MICHAEL GOMEZ DALY еt al., Plaintiffs and Respondents, v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS et al., Defendants and Appellants; DAWN ROWE, Real Party in Interest and Appellant.
S260209
IN THE SUPREME COURT OF CALIFORNIA
August 9, 2021
Fourth Appellate District, Division Two E073730; San Bernardino County Superior Court CIVDS1833846
Justice Kruger authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar, Groban, and Jenkins concurred.
Justice Kruger authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar, Groban, and Jenkins concurred.
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
S260209
To prevent injuries “from the premature enforcement of a determination which may later be found to have been wrong,” the law has developed a set of rules and procedures for staying enforcement of certain court orders while they are reviewed on appeal. (Scripps-Howard Radio v. Comm‘n (1942) 316 U.S. 4, 9.) In California, a long-established set of rules governs stays of injunctive orders — that is, orders to do something or to refrain from doing something. What rule applies depends on which kind of order it is. 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.
In this case we consider how these rules apply to an order requiring a local legislative body, the San Bernardino County
I.
The San Bernardino County Board of Supervisors consists of five members elected from districts within the county. The county charter provides that within 30 days of a vacancy on the board, the remaining members of the
The supervisorial seat for San Bernardino County‘s Third District became vacant on December 3, 2018, when the incumbent left to join the California Assembly. The board‘s remaining supervisors began the process of appointing a replacement. The board received 48 applications from candidates meeting the eligibility requirements. Rather than interviewing all 48 applicants, the supervisors instead decided they each would submit nominees to the board‘s clerk by e-mail; only those candidates who had received at least two nominations would be interviewed. Through this e-mail nomination process, the board selected 13 candidates to be interviewed at a public meeting. At that meeting, the board then winnowed the field to five finalists, including real party in interest Dawn Rowe. The finalists were to be interviewed again at a special meeting on December 13, at which time the board expected to make the appointment.
Before that special meeting took place, the board received a letter from a resident who claimed the e-mail nomination process had violated the Ralph M. Brown Act (Brown Act),
At the December 18 meeting, the board took action in response to the claims that the e-mail nomination process violated the Brown Act. It voted to rescind its prior actions in the selection of a new Third District supervisor, including the creation of the list of 13 nominees to be interviewed, and to adopt a new process under which each supervisor would publicly submit up to three names and the board would publicly interview each candidate who received at least one vote. Using that process, the board, at the same meeting, selected six candidates to be interviewed, including Rowe. After the interviews, the board selected Rowe, who was then sworn in.
Plaintiffs Daly and Inland Empire United promptly filed a petition for a writ of mandate, naming as respondents the board and the four members who
The superior court granted the mandate petition. In its statement of decision, the court concluded the Board‘s initial e-mail nomination process violated the Brown Act‘s “prohibition against seriatim meetings and secret ballots.” The court further found the Board‘s attempted corrective actions at the December 18 meeting were “pro forma at best and did not constitute a cure.”1 The superior сourt accordingly determined Rowe‘s appointment was null and void under
In its subsequent judgment issuing a peremptory writ of mandate, the trial court ordered the Board to: “1. Rescind the appointment of Rowe as Third District Supervisor; [¶] 2. Refrain from allowing Rowe to participate as Third District Supervisor in any Board meetings or actions; [¶] 3. Refrain from registering or otherwise giving effect to any further votes cast by Rowe; [¶] 4. Refrain from making any appointment to the position of Third District Supervisor of the San Bernardino Board of Supervisors; and [¶] 5. Immediately seat any person duly appointed to the position of Third District Supervisor by the Governor.”
The Board and Rowe appealed. After obtaining a temporary stay of the judgment from the superior court, the Board and Rowe petitioned the Court of Appeal for a writ of supersedeas and requested an immediate stay. The
The Board and Rowe filed a joint petition for review asking whether the superior court‘s order should have been automatically stayed as a mandatory injunction. We granted the petition for review and stayed the judgment and further proceedings below pending our further order. We also asked the parties to brief an additional question bearing on the Board‘s entitlement to a discretionary writ of supersedeas (
II.
