by Dick Rothschild, Litigation Director for the Western Center on Law and Poverty

The California Supreme Court has made it slightly more difficult for us to enforce injunctions and writs while an appeal is pending.  At the same time, the Court called for curative legislation, which I hope we can help pass.  Daly v. San Bernardino Cty. Bd. of Supervisors, No. S260209, 2021 WL 3482924 (Cal. Aug. 9, 2021).

When a defendant appeals from an injunction or writ, the question under California law becomes:  is the injunction prohibitory or mandatory?  As the Court explained, “An injunction that requires no action and merely preserves the status quo (a so-called prohibitory injunction) ordinarily takes effect immediately, while an injunction requiring the defendant to take affirmative action (a so-called mandatory injunction) is automatically stayed during the pendency of the appeal.”  Id. at *1.

The Supreme Court acknowledged that the rule is easier to state than to apply.  Its lengthy opinion marginally improves the clarify of the rule, but not in a good way.  Now more than ever, the emphasis will be on the status quo at the time the injunction is issued.  Our clients and other plaintiffs have relied on language from a century-old opinion stating that the status quo is “the last actual peaceable, uncontested status which preceded the pending controversy.”  United Railroads v. Superior Court, 172 Cal. 80, 87 (1916).  The Daly Court, while not expressly overruling United Railroads, says that the language doesn’t actually mean what it says, and that the relevant status quo is what exists at the time the injunction or writ is issued.  It has never been easy to win the prohibitory vs. mandatory argument, but it has now gotten harder..

The bright spot is the Court’s acknowledgement that none of this makes sense.  “There is reason to doubt a strict application of the rule automatically staying mandatory injunctions will produce the most just result in all cases. Because an appeal can take a substantial time to resolve, and because during that time the plaintiff may, in some cases, be significantly injured by the maintenance of the status quo, an automatic stay will not always be fair to prevailing plaintiffs with strong cases that are likely to be upheld on appeal.” 2021 WL 3482924. at *13. 

The Court suggested a “more flexible approach that permitted the trial and appellate courts to weigh the likelihood of each party’s success on appeal and the extent of irreparable injury each will suffer from the stay decision would allow courts to make more sensitive, case-specific judgments about whether the equities favor the stay of an injunctive order pending appeal.”  Id.  The opinion notes that the federal courts and at least four other states have adopted such an approach, and suggested the California Legislature do the same.