The opinion
Filed 3/27/25 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
CATHOLIC MEDICAL MISSION
BOARD, INC., B315409
B318278
Plaintiff and Respondent, v. (Los Angeles County
Super. Ct. No. 20STCP01520)
THE ATTORNEY GENERAL OF THE
STATE OF CALIFORNIA et al.,
Defendants and Appellants.
FOOD FOR THE POOR, INC.,
B315416
Plaintiff and Respondent, v. B318280
THE ATTORNEY GENERAL OF THE (Los Angeles County
STATE OF CALIFORNIA et al., Super. Ct. No. 20STCP01626)
ORDER MODIFYING OPINION
Defendants and Appellants. AND DENYING REHEARING
(No change in appellate judgment)
THE COURT:
It is ordered that the opinion filed herein on March 5, 2025
shall be modified as follows:
On page 31, the following text in the last sentence at the
end of the first paragraph shall be deleted: “, and we reject it.”
The sentence should read as follows: “To the extent the Attorney
General suggests that injunctions or orders reforming a statute
entered by a trial court cannot reach nonparties when the
government is involved, the cited authorities do not support the
contention.” Footnote 7 shall remain at the end of the modified
sentence.
The petition for rehearing is denied. There is no change in
the appellate judgment.
MARTINEZ, P. J. SEGAL, J. STONE, J.
2
Filed 3/5/25 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
CATHOLIC MEDICAL MISSION
BOARD, INC., B315409
B318278
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. 20STCP01520)
ROB BONTA, as Attorney General,
etc., et al.,
Defendants and Appellants.
FOOD FOR THE POOR, INC.,
B315416
Plaintiff and Respondent, B318280
v. (Los Angeles County
Super. Ct. No. 20STCP01626)
ROB BONTA, as Attorney General,
etc., et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of
Los Angeles County, James C. Chalfant, Judge. Affirmed in part,
vacated in part, and remanded with instructions.
Rob Bonta, Attorney General, Thomas S. Patterson,
Assistant Attorney General, Benjamin M. Glickman, Seth E.
Goldstein and Jami L. Cantore, Deputy Attorneys General, for
Defendants and Appellants.
Murphy Rosen, Paul D. Murphy and Daniel N. Csillag for
Plaintiff and Respondent Catholic Medical Mission Board, Inc.
Perlman & Perlman, Tracy L. Boak and Adam D. Miller for
Plaintiff and Respondent Food for the Poor, Inc.
________________________
INTRODUCTION
This case involves two permanent injunctions entered
against the Attorney General of the State of California
prohibiting him from enforcing certain statutory provisions
designed to protect the public from false or misleading
statements in charitable solicitations. The injunctions were
entered at the request of respondents and cross-appellants
Catholic Medical Mission Board, Inc. (CMMB) and Food for the
Poor, Inc. (FFP) (collectively, respondents).
After conducting an investigation, the Attorney General
and the Registrar of the Registry of Charitable Trusts (Registrar)
(collectively, the Attorney General) issued cease and desist
orders, and imposed civil penalties on respondents for violations
of the Supervision of Trustees and Fundraisers for Charitable
2
Purposes Act (the Act) (Gov. Code, § 12580 et seq.). 1 When
administrative proceedings were completed, CMMB and FFP
filed separate petitions for administrative mandate and
complaints for declaratory relief challenging two sections of the
Act under the First Amendment.
The trial court agreed with respondents the challenged
sections were facially invalid as unconstitutional prior restraints.
After the conclusion of the bench trial, and in their proposed
judgments respondents sought, for the first time, a permanent
injunction against the Attorney General enjoining him and his
office from enforcing the challenged statutory provisions.
Respondents argued, and the trial court agreed, that an
“injunction goes hand in hand with First Amendment cases.” The
trial court issued the permanent injunctions without requiring
respondents to plead or prove they were entitled to such relief.
The Attorney General does not challenge the trial court’s
constitutional rulings but contends the permanent injunctions
were improper because such relief is not automatic upon a
finding of constitutional invalidity, and respondents failed to
plead and prove they were entitled to an injunction. We conclude
the trial court abused its discretion by granting the injunctions.
Permanent injunctions are not issued as a matter of course, even
in cases implicating the First Amendment. Rather, plaintiffs
seeking a permanent injunction must plead and prove they are
entitled to such extraordinary relief. Accordingly, we vacate the
injunctions and remand to have the trial court determine
whether plaintiffs should be granted leave to amend to plead for
1 All statutory references are to the Government Code unless
otherwise specified.
3
injunctive relief and, if so, whether they can prove they are
entitled to a permanent injunction.
Respondents also cross-appeal from the trial court’s
reformation of one of the challenged statutory provisions. The
trial court reformed section 12591.1 by adding certain language
and functionally severing a subdivision in order to preserve the
Act’s constitutionality. Respondents contend the trial court
lacked authority to reform and sever the challenged provision.
But there is no categorical rule prohibiting a court from both
reforming and severing a statutory provision. Nor have
respondents persuasively demonstrated that reformation was
contrary to the Legislature’s intent because it would have
preferred invalidation over reformation. We affirm this portion of
the judgments.
Lastly, the Attorney General appeals from postjudgment
orders awarding attorney fees to respondents under Code of Civil
Procedure section 1021.5. In light of our remand for further
proceedings, we vacate the attorney fee awards and direct the
court to reconsider entitlement to and the amount of attorney
fees.
FACTUAL AND PROCEDURAL BACKGROUND
Respondents and cross-appellants are CMMB and FFP.
CMMB is a charity affiliated with the Catholic Church. Its
“signature” program is named Healing Help, through which
CMMB accepts donations of prescription medicine worth
hundreds of millions of dollars from pharmaceutical companies.
CMMB receives the medicine as in-kind donations, rather than
cash donations used to purchase the medicine. CMMB
4
distributes the medicine worldwide to communities in need.
CMMB also solicits and receives cash donations.
FFP is a faith-based charity committed “to improv[ing] the
health, economic and social conditions of indigent persons
throughout the world.” FFP also solicits and receives cash and
in-kind charitable donations, with in-kind donations comprising
85 to 90 percent of its revenue. Like CMMB, FFP receives
donations of medicine from pharmaceutical companies.
A. The Supervision of Trustees and Fundraisers for Charitable
Purposes Act
The Act, based on the Uniform Supervision of Trustees for
Charitable Purposes Act, became effective in California in 1955. 2
The Act requires charitable organizations to register with the
State of California, to report information regarding their assets
and administration, and to refrain from misleading donors in
enumerated ways. The Legislature charged the Attorney General
with “primary responsibility for supervising charitable trusts in
California. . . . The Attorney General has broad powers under
common law and California statutory law to carry out these
charitable trust enforcement responsibilities.” (§ 12598; see
13 Witkin, Summary of Cal. Law (11th ed. 2023) Trusts, § 343.)
The Attorney General is authorized to impose monetary
penalties. (See § 12591.1, subds. (a) & (c).)
2 The Uniform Supervision of Trustees for Charitable
Purposes Act has been adopted, partially or completely, by other
states, including Illinois, Michigan, Oregon, Minnesota, Rhode
Island, Ohio, and Massachusetts. (U. Laws Ann. (1954) U.
Supervision of Trustees for Charitable Purposes Act, eds. note.)
5
In 2012, the Legislature passed Assembly Bill No. 2327 to
“add[] another weapon in the Attorney General’s arsenal by
permitting the Attorney General to issue a cease and desist order
before an act or omission” constituting fraud “has occurred.”
(2012 Cal. Legis. Service, Ch. 483.) The author of Assembly Bill
No. 2327 explained that, in its current form, the Act only
permitted the Attorney General to seek fines after fraudulent or
deceptive acts or omissions have occurred, or to pursue remedies
in court after the fact rather than to act proactively to protect the
public. The Assembly Judiciary Committee cited press reports
chronicling the improper use or diversion of charitable
contributions and concerns about fundraising practices impacting
the public. (Ibid.)
Assembly Bill No. 2327 authorized the Attorney General to
issue cease and desist orders. It also authorized the Attorney
General to impose specified penalties, suspend a charity’s
registration, or seek injunctive relief. (2012 Cal. Legis. Service,
Ch. 483.) 3 After Assembly Bill No. 2327 was enacted,
section 12591.1, subdivision (b) (section 12591.1(b)) (the cease
and desist provision), states as follows:
“The Attorney General may issue a cease and desist order
whenever the Attorney General finds that any entity or
person that is subject to the provisions of this article
pursuant to Section 12581, or its agent, servant, or
employee, has committed an act that would constitute a
3 Effective January 1, 2024, the Legislature amended the Act
to change the name of the Registry of Charitable Trusts to the
Registry of Charities and Fundraisers. (Assem. Bill No. 1756
(2023-2024 Reg. Sess.), § 1.) Because this amendment does not
affect our analysis, we cite the current version of the Act.