A.
The rules governing stays pending appeal are found in
Today,
Where the statutory conditions have been met and a stay on appeal is prescribed, the courts lack discretion to deny it except as other statutes may authorize — for instance, a trial or appellate court on appeal from a writ of mandate may direct the judgment not be stаyed “if it is satisfied upon the showing made by the petitioner that he will suffer irreparable damage in his business or profession if the execution is stayed.” (
Even when the statutes do not call for an automatic stay on appeal, the trial and appellate courts both have the power to issue discretionary stays. (
No statute in
In Merced Mining Co. v. Fremont (1857) 7 Cal. 130 (Merced Mining), for instance, this court acknowledged that the language of the 1851 Practice Act‘s section 356 prescribing automatic stay pending appeal was facially broad enough to include “the appeal from an order granting an injunction.” But this court concluded that the language was best understood in context to reach orders requiring the defendant “to do some affirmative act, not to refrain from doing a thing.” (Merced Mining, at p. 132.) We explained that an affirmative act, “if completed, would change the condition of the parties, and render a reversal . . . partially ineffectual.” (Ibid.) By contrast, when an order instead merely restrains the defendant, an automatic stay on appeal does not serve the same purpose; the defendant “is not injured in contemplation of law” when the defendant is required to abide by the restraint pending appeal. (Ibid.) We thus described the governing rule as follows: “A stay of proceedings, from its nature, only operates upon orders or judgments commanding some act to be done, and does not reach a case of injunction.” (Ibid.)5
We reiterated the same rule some decades later, following the adoption of the Code of Civil Procedure. (Dewey v. Superior Court (1889) 81 Cal. 64.) We explained: “An appeal perfected as this was, under section 949 of the Code of Civil Procedure, stayed all proceedings upon every part of that judgment ‘commanding some act to be done.’ (Merced Mining[, supra], 7 Cal. 130; Bliss v. Superior Court [(1881)] 62 Cal. [543,] 544.) A prohibitory injunction remains in full force pending such an appeal, and the court below
As Dewey told the story, the core rationale underlying the mandatory-prohibitory distinction was based on an abiding concern with preserving the status quo pending appeal. The idea was that a prohibitory injunction is exempt from stay because such an injunction, by its nature, operates to preserve the status quo; by definition such an injunction prevents the defendant from taking actions that would alter the parties’ respective provisions. To stay enforcement of such an order pending appeal would not preserve thе status quo but instead invite its destruction; a stay would leave the parties free to alter conditions during the appeal, with sometimes irreversible consequences. As we put it in Heinlen v. Cross (1883) 63 Cal. 44, if our law had no exception for purely preventive injunctions, the appealing party could renew or continue any destructive conduct during the period of appeal, even if that would cause irreparable damage, while the victorious party below “‘must stand by, and without possibility of redress, see the subject-matter of the litigation destroyed, so that if he succeeds in affirming the judgment it will be a barren victory.‘” (Id. at p. 46, quoting Sixth Ave. R.R. Co. in City of N.Y. v. Gilbert El. R.R. Co., supra, 71 N.Y. at p. 433; see Heinlen, at p. 46 [“If the respondent here is right in its contention, pending an appeal from a judgment staying waste, which if committed will destroy the freehold, the appellant in simply staying the plaintiff‘s proceedings on the judgment may with impunity do the very act forbidden and destroy the freehold.“].)
Not so with the injunction that mandates the performance of an affirmative act — the so-called mandatory injunction. Such an injunction, by definition, commands some change in the parties’ positions. The cases hold that before such orders are executed and the defendаnt must detrimentally alter its position, the defendant is entitled to know whether the order is correct. (See, e.g., Kettenhofen v. Superior Court (1961) 55 Cal.2d 189, 191; Byington v. Superior Court (1939) 14 Cal.2d 68, 70; United Railroads v. Superior Court (1916) 172 Cal. 80, 82; Clute v. Superior Court (1908) 155 Cal. 15, 18; URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 884; Paramount Pictures Corp. v. Davis (1964) 228 Cal.App.2d 827, 835.)
