The opinion
IN THE SUPREME COURT OF
CALIFORNIA
MICHAEL GOMEZ DALY et 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
Fourth Appellate District, Division Two
E073730
San Bernardino County Superior Court
CIVDS1833846
August 9, 2021
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
Opinion of the Court by Kruger, J.
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
Board of Supervisors, to remove and replace one of its members.
The order was based on a ruling that the board had violated
statutory open-meeting requirements in making an
appointment to a vacant board seat; as a remedy, the superior
court required the board to rescind the appointment and to seat
a replacement board member to be named by the Governor,
according to the terms of the county charter. The board filed a
petition for a writ of supersedeas to stay the effect of the
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
superior court’s order, which the Court of Appeal denied. We
now reverse. The superior court’s order to remove and replace
the board member was a mandatory injunction — a command
that the board take affirmative action to remedy the violation
found by the trial court. As such, under long-established
precedent, the order should be stayed until the appellate court
has determined whether the trial court was correct.
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 board are to appoint a
replacement by majority vote. If the board does not fill the
vacancy within 30 days, the appointment is to be made by the
Governor. (San Bernardino County Charter, art. 1, §§ 1, 7, as
amended through Nov. 6, 2012.)
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
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
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),
Government Code section 54950 et seq., which generally
requires local legislative bodies to hold open meetings. The
board then deferred further action on the appointment to its
regular meeting set for December 18, 2018. Before the
December 18 meeting, plaintiff Michael Gomez Daly sent the
board a letter on behalf of the civic organization he directed,
plaintiff Inland Empire United, also asserting that the board’s
nomination process had violated Brown Act provisions against
“seriatim” meetings (that is, a series of closed communications
or deliberations between members that collectively add up to the
work of a legislative quorum) and secret ballots. Daly demanded
the board adopt a new selection process in which all qualified
applicants would have the opportunity for an interview.
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.
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
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 had participated in Rowe’s
appointment (collectively, the Board), with Rowe as the real
party in interest. Plaintiffs sought a judicial determination that
the initial nomination process violated two provisions of the
Brown Act: Government Code section 54952.2, subdivision
(b)(1), barring the use of seriatim communications in lieu of a
meeting, and Government Code section 54953, subdivisions (a)
and (c), requiring local legislative bodies to meet and vote
openly. They also sought a determination that the violations
had not been cured or corrected by the Board’s actions at the
meeting on December 18, 2018, and that Rowe’s appointment
was therefore “null and void under [Government Code] section
54960.1.” As a remedy, they asked the superior court for an
order requiring the Board to rescind the appointment and for a
declaration that, no lawful and timely appointment having been
made by the Board, the appointment of the Third District
supervisor “shall be made by the Governor.”
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 court accordingly determined Rowe’s
appointment was null and void under Government Code section
1
The merits of the superior court’s decision on these points
is not before us, and we express no opinion regarding them.
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
54960.1 and had to be rescinded, with a new appointment to be
made by the Governor. 2
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 Court of
Appeal issued a temporary stay pending briefing on the
supersedeas petition, but then denied the stay for the pendency
of the appeal. The Court of Appeal opined that the trial court’s
order was not automatically stayed as a mandatory injunction
because “upon a finding that [the Board’s] appointment of real
2
Government Code section 54960.1, subdivision (a),
provides: “The district attorney or any interested person may
commence an action by mandamus or injunction for the purpose
of obtaining a judicial determination that an action taken by a
legislative body of a local agency in violation of Section 54953,
54954.2, 54954.5, 54954.6, 54956, or 54956.5 is null and void
under this section. Nothing in this chapter shall be construed
to prevent a legislative body from curing or correcting an action
challenged pursuant to this section.”
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
party Dawn Rowe was null and void as arising out of a violation
of the Brown Act [citation], the seemingly mandatory acts
required in the superior court’s injunction and writ of mandate
are merely incidental to that finding and the injunction and writ
of mandate are prohibitory in nature. [Citation.] The same
finding of a null and void appointment means there was no
change in status quo by the superior court’s order.” The court
also denied a discretionary writ of supersedeas, reasoning that
the Board and Rowe had neither shown they would be
irreparably injured by the injunction nor “facially demonstrated
the merits of the issues they present.”
