Temporary Restraining Orders and Preliminary Injunctions
An injunction is an extraordinary remedy used to require a defendant or other person to take, or refrain from taking, a specified action when necessary to protect a legal right being pursued by the plaintiff.
The party seeking a temporary restraining order or preliminary injunction must show that the relief sought in the underlying lawsuit depends, in whole or in part, on restraining the commission or continuance of an act that would cause waste or irreparable injury.
An injunction can be granted, subject to conditions imposed by applicable statutes, on a showing of:
an inadequate remedy at law, meaning that compensation would be insufficient;
a serious risk of irreparable harm absent injunctive relief;
a likelihood that the plaintiff will prevail on the merits of the underlying controversy; and
a comparison of the harm to defendant in issuing an injunction versus the harm to plaintiff in withholding it, which on balance favors the plaintiff.
There are two main classifications of injunctions.
One classification, mandatory versus prohibitory, depends on the type of conduct affected by the injunction. A mandatory injunction, which is a form of specific relief [see Civ. Code §3367(2)], requires someone to do something affirmative and tends to change the status quo. A prohibitory injunction, which is a form of preventive relief, restrains specified behavior, by prohibiting a party from doing that which ought not to be done. [Civ. Code §3368].
Temporary, Preliminary, & Perminent Injunctions - The other classification of injunctions depends on the point at which the injunction can be issued and its duration. Those categories are:
- temporary restraining order or TRO [Code Civ. Proc. §§527, 528];
- preliminary [Code Civ. Proc. §527] or provisional [Civ. Code §3420] injunction; and
- permanent or final injunction. [Civ. Code §§3420, 3422]
A temporary restraining order is granted to maintain the status quo pending a decision on a preliminary injunction. It can be granted ex parte if the applicant establishes great or irreparable injury. [Code Civ. Proc. §527]
A preliminary injunction cannot be granted without a full evidentiary hearing giving all parties the opportunity to present arguments and evidence. [Code Civ. Proc. §527]
A ruling on a final injunction entails final adjudication of the ultimate rights in controversy, following a trial or other final hearing on the merits.
Winsten Law Group has substantial experience in prosecuting and defending against TRO’s, preliminary injunctions and permanent injunctions. Mike Winsten is an Orange County business lawyer who is committed to your peace of mind. Orange County Business Lawyers are found on this very informative business attorney site.
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