Like many distinctions in the law, the distinction between a mandatory and a prohibitory injunction sometimes proves easier to state than to apply. ( URS Corp. v. Atkinson/Walsh Joint Venture, supra, 15 Cal.App.5th at p. 884, citing Kettenhofen v. Superior Court, supra, 55 Cal.2d at p. 191; see pt. III., post.) But the law contains certain benchmarks that help guide the inquiry. Perhaps the prototypical mandatory injunction is an order requiring the defendant to remove an improvement it has made to challenged property. For example, “in an action to establish an easement, a preliminary injunction ordering a party to remove an existing fence that blocks the easement is a mandatory injunction,” while “restraining the party from parking or storing vehicles along the easement is a prohibitory injunction.” (URS Corp., at p. 884, citing Kettenhofen, at pp. 190–191.) But mandatory injunctions in property disputes are not limited to tear-down orders. For instance, in Byington v. Superior Court, supra, 14 Cal.2d 68, we held that an order limiting San Francisco‘s storage of Tuolumne River water in Hetch Hetchy Reservoir to the amount of the city‘s prescriptive right was mandatory rather than prohibitory. We explained how the limitation altered the parties’ relative positions: “Throughout the trial of the main action, and up to the present moment, the city has contended that in addition to the prescriptive right recognized in and awarded to it under the decree of the respondent court, it was the owner and possessor of certain appropriative rights in and to the waters of the Tuolumne River.” (Id. at p. 72.) Insofar as the order required San Francisco to surrender its appropriative rights, the order was mandatory and automatically stayed on appeal. (Ibid.)
A substantial body of case law addresses the mandatory-prohibitory distinction in the context of disputes concerning employment, board membership, and the like. The cases have characterized orders requiring officers to surrender their positions as mandatory as well. For example, in Foster v. Superior Court, supra, 115 Cal. 279 (Foster), we held an order that a particular candidate be recognized as a member of a railway company board in place of another competitor who had already been seated was mandatory in that its enforcement “would change the relative positions of the parties from those existing at the time thе decree was entered, and might render a reversal of the judgment entirely ineffectual.” (Id. at p. 284.)
We expanded on this analysis in Clute v. Superior Court, supra, 155 Cal. 15 (Clute), which involved an injunction against a hotel corporation treasurer and manager who had been removed by the board of directors but who refused to vacate the position, claiming the removal was invalid. On its face the injunction merely restrained the officer from attempting to direct or control the hotel‘s employees. We concluded that the injunction was nonetheless mandatory in substance, and therefore automatically stayed on appeal, because it required the defendant to undertake the affirmative act of transferring management of the hotel. We wrote: “If Clute was in the actual possession of the hotel and the personal property in it, an order punishing him for preventing another person from entering and taking charge of the books,
In Feinberg v. One Doe Co. (1939) 14 Cal.2d 24, where a clothing manufacturer had been ordered to discontinue employment of an individual who had been expelled from the labor union representing the company‘s employees, we explained that although the injunction was purportedly prohibitive in form, it was mandatory in substance: “It is an order compelling affirmative action on the part of the defendants. Inasmuch as Amelia Greenwood at the time of the issuance of the order was already in the employ of the defendants, and the very controversy arose out of the continuance in employment of said Amelia Greenwood, it is apparent that the result intended to be accomplished by the issuance of said order was the comрulsory release of said Amelia Greenwood from employment by the defendants. In short, the order directed and commanded the defendants to discharge said employee.” (Id. at p. 27, italics omitted; see also Agricultural Labor Relations Bd. v. Superior Court (1983) 149 Cal.App.3d 709, 713 [order that agricultural employer discontinue replacement workers’ employment until all strikers were rehired was mandatory under Feinberg because it required employer “to take affirmative action by terminating present employees“].)