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 (Code Civ.
Proc., § 923); specifically, we asked whether plaintiffs had
properly brought this action as a petition for writ of mandate
under the Brown Act’s remedial provision (Gov. Code, § 54960.1,
subd. (a)) or whether plaintiffs were instead limited to
challenging the Board’s appointment by means of an action in
the nature of quo warranto under Code of Civil Procedure
section 803. We now conclude the order here should have been
automatically stayed as a mandatory injunction; we accordingly
do not address whether a discretionary writ of supersedeas
should have issued based on the likelihood of the Board’s success
on the merits of the quo warranto exclusivity issue.
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
II.
A.
The rules governing stays pending appeal are found in
Code of Civil Procedure part 2, title 13, chapter 2. The relevant
statutes codify the common law rule under which an appeal
ordinarily operates to stay proceedings to execute the trial
court’s judgment. (See, e.g., Hovey v. McDonald (1883) 109 U.S.
150, 157, 160–161.) The codification of this default rule dates to
our earliest civil procedure statute, the 1851 Practice Act. The
act required undertakings, receiverships, or deposits to stay
money judgments for orders involving personal or real property
or execution of instruments. (Stats. 1851, ch. 5., §§ 349–352,
pp. 106–107.) The act went on to provide that in other cases
(and except for orders directing the sale of perishable property),
“the perfecting of an appeal, by giving the undertaking . . . ,
shall stay proceedings in the Court below upon the judgment or
order appealed from . . . .” (Id., § 356, p. 108.)
Today, Code of Civil Procedure section 916 continues to
make stay pending appeal the default, subject to various
exceptions that are irrelevant here: “Except as provided in
Sections 917.1 to 917.9, inclusive, and in Section 116.810, the
perfecting of an appeal stays proceedings in the trial court upon
the judgment or order appealed from or upon the matters
embraced therein or affected thereby, including enforcement of
the judgment or order, but the trial court may proceed upon any
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
other matter embraced in the action and not affected by the
judgment or order.” (Code Civ. Proc., § 916, subd. (a).)3
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 stayed “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.” (Code Civ.
Proc., § 1110b.)
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. (Code Civ. Proc., §§ 918, 923.) A
discretionary writ of supersedeas is appropriate where “difficult
questions of law are involved and the fruits of a reversal would
be irrevocably lost unless the status quo is maintained.” (People
ex rel. S. F. Bay etc. Com. v. Town of Emeryville (1968) 69 Cal.2d
533, 537; see Deepwell Homeowners’ Protective Assn. v. City
3
The exceptions described in the first clause cross-reference
provisions setting out the scope and manner of stays for certain
types of judgments and orders. Code of Civil Procedure section
116.810 relates to small claims court judgments and orders,
while Code of Civil Procedure sections 917.1 to 917.9 address
various judgments and orders rendered in the superior courts.
Section 917.1, for example, requires the appellant to deposit a
monetary undertaking for a money judgment to be stayed on
appeal. Code of Civil Procedure sections 917.2, 917.3 and 917.4
specify the types of undertakings and deposits required to stay
judgments and orders directing delivery or sale of personal
property, execution of an instrument and delivery or sale of
realty, respectively.
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
Council (1965) 239 Cal.App.2d 63, 66 [supersedeas appropriate
where the appellant has shown sufficient merit in the appeal
and a stay is necessary “ ‘to preserve to an appellant the fruits
of a meritorious appeal’ ”].)
No statute in chapter 2 of the Code of Civil Procedure part
2, title 13, specifically addresses the stay of injunctive orders, as
distinct from other kinds of judgments.4 From the start,
however, courts have understood the default statutory rule
governing stays pending appeal to apply to some injunctive
orders but not others, embracing a common law distinction
between prohibitory, or preventive, injunctions and those
mandating performance of an affirmative act. (See generally 2
High, A Treatise on the Law of Injunctions (4th ed. 1905)
Appeals, § 1698a, pp. 1647–1648 [describing common law rule];
A.R. Barnes & Co. v. Chicago Typographical Union No. 16
(1908) 232 Ill. 402, 405–409 [83 N.E. 932, 933–935] [same]; Sixth
Ave. R.R. Co. in City of N.Y. v. Gilbert El. R.R. Co. (1877) 71 N.Y.
