An order “granting or dissolving an injunction, or refusing to grant or dissolve an injunction” is an immediately appealable order under Code of Civil Procedure section 904.1(a)(6).  

When litigating an appeal from an injunction, here are some key questions to consider at the outset: Is the order imposing the injunction automatically stayed pending appeal, so as to preserve the status quo before the injunction was issued? Or, can the injunction take effect pending appeal? 

These questions cause persistent confusion and require careful analysis of the following point — is the injunction “mandatory” or “prohibitory”? 

A “mandatory” injunction requires something be done, i.e., a change in circumstance. A “prohibitory” injunction requires something not be done, i.e., preserving the status quo.

A mandatory (do something) injunction is automatically stayed pending appeal. A prohibitory (don’t do something) injunction is not automatically stayed pending appeal, such that the injunction takes effect while the order itself is being appealed.  

These rules are derived from Code of Civil Procedure section 916(a), which imposes an automatic stay pending appeal of “the judgment or order appealed from or upon the matters embraced therein or affected thereby.” Yet, case law has determined that an automatic stay applies only to injunctions that are mandatory in nature, and not those that are prohibitory.  See Dewey v. Superior Court, 81 Cal. 64, 68 (1889). The overriding concern driving the distinction is preservation of the status quo while the merits of the injunction are challenged on appeal.

Confused yet? If so, you wouldn’t be alone. 

The California Supreme Court recently considered this issue in Daly v. San Bernardino County Board of Supervisors, S260209, decided on August 9. 

In that case, a member of the five-person Board of Supervisors of San Bernardino County resigned in December 2018 to fill a position in the California Assembly. Under the county charter, the vacancy was to be filled by Board appointment within 30 days and by a majority vote of the Board; if not done within that time, the appointment would be made by the Governor. Daly, Slip Op’n at p. 2.

The Board solicited applications to fill the vacancy, and had 48 qualified candidates respond. Ultimately, the Board selected a candidate and seated her. The process for filling the vacancy was legally challenged as violating the open meeting requirements of the Ralph M. Brown Act.  The superior court agreed that the Board violated the Brown Act, and because no legally proper action was taken within 30 days to fill the vacancy, the superior court ordered the seated candidate removed from office and ordered that the appointment be made by the Governor rather than the Board. The Board appealed the injunction, and filed a petition for a writ of supersedeas in the Court of Appeal seeking a writ recognizing the automatic stay of the injunction pending resolution of its merits appeal. The appellate court denied the writ.  Granting review, the Supreme Court issued a temporary stay halting enforcement of the injunction while it reviewed the issue of the applicability of an automatic stay. Daly, Slip Op’n at p. 6.

In its analysis, the Supreme Court acknowledged that “[l]ike many distinctions in the law, the distinction between a mandatory and a prohibitory injunction sometimes proves easier to state than to apply.” Yet, guiding the inquiry are certain “benchmarks.” Daly, Slip Op’n at p. 12.

Step one – analyzing whether a change occurs in the status quo

The first consideration is about whether the injunction will force a change in the parties’ status (i.e., alter the status quo). If yes, then the injunction more likely is mandatory, rather than prohibitory. In explaining this point, Daly discussed a number of cases illustrating when the status quo was altered versus preserved.

• In real property actions, an order to remove an improvement — thus requiring a party to take action — has been held to be mandatory. By contrast, an order restraining action — like parking or storing vehicles on an easement — is prohibitory.

• In litigation over employment, board membership, and elected office, orders that require a person to surrender a position have been routinely characterized as mandatory. This is particularly so where the order requires an “affirmative” act transferring authority away from a person or entity, thus requiring a change in status. 

• In contract disputes, injunctions requiring a party to act contrary to contractual duties have been deemed mandatory injunctions. Again, such actions alter the status quo.

Summarizing the analytical difference here, one court explained that “[i]f an injunction compels a party to surrender a position he holds and which upon the facts alleged by him he is entitled to hold, it is mandatory.” By contrast, “[a]n injunction is prohibitory if its effect is to leave the parties in the same position as they were prior to the entry of the judgment.” Dosch v. King,192 Cal. App. 2d 800, 804 (1961).

The inquiry does not end there, however.

