Appellate Insights

The general rule of thumb is that an appeal automatically stays a “mandatory” injunction, but not a “prohibitory” injunction.

But the distinction between mandatory and prohibitory injunctions isn’t always clear.  What makes an injunction “mandatory,” and thus stayed?  Here are three core principles from our Supreme Court:

• The injunction’s effect is what counts—not its title or any other characterization.
• A mandatory injunction commands some change in the parties’ positions, often called “the status quo.”  Examples include orders that require the defendant to surrender rights, transfer management functions, break a contract, or dismiss an employee.
• But:  If the “status quo” at the time of the injunction consists of ongoing violations by the defendant, then an injunction restoring the parties to their positions before the contested conduct began is not “mandatory” just because it involves a change.  In these instances, the “status quo” is measured from the time before the contested conduct began.  The true nature of such an injunction is prohibitory.

►  The practical message:  Motions for injunctions can move quickly, and both sides need advice on what a grant would mean.  Counsel must assess in advance whether California law would automatically stay the injunction pending an appeal.