430, 432–434 [no stay of prohibitory injunction].)
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
4
Certain provisions do prescribe special rules for specific
types of injunctions, none of which are at issue here. (See, e.g.,
Code of Civil Procedure sections 917.15 [no default automatic
stay for order remedying or preventing release of hazardous
substances], 917.8, subdivision (c) [same for order barring use of
building or place declared a nuisance], 917.9, subdivision (a)(2)
[undertaking may be demanded where order requires appellant
“to perform an act for respondent’s benefit”].)
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
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 may enforce obedience thereto; but
5
The Merced Mining court here used “injunction” in the
limited sense of an ordered restraint. That definition is still
extant in the statutes. (See Code Civ. Proc., § 525 [“An
injunction is a writ or order requiring a person to refrain from a
particular act.”].) But in broader legal usage, an injunction is a
court order either “commanding or preventing an action.”
(Black’s Law Dict. (11th ed. 2019) p. 937, italics added.) This
opinion uses the term in the broader, more familiar sense.
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
a mandatory injunction is stayed by the operation of such
appeal, the object of the rule in both cases being to preserve
the status quo.” (Dewey, at p. 68.)6
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 the 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
6
Former section 949 of the Code of Civil Procedure, a
predecessor to section 916, contained terms similar to those in
section 356 of the 1851 Practice Act. (See Foster v. Superior
Court (1896) 115 Cal. 279, 282.)
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
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 defendant 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
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
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 the 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
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
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, keys, and other property could have
no other purpose or effect than to compel him to turn over his
possession to such other, or at least to surrender his theretofore
exclusive possession.” (Id. at p. 19.) And “[i]f the injunction
compels him affirmatively to surrender a position which he
holds, and which, upon the facts alleged by him, he is entitled to
hold, it is mandatory.” (Id. at p. 20.) In making this
determination, we explained that the relevant comparison is
“[t]he status of the parties, at the time the injunction was
issued”; we observed that an order for Clute to turn over control
to other claimants “would certainly, if executed, operate to
change that status.” (Id. at pp. 19–20.)
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
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
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 compulsory 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 prohibitory “ ‘if its effect is to leave the parties
15
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
in the same position as they were prior to the entry of the
judgment’ ”]; Dosch v. King (1961) 192 Cal.App.2d 800, 804
[order is mandatory if it “contemplates a change in the relative
rights of the parties at the time injunction is granted”].)
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 defendant 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
7
Typically, but not always; in some instances the equities
might support immediate enforcement of even a mandatory
injunction, though existing California law prescribes an
automatic stay. More on this in part III., post.
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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 to 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
maintaining the status quo during the pendency of the litigation
required allowing the city to continue its disputed usage of the
tracks.
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
17
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
been secured. Indeed, the phrase has been defined to 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
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
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 the order is entered, as Foster, Clute
and other cases hold, or instead from the “ ‘last actual peaceable,
uncontested status which preceded the pending controversy’ ”
(United Railroads, supra, 172 Cal. at p. 87)?
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 plaintiff’s 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
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
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 improvement (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 Governor” fits
the description of a mandatory injunction. Although it is true
that in some cases an order that appears facially mandatory
may prove to be prohibitory “in essence and effect” (Kettenhofen
v. Superior Court, supra, 55 Cal.2d at p. 191), this is not such a
case. What the order says on its face is also what it does in
practice: namely, require the Board to perform affirmative acts
that, once performed, will change the relative position of the
20
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
parties by ousting Rowe from her position so that a replacement
can be seated.
