Temporary Restraining Orders and Preliminary Injunctions

• Author: Robert F. Kane/Donald G. Rez
• Pages: 933-1008

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