6
violation of, or is operating in violation of, this article, or its
implementing regulations, or an order issued by the
Attorney General, including, but not limited to, all of the
following:
“(1) Has refused or failed, after notice, to produce any
records of the organization or to disclose any information
required to be disclosed under this article or Chapter 4
(commencing with Section 300) of Division 1 of Title 11 of
the California Code of Regulations.
“(2) Has made a material false statement in an application,
statement, or report required to be filed under this article
or Chapter 4 (commencing with Section 300) of Division 1 of
Title 11 of the California Code of Regulations.
“(3) Has failed to file a financial report, or has filed an
incomplete financial report, that is required by this article
or Chapter 4 (commencing with Section 300) of Division 1 of
Title 11 of the California Code of Regulations.
“(4) Has engaged in any act prohibited pursuant to
Section 12599.6.”
Section 12599.6 (the prohibited acts provision) in turn
enumerates the duties of charitable organizations in connection
with fundraising activities. As relevant here, section 12599.6,
subdivision (f)(2) (section 12599.6(f)(2)), provides: “Regardless of
injury, the following acts and practices are prohibited in the
planning, conduct, or execution of any solicitation or charitable
sales promotion: [¶] . . . Using any unfair or deceptive acts or
practices or engaging in any fraudulent conduct that creates a
likelihood of confusion or misunderstanding.”
7
B. The Cease and Desist Orders and Penalties
In 2018, after conducting an investigation, the Attorney
General issued cease and desist orders to CMMB and FFP. The
Attorney General determined CMMB and FFP overvalued the in-
kind donations they received and that they made false or
misleading statements in donor solicitations and their filings.
The Attorney General found that even though respondents were
prohibited from distributing within the United States the
medicine they received (so as not to damage the manufacturers’
market), when valuing these in-kind donations they used the
higher domestic market prices, rather than lower international
fair market prices. This practice failed to conform to generally
accepted accounting principles, which all charities soliciting
donations in California are required to use. (See Bus. & Prof.
Code, § 17510.5.)
The Attorney General also determined respondents
misrepresented their “program efficiency ratio,” which tells
potential donors what percentage of their donation is applied to
fundraising or administrative costs, as opposed to the charitable
programs themselves. FFP’s solicitation materials stated,
“Fundraising and other administrative costs comprise less than
5% of our expenses; more than 95% of all donations go directly to
programs that help the poor.” CMMB represented to donors that
97 percent of received donations were used to support its
charitable programs.
The Attorney General concluded these statements were
false or misleading. As to FFP, the Attorney General determined
FFP actually used 66.2 percent of monetary donations for direct
aid in 2013 and 67.4 percent in 2015, less than the 95 percent
reported in its solicitations. As to CMMB, the Attorney General
8
determined CMMB actually used 60.5 percent of monetary
donations for direct aid in 2014, less than the 97 percent reported
in its solicitations. As a result, donors would be led to believe
that 95 or 97 percent of their donations would support the
charitable programs when their donations actually supported
much less. This apparent difference was because in-kind
donations of medicine could not be used to pay for administrative
or fundraising costs.
The Attorney General ordered respondents to cease and
desist from including the misleading program efficiency ratios in
their solicitations, imposed civil penalties of $1,088,000 against
FFP and $409,575 against CMMB, and requested revocation of
FFP’s registration.
C. The Administrative Proceedings
Respondents sought administrative review, and an
administrative law judge (ALJ) held evidentiary hearings. The
ALJ issued proposed decisions finding respondents did not depart
from generally accepted accounting principles when valuing in-
kind donations. But the ALJ determined the Attorney General
proved that respondents’ solicitation materials were deceptive
due to the stated efficiency ratios. The ALJ found “FFP’s
solicitations for monetary donations were deceptive in implying
that FFP used 95 percent of all money donated for charitable
programs, which it did not. FFP really used less than 70 percent
of monetary donations for charitable programs, and used the rest
for administration and fundraising.” Likewise, the ALJ found
CMMB misled potential donors into believing that it used 97 or
98 percent of all money donated for charitable programs, when it
“really used less than 80 percent.”
9
The ALJ affirmed the monetary penalties and ordered each
respondent to cease and desist from including in its solicitations
to California donors a program efficiency ratio combining cash
and in-kind donations. The ALJ rejected the Attorney General’s
request that FFP’s charity registration be revoked. The Attorney
General adopted the ALJ’s decisions in full.
D. The Trial Court Proceedings
Respondents each filed substantially identical verified
complaints and petitions for a writ of administrative mandamus
under Code of Civil Procedure section 1094.5. Respondents
sought reversal of the cease and desist orders and the civil
penalties, and also sought a declaration that sections 12591.1(b)
and 12599.6(f)(2) were unconstitutional under the First
Amendment, both facially and as applied to respondents.
Respondents also sought “such other relief as the Court deems
fair and equitable,” but did not specifically plead or pray for an
injunction.
1. The trial court determined the challenged provisions
violated the First Amendment
At the court’s suggestion, the parties agreed CMMB’s
motion for judgment on the pleadings would serve as its trial
papers on the declaratory relief cause of action, which would be
tried first. FFP indicated it intended to rely on CMMB’s papers
on this issue. The Attorney General filed an opposition, and
CMMB filed a reply.
In a January 2021 statement of decision, the trial court
ruled that the cease and desist provision was a prior restraint on
speech. In its view, section 12591.1(b) did not “fit within one of
10
the narrowly defined exceptions to the prohibition against prior
restraints” and it also did not have “procedural safeguards that
reduce the danger of suppressing constitutionally protected
speech.” Accordingly, the trial court determined
section 12591.1(b) was unconstitutional on its face. The court
continued the trial on the constitutionality of
section 12599.6(f)(2), the civil penalties, and the severability of
section 12591.1(b), allowing the parties further briefing on those
issues.
In a March 2021 statement of decision, the court ruled
section 12599.6(f)(2) was also facially invalid and invalid as
applied to respondents because it was unconstitutionally
overbroad and not narrowly tailored to meet a compelling state
interest. As to section 12591.1(b), the trial court ruled that
subdivision (b)(4) was not severable (a ruling it would later
revisit). The court also found the weight of the evidence
supported the administrative findings that CMMB’s and FFP’s
solicitations were deceptive and that the Attorney General did
not abuse his discretion by imposing the civil penalties. The
court, however, vacated the civil penalties based on its
constitutional rulings.
The court directed respondents to prepare a proposed
judgment and writ based on the statements of decision, serve the
Attorney General for approval as to form, and meet and confer
with the Attorney General regarding any objections.
Respondents would then file with the court the proposed
judgment and writ, along with a declaration setting forth any
unresolved objections. The court set a hearing to consider the
proposed judgment. The Attorney General subsequently filed a
motion for new trial, which was heard the same day.
11
2. The trial court granted permanent injunctions
CMMB prepared and circulated a proposed judgment and
writ. The parties corresponded once and participated in one
meet-and-confer call to discuss this initial draft. The primary
subjects of the parties’ disagreement during this time are not at
issue in this appeal.
On June 7, 2021, CMMB circulated a different proposed
judgment that for the first time included a permanent injunction
against the Attorney General enjoining him from enforcing
sections 12591.1(b) and 12599.6(f)(2). CMMB’s cover email
stated, “we have added two additional provisions to the Proposed
Judgment that we have not previously conferred about so I am
bringing them to your attention now. The first change is that, in
addition to declaring the statutes unconstitutional, the Court
would enjoin your office from implementing or enforcing them.
My understanding is that such a provision is standard when a
statute is declared unconstitutional. The second change is a
requirement that the [Attorney General] give notice of the order
to everyone tasked with implementing or enforcing the statutes.
Again, my understanding is that this provision is standard in
situations like ours.” CMMB cited no legal authority in support
of either contention. FFP stated its proposed judgment would
mirror that of CMMB.
The Attorney General objected to the proposed additions,
which respondents had not previously requested and which the
trial court had not granted at trial. The parties were unable to
resolve the issue.
Respondents filed their proposed judgments with the
injunctions, and their proposed writs, along with supporting
attorney declarations. These largely identical declarations
12
addressed “the injunction issue” in one paragraph. Respondents
recounted the parties’ disagreement regarding the injunction and
stated their requests for declaratory relief “necessarily put the
remedy of an injunction in play, as there is no other remedy
available to protect against the [Attorney General’s] further use
of these now-illegal statutes.” Respondents did not otherwise
provide any evidentiary or legal support for a permanent
injunction.