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 Brown Act, barring her from participating in
Board meetings or actions, and restraining the Board from
making any other appointment to the position. Plaintiffs’
argument draws on our observation in United Railroads, supra,
172 Cal. at page 88, that “the character of a prohibitive
injunction [is] not transformed and made mandatory because it
incidentally involved the doing of an affirmative act.” The
observation in United Railroads remains true, as far as it goes.
For example, an order prohibiting a defendant from using a
particular trade name might incidentally require the defendant
to remove the name from its signage; the incidental steps
required to take the trade name out of circulation does not
convert what is essentially a prohibitory injunction into a
mandatory one. (See Jaynes v. Weickman (1921) 51 Cal.App.
696, 699–700; see also People v. Mobile Magic Sales, Inc. (1979)
96 Cal.App.3d 1, 5 [defendant was ordered to refrain from
displaying mobilehome models for sale at a mobilehome park;
requiring the defendant to remove the mobilehomes currently
on display did not render the injunction mandatory].) But here,
the requirement to remove Rowe from the Third District
supervisor position and seat the Governor’s replacement cannot
plausibly be described as merely incidental to other aspects of
the order; it was not a necessary means to a prohibitory end, but
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
the end in itself.8 Under the circumstances, any prohibitory
elements in the order might better be described as incidental to
the mandatory, rather than vice versa.9
Plaintiffs’ second and more central contention is that
rescission of Rowe’s appointment merely returns the parties to
the positions they occupied before the Board engaged in the
challenged appointment process, consistent with the teaching of
United Railroads. Of course, a true return to precontroversy
conditions presumably would leave the Board free to make a
new appointment rather than being compelled to accept a
replacement named by the Governor. But even setting that
point aside, we reject plaintiffs’ argument as inconsistent with
California law concerning stays of injunction pending appeal.
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’
8
To the extent plaintiffs attempt to characterize these
mandatory orders as incidental in the sense that they merely
implemented the court’s finding that the Board’s appointment
of Rowe was null and void, the argument proves too much. In
that sense, virtually every remedial order could be characterized
as incidental to the underlying legal violation on which it is
based.
9
We note as well that Rowe’s removal is clearly not
incidental in any sense to plaintiffs, who asked the superior
court not only to declare the appointment void but to order it
rescinded and the Governor’s appointee seated. In this court,
moreover, plaintiffs have made clear that one of their central
concerns is whether Rowe would be permitted to continue
occupying the seat, and thus claim incumbent status on the
ballot in the Third District supervisor election, despite the
alleged defect in the process that led to her appointment.
22
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
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 Brown Act
violation, but rather to take affirmative action to undo the
violation’s effect, that is, to rescind Rowe’s appointment and to
seat another in her place.
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
23
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
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”].)
The United Railroads defendant proposed using the
preservation of the precontroversy status quo as a basis to
“transform[] an injunction essentially prohibitive into an
injunction essentially mandatory,” a proposal we there rejected.
(United Railroads, supra, 172 Cal. at p. 87.) Here, plaintiffs
invoke United Railroads with precisely the opposite aim. If
United Railroads were understood as plaintiffs suggest, then
the decision would all but negate the basic rule to which
California courts, applying statutory law, have adhered since
1857: that the defendant’s perfection of an appeal results in the
stay of a mandatory injunction against the defendant.
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
24
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
began storing the extra water, and allowed it to take effect
pending the decision on appeal. 10
10
We acknowledge that the proper characterization of the
injunction at issue in Byington is not free from ambiguity.
Rather than view the trial court’s order there as requiring the
affirmative abandonment of a property right, we might with
equal plausibility have characterized it as restraining San
Francisco from repeating its allegedly unlawful conduct of
storing excess water — much as the city in United Railroads
had been ordered to stop running excess trains on the plaintiff’s
tracks. That we did not characterize the injunction that way
may have had something to do with the fact that the city had
prevailed on the merits in an intervening decision on appeal.
(See Byington v. Superior Court, supra, 14 Cal.2d at pp. 72–73;
see Meridian, Ltd., v. San Francisco (1939) 13 Cal.2d 424, 459–
460 [modifying the trial court’s order].)
