John T. Blanchard, P.C.
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General Principles of Legal Remedies




[The following article was excerpted from John T. Blanchard's law school textbook, California Remedies: Commentary, Materials and Problems (3d ed. ©1997)]

Injunction is one of the oldest, and surely one of the historically classic, equitable remedies. Its use is generally limited to tort claims; however, it is also available to prevent to prevent breaches of certain specific types of contract. As well developed as its jurisprudence is, it remains one of the most subtle and sophisticated remedies. Its proper exercise requires the application of good common sense and judgment.

Injunctions are generally divided for analytic purposes by effect and by duration. The "effect" of injunctive relief is either mandatory or prohibitory; that is,
"Injunctions are generally divided for analytic purposes by effect and by duration."
the equitable decree either requires a party to do something (mandatory) or to not do something (prohibitory). Mandatory injunctions are, by far, more rare and difficult to obtain than prohibitory orders. The courts have historically been extremely reticent to "undo" parties' prior conduct with a mandatory injunction while the same misconduct, if suit were brought before it had been completed, might well be prohibited. The rubric conventionally employed by court when denying a request for a mandatory injunction is that "the law helps the vigilant, before those who sleep on their rights".

The "duration" of injunctive relief refers to the time of its potential operation in relation to the lawsuit in which it is sought. A "temporary restraining order" ("T.R.O.") is an emergency remedy, sought by ex parte application, that lasts only a matter of days, until there is time for a full, adversarial hearing on the merits. That hearing on the merits at an 'order to show cause" ("Order to Show Cause") hearing may lead to a "preliminary injunction", an order that remains in effect during the effective life of the litigation (unless by further court order); procedurally, a "preliminary injunction" may also be sought by a noticed motion. The conventional primary purpose of a "preliminary injunction" is to preserve the status quo pending a full trial adjudicating the parties' rights. Preliminary injunctions expire no later than the finality of the Judgment; that is, while they may be terminated earlier by special court order, they cannot remain effective after the Judgment becomes final (not further challengeable) on appeal. "Temporary restraining orders" and "preliminary injunctions" are often referred to as "provisional remedies"; as such they may be sought in actions that otherwise seek only legal relief (but where, based on the circumstances of the case, preservation of the status quo pendente lite is desirable). In an action that seeks equitable relief (but not in one that seeks only legal remedies) the court may enter a "permanent injunction". A "permanent injunction" is exactly what it says it is: a permanent order of the court that lasts (at least theoretically) forever (or until modified or vacated by further court action or the expiration of the Judgment). But, since further court action is not generally contemplated after a trial, modification or vacation will generally be ordered only on the request of the enjoined party.

As preliminary requirements for the entry of injunctive relief the court must have jurisdiction over both the person of the defendant and of the subject matter. Venue must, of course, also be proper. These considerations, basically matters of civil procedure, are given little attention here. In addition, injunctions against numerous types of activity are specifically allowed by statute. This article consider only general injunctive relief, otherwise unspecified by code. However, unless otherwise specified by specific statute, the factors relevant to the entry of general injunctive relief are the same as for conduct specifically proscribed by statute; in general, the only difference is that the complained of conduct is established by statute to be objectionable and, thus, properly subject to injunctive relief.

Provisional relief is generally governed by the provisions of the Code of Civil Procedure. However, if a prohibition of injunctive relief in a class of cases is stated in the Civil Code, the Civil Code governs. Permanent injunctions are governed by the Civil Code. While this may seem, and in some rare cases is, confusing, the statutes are very similar. In gist, far more types of conduct may be stayed pending full litigation than may be enjoined permanently. However, Civil Code section 3368 authorizes permanent injunctive relief "prohibiting a party from doing that which ought not to be done" and, thus, expands what would otherwise be the bounds of Civil Code section 3422 to the general grant of equity jurisdiction under the California Constitution.

Injunction is such a powerful remedy that bonds (financial undertakings) are almost always required before the order becomes effective. In certain rare instances
"Injunction is such a powerful remedy that bonds (financial undertakings) are almost always required before the order becomes effective."
a trial court has the discretion to waive this requirement. Of course, if a party seeks and obtains multiple injunctive orders (e.g., a temporary restraining order, followed by a preliminary injunction, followed by a permanent injunction) multiple bonds are required. Bond are posted to compensate the enjoined party for damages or losses caused by the injunction should it later appear that the moving party was not entitled to an injunction. However, no matter how severe the actual damage or loss, the party damaged by the improper issuance of such relief may collect only from the bond.