The Attorney General objected to respondents’ proposed
injunction because “there was no motion, hearing, or evidence
presented in support of an injunction. Neither Petitioner
requested injunctive relief, and the Statement of Decision
likewise did not grant injunctive relief in either case.” The
Attorney General also argued CMMB and FFP “failed to explain
why they waited until three months after the trial to seek
injunctive relief.”
On June 17, 2021, the trial court held a hearing on the
proposed judgments and writs and also on the Attorney General’s
new trial motion (the latter is discussed in the next section). The
court stated an injunction could be part of a declaratory relief
claim and that it was disinclined to require the Attorney General
to give notice to his subordinates of the injunction. The court and
the Deputy Attorney General addressed the proposed injunction
without input from CMMB or FFP.
The trial court stated its view that an injunction was
appropriate where there existed the possibility of further
enforcement against nonparties. It asked the Deputy Attorney
General: “[A]re you telling me that you want a declaration of
rights as to these parties alone [i.e., CMMB and FFP] and as to
13
the Salvation Army you’re going to go after them under (f)(2)?
That’s what you’re suggesting to me.”
The Deputy Attorney General responded: “Your Honor, I
am not in a position to state what the Attorney General will
decide on this, but I’m saying that from our standpoint, this is
really inappropriate. The petitioners themselves are not entitled
to injunctive relief. They never sought injunctive relief. And, you
know, to say that other nonparties can estop the government to
preclude these issues is against the law.”
The court concluded, an “injunction goes hand in hand with
First Amendment cases. Yeah, no, you’re not going to talk me
out of an injunction. The more you argue, the more convinced I
am that there should be an injunction.” The trial court denied
the Attorney General’s request for a stay of the injunction
pending appeal.
3. The trial court reformed section 12591.1
After the court issued its statements of decision, the
Attorney General filed a motion for new trial seeking, in part, to
sever subdivision (b)(4) from section 12591.1 to preserve the rest
of the provision and his enforcement powers relating to charity
registration and reporting requirements, which respondents did
not challenge. The trial court issued a tentative order denying
the motion.
At the same June 17, 2021 hearing, the Attorney General
argued for the first time that section 12591.1(b) could be
preserved through reformation and not solely by severance. The
trial court stated its prior ruling invalidating section 12591.1(b)
was limited to speech-based violations of the Act and the ruling
14
was not intended to address violations unrelated to speech. 4 It
asked, “[H]ow can we fix this so that my ruling is that the
Attorney General cannot use 12591.1(b) to issue a cease-and-
desist order based directly on speech?” After a lengthy colloquy,
the trial court decided it would sever subdivision (b)(4) and
reform section 12591.1(b) to add an exclusionary clause such that
the Attorney General could issue a cease and desist order for any
violation of the Act, except for violations of section 12599.6.
4. The trial court entered the judgments, including the
permanent injunctions against the Attorney General
The trial court directed the parties to meet and confer
regarding the proposed judgments and writs based on its stated
rulings. The Attorney General expressly reserved the right to
appeal the injunctions. The trial court entered the judgments.
As relevant here, the judgments stated: “Government Code
sections 12591.1(b)(4) and 12599.6(f)(2) are declared facially
unconstitutional and shall be enjoined. Respondent Attorney
General Rob Bonta, and his officers, agents, servants, employees,
and attorneys are enjoined from implementing or enforcing
Government Code sections 12591.1(b)(4) and 12599.6(f)(2).” The
judgment also reformed section 12591.1(b) as detailed in Part B
in the Discussion.
The Attorney General appealed, and CMMB and FFP each
cross-appealed from the judgments.
4 CMMB’s counsel conceded it was “not challenging the fact
that the Attorney General can require charities to register, file
papers, or do the items that are listed in (b)(1) through (3).” Nor
was it arguing “that (b)(1) through (3) are separate First
Amendment violations.”
15
This Court granted the Attorney General’s petition for writ
of supersedeas and stayed enforcement of the permanent
injunctions.
The trial court subsequently awarded attorney fees to
CMMB and FFP. The Attorney General timely appealed from
those postjudgment orders.
DISCUSSION
A. The Permanent Injunctions Against the Attorney General
The Attorney General “strenuously” disagrees with the
trial court’s First Amendment analysis, but he does not challenge
those rulings on appeal. The Attorney General’s principal
argument is that the permanent injunctions were improper
because respondents did not plead or prove they were entitled to
injunctive relief. Specifically, he argues respondents did not
show irreparable harm, or that an injunction was necessary to
make them whole. He also challenges the statewide scope of the
injunctions because they encompass nonparties.
We conclude the trial court abused its discretion when it
assumed a permanent injunction should be granted as a matter
of course. We vacate the injunctions and remand for the trial
court to determine in the first instance whether CMMB and FFP
can plead and prove permanent injunctions are warranted.
1. Standard of review
We review an order granting a permanent injunction for
abuse of discretion. (See People ex rel. Gallo v. Acuna (1997)
14 Cal.4th 1090, 1109; Mendez v. Rancho Valencia Resort
Partners, LLC (2016) 3 Cal.App.5th 248, 260 (Mendez).) When
exercising a grant of discretion, the court must adhere to
16
applicable legal criteria and cannot act arbitrarily. (See Sargon
Enterprises, Inc. v. University of Southern California (2012)
55 Cal.4th 747, 773 (Sargon Enterprises).) “‘The scope of
discretion always resides in the particular law being applied, i.e.,
in the “legal principles governing the subject of [the] action . . . .”
Action that transgresses the confines of the applicable principles
of law is outside the scope of discretion . . . . [¶] The legal
principles that govern the subject of discretionary action . . . are
derived from the common law or statutes under which discretion
is conferred.’ [Citation.] To determine if a court abused its
discretion, we must thus consider ‘the legal principles and
policies that should have guided the court’s actions.’” (Id. at
p. 773.) We review the court’s factual findings for substantial
evidence. (See Mendez, at pp. 260-261.) We review legal issues
de novo. (Id. at p. 261.)
2. Legal standards for permanent injunctions
“An injunction is a drastic and extraordinary remedy,
which should not be granted as a matter of course.” (Monsanto
Co. v. Geertson Seed Farms (2010) 561 U.S. 139, 165 (Monsanto);
see Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352 (Intel).)
“If a less drastic remedy” is sufficient to address the relevant
injury, “no recourse to the additional and extraordinary relief of
an injunction [is] warranted.” (Monsanto, at pp. 165-166.) To
that end, “a judicial remedy must be tailored to the harm at
issue. [Citations.] A court should always strive for the least
disruptive remedy adequate to its legitimate task.” (Butt v. State
of California (1992) 4 Cal.4th 668, 695-696 (Butt); see Califano v.
Yamasaki (1979) 442 U.S. 682, 702 [“injunctive relief should be
no more burdensome to the defendant than necessary to provide
17
complete relief to the plaintiffs”]; Planned Parenthood Golden
Gate v. Garibaldi (2003) 107 Cal.App.4th 345, 354 [it “is
inconsistent with the very nature and purpose of injunctive
relief . . . to extend a remedy beyond the context of the specific
dispute which justifies that remedy”].)
A permanent injunction is different than a preliminary
injunction in ways that affect the issuing court’s discretion. “‘A
permanent injunction is a determination on the merits that a
plaintiff has prevailed on a cause of action . . . against a
defendant and that equitable relief is appropriate.’ [Citation.]
‘Although a decision whether to issue, and how to phrase, a
permanent injunction is essentially discretionary [citation], the
trial court’s discretion is by no means as broad as that which it
might exercise in weighing the equities of the parties’ positions
for the purpose of deciding whether to issue a preliminary
injunction or other provisional relief. “A permanent injunction is
very different from a pendente lite injunction. . . .” [Citation.]
Like any judgment, a permanent injunction, notwithstanding its
discretionary component, must be sufficiently supported by the
evidence of record. [Citations.] If the evidence is insufficient to
justify issuance of a permanent injunction, the trial court simply
had no discretion to exercise.’” (DVD Copy Control Assn., Inc. v.
Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 721
(Kaleidescape); see 38 Cal. Jur. 3d Injunctions, § 14.)
“To qualify for a permanent injunction, the plaintiff must
prove (1) the elements of a cause of action involving the wrongful
act sought to be enjoined (here, declaratory relief); and (2) the
grounds for [injunctive] relief.” (San Diego Unified Port Dist. v.