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.)
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.
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
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) — at a time when Davis was already
engaged in filming another movie (Hush, Hush Sweet Charlotte)
for another company — was mandatory rather than prohibitory
because it commanded Davis to take affirmative action. (Id. at
p. 838.) Had the court decided to answer this question based
solely on whether an additional day’s worth of Where Love Has
Gone filming would return the parties to the state of affairs that
existed before Davis signed her conflicting contract with the
other movie studio, the court surely would have reached a
different result.
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 required 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
26
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
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 in dispute in the superior court
and on appeal concern the validity of Rowe’s appointment and
the superior court’s power to nullify it in this action. The goal
of a stay is to preserve the status quo while a court determines
the merits of the appeal; issuance of the stay cannot depend on
the assumption that the appeal will fail.
Finally, plaintiffs worry that automatically staying orders
that require the defendant to unwind the effects of a Brown Act
violation, like the order at issue in this case, will “undermine the
Brown Act’s force by permitting violating agencies to enjoy the
fruits of their violations during the pendency of any appeal.”
The worry is misplaced. For one thing, our holding here states
27
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
no general rule as to the stay of orders remedying violations of
the Brown Act; we here have considered only one order
prescribing one particular set of remedies for an alleged
violation involving a challenge to the legitimacy of a public
official’s claim to office. That order, as we have seen, centrally
included commands for affirmative acts, going well beyond
preventing the Board from “enjoy[ing] the fruits” of the
violation. But even as to orders removing a public officer
because of a Brown Act violation, plaintiffs’ concerns are
overstated. Code of Civil Procedure section 803, which
implements the common law writ of quo warranto in California,
authorizes the Attorney General or a relator acting with that
officer’s consent to seek the ouster of a person unlawfully
holding office. In general, this procedure is the exclusive means
to try the title of a person occupying a public office (see Stout v.
Democratic County Central Com. (1952) 40 Cal.2d 91, 93;
Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221,
1225). And when judgment is rendered in favor of the
challengers, the judgment is not subject to automatic stay on
appeal. (Code Civ. Proc., § 917.8, subd. (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 nature
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, Brown Act claim may also be resolved in the
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
action].)11 Had plaintiffs proceeded by quo warranto and
prevailed on the merits, they would have obtained an
immediately enforceable judgment that Rowe “be excluded from
the office.” (Code Civ. Proc., § 809.) They did not proceed by quo
warranto, however, and so enforcement of the superior court’s
order must await review of the judgment on appeal.
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 Code Civ. Proc., § 916), the
scope of our authority to do so absent statutory amendment is
uncertain. (Cf. Agricultural Labor Relations Bd. v. Superior
Court, supra, 149 Cal.App.3d at pp. 716–717 [Code Civ. Proc.,
§ 916 applies to a mandatory injunction notwithstanding
absence of reference to it in statute authorizing the injunction;
Legislature was presumably aware of California’s long-standing
automatic stay rule when enacting statute providing for
11
As stated earlier, we need not decide here whether
Government Code section 54960.1, by specifying a mandamus
remedy for violations of the Brown Act, creates an exception to
the rule of quo warranto exclusivity. We also do not address
here whether an action under Code of Civil Procedure section
803 based on a Brown Act violation would need to meet any of
the procedural prerequisites of a mandate petition brought
under Government Code section 54960.1, or whether
proceedings under the two statutes might be consolidated or
coordinated.
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
injunctive relief].) We nevertheless pause briefly here to reflect
on this area of our procedural law, which we have not addressed
in many years, and to suggest an area that may be ripe for
reexamination.
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 relevant 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 of the
rule automatically staying mandatory injunctions will produce
the most just result in all cases. Because an appeal can take a
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Opinion of the Court by Kruger, J.
substantial time to resolve, and because during that time the
plaintiff may, in some cases, be significantly injured by the
maintenance of the status quo, an automatic stay will not
always be fair to prevailing plaintiffs with strong cases that are
likely to be upheld on appeal.12 A more flexible approach that
permitted the trial and appellate courts to weigh the likelihood
of each party’s success on appeal and the extent of irreparable
injury each will suffer from the stay decision would allow courts
to make more sensitive, case-specific judgments about whether
the equities favor the stay of an injunctive order pending appeal.