Step two – determining when to measure the status quo

The next consideration is “where the proper baseline should be fixed,” with the understanding that the status quo may not always be “that prevailing at the time of the injunction.” Daly, Slip Op’n at p. 19. Prior authority set the relevant timeframe in certain cases as “an earlier ‘actual peaceable, uncontested status which preceded the pending controversy.’ ” United Railroads v. Superior Court,172 Cal. 80, 87 (1916).

Two examples highlight the temporal aspect of the status quo analysis. In United Railroads, an order enjoined the City of San Francisco from continuing to run more street cars than contractually allowed on United Railroad’s facilities. The order was held to be prohibitory, not mandatory, even though it altered the City’s current position. The relevant timeframe instead was the last “peaceable, uncontested” time in the parties’ relationship, i.e., before the City began its extra activity alleged to violate the contract. The Supreme Court in United Railroads also rejected the City’s contention that it had acquired a property right in its current level of use (the alleged over-use) of the rail lines; thus, the Court rejected the claim that the injunction was mandatory because it was altering that property right. Id. at pp. 83-87.

In People v. Hill, 66 Cal. App. 3d 320, 331 (1977), an injunction was prohibitory where it restrained the defendant from using certain deceptive professional terms in advertising. Although the order altered the current status quo, it returned the parties to their positions “which existed before appellant started using the prohibited words.”   

An observable difference in the cases where an injunction has been deemed mandatory — like removing an employee or board member from a current position, or taking down a property improvement — is that such orders requiring affirmative action are aimed at remedying a future harm. By contrast, the latter grouping of cases — stopping a city’s excess use of private property, or restraining the ongoing use of prohibited terms in advertising — can be read as curing the past infringement and returning the parties to their status before the allegedly harmful conduct occurred.

Applying these principles, the Supreme Court in Daly unanimously concluded that the superior court’s injunction — which required the Board of Supervisors to cease from violating the Brown Act’s open meeting laws, and to remove the appointed Supervisor and permit the Governor to appoint the replacement — was mandatory and therefore automatically stayed during the pendency of the appeal on the merits. Because the Board of Supervisors was entitled to a writ of supersedeas effectuating the stay pending its appeal from the trial court’s injunction, the Court reversed the Court of Appeal’s decision denying the writ of supersedeas and remanded for further proceedings. See Slip Op’n at pp. 19-29.

Finally, the Supreme Court acknowledged ongoing difficulties in analyzing injunctions and appeal stays. The Court illuminated different schemes utilized in other states and in the federal courts, many of which take an approach with more discretion built into the determination of whether an injunction is stayed pending appeal. And in a rare move, the Court expressly invited Legislative consideration of the issue to evaluate whether a system with broader discretion may better serve California jurisprudence. Slip Op’n at pp. 29-34.

One note here — as with any general discussion, there are a few exceptions to the stay rules for highly specialized injunctive relief orders. These range from orders about the release of hazardous substances to those declaring a building a nuisance or allowing an entity or person to inspect a corporation’s books if entitled to do so by law. So, it’s a good idea to review, for example, Code of Civil Procedure sections 917.1 – 917.9 for possible exceptions applicable in your case.

In sum, when analyzing whether to pursue any appeal or once your appeal is under way, it’s vital to consider whether the judgment or order at issue is automatically stayed pending appeal, or whether obtaining a stay will require posting an appeal bond or undertaking.  Injunctions are no different. As Daly recognized, “[i]t is not always easy to distinguish a restraint from a command, or vice versa. There are no magic words that will distinguish the one from the other[.]” Slip Op’n at p. 30. If you have questions about whether or not perfecting your appeal results in a stay, appellate counsel can help analyze these issues.

Johanna Schiavoni (johanna.schiavoni@calg.com) is a certified specialist in appellate law, and her practice at California Appellate Law Group LLP focuses on civil appeals in state and federal courts. She served as a law clerk to 9th Circuit Judge M. Margaret McKeown and Central District of California Judge Christina A. Snyder. She was the 2020 President of the San Diego County Bar Association. Find out more about Johanna and the California Appellate Law Group LLP at www.calapplaw.com. 

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

This article originally appeared in the Daily Journal on August 31, 2021.

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

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