Similarly, in cases involving contractual duties, the Courts of Appeal have deemed injunctions mandatory because they required the defendant to act contrary to her contractual obligations at the time the order was made, thereby altering the status quo. (Paramount Pictures Corp. v. Davis, supra, 228 Cal.App.2d at p. 838 [order that actress Bette Davis appear for additional filming for Paramount while under contract to Aldrich for another film was a mandatory injunction; rather than “maintain the status quo as it existed at the time of its issuance,” the order “compels defendant to violate her contract with Aldrich and to surrender a status and rights lawfully held by her at the time the injunction issued“]; Ambrose v. Alioto (1944) 62 Cal.App.2d 680, 686 [where defendant had contract to deliver fish to one cannery, order that she deliver to another was mandatory in that it “contemplates a change in the relative position or rights of the parties which existed at the time the decree was entered” (italics omitted)]; see also URS Corp. v. Atkinson/Walsh Joint Venture, supra, 15 Cal.App.5th at p. 884 [order is
In each case, the court considered whether the order was mandatory by reference to the position of the parties at the time the injunction was entered, and declined to require the defendant to take affirmative steps to remedy an adjudged violation of law until the correctness of the judgment had been considered on appeal. In the general run of cases, this approach makes sense, given the doctrine‘s overarching concern with avoiding injuries “from the premature enforcement of a determination which may later be found to have been wrong.” (Scripps-Howard Radio v. Comm‘n, supra, 316 U.S. at p. 9.) If the appeal is successful, freezing conditions from the time the injunction issues assures that the defеndant will get the full benefit of his or her success and will not be compelled to take remedial steps the law never in fact required; if the appeal is unsuccessful, the plaintiff will typically be no worse off than if no appeal had been taken.7
In other cases, however, our cases have suggested a different point for measuring change in the parties’ relative positions. We addressed this issue in United Railroads v. Superior Court, supra, 172 Cal. 80 (United Railroads). In that case, San Francisco had been operating its municipal street railway on facilities owned in part by United Railroads, which claimed the city was running more cars than their agreement allowed. (Id. at pp. 81–82.) United Railroads obtained an injunction pendente lite “requiring the defendant to desist and refrain from operating this excess number of cars upon the tracks and around the loops.” (Id. at p. 82.) San Francisco appealed, and the question arose whether the injunction was automatically stayed pending the appeal as a mandatory injunction. (Ibid.)
We answered no. On its face, we noted, the injunction “would appear to be an order to defendant to stop doing something, not to compel it tо do something else, and no more mandatory in character than an order telling a man to desist from throwing his rubbish in his neighbor‘s vacant lot.” (United Railroads, supra, 172 Cal. at p. 84.) But San Francisco argued the injunction was “mandatory in effect” (ibid.) because it compelled the city to give up a position held by right, “an interest in real property which can be enjoyed only by use, and the possession of which can be manifested only by running the cars over the tracks” (id at p. 86). San Francisco urged, that is, that
We rejected San Francisco‘s argument as inconsistent with the principle that equity may be invoked to prevent repeated trespasses. (United Railroads, supra, 172 Cal. at pp. 86–87.) We went on to add: “There is no magic in the phrase ‘maintaining the status quo’ which transforms an injunction essentially prohibitive into an injunction essentially mandatory. The phrase is commonly employed in discussing mandatory injunctions compelling the surrender of possession of realty by the actual peaceable occupant at the time the injunction has been secured. Indeed, the phrase has been defined tо mean ‘the last actual peaceable, uncontested status which preceded the pending controversy.’ There was no such uncontested possession here. It is undisputed that petitioner protested before beginning its action, protested vigorously against the misuse of its property, and only brought its action when its protests were disregarded.” (Id. at p. 87.) We observed, finally, that there was no stopping point to San Francisco‘s argument: “If this be a mandatory injunction, then must every injunction restraining waste and trespass be equally mandatory.” (Id. at p. 90.)
A concurring justice explained the matter succinctly: “The fact that the defendant had for some time been enjoying its asserted right to so run cars does not change the character of the order. If this were not so, almost any injunction against the doing of repeated acts would be mandatory if the performance of the acts had begun and been carried on for any considerable time prior to the application for the injunction.” (United Railroads, supra, 172 Cal. at p. 91 (conc. opn. of Sloss, J.).)