Gallagher (1998) 62 Cal.App.4th 501, 503; Horsford v. Board of
Trustees of California State University (2005) 132 Cal.App.4th
18
359, 390 (Horsford).) To prove the grounds for injunctive relief,
“the plaintiff must ordinarily show that the defendant’s wrongful
acts threaten to cause irreparable injuries, ones that cannot be
adequately compensated in damages.” (Intel, supra, 30 Cal.4th at
p. 1352; see Kaleidescape, supra, 176 Cal.App.4th at p. 726; Code
Civ. Proc., § 526; Civ. Code, § 3422.)
A corollary principle is that a showing of entitlement to
declaratory relief does not automatically mean a permanent
injunction is proper because the latter is subject to its own
pleading and proof requirements. The California Supreme Court
has long held that it is not enough for a complaint to generally
allege “‘that great and irreparable injury will result’ from the acts
described by the pleader. It has always been the rule in this
state that such averments, standing alone, have no probative
force and cannot be made the basis for injunctive relief. . . . A
complaint for an injunction which alleges only general
conclusions, not warranted by any pleading of facts, does not
state a cause of action to enjoin the acts complained of.
[Citations.]” (E.H. Renzel Co. v. Warehousemen’s Union I.
L.A. 38-44 (1940) 16 Cal.2d 369, 373 (E.H. Renzel); accord, City of
Torrance v. Transitional Living Centers for Los Angeles, Inc.
(1982) 30 Cal.3d 516, 526 (City of Torrance); Leach v. City of San
Marcos (1989) 213 Cal.App.3d 648, 661; Pittsburg Unified School
Dist. v. California School Employees. Assn. (1985) 166 Cal.App.3d
875, 894.)
“The issuance of an injunction to restrain enforcement of [a
law] declared unconstitutional is not invariably appropriate. An
ancillary injunction should not issue as a concomitant to a
declaratory judgment unless the pleading and proof demonstrate
that the traditional requisites of injunctive relief have been met.
19
When the plaintiff has failed to prove any facts which would
entitle him to any affirmative relief beyond a declaration of his
rights, the issuance of an injunction is error.” (California Water
& Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d
16, 32 (California Water), italics added.)
This is an application of the general rule that in
declaratory relief actions, parties seeking injunctive relief must
still plead and prove entitlement to it. (See City of San Diego v.
Cuyamaca Water Co. (1930) 209 Cal. 105, 151 (City of San Diego)
[“This . . . is an action purely declaratory in character and is one
wherein the plaintiff has neither pleaded nor attempted to prove
any facts which would entitle it to any other or affirmative relief
beyond [declaratory relief]. This being so, the trial court was in
error in attempting to give to its determination of this matter any
other or further effect than that of a declaratory judgment.”];
Klarfeld v. State of California (1983) 142 Cal.App.3d 541, 550
(Klarfeld) [“The injunction was properly denied, Plaintiffs were
entitled to a declaration of rights, but they have failed to show
any facts entitling them to any affirmative relief.”].)
Further, a court has authority to issue a permanent
injunction to enjoin the execution of a public statute but may only
do so when the plaintiff has shown actual or threatened injury.
(See Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 501 (Alfaro);
see also Code Civ. Proc., § 526, subd. (b)(4) & (6); Civ. Code,
§ 3423, subds. (d) & (f).) An injunction based on past acts may be
proper “‘if there is evidence that they will probably recur.’”
(Rosicrucian Fellowship v. Rosicrucian Fellowship Non-Sectarian
Church (1952) 39 Cal.2d 121, 144.) “Without a threat of present
or future injury, no injunction can lie.” (Connerly v.
Schwarzenegger (2007) 146 Cal.App.4th 739, 751 (Connerly).)
20
3. Respondents did not plead and prove they were
entitled to permanent injunctions
On appeal, the Attorney General does not challenge the
grant of declaratory relief. Accordingly, we are only concerned
with whether respondents pleaded and proved they were entitled
to permanent injunctive relief.
a. The complaints did not request injunctive relief
The Attorney General first argues respondents did not
plead for injunctive relief. We agree. Generally, a complaint
must be “sufficient to acquaint the defendant with the nature,
source, and extent of the plaintiff’s claim.” (Prue v. Brady
Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1376; see Code
of Civ. Proc., § 425.10, subd. (a)(2) [a complaint must contain “[a]
demand for judgment for the relief to which the pleader claims to
be entitled”]; Code Civ. Proc., § 580, subd. (a) [“the court may
grant the plaintiff any relief consistent with the case made by the
complaint and embraced within the issue”].)
In Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th
1302 (Davis), the court held a plaintiff’s failure to allege
injunctive relief arising from a wrongful termination claim
precluded plaintiff from obtaining such relief. There, the plaintiff
sued his employer for wrongful termination and failure to pay
wages in violation of the Labor Code and Business & Professions
Code section 17200 (UCL). (See id. at p. 1309.) In the body of the
complaint and in the prayer for relief on the UCL cause of action,
the plaintiff requested “‘a temporary and permanent injunction
requiring [d]efendant[s] to refrain from withholding earned
and/or owed money and property from [him].’” (Id. at p. 1312.)
21
The jury found plaintiff’s age was a substantial motivating
factor for his discharge but also found the employer would have
discharged plaintiff in any event based on poor job performance.
The plaintiff was not entitled to damages given the jury’s
findings, and the court issued a directed verdict against plaintiff
on his Labor Code and UCL claims. (See Davis, supra,
245 Cal.App.4th at p. 1326.) After the jury’s verdict, for the first
time, plaintiff sought declaratory and injunctive relief on his
wrongful termination claim. The court held the plaintiff failed to
raise or preserve these remedies. He did not specifically plead for
declaratory relief in his complaint. And he only pleaded for
injunctive relief as to his UCL cause of action, not his wrongful
termination cause of action. The court further determined the
plaintiff “made no attempt to amend his complaint to add a claim
for declaratory relief or to expand his request for injunctive relief
to include relief relevant to his discrimination claim.” (Ibid.; see
Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388,
1403, fn. 6 [plaintiff’s request for injunction against one set of
defendants in his complaint was not preserved against second set
of defendants; complaint could not be amended to include second
set of defendants in injunction when it was “highly speculative”
whether the issues raised against the second set of defendants in
the complaint would ever arise again].)
As in Davis, respondents here failed to raise and preserve
injunctive relief as a remedy for their declaratory relief claim.
The complaints did not put the Attorney General on notice
regarding the extent of the relief that respondents sought.
Although the complaints alleged facts sufficient to support their
causes of action for declaratory relief, there were no allegations
regarding injunctive relief. The complaints lacked even the
22
general or conclusory allegations of “great and irreparable injury”
the California Supreme Court has previously determined to be
insufficient to plead for injunctive relief. (E.H. Renzel, supra,
16 Cal.2d at p. 373; City of Torrance, supra, 30 Cal.3d at p. 526.)
Indeed, in its opposition to the proposed judgment, the Attorney
General questioned why respondents waited until three months
after trial was completed to seek a permanent injunction. At oral
argument in this Court, the Deputy Attorney General argued his
office would have conducted the litigation differently had
respondents made known their intent to seek injunctive relief in
their pleadings, including staffing and litigation strategy.
Respondents attempt to overcome this pleading deficiency
by relying on their request for “such other relief as the Court
deems fair and equitable.” Respondents argue this allegation is
sufficient under the policy favoring a broad reading of the
pleadings. According to respondents, the trial court has
“inherent authority to grant any relief consistent with the
successful cause of action and the established facts.”
Respondents’ authorities do not support the proposition
that a plaintiff may obtain an injunction as part of a cause of
action for declaratory relief when the complaint does not request
such extraordinary relief. Estrin v. Superior Court (1939)
14 Cal.2d 670, 678, did not involve a claim for injunctive relief,
and the court merely explained that facts alleged in a defendant’s
answer may expand the claims or relief awarded to a plaintiff
beyond what is alleged in the complaint. But respondents here
make no similar argument regarding the Attorney General’s
answer to their complaints. Potrero Homes v. Western Orbis Co.
(1972) 28 Cal.App.3d 450, 456, also did not involve injunctive
relief, and there the court held that specific performance
23
allegations in the complaint did not bar a judgment for monetary
damages. And in County of Del Norte v. City of Crescent City
(1999) 71 Cal.App.4th 965, 968 (County of Del Norte), unlike
respondents here, the plaintiff expressly filed “an action in
mandate and for injunctive relief.”
Citing County of Del Norte, respondents further assert that
all they had to plead were facts supporting declaratory relief
because an injunction “is attendant” to the declaratory relief
cause of action. But County of Del Norte does not so hold and, as
noted above, the plaintiff there sought injunctive relief in the
complaint. Further, we agree with California Water, supra,
253 Cal.App.2d at page 32 that “[a]n ancillary injunction should
not issue as a concomitant to a declaratory judgment unless the
pleading and proof demonstrate that the traditional requisites of
injunctive relief have been met.”