Despite the relatively thorough codification of injunctive principles, a court in equity is always possessed of substantial discretion as to whether to grant or withhold this "extraordinary" remedy. A court makes its determination by weighing the equitable factors favoring the issuance of
"Despite the relatively thorough codification of injunctive principles, a court in equity is always possessed of substantial discretion as to whether to grant or withhold this 'extraordinary' remedy."
the requested injunction with those militating against such an order. Since the court approaches each matter with this balancing process foremost, it is difficult to state firm rules as to when injunctive relief will be granted and when it will be denied; however, in addition to the statutory enumeration of factors to be addressed, it is possible to state, in general, the type of factors weighed by the court. The analysis of these factors is always addressed to the sound discretion of the trial court.

The "Likelihood of Success" and "Balance of Hardship" factors are generally considered to be the central elements in any analysis of whether to grant provisional injunctive relief while the existence of "Inadequacy of Legal Remedy" and "'Irreparable' Injury" factors predominate in the analysis of whether a permanent injunction is appropriate.

  • Inadequacy of Legal Remedy. As an equitable remedy, it is always necessary that the moving party's legal remedy be "inadequate" before equity may be invoked. Thus, if a legal remedy is available then permanent injunctive relief should always be denied. However, as noted above, provisional relief may, depending on the weighing of other factors, be available even when only legal relief is sought. However, provisional relief, though technically possible (that is, not jurisdictionally or otherwise improper), is often deemed unsuitable merely because a legal remedy would, assuming everything the claimant alleges is true, be available.

  • "Irreparable" Injury. Both the remedy statute and the common law provided for issuance of at least provisional relief in cases of so-called "irreparable" injury. The problem with this factor is not its general conception but in its specific definition. "Irreparable" does not mean "that which, if suffered, could not under any circumstances be repaired or compensated because all other remedies are utterly worthless"; such a definition (however appealing as a matter of "plain language") would unduly restrict the flexible powers of a court of equity. The term has often been defined as "that species of damages, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other." However, especially when the reference to "small" is highlighted, suggests that any offense, however trivial, is a proper subject for injunctive relief. While it remains an unsatisfactory formulation, definition of "irreparable" as meaning wrongs of a "repeated and continuing character" and/or including "an overbearing assumption . . . of superiority and domination over the rights and property of others" is more workable (at least as long as care is taken not to equate personal offense, "overbearing", with "actionable -- personal offensiveness or arrogance is not, by itself, actionable).

  • Likelihood of Success. Though parties who succeed in obtaining provisional relief consistently brandish their success, and the judicial finding that it is "likely" that they will ultimately succeed in the action, throughout the balance of the litigation, all that a trial court need do to support issuance of the provisional remedy is find a "reasonable probability" of the moving party's ultimate success. Of course, the more likely it is that the moving party will ultimately succeed in the action (whether by complaint or cross-complaint), the more likely it is that provisional injunctive relief will be granted. Obviously, this factor applies only to provisional relief; permanent injunctive relief is granted only if it is not only likely that the moving party will succeed, it will (since such relief is granted only following trial) be a certainty.

  • Balance of Hardship. The tactical advantage of injunctive relief pendente lite is difficult to overestimate. Many provisional remedies (of which injunction is only one) operate as practical blackjacks in litigation. Thus, if the damage to the moving party if the injunction is not granted does not equal or outweigh the disadvantage or hardship to be visited on the opposing party if it is granted then the injunction will be denied.

In sum, before a full trial finally determines the respective rights of the parties an "inverse ratio" exists between the "Likelihood of Success" and the "Balance of Hardship": the more likely the claimant's success, the less the "Balance of Hardship" is likely to thwart a request for relief; the greater the "Balance of Hardship" in favor of the moving party, the less likely of ultimate success the underlying need be.

Copyright © 2011 John T. Blanchard, P.C., All Rights Reserved.