In this discussion, our opinion in United Railroads introduced a different baseline for measuring the status quo. We explained that the status quo relevant in that case was not that prevailing at the time of the injunction — i.e., when San Francisco had already begun its disputed use of the tracks and sought to keep going — but an earlier “‘actual peaceable, uncontested status which preceded the pending controversy.’ ” (United Railroads, supra, 172 Cal. at p. 87.) Courts have since repeated that formulation in other cases. (See People v. Hill (1977) 66 Cal.App.3d 320, 331 [order restraining defendant from using certain allegedly deceptive professional terms in business held to preserve the status quo under United Railroads formulation: “The pleadings clearly indicate a long history of appellant‘s contested use of the words ‘accountant’ and ‘accountancy.’ The status quo to be established is that which existed before appellant started using the prohibited words“].)
United Railroads thus naturally raises the question where the proper baseline should be fixed. Should courts measure the status quo from the time
To answer the question requires us to consider the particular circumstance addressed in United Railroads. Our decision in that case recognizes that in some instances, an injunction that is essentially prohibitory in nature may involve some adjustment of the parties’ respective rights to ensure the defendant desists from a pattern of unlawful conduct. This is bound to be true when the defendant attempts to convert its contested conduct into something resembling a property right, as San Francisco did when it insisted on continuing to run excess trains on the plaintiffs tracks. The United Railroads decision makes clear that an injunction preventing the defendant from committing additional violations of the law may not be recharacterized as mandatory merely because it requires the defendant to abandon a course of repeated conduct as to which the defendant asserts a right of some sort. In such cases, the essentially prohibitory character of the order can be seen more clearly by measuring the status quo from the time before the contested conduct began.
But United Railroads did not address an order like the ones issued in Clute or Paramount Pictures, in which the . . .
injunctive order aims not to prevent injury from future conduct but instead offers a remedy for a past violation. To the extent a remedial order calls for the performance of an affirmative act — ripping out a building or other imрrovement (Kettenhofen v. Superior Court, supra, 55 Cal.2d at pp. 190–191), say, or firing one worker and rehiring another (Agricultural Labor Relations Bd. v. Superior Court, supra, 149 Cal.App.3d at p. 713) — our cases have not understood United Railroads to mean the order is merely prohibitory, and therefore enforceable while an appeal is pending, because it would return the parties to the “last actual peaceable, uncontested status” that existed before the property dispute ever arose. (United Railroads, supra, 172 Cal. at p. 87.) Our cases have instead adhered to the rule that such orders are mandatory, and thus automatically stayed while an appellate court determines whether the order is legally correct.
B.
With these principles and precedents in mind, we turn to the proper characterization of the order in this case.
On its face, the superior court‘s order that the Board “[r]escind the appointment of Rowe as Third District Supervisor” and “[i]mmediately seat any person duly appointed to the position of Third District Supervisor by the
Resisting this conclusion, plaintiffs offer a series of arguments for characterizing the order as merely prohibitory in nature. They first briefly argue that the facially mandatory aspects of the superior court‘s judgment — ousting Rowe and seating her replacement — were merely incidental to parts of the judgment declaring Rowe‘s appointment null and void as a violation of the
As we have explained, United Railroads addressed situations in which the injunction being appealed restrains the defendant from repeating its unlawful conduct, while simultaneously requiring some adjustment of the parties’ respective rights, such as an abridgment of the defendant‘s claimed property right in continuing its challenged conduct. (See pt. II.A., ante; United Railroads, supra, 172 Cal. at p. 91 (conc. opn. of Sloss, J.); accord, Jaynes v. Weickman, supra, 51 Cal.App. at p. 699 [citing United Railroads for the proposition that “[a]n injunction that restrains the continuance of an act or series of acts may be just as much a preventive or prohibitory injunction as one that restrains the commission of an act“].) That is not the situation here. The order on appeal here required the Board not to refrain from repeating its
Like other injunctions our courts have deemed mandatory, the order that the Board replace Rowe with a gubernatorial appointment goes beyond restraint to demand affirmative acts, changing the status quo at the time the injunction was issued. In Foster, supra, 115 Cal. at page 281, for example, the trial court found one candidate, Smith, to have been elected to a corporate board and ordered the board president not to interfere with his exercise of the office. We held that the order, “[a]lthough preventive in form, . . . was, in effect, mandatory, as it required [the president] and the other directors to recognize Smith as one of their number, and to refuse to recognize [a competing candidate],” thereby “chang[ing] the relative positions of the parties from those existing at the time the decree was entered.” (Id. at p. 284.) The order in Foster, like the one in this case, required the defendants to refuse their approved candidate and instead accept a different individual (in this case, the Governor‘s appointee). The order was found to be mandatory because it did not restrain the defendants from repeating their violation but instead mandated that they take affirmative action — seating a different candidate — to undo a past act found to be unlawful. (See also Ambrose v. Alioto, supra, 62 Cal.App.2d at p. 686 [order that catch be delivered to one cannery rather than another “compels the performance of a substantive act“].)