Although a complaint may be amended after trial to
conform to proof (see Code Civ. Proc., § 576), respondents never
sought to amend their complaints in the trial court to plead for
injunctive relief.
b. Whether respondents proved entitlement to
permanent injunctions
The Attorney General also argues respondents did not
prove they were entitled to a permanent injunction. As the
parties seeking injunctive relief, respondents had the burden of
providing evidence sufficient to justify the issuance of a
permanent injunction. (See Intel, supra, 30 Cal.4th at p. 1352;
City of San Diego, supra, 209 Cal. at p. 151; California Water,
supra, 253 Cal.App.2d at p. 32; Kaleidescape, supra,
176 Cal.App.4th at p. 721.) Such a showing would include
24
evidence demonstrating respondents would suffer irreparable
injury, lack of an adequate remedy at law, and a likelihood of
recurring or future injury. (See Intel, at p. 1352; Alfaro, supra,
98 Cal.App.4th at p. 501; Camp v. Board of Supervisors (1981)
123 Cal.App.3d 334, 357-358; see also Planned Parenthood
Shasta-Diablo v. Williams (1995) 10 Cal.4th 1009, 1019.)
The request for a permanent injunction was made for the
first time after the trial on the merits of respondents’ declaratory
relief claim. Respondents introduced no additional evidence in
support of the injunction demonstrating “that the defendant’s
wrongful acts threaten to cause irreparable injuries” (Intel, supra,
30 Cal.4th at p. 1352), or “any facts which would entitle [them] to
any other . . . relief beyond [declaratory relief]” (City of San
Diego, supra, 209 Cal. at p. 151). Respondents’ only support for
their request for a permanent injunction was their counsels’
declarations. These declarations addressed the need for an
injunction in one paragraph and presented no evidence to support
the injunctions. Respondents instead cited Estrin v. Superior
Court, supra, 14 Cal.2d at page 678, for the proposition that a
“party is entitled to ‘any and all relief which may be appropriate
under the scope of his pleadings and within the facts alleged and
proved.’” But, as noted, respondents did not plead for injunctive
relief nor did they prove any facts demonstrating their
entitlement to it.
That respondents proved they were entitled to declaratory
relief was not enough to support a permanent injunction. (See
California Water, supra, 253 Cal.App.2d at p. 32; City of San
Diego, supra, 209 Cal. at p. 151; Klarfeld, supra, 142 Cal.App.3d
at p. 550.) At a minimum, they additionally needed to prove
irreparable harm and threatened injury because these are not
25
required elements for declaratory relief. (See Childhelp, Inc. v.
City of Los Angeles (2023) 91 Cal.App.5th 224, 235 [declaratory
relief requires “’two essential elements: “(1) a proper subject of
declaratory relief, and (2) an actual controversy involving
justiciable questions relating to the rights or obligations of a
party.”’”]; see also Code Civ. Proc., § 1060.) Because there was no
evidence before the trial court supporting the permanent
injunctions they cannot stand.
Rather than explaining what evidence before the trial court
supported the injunctions, respondents raise several legal
arguments. First, respondents assert that “the [trial court’s]
finding of facial invalidity alone was sufficient to support the trial
court’s issuance of the permanent injunction.” In their view, a
permanent injunction is “essential” to enforce a judgment that a
statute is facially invalid because such a challenge automatically
means the State may not enforce the invalidated law.
Respondents also cite California and federal cases where courts
enjoined enforcement of facially invalid laws. But none of
respondents’ cases considered the proposition that a permanent
injunction automatically flows from a ruling that a statute is
facially invalid, nor did any of these cases so hold. It “‘“is
axiomatic that cases are not authority for propositions not
considered.”’” (McWilliams v. City of Long Beach (2013)
56 Cal.4th 613, 626; People v. Ault (2004) 33 Cal.4th 1250, 1268,
fn. 10.)
Further, “[a]n injunction is a drastic and extraordinary
remedy, which should not be granted as a matter of course.”
(Monsanto, supra, 561 U.S. at p. 165; see Intel, supra, 30 Cal.4th
at p. 1352.) And the categorical rule respondents propose would
be out of step with traditional equitable requirements
26
emphasizing that “each case must be governed by the
circumstances that surround it, and by relative equities.”
(Peterson v. City of Santa Rosa (1897) 119 Cal. 387, 391; see Butt,
supra, 4 Cal.4th at pp. 695-696.) 5 Indeed, not all cases involving
facially invalid laws in the First Amendment context have
authorized a permanent injunction. (See, e.g., Virginia Society
for Human Life, Inc. v. Federal Election Commission (4th Cir.
2001) 263 F.3d 379, 393 [facially invalidating regulation based on
speech grounds, but reversing permanent injunction involving
nonparties], overruled on other grounds as noted by Real Truth
About Abortion, Inc. v. Federal Election Commission (4th Cir.
2012) 681 F.3d 544; Bernstein v. United States Department of
State (N.D. Cal. 1997) 974 F. Supp. 1288, 1309-1310 [similar].)
Next, according to respondents, cases involving facial
challenges under the First Amendment “per se” demonstrate
irreparable harm because “[t]he loss of First Amendment
freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Respondents cite Elrod v. Burns
(1976) 427 U.S. 347, 373, Ketchens v. Reiner (1987)
194 Cal.App.3d 470, Roman Catholic Diocese of Brooklyn v.
Cuomo (2020) 592 U.S. 14, 15, and American Booksellers Assn.,
Inc. v. Superior Court (1982) 129 Cal.App.3d 197, 206.
5 The United States Supreme Court has also rejected
applying presumptions in favor of injunctive relief. (See
Monsanto, supra, 561 U.S. at p. 157.) In Monsanto, it rejected
the presumption “that an injunction is the proper remedy for
a . . . violation [of an environmental statute] except in unusual
circumstances.” (Ibid.) The Court held that “[n]o such thumb on
the scales is warranted,” and that “a court must determine that
an injunction should issue under the traditional . . . test” for
injunctive relief. (Id. at pp. 157-158, emphasis omitted.)
27
“We do not quarrel with the finding in the above cases
relying on Elrod that, on the facts there presented, irreparable
harm would result if the courts did not enjoin the practice,
ordinance or statute involved. [¶] The present case, however, is
very different.” (Sundance Saloon, Inc. v. City of San Diego
(1989) 213 Cal.App.3d 807, 817-818.) Here, respondents made no
legal argument or factual showing in the trial court that
irreparable harm would follow if the court did not enjoin the
challenged provisions. (See Dawson v. East Side Union High
School Dist. (1994) 28 Cal.App.4th 998, 1041 [“‘A permanent
injunction . . . is a final judgment on the merits’” and “[l]ike any
judgment, a permanent injunction . . . must be sufficiently
supported by the evidence of record”]; Sundance Saloon, at p. 817
[“it is illogical to rotely and routinely enjoin the enforcement of
all laws affecting free speech without the imposition of human
judgment”].)
But even if we were to assume respondents demonstrated
irreparable harm because the First Amendment is involved,
respondents also needed to demonstrate future or recurring
injury. Even in cases involving facially invalid statutes,
California courts have consistently required evidence of future
injury or the threat of future injury before authorizing a
permanent injunction.
For example, in Connerly, supra, 146 Cal.App.4th at
page 742, the Court of Appeal reversed a permanent injunction
preventing the Governor and Attorney General from
implementing a statute declared facially invalid and
unenforceable under the California Constitution. The court
reasoned, “The fact that a void law is on the books is not
sufficient, by itself, to justify the issuance of an injunction.” (Id.
28
at p. 748.) “[A]bsent allegations demonstrating that defendants
are enforcing or threatening to enforce [the statute], there is no
basis upon which to issue an injunction.” (Id. at p. 743.) Instead,
“[t]here is a presumption that state officers will obey and follow
the law.” (Id. at p. 751.) Connerly warned, “injunctions cannot
be predicated on the proponent’s fear of something that may
happen in the future.” (Id. at p. 750; see Lee v. Gates (1983)
141 Cal.App.3d 989, 993 [“In the case at bench, there is no
reasonable expectation that the city will prosecute under a Penal
Code section that is clearly unconstitutional under the reasoning
of the [California Supreme Court] case.”]; see also Scripps
Health v. Marin (1999) 72 Cal.App.4th 324, 332 (Scripps Health)
[injunctive relief “should neither serve as punishment for past
acts, nor be exercised in the absence of any evidence establishing
the reasonable probability the acts will be repeated in the
future”].)
