining Orders and Preliminary Injunctions
§16:92 Money Damages Inadequate
§16:93 Real Property
§16:94 Constitutional Rights
§16:95 Injury Must Be Imminent
§16:96 Greater Probability of Success Means Less Severe Harm Needed
§16:97 Class Action
4. Lack of Adequate Remedy at Law
§16:110 Legal Remedy Must Be as Good as Equitable
§16:111 Damage Remedy
§16:112 Other Legal Remedies
5. Staying Actions
§16:120 Prevention of Multiplicity of Actions
§16:121 Staying Future Actions
6. Considering Public Interest
§16:130 Balancing Public Interests
§16:131 Presumption When Sought by Public Entity
§16:132 Public Interest Against Injunction
C. DEFENSES
1. General Jurisdictional Limitations
§16:140 Limited by Constitution or Statute
§16:141 No Injunction When Federal Law Controls
§16:142 First Amendment
§16:143 Constitutional Limitations
§16:144 Limited by State Statutes
§16:145 Application to Judicial Proceedings
§16:146 Separation of Powers
2. Specific Statutory Limitations
§16:150 Not to Prevent Enforcement of Valid Statute
§16:151 Not to Stay Collection of Taxes
§16:152 Not to Enjoin Legislative Acts By Municipal Corporation
§16:153 Not to Prohibit Sale of Municipal Bonds
§16:154 Not to Prevent Exercise of Public or Private Office By Incumbent
§16:155 Not to Prevent Breach of Contract
§16:156 Exception for Certain Personal Service Contracts
§16:157 Limitations in Labor Disputes
§16:158 Not to Enjoin Certain Private Nuisance Actions
§16:159 Not to Restrain Criminal Acts
§16:160 Anti-SLAPP Motion
3. Equitable Defenses
§16:170 In General
§16:171 Laches
§16:172 Unclean Hands
§16:173 Relative Hardship
§16:174 Hardship to Public or Third Parties
§16:175 Completed Act or Repetition Unlikely
§16:176 Exhaustion of Administrative Remedies
§16:177 Continuing Supervision and Difficulty of Enforcement
III. TYPICAL SUBJECT MATTER FOR TRO AND PI
A. ASSET PROTECTION AND ENFORCEMENT OF JUDGMENTS
§16:190 TRO in Connection With Attachment
§16:191 Specific, Identifiable Fund or Assets
§16:192 Fraudulent Transfer

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