A brief review of the mandatory injunction cases will suffice to demonstrate the point. In Byington v. Superior Court, supra, 14 Cal.2d 68, for example, where San Francisco had been ordered not to take Tuolumne River water above the amount of its prescriptive right, and had violated that order by taking additional water to fill an enlarged Hetch Hetchy Reservoir, we held the order a mandatory injunction because it required the city to surrender a property right (an appropriative water right) it allegedly held at the time the order was made. (Id. at pp. 69–70, 72-73.) If we had instead concluded that the status quo were properly measured by reference to conditions preceding the controversial acts that gave rise to the litigation, then we should instead have deemed the order prohibitory, as it merely returned the parties to their positions before San Francisco began storing the extra water, and allowed it to take effect pending the decision on appeal.10
The point remains, however, that the outcome in Byington would certainly have been different had we understood the question before us solely in terms of whether the injunction returned the parties to the last actual, peaceable status preceding the controversy, as opposed to asking more broadly whether the injunction effectively preserved the status quo pending appeal.
Similarly, in Paramount Pictures Corp. v. Davis, supra, 228 Cal.App.2d 827, the appellate court held a preliminary injunction ordering Bette Davis to return to the Paramount studios and perform an additional day‘s filming on one movie (Where Love Has Gone) —
Or to take one final example, consider an order directing an employer to fire replacement workers and rehire strikers. (Agricultural Labor Relations Bd. v. Superior Court, supra, 149 Cal.App.3d at p. 713.) The Court of Appeal labeled the order mandatory, and therefore automatically stayed on appeal, because it commanded the employer to take affirmative steps to remedy an alleged legal violation. Again, if the question were instead merely whether the order restored the status quo preceding the challenged acts, the answer would have been different; the injunction would have been considered prohibitory, and the employer would have been rеquired to take affirmative steps to remedy an alleged violation before the appellate court had determined whether there was a violation to remedy.
California law has long taken a different approach to such matters, under which the usual default rule of stay pending appeal extends to mandatory orders requiring the defendant to undertake an affirmative act. Our decision in United Railroads was not meant to, and did not, upend this settled law. In the cases cited above, the injunction was essentially mandatory in that it commanded the performance of affirmative acts to remedy a violation while the legal basis for that remedy was still subject to appellate review. So too here.
Plaintiffs next argue that because Rowe‘s appointment was declared void by the superior court, she never lawfully held the seat, and the order that her appointment be rescinded made no change to the status quo. We rejected a similar argument in Clute. The corporation that owned the hotel argued it “was at all times entitled to the possession and in the actual possession of the hotel and its contents, and a surrender of the custody by one employee to another authorized to receive it leaves the status of the property, so far as possession is concerned, unaltered.” (Clute, supra, 155 Cal. at p. 19.) But that argument, we explained, “fails to take into account the very point that was in dispute in the court below,” that is, the propriety of Clute‘s ouster as manager. (Ibid.) Plaintiffs’ argument similarly ignores that the central points
Finally, plaintiffs worry that automatically staying orders that require the defendant to unwind the effects of a
The parties vigorously dispute whether quo warranto was the exclusive remedy available here. But even if it was not the exclusive remedy, it was at least an available remedy. (See Hills for Everyone v. Local Agency Formation Com. (1980) 105 Cal.App.3d 461, 470 [“The availability of other statutory remedies ordinarily does not foreclose a proceeding in the nаture of quo warranto by the Attorney General.“]; cf. 97 Ops.Cal.Atty.Gen. 12 (2014) [2014 WL 1218410, p.*6] [where quo warranto action was authorized by Attorney General on other grounds,
III.
