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Preliminary Injunction

1 Elements and Case Citations

STATE PROCEDURE

In seeking a temporary or preliminary injunction, a plaintiff must establish “irreparable injury or interim harm that it will suffer if an injunction is not issued pending an adjudication of the merits.’ The court will consider

1. The likelihood of the moving party’s success on the merits;
2. The possibility of irreparable harm to the moving party if relief not granted; and
3. Extent to which the balance of hardships favors the respective parties.

White v. Davis, 30 Cal. 4th 528, 554 (2003) (also discussing public policy issues in connection with injunctions sought against governmental agencies).

“While the mere possibility of harm to the plaintiffs is insufficient to justify a preliminary injunction, the plaintiffs are ‘not required to wait until they have suffered actual harm before they apply for an injunction, but may seek injunctive relief against the threatened infringement of their rights.’” Costa Mesa City Employees Assn. v. City of Costa Mesa, 209 Cal. App. 4th 298, 305 (2012).

Cal. Code Civ. Proc. § 526 identifies the “[c]ases in which injunction may or may not be granted.” See also Cal. Code Civ. Proc. §§ 525, et seq. (“Injunctions”).

FEDERAL PROCEDURE

A plaintiff seeking a preliminary injunction must establish

[1] that he is likely to succeed on the merits,
[2] that he is likely to suffer irreparable harm in the absence of preliminary relief,
[3] that the balance of equities tips in his favor, and
[4] that an injunction is in the public interest.

Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008).

It is well established that, to determine whether an injunction is “just and proper,” courts apply the “familiar set of four equitable factors: the movant's likelihood of success on the merits; the possibility of irreparable injury to the moving party; the extent to which the balance of hardships favors each party; and whether the public interest will be advanced by granting the preliminary relief.”

Small ex rel. NLRB v. Operative Plasterers’ & Cement Masons’ International Assoc., 611 F.3d 483, 489-90 (9th Cir. 2010).

CALIFORNIA STATE COURTS

Supreme Court of California: White v. Davis, 30 Cal. 4th 528, 554 (2003).

California 1st Dist.: Doolittle v. Exchange Bank, 241 Cal. App. 4th 529, 546 (2015); People ex rel. Herrera v. Stender, 212 Cal. App. 4th 614, 630 (2012).

California 2d Dist.: Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc., 6 Cal. App. 5th 1178, 1183 (2016); People ex rel. Feuer v. Nestdrop, LLC, 245 Cal. App. 4th 664, 672, (2016); Water Replenishment Dist. of S. Cal. v. City of Cerritos, 220 Cal. App. 4th 1450, 1461-62 (2013).

California 3d Dist.: Prigmore v. City of Redding, 211 Cal. App. 4th 1322, 1333 (2012).

California 4th Dist.: Carbajal v. CWPSC, Inc., 245 Cal. App. 4th 227, 250 (2016) (requiring “a party seeking a preliminary injunction to post a bond or other undertaking to cover any damages the enjoined party may suffer if it later is determined the injunction was erroneously granted”.); SB Liberty, LLC v. Isla Verde Ass’n, Inc., 217 Cal. App. 4th 272, 280 (2013).

California 5th Dist.: Smith v. Adventist Health System/West, 182 Cal. App. 4th 729, 749 (2010).

California 6th Dist.: Oiye v. Fox, 211 Cal. App. 4th 1036, 1047 (2012), rev. denied, No. S208185, 2013 Cal. LEXIS 1994 (Mar. 13, 2013).

CALIFORNIA FEDERAL COURT

United States Supreme Court: Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008).

United States Court of Appeal for the 9th Circuit: Carr v. Stelzer, No. 17-35287, 2018 WL 2041420, at *2 (9th Cir. May 2, 2018); Herb Reed Enters., LLC v. Florida Entertainment Mgmt., 736 F.3d 1239, 1247 (9th Cir. 2013).

Central District: Ramtin Massoudi MD Inc. v. Azar, No. 2:18–cv–1087–CAS(JPRx), 2018 WL 1940398, at *4 (C.D. Cal. April 23, 2018); Constr. Laborers Trust Fund for S. Cal. Admin. Co. v. Play Smart Surfacing, Inc., No. EDCV 13-00582-VAP (DTBx), 2013 WL 6007594, at *16 (C.D. Cal. Nov. 12, 2013).

Eastern District: Leskinen v. U.S. Dep’t of Agriculture, No. 2:18-cv-0453-TLN-KJN PS, 2018 WL 3014149, at *3 (E.D. Cal. June 14, 2018); Manago v. Williams, No. 2:07-cv-02290-TLN-KJN P, 2013 WL 6512896, at *4-5 (E.D. Cal. Dec. 12, 2013).

Northern District: Gonzalez v. Sessions, No. 18–cv–01869–JSC, 2018 WL 2688569, at *8 (N.D. Cal. June 5, 2018); XimpleWare Corp. v. Versata Software, Inc., No. C 13-05160 SI, 2013 WL 6405979, at *5-6 (N.D. Cal. Dec. 6, 2013).

Southern District: Arcturus Therapeutics Ltd. v. Payne, No. 18cv766-MMA, 2018 WL 2316790, at *4 (S.D. Cal. May 22, 2018); Mytee Prods. v. Shop Vac Corp., No. 13cv1610 BTM (BGS), 2013 WL 5945060, at *2-3 (S.D. Cal. Nov. 4, 2013).

2 Defenses to Claim for Preliminary Injunction

(1) Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses. See Chapter 1 for all defenses.