Presumably the declaratory judgment stating the
challenged provisions are facially unconstitutional would protect
respondents from the threat of future enforcement. The trial
court’s grant of the permanent injunctions appears to have been
motivated by its concern the Attorney General would enforce the
challenged statutory provisions against nonparties. 6 California
courts have also required evidence of recurring harm or the
threat of future harm against nonparties before authorizing a
permanent injunction covering nonparties. In Horsford, supra,
6 Respondents assert the injunction does not apply to
nonparties because its proscription applies only to the Attorney
General. But the Attorney General is charged with enforcing the
Act by the Legislature (§ 12598), so an injunction against him or
his office is necessarily an injunction enjoining the enforcement of
the challenged statutes against nonparties.
29
132 Cal.App.4th at p. 366, the plaintiffs’ complaint sought
injunctive relief regarding their individual employment rights.
After trial, the plaintiffs moved for an order seeking broader
injunctive relief. Specifically, they sought an injunction to
prohibit the defendant from discriminating based on race in its
hiring or other employment practices. Horsford affirmed the
denial of the injunction as to nonparties because it was not raised
at trial and no evidence was offered or received at trial that the
defendant previously discriminated against any other employees
or currently did so. (See id. at p. 391; see also Dawson v. East
Side Union High School Dist. (1994) 28 Cal.App.4th 998, 1043
[injunction unnecessary where no evidence of recurrence].)
Here, when the trial court stated at the post-trial hearing
that the Attorney General “argued in [his] motion that [he]
want[ed] to be able to use [12599.6](f)(2) in future actions against
other parties,” the Deputy Attorney General responded: “[T]hat
is something that will have to be reviewed and considered by the
Attorney General.” Later, when the trial court stated the
Attorney General intended to “go after” the Salvation Army, the
Deputy Attorney General stated: “I am not in a position to state
what the Attorney General will decide on this.” According to
FFP, the Attorney General essentially “told the trial court he
intended to enforce the invalid statutes.” And CMMB argues the
Attorney General “effectively conceded that he intended to
continue to use these infirm statutes to assist his enforcement
efforts against all other charities.”
The Attorney General’s positions in this court raise similar
concerns. At oral argument, counsel for the Attorney General
appeared to acknowledge that reformed section 12591.1 applied
to all charities and stated that his office would enforce the Act as
30
reformed. This concession was subsequently retracted in the
Attorney General’s supplemental brief (see fn. 9, infra) because
“it does not accurately reflect the position of the California
Department of Justice.” The supplemental brief further stated
that “in our system of government, superior court orders do not
have binding legal force on the government when it interacts
with individuals or entities that were not parties to the case
before the court,” and “superior court orders lack preclusive effect
as to the government vis-à-vis nonparties.” To the extent the
Attorney General suggests that injunctions or orders reforming a
statute entered by a trial court cannot reach nonparties when the
government is involved, the cited authorities do not support the
contention, and we reject it. 7
c. Remand to plead and prove entitlement to
injunctive relief
Ordinarily, we would decide this appeal based on the record
presented, but we “conclude we should remand the matter . . . to
allow the court to consider whether [it] adequately addressed the
material issues that are now expressly provided. ‘It is familiar
appellate practice to remand causes for further proceedings
without deciding the merits, where justice demands that course
in order that some defect in the record may be supplied. Such a
remand may be made to permit further evidence to be taken or
additional findings to be made upon essential points.’” (Carter v.
7 Fenske v. Board of Administration (1980) 103 Cal.App.3d
590, 596 dealt with an as applied, rather than facial, challenge to
a statute. (See id. at p. 594.) And Helene Curtis v. Assessment
Appeals Board (1999) 76 Cal.App.4th 124, 133 contains no
analysis and we decline to follow it.
31
California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 930-
931; see Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785,
803 [remand for further factfinding appropriate where trial court
applied incorrect legal standard]; Code Civ. Proc., § 906
[appellate court may order retrial or further proceedings if
necessary and proper].)
On remand, the trial court shall determine whether
respondents: (1) should be given leave to amend their complaints
to plead for injunctive relief; and if so, (2) can prove entitlement
to a permanent injunction with evidence of irreparable harm and
any threat of future enforcement of the challenged statutory
provisions by the Attorney General. 8 On remand, the parties
may present additional evidence on the issues involved, including
any briefing filed in this court.
Further, as discussed in the next section, we affirm the
trial court’s reformation of section 12591.1(b), which prevents the
Attorney General from issuing a cease and desist order for
violations of section 12599.6. The trial court should assess
whether the reformed statutory provisions eliminate the need for
a statewide permanent injunction, either because an injunction is
unnecessary or because the reformation renders any subsequent
injunction moot. 9 (See Scripps Health, supra, 72 Cal.App.4th at
8 Because we vacate the injunctions and remand, we need
not reach the Attorney General’s arguments the injunctions
violated rules against nonmutual collateral estoppel, required
class certification, and were overbroad because they encompass
statutes not at issue in the underlying case.
9 At our request, the parties filed supplemental briefs
addressing whether the injunctions were rendered moot by the
reformation of section 12591.1. The parties argued, and we
agree, that even if the injunctions were moot (an issue we need
32
p. 332 [a change in circumstances at the time of the hearing,
rendering injunctive relief moot or unnecessary, justifies denial of
the request].)
B. The Trial Court’s Reformation of Section 12591.1(b)
Respondents cross-appeal and argue the trial court erred
by reforming and severing section 12591.1(b) rather than striking
it down in its entirety. The trial court added language in bold
and italics to subdivision (b), which also had the effect of
functionally severing subdivision (b)(4), such that it reads as
follows:
“The Attorney General may issue a cease and desist order
whenever the Attorney General finds that any entity or
person that is subject to the provisions of this article
pursuant to Section 12581, or its agent, servant, or
employee, has committed an act that would constitute a
violation of, or is operating in violation of, this article, or its
implementing regulations, or an order issued by the
not decide), we should exercise our discretion to determine their
validity given the public importance of the injunctions entered
against the Attorney General, who is charged with enforcing the
Act. (See Konig v. Fair Employment & Housing Com. (2002)
28 Cal.4th 743, 745, fn. 3 [“On issues of great public interest, we
have the inherent discretion to resolve the matter despite events
which may render the matter moot.”]; Peterson v. City of San
Diego (1983) 34 Cal.3d 225, 227 [“Although the case is technically
moot, appellate courts have discretion to consider a case when
the issues are of continuing public importance.”]; Hardie v. Eu
(1976) 18 Cal.3d 371, 379.) On remand, the trial court should
determine whether any injunctions it issues are necessary or
moot in light of the reformation.
33
Attorney General, including, but not limited to, all of the
following, except for a violation of Section 12599.6:
“(1) Has refused or failed, after notice, to produce any
records of the organization or to disclose any information
required to be disclosed under this article or Chapter 4
(commencing with Section 300) of Division 1 of Title 11 of
the California Code of Regulations.
“(2) Has made a material false statement in an application,
statement, or report required to be filed under this article
or Chapter 4 (commencing with Section 300) of Division 1 of
Title 11 of the California Code of Regulations.
“(3) Has failed to file a financial report, or has filed an
incomplete financial report, that is required by this article
or Chapter 4 (commencing with Section 300) of Division 1 of
Title 11 of the California Code of Regulations.
“(4) Has engaged in any act prohibited pursuant to Section
12599.6.”
Respondents argue the trial court could not simultaneously
reform and sever the statutory provision. 10 According to
respondents, a court may only reform a statute to prevent a
finding of constitutional infirmity. In their view, once a court
declares a statute to be invalid, reformation of the offending
statute is no longer possible, and the court may only conduct a
severability analysis to determine whether “the taint infects the
10 Although the parties argue the trial court reformed and
severed section 12591.1(b), the trial court’s judgment only added
the language to the provision noted in the body. We understand
the parties as arguing that such language had the effect of
functionally severing subdivison (b)(4).
34
whole.” They further argue that section 12591.1(b)’s term of
enlargement (i.e., “including, but not limited to, all of the
following”) precludes severance in this case. And even if the trial
court had the power to reform the statute after its
constitutionality ruling, respondents contend the trial court’s
reformation is impermissible in this case because it is contrary to
the Legislature’s intent and it would have preferred invalidation
over reformation.
