Lawyers sometimes excel at creative writing. Not just in crafting persuasive briefs, but also in more prosaic tasks like drafting the terms of an injunction. This is because the wording of an injunction can make a big difference, particularly on appeal.

An injunction can be prohibitory or mandatory. The usual distinction is that a prohibitory injunction requires no action and merely preserves the status quo, whereas a mandatory injunction requires the defendant to take affirmative action. 

The distinction has important implications. For one thing, an appeal automatically stays a mandatory injunction but not a prohibitory injunction, so contempt proceedings for violating an injunction while an appeal is pending can turn on what type of injunction was entered. Also, a mandatory injunction is more difficult to obtain and subject to stricter review on appeal.

These considerations can set the creative juices flowing. Plaintiff’s counsel will sometimes strive to make an injunction look prohibitory, while defense counsel will try hard to paint it as mandatory. California case law presents some shining examples in which the appellate courts have had to cut through the verbiage to determine what an injunction really does.

Sometimes a mandatory injunction is written in such a way that it seems only to prohibit rather than to require action by defendant (frequently, one suspects, at plaintiff’s suggestion). A fairly subtle nineteenth century version of this type of injunction can be seen in Stewart v. Superior Court of San Diego County (1893) 100 Cal. 543. There, the trial court decreed that defendant owners of a water pipe must “desist and refrain from interfering” with plaintiff’s connection of his pipe to theirs, and from “interfering with or preventing the flow of water from” their pipe to his. The Supreme Court did not accept this as a mere prohibition. It saw the injunction as in reality compelling an affirmative act – requiring defendants to deliver water to plaintiff – and deemed it a mandatory injunction.

Mandatory injunctions whose wording obfuscates their true nature have persisted over the succeeding decades. In Johnston v. Superior Court of Los Angeles County (1957) 148 Cal.App.2d 966, plaintiff sued the county to be allowed to operate an automobile dealership in a location where the zoning was in dispute. The judgment sounded prohibitory – it enjoined the county from “interfering in any manner with plaintiffs, . . . in using said Boulevard Frontage for an automobile dealership.” The Court of Appeal saw this as compelling the county to issue plaintiff a permit to operate his business, and therefore decreed that it was a mandatory injunction.

An extreme instance of the use of prohibitory language can be found in Agricultural Labor Relations Bd. v. Superior Court of Kern County (1983) 149 Cal.App.3d 709, in which the trial court entered an injunction restraining the employer from “failing or refusing to immediately reinstate” a group of striking workers and ordering it not “to continue” to employ the workers hired in their place. The Court of Appeal saw the prohibitory language as a circumlocution concealing the true nature of the injunction, which required the hiring of some workers and the discharge of others, making it a mandatory injunction.

A particularly striking example is Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435. There, Blue Cross was “prohibited from denying, refusing, excluding, limiting, or discontinuing coverage and benefits for” the treatment of plaintiff, and was “enjoined and prohibited from refusing to reimburse plaintiff” for the costs of her treatment. Plaintiff insisted that this was a prohibitory injunction, because it enjoined Blue Cross from “persisting in an anticipatory breach of its contract.” The Court of Appeal was not dazzled by the injunction’s prohibitory language. It concluded that the injunction was mandatory because it compelled Blue Cross to perform affirmative acts – i.e., authorizing and paying for plaintiff’s treatment.

A somewhat different masquerade of a mandatory injunction as prohibitory can be seen in Paramount Pictures Corp. v. Davis (1964) 228 Cal.App.2d 827 – something of celebrity among decisions of this genre, because the defendant was Bette Davis. Paramount sued to compel her to film an additional scene to be included in “Where Love Has Gone,” for which principal photography had been completed. She refused; she was already filming “Hush, Hush, Sweet Charlotte” for a different studio. Paramount obtained an injunction that sounded prohibitory – she was “enjoined and restrained from rendering her services in connection with any motion picture photoplay.” However, the injunction also contained a revealing qualification – it would not take effect if Ms. Davis filed with the court a statement representing that she would render her services for Paramount. The Court of Appeal saw the injunction as mandatory, because “although framed in prohibitory language, [it] was intended to coerce or induce defendant into immediate affirmative action.” 

On the other side of the coin, a defendant against whom a seemingly prohibitory injunction has been entered will sometimes find creative ways to argue that it really is mandatory. In Oiye v. Fox (2012) 211 Cal.App.4th 1036, for example, the court entered a preliminary injunction “prohibiting defendant and his agents from concealing, encumbering, impairing the value, transferring, or disposing” of his assets. The defendant argued that this was actually a mandatory injunction because it “affirmatively required” him not to transfer assets. The Court of Appeal quickly rejected this characterization, wryly noting that the injunction “directs affirmative inaction by defendant, not affirmative action.” 

Similarly, a preliminary injunction entered in People ex rel. Brown v. iMergent, Inc. (2009) 170 Cal.App.4th 333, “prohibit[ed] defendants from selling their products and services without first complying with the disclosure provisions” of the state consumer protection and false advertising laws. Defendants maintained that an injunction compelling them to comply with statutory requirements was mandatory, but the Court of Appeal had no problem disabusing them of this notion. Any aspects of the injunction requiring an affirmative action, it noted, were incidental to the main purpose of prohibiting illegal acts.

If there’s any lesson to be learned from all this, it’s that an attorney needs to pay more attention to what an injunction does than to what it says. Plaintiff’s attorneys should strive to find ways to get the relief their clients need without actually compelling the defendant to do something. Defense attorneys should look for ways to show that a facial prohibition forces defendant to give some form of affirmative relief.

The California Supreme Court in the recent decision Daly v. San Bernardino County Bd. of Supervisors (2021) 11 Cal.5th 1030, strongly suggested that the Legislature should take a fresh look at stays of injunctions on appeal and give the courts more flexibility in the issuance of such stays, regardless of whether the injunction is prohibitory or mandatory. This suggestion, if taken up, might result in more nuanced results in some cases, but it might also bring to an end a long litany of creatively crafted characterizations.

Charles Kagay is of counsel with the California Appellate Law Group LLP*, an appellate boutique with offices in San Francisco, Los Angeles, and San Diego. He has decades of experience handling appeals that involve complex or novel legal questions and is certified by the State Bar as a California appellate specialist. Find out more about Charles and the California Appellate Law Group LLP at

Appellate Zealots is a monthly column on recent appellate decisions and appellate issues written by the attorneys of the California Appellate Law Group LLP.

This article originally appeared in the Daily Journal on September 20, 2021.

*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.

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