(2) Statute of Limitations: Because the likelihood of success includes defenses such as the statute of limitation, the appropriate statute follows the underlying right sought to be vindicated. See, e.g., Aiuto v. City and County of San Francisco, 201 Cal. App. 4th 1347, 1355-56 (2011) (preliminary injunction improper because plaintiff’s claim was barred under statute of limitations in Cal. Gov’t Code § 66499.37); McMackin v. Ehrheart, 194 Cal. App. 4th 128, 136 (2011) (Cal. Code Civ.Proc. § 366.3 set forth the relevant statute of limitations and did not bar the plaintiff’s claim).

(3) Lack of Notice: Notice to the opposing party is required before an injunction shall be granted. Cal. Code Civ. Proc. § 527(a); see also Pacific Decision Sciences Corp. v. Superior Court, 121 Cal. App. 4th 1100, 1110 (2004) (holding “[p]rior notice is always required before the court issues a preliminary injunction.”)

(4) Categories of Cases: California Code of Civil Procedure 526 enumerates “[c]ases in which injunction may or may not be granted.”

(5) See Cal. Code Civ. Proc. §§ 525, et seq., which sets for the requirements, elements and procedures for injunctions.

(6) A preliminary injunction is an extraordinary remedy meant simply to preserve the status quo until a court can decide the merits. See Jackson v. Davis, No. 1:16-cv-0148 DAD MJS, 2018 WL 2793947, at *1 (E.D. Cal. June 11, 2018)U.S. Philips Corp. v. KVC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010);MaJor v. Miraverde Homeowners Assn., Inc., 7 Cal. App. 4th 618, 623, 9 Cal. Rptr. 2d 237 (1992).

(7) The Supreme Court has deemed a preliminary injunction to be “an extraordinary remedy never awarded as of right.” See Winter v. NRDC, 555 U.S. 7, 24 (2008); Munaf v. Geren, 553 U.S. 674, 689-90 (2008).

(8) The Court must first assure that it has jurisdiction when assessing the request for a preliminary injunction. See Munaf v. Geren, 553 U.S. 674, 689-90 (2008).

(9) The minimal injury necessary to demonstrate standing is not sufficient to establish irreparable harm. See Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988); Colorado River Indian Tribes v. Dep’t of Interior, No. ED CV14-02504 JAK, 2015 WL 12661945, at *30 (C.D. Cal. June 11, 2015).

(10) "Injunction is an extraordinary remedy and courts have consistently proceeded with great caution in exercising their power, and have required a clear showing that the threatened and impending injury is great, and can be averted only by injunction" Wilkins v. Oken, 157 Cal. App. 2d 603, 606, 321 P.2d 876 (Cal. Ct. App. 1958)(emphasis added).

(11) A plaintiff seeking a preliminary injunction bears the burden of presenting facts which show a reasonable probability that he will succeed on the merits. See Fleishman v. Super. Ct., 102 Cal. App. 4th 350, 356, 125 Cal. Rptr. 2d 383 (2d Dist. 2002); Williams v. Price, No. 1:18–cv–00102–LJO–SAB, 2018 WL 2251644, at *3 (E.D. Cal. May 15, 2018).

(12) The mere possibility of irreparable harm is insufficient to support the entry of the drastic remedy of a preliminary injunction. See Experience Hendrix, LLC v. HendrixLicensing.com Ltd., No. 2:17–CV–07235 VAP, 2018 WL 1942058, at *3 (C.D. Cal. Feb. 8, 2018); ARC of Cal. v. Douglas, 956 F. Supp. 2d 1113 (E.D. Cal. 2013).

(13) An unreasonable delay in moving for a preliminary injunction "implies a lack of urgency and irreparable harm." See Lasco Fittings, Inc. v. Lesso America, Inc., No. EDCV 13-02015-VAP, 2014 WL 12570930, at *10 (C.D. Cal. Jan. 16, 2014); Miller v. Calif. Pacific Med. Ctr., 991 F.2d 536, 544 (9th Cir. 1993) (quoting Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d 1374, 1377 (9th Cir. 1985)).

(14) The granting or denying of a preliminary injunction does not constitute an adjudication of the ultimate rights in controversy. Robbins v. Superior Court, 38 Cal. 3d 199, 218, 695 P.2d 695, 704, 211 Cal. Rptr. 398 (Cal. 1985).

(15) Even where a violation of the law has been established, a court must still balance the equities before issuing an injunction. See Lasco Fittings, Inc. v. Lesso America, Inc., No. EDCV 13-02015-VAP, 2014 WL 12570930, at *10 (C.D. Cal. Jan. 16, 2014); Amoco Prod. Co. v. Village of Gambrell, 480 U.S. 531, 542 (1987).

(16) To obtain an injunction one must show “that the defendant's wrongful acts threaten to cause irreparable injuries, ones that cannot be adequately compensated in damages.” See Lasco Fittings, Inc. v. Lesso America, Inc., No. EDCV 13-02015-VAP, 2014 WL 12570930, at *8 (C.D. Cal. Jan. 16, 2014); Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1352, 1 Cal. Rptr. 3d 32, 71 P.3d 296 (2003) (emphasis added).

(17) Injunctions must be “narrowly tailored … to remedy only the specific harms shown by the plaintiffs.” SeeFed. Trade Com'n v. John Beck Amazing Profits LLC, 888 F.Supp.2d 1006, 1011 (C.D. Cal. 2012); Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (emphasis added).