1. Standard of review
The standard of review is de novo for questions involving
statutory construction, including whether a statute is severable
or may be reformed. (See Reid v. Google, Inc. (2010) 50 Cal.4th
512, 527; Advanced Modular Sputtering, Inc. v. Superior Court
(2005) 132 Cal.App.4th 826, 833.) Under de novo review, the
appellate court gives no deference to the trial court’s ruling or the
reasons for its ruling, but instead decides the matter anew. (See
Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185,
119; Union Bank of California v. Superior Court (2004)
115 Cal.App.4th 484, 488.)
2. Legal standards for reformation and severance of
statutes
The California Supreme Court has determined that a court
“may, in appropriate circumstances, and consistently with the
separation of powers doctrine, reform a statute to conform it to
constitutional requirements in lieu of simply declaring it
unconstitutional and unenforceable. The guiding principle is
consistency with the Legislature’s . . . intent: a court may reform
a statute to satisfy constitutional requirements if it can conclude
35
with confidence that (i) it is possible to reform the statute in a
manner that closely effectuates policy judgments clearly
articulated by the enacting body, and (ii) the enacting body would
have preferred such a reformed version of the statute to
invalidation of the statute.” (Kopp v. Fair Pol. Practices Com.
(1995) 11 Cal.4th 607, 615 (Kopp); accord, Legislature of the State
of California v. Padilla (2020) 9 Cal.5th 867, 875 (Padilla).)
As to severability, “[t]he cases prescribe three criteria for
severability: the invalid provision must be grammatically,
functionally, and volitionally separable.” (Calfarm Ins. Co. v.
Deukmejian (1989) 48 Cal.3d 805, 821 (Calfarm).) Like
reformation under Kopp, volitional separability requires
consideration of legislative intent. Whether a constitutionally
invalid part of a statute is severable from the remaining part
“depends on whether the remainder . . . is complete in itself and
would have been adopted by the legislative body had the latter
foreseen the partial invalidity of the statute . . . or constitutes a
completely operative expression of the legislative intent . . . [and
is not] so connected with the rest of the statute as to be
inseparable.” (Id. at p. 821, quoting Santa Barbara School
District v. Superior Court (1975) 13 Cal.3d 315, 331 (Santa
Barbara).) “[I]t is clear that severance of particular provisions is
permissible despite the absence of a formal severance clause.”
(Legislature v. Eu (1991) 54 Cal.3d 492, 535; accord, Hollywood
Park Land Co., LLC v. Golden State Transportation Financing
Corp. (2009) 178 Cal.App.4th 924, 942 (Hollywood Park Land
Co.).)
36
3. The law does not reflect a categorial bar against a
court reforming and severing a statute
Respondents contend severance and reformation may not
be simultaneously utilized because reformation is only available
before a finding of constitutional invalidity and severance only
afterward. Kopp does not support such a categorial rule, and
instead observes that “all decisions in which courts preserve
[legislative] enactments by severance are to some extent
examples of judicial reformation.” (Kopp, supra, 11 Cal.4th at
p. 641.)
In Kopp, the California Supreme Court “comprehensively”
addressed courts’ power to reform statutes. (Padilla, supra,
9 Cal.5th at p. 875.) Kopp contrasted “simply plac[ing] a saving
‘construction’ on the statutory language, thereby constricting the
reach of the statute” with “disregard[ing] language and . . .
substitut[ing] reformed language.” (Kopp, supra, 11 Cal.4th at
p. 646; accord, People v. Sandoval (2007) 41 Cal.4th 825, 844,
fn. 7.) Kopp explained the “distinction . . . suggests a difference of
degree, not kind. . . . In practical effect, in all of these cases, we
‘rewrote’ each statute in order to preserve its constitutionality.”
(Kopp, at p. 646.)
Kopp examined and approvingly cited Brockett v. Spokane
Arcades, Inc. (1985) 472 U.S. 491 (Spokane Arcades). There, the
United States Supreme Court, through “a combination of
severance and . . . insertion of limiting language,” reformed a
Washington state statute to make it constitutional. (Kopp, supra,
11 Cal.4th at p. 640 [discussing Spokane Arcades].) That statute
used the term “lust” in its definition of regulated obscene matter,
and the Ninth Circuit had invalidated the entire statute on the
ground the term was unconstitutionally overbroad. (Ibid.)
37
Spokane Arcades cautioned restraint and observed that courts
“‘should not extend [the] invalidation of a statute further than
necessary to dispose of the case before it.’” (Ibid.)
These cases reflect that reformation and severance are not
mutually exclusive tools, as respondents argue, and that they
may be used in combination. Other cases have similarly
considered severance as a part of reformation. (See, e.g.,
California Redevelopment Association v. Matosantos (2011)
53 Cal.4th 231, 275 (Matosantos) [court severed the invalid part
of a statute and reformed the remainder]; Abbott Laboratories v.
Franchise Tax Bd. (2009) 175 Cal.App.4th 1346, 1361 (Abbott
Laboratories) [court considered whether invalid statute could be
severed and reformed].)
4. The trial court did not err by severing and reforming
section 12591.1
The trial court did not err by functionally severing
subdivision (b)(4) and reforming section 12591.1(b) by adding
certain language (“except for a violation of Section 12599.6”) to
comply with constitutional principles, rather than invalidating
the provision in its entirety. We are guided by the exhortations
in Kopp and Spokane Arcades that a court “‘should not extend
[the] invalidation of a statute further than necessary to dispose of
the case before it.’” (Kopp, supra, 11 Cal.4th at p. 640; Spokane
Arcades, supra, 472 U.S. at p. 502; Hollywood Park Land Co.,
supra, 178 Cal.App.4th at p. 941 [“invalid provisions of a statute
should be severed whenever possible to preserve the validity of
the remainder of the statute”].)
38
a. Severance of section 12591.1(b)(4)
We first address whether section 12591.1(b)(4) is
grammatically, functionally and volitionally separable. (See
Hotel Employees & Restaurant Employees Internat. Union v.
Davis (1999) 21 Cal.4th 585, 613.) Respondents contend
subdivision (b)(4), which allows the Attorney General to issue a
cease and desist order for any act prohibited by section 12599.6
(i.e., “has engaged in any act prohibited pursuant to
Section 12599.6”), is not grammatically, functionally, and
volitionally separable. Respondents’ arguments are
unpersuasive.
Section 12591.1(b)(4) is grammatically separable because it
“can be separated by paragraph, sentence, clause, phrase, or even
single words.” (Abbott Laboratories, supra, 175 Cal.App.4th at
p. 1358 [ruling that all the words after “‘year’” in disputed
subdivision were “‘reasonably separable’” from the remaining
portions of that subdivision].) Subdivision (b)(4) is a “distinct and
separate provision” such that it can be removed without
“affecting the wording of any other provision.” (Calfarm, supra,
48 Cal.3d at p. 822.)
Section 12591.1(b)(4) is functionally separable.
“[F]unctional separability depends on whether the remainder of
the enactment is complete in itself and can be implemented
without the continuation of the invalid provision.” (POET, LLC
v. State Air Resources Bd. (2017) 12 Cal.App.5th 52, 92.) Because
subdivision (b)(4) is only one basis for a cease and desist order,
the remaining provisions (i.e., subdivisions (b)(1) to (b)(3) and
section 12591.1(b) with the added language) are easily “capable of
independent application.” (Lazarin v. Superior Court (2010)
188 Cal.App.4th 1560, 1578.)
39
Section 12591.1(b)(4) is also volitionally separable.
Volitional separability “depends on whether ‘the remainder . . .
would have been adopted by the legislative body had the latter
foreseen the partial invalidation of the statute.’” (Santa Barbara,
supra, 13 Cal.3d at p. 331.) As described below, the record before
us indicates the Legislature likely would have adopted the
remainder of section 12591.1(b) had it foreseen the invalidity of
subdivision (b)(4) and section 12599.6(f)(2). 11
The legislative history demonstrates the Legislature sought
to provide the Attorney General with the authority to issue a
cease and desist order or seek civil penalties against any person
or entity violating the Act, and that sections 12591.1(b)(4) and
12599.6 are only part of that broader grant of authority. (Assem.
Com. on Appropriations, Rep. on Assem. Bill No. 2327 (2011-2012
Reg. Sess.) April 16, 2012, p. 1.) The Legislature was motivated
to give such powers to the Attorney General due to perceived
abuses stemming from the improper use of charitable funds,
including a case involving the board of a San Diego-based charity
for burn victims that diverted over $100,000 in charitable
donations for personal expenses. (Id. at p. 2.) To address such
situations, for example, section 12591.1, subdivision (b)(3), grants
the Attorney General authority to issue a cease and desist order
if a charity fails to file a financial report or has filed an
incomplete financial report, which the Legislature meant as a red
11 The Attorney General does not argue that the trial court’s
reformation of section 12591.1(b) is overbroad, nor does he ask
this Court to narrow the reformation because it removes all of
section 12599.6 (rather than just subdivision (f)(2)) from his
authority to issue cease and desist orders.