We have concluded that under the settled law of California, the order in this case was automatically stayed as a mandatory injunction. Neither party has asked us to eliminate or revise the automatic stay rule governing injunctions — or the automatic stay rule more generally, for that matter. And given the rule‘s long tenure in our jurisprudence and its statutory roots (first in § 356 of the 1851 Practice Act, then in Code Civ. Proc., former § 949, and currently in
As noted earlier, our cases have long recognized that the mandatory-prohibitory distinction can prove challenging to apply. It 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; the cases recognize that ” ‘an order entirely negative or prohibitory in form may prove upon analysis to be mandatory and affirmative in essence and effect.’ ” (URS Corp. v. Atkinson/Walsh Joint Venture, supra, 15 Cal.App.5th at p. 884, quoting Kettenhofen v. Superior Court, supra, 55 Cal.2d at p. 191.) And in some cases, the injunction will plausibly be characterized as involving both restraint and command. The same order may, for example, be characterized as simply prohibiting the defendant from repeating conduct the trial court has found unlawful, or as mandating that the defendant act affirmatively to surrender a right or a position occupied under a claim of right. (See fn. 10, ante.)
But problems of characterization aside, the mandatory/prohibitory distinction also appears imperfectly aligned with the equitable considerations rеlevant to the question of staying an order pending appeal. (See People ex rel. S. F. Bay etc. Com. v. Town of Emeryville, supra, 69 Cal.2d at p. 537 [courts seek to do “justice” in issuing stays pending appeal, considering “the relative hardships on the parties” and “the likelihood that substantial questions will be raised on appeal“].) There is reason to doubt a strict application
Many jurisdictions provide courts with equitable discretion of this nature. Federal courts employ a four-part analysis that considers the likelihood of success on the merits as well as the types and extent of injuries, private and public, that may result from either course (stay or no stay). (Hilton v. Braunskill (1987) 481 U.S. 770, 776.)13 New York law establishes a set of presumptions favoring stays on appeal but allows courts the discretion to refuse or limit them in individual cases. (
fruits of a successful appeal, considering the equities of the situation.” (Purser v. Rahm (1985) 104 Wash.2d 159, 177.)
In contrast, California statutes provide both trial and appellate courts general discretion (subject to certain statutory limits) to stay orders, including injunctions (
appeal, it would seem to make sense for both trial and appellate courts to have the same authority to order, when justice demands it, that a mandatory injunction take effect notwithstanding the filing of an appeal from the injunctive order. This issue is beyond the scope of the questions presented and briefed in this case for our review, so we do not answer it here. But the Legislature may always, if it chooses, reexamine California‘s statutory law governing stays pending appeal and decide whether the law would be better served by an approach that permits courts to take account of a wider array of equitable considerations than does present law.
IV.
The superior court‘s order requiring the Board to rescind its appointment of Rowe as a supervisor and to instead seat an appointee named by the
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
JENKINS, J.
Notes
Byington is not the sole example of this type of ambiguity. In Clute, for example, we might plausibly have characterized the injunction as merely restraining the defendant from continuing to act unlawfully as manager and treasurer of the hotel, rather than as ousting the defendant from a possessory interest in the hotel and its associated personal property. (Clute, supra, 155 Cal. at pp. 17, 19–20.)
We mention these ambiguities not to suggest that either of these decisions was wrongly decided, but only to illustrate the difficulties of application inherent in our traditional mandatory/prohibitory distinction, difficulties that contribute to our belief this area of the law may be ripe for reconsideration or legislative reform. (See pt. III., post.)