40
flag to alert the Attorney General to potential diversion of assets.
(Id. at pp. 2-3.)
Respondents argue “the Legislature’s unambiguous
statements that section 12591.1(b) was enacted to stop fraud
‘before an[] act or omission has occurred’ necessarily reflects a
legislative intent to stop charitable speech.” But, as noted above,
the fraudulent acts by certain charitable organizations that
motivated the Legislature to enact Assembly Bill No. 2327
included misappropriation and improper diversion of charitable
assets. (Assem. Com. on Appropriations, Rep. on Assem. Bill
No. 2327 (2011-2012 Reg. Sess.) April 16, 2012, p. 1.) The
Legislature was not solely concerned with fraud in connection
with charitable speech in fundraising. Respondents have not
demonstrated that sections 12591.1(b)(4) and 12599.6(f)(2) were
so critical to the Legislature’s amendment of the Act that the
amendment would not have been enacted without these
subdivisions, let alone that the Legislature would have preferred
its statutory amendments be rejected in their entirety if these
two particular subdivisions were deemed unlawful. Rather, the
record before us demonstrates the Legislature would have
preferred the Attorney General to have some cease and desist
authority rather than none. (See Santa Barbara, supra,
13 Cal.3d at p. 332 [“it seems eminently reasonable to suppose
that those who favor the [law] would be happy to achieve at least
some substantial portion of their purpose”].)
We decline respondents’ invitation to recognize an
exception to traditional statutory reformation principles for
statutes containing a “term of enlargement.” We are
unpersuaded by respondents’ argument that section 12591.1(b)(4)
is not severable because section 12591.1(b) contains the term of
41
enlargement phrase “including, but not limited to.” (See In re
D.O. (2016) 247 Cal.App.4th 166, 175 [collecting cases on function
of a term of enlargement].) In their view, severing subdivision
(b)(4) “merely strikes one example from an illustrative list,” while
preserving “the power illustrated by subdivision (b)(4), including
the content-based regulation of charitable speech” under other
statutory provisions in section 12591.1(b). 12
Respondents cite no authority that statutes containing a
term of enlargement may not be severed to preserve their
constitutionality. 13 And such a rule would be contrary to Kopp
and Spokane Arcades’ exhortation that a court “‘should not
extend [the] invalidation of a statute further than necessary to
dispose of the case before it.’” (Kopp, supra, 11 Cal.4th at p. 640;
see Spokane Arcades, supra, 472 U.S. at p. 502.) Further,
respondents have not demonstrated there is anything unique
12 Respondents contend section 12591.1(b) allows regulation
of speech in several other provisions of the Act. As a result, in
respondents’ view, the entirety of section 12591.1(b) is invalid
because it permits the Attorney General to issue a cease and
desist order for violations of “Sections 12599.6(a), (b),
(f)(2)-(f)(12), and (g)” as well as “[section] 12599(j).” But
respondents did not challenge, and the trial court did not declare,
any substantive provision of the Act unconstitutional other than
section 12599.6(f)(2). Because the issue is not before us, we
express no opinion on whether these or other provisions of the
Act are constitutional.
13 Federal circuit courts have authorized severance of statutes
with terms of enlargement to preserve their constitutionality,
including statutes implicating free speech. (See, e.g., United
States v. Rundo (9th Cir. 2021) 990 F.3d 709, 715; United
States v. Miselis (4th Cir. 2020) 972 F.3d 518, 543.)
42
about section 12591.1(b) preventing severance and reformation.
Here, due to the term of enlargement, severing
section 12591.1(b)(4)’s express reference to section 12599.6 does
not eliminate any implicit reference contained in
section 12591.1(b). The trial court resolved this by adding the
language “except for a violation of Section 12599.6” (addressed in
the next section) in bold and italics to section 12591.1(b). Adding
such “words of limitation” to “uphold the statute’s validity” is
wholly consistent with the law. (Kopp, at p. 641; Spokane
Arcades, at p. 498.) This added language made subdivision (b)(4)
separable by removing subdivision (b)(4) from the Attorney
General’s implicit power to issue cease and desist orders. 14 In
this light, we cannot say subdivision (b)(4) is “so connected with
the rest of the statute as to be inseparable” such that “the entire
act must fail.” (In re Portnoy (1942) 21 Cal.2d 237, 242.)
b. Reformation of section 12591.1(b)
The trial court’s reformation of section 12591.1(b) to add
“except for a violation of Section 12599.6” is consistent with
legislative intent. The trial court’s addition of this language
“reform[s] [the] statute to conform it to constitutional
requirements in lieu of simply declaring it unconstitutional and
unenforceable.” (Kopp, supra, 11 Cal.4th at p. 615.) And, the
additional language “(i) . . . reform[s] the statute in a manner
that closely effectuates policy judgments clearly articulated by
14 CMMB also argues the unreformed statute remains on the
books and “nobody will know about this contrary qualifier unless
they happen to learn of the trial court’s judgment.” Our
affirmance of the trial court’s reformation, of course, provides the
necessary notice.
43
the [Legislature], and (ii) the [Legislature] would have preferred
such a reformed version of the statute to invalidation of the
statute.” (Ibid.) For the reasons detailed above, we have
determined the Legislature would have preferred the reformed
version of section 12591.1(b) to invalidation.
The Assembly Committee on the Judiciary in its comments
on the bill clearly articulated a public policy “to stop fraud or
deceit[,] hopefully before they can harm charitable
organizations.” (Assem. Com. on Appropriations, Rep. on Assem.
Bill No. 2327 (2011-2012 Reg. Sess.) April 16, 2012, p. 2.) To that
end, the Legislature amended section 12591.1 to allow the
Attorney General to issue a cease and desist order “as soon as the
Attorney General learns of concerns regarding a fundraiser’s
practices, or notices inconsistencies, irregularities or omissions
from a charitable organization’s mandating filings.” (Ibid.) The
trial court’s reformation of this provision closely effectuates policy
judgments clearly articulated by the Legislature, and it furthers
the Legislature’s intent to authorize the Attorney General to stop
fraud or deceit through cease and desist orders without
restraining charitable organizations’ free speech rights.
We are unpersuaded by respondents’ argument that the
Legislature intended section 12591.1(b) to be a prior restraint on
charitable speech and that the trial court’s addition of the “except
for a violation of section 12599.6” is contrary to that intent. The
plain terms of section 12591.1(b) regulate conduct unrelated to
protected speech in subdivisions (b)(1) through (b)(3). (See
§ 12591.1, subd. (b)(1) [failure to produce records]; id., subd.
(b)(2) [false statements in reporting requirements]; id., subd.
(b)(3) [failure to file financial report].)
44
In sum, the trial court did not err by reforming and
severing section 12591.1. (See Kopp, supra, 11 Cal.4th at p. 659
[a court’s “reluctance” to reform a statute can do “far more
violence to the legislative scheme than would the proposed
reformation”]; id. at p. 661 [further noting “‘of course . . . ultimate
authority to recast or scrap the law in question remains with the
political branches’”].)
C. The Attorney Fee Awards
The Attorney General also appealed from postjudgment
orders awarding attorney fees to respondents under Code of Civil
Procedure section 1021.5. In light of our reversal and remand of
the injunctions, we vacate the attorney fee awards. On remand,
the trial court should determine the effect of any injunctions and
our affirmance of the reformation of section 12591.1 on any
award of attorney fees.
DISPOSITION
The order granting the injunctions is reversed, we vacate
the injunctions, and we remand to the trial court for further
proceedings. On remand, the trial court shall: (a) allow CMMB
and FFP to file motions seeking leave to amend their complaints
to plead for permanent injunctive relief, and if the court
determines leave is warranted; (b) determine whether CMMB
and FFP can prove they are entitled to a permanent injunction.
The judgments are modified by striking the following text: “and
shall be enjoined. Respondent Attorney General Rob Bonta, and
his officers, agents, servants, employees, and attorneys are
enjoined from implementing or enforcing Government Code
45
sections 12591.1(b)(4) and 12599.6(f)(2).” In all other respects,
the judgments are affirmed.
The postjudgment orders awarding attorney fees are
vacated, and on remand the trial court is directed to consider
entitlement to attorney fees and the amount to be awarded
including the effect of any injunctions and of this court’s
affirmance of the reformation of section 12591.1.
The parties shall bear their own costs on appeal.
MARTINEZ, P. J.
We concur:
SEGAL, J.
STONE, J.
46