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
12
See Lee, Preliminary Injunctions and the Status
Quo (2001) 58 Wash. & Lee L.Rev. 109, 161 (noting, in the
related area of rules governing issuance of preliminary
injunctions, that “it may be that injunctions preserving the
status quo are more likely to minimize irreparable harm, while
injunctions upsetting the status quo tend to multiply such
harms. But clearly there are exceptions to this ‘rule’ ”). Our
general observation should not, of course, be taken as a
reflection on the equities of the present case.
13
“Different Rules of Procedure govern the power of district
courts and courts of appeals to stay an order pending appeal.
See Fed. Rule Civ. Proc. 62(c); Fed. Rule App. Proc. 8(a). Under
both Rules, however, the factors regulating the issuance of a
stay are generally the same: (1) whether the stay applicant has
made a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
establishes a set of presumptions favoring stays on appeal but
allows courts the discretion to refuse or limit them in individual
cases. (N.Y. C.P.L.R. § 5519.)14 Oregon law employs a test for
discretionary trial court stays similar to the federal test (Or.
Rev. Stat. Ann. § 19.350(3)) and allows the appellate courts to
vacate or modify stays issued by the trial courts as well as to
issue their own stays. (Id., § 19.360(4).) New Jersey case law
holds that in order to obtain a stay pending appeal of a trial
court’s order, the moving party “must demonstrate that (1) relief
is needed to prevent irreparable harm; (2) the applicant’s claim
rests on settled law and has a reasonable probability of
succeeding on the merits; and (3) balancing the ‘relative
hardships to the parties reveals that greater harm would occur
if a stay is not granted than if it were.’ ” (Garden State Equality
v. Dow (2013) 216 N.J. 314, 320.) In Washington, similarly,
“[w]hether a stay pending appeal should be granted depends on
(1) whether the issue presented by the appeal is debatable, and
(2) whether a stay is necessary to preserve for the movant the
stay; (3) whether issuance of the stay will substantially injure
the other parties interested in the proceeding; and (4) where the
public interest lies.” (Hilton v. Braunskill, supra, 481 U.S. at
p. 776.)
14
New York continues to follow the rule that mandatory
injunctions fall within the automatic stay provisions, while
prohibitory injunctions are considered self-executing, serve to
maintain the status quo, and therefore are not automatically
stayed. (State of New York v. Town of Haverstraw (N.Y.App.Div.
1996) 219 A.D.2d 64, 65.) But unlike California, New York
empowers the appellate court to “vacate, limit or modify any
stay” imposed under the statute’s automatic provisions,
including stays of mandatory injunctions. (N.Y. C.P.L.R.
§ 5519(c).)
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DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
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 (Code Civ. Proc.,
§§ 918, 923), but do not appear to authorize the general exercise
of equitable discretion to countermand or modify the stay of an
injunction imposed automatically under Code of Civil Procedure
section 916.15 (An exception, noted earlier, is Code of Civil
Procedure section 1110b, which authorizes a court to leave a
writ of mandate unstayed when the stay would cause the
plaintiff “irreparable damage in his business or profession.”) In
cases where the trial court’s order has not automatically been
stayed, California appellate courts engage in a balancing of the
equities in deciding whether to issue a writ of supersedeas
pursuant to Code of Civil Procedure section 923. (People ex rel.
S. F. Bay etc. Com. v. Town of Emeryville, supra, 69 Cal.2d at
p. 537; Eisenberg et al., Cal. Practice Guide: Civil Appeals and
Writs (The Rutter Group 2020) ¶¶ 7:279 to 7:281, pp. 7-79 to 7-
80.) Given the essentially equitable nature of the stay pending
15
Some courts have suggested the provision of Code of Civil
Procedure section 923 authorizing an appellate court to “make
any order appropriate to preserve . . . the effectiveness of the
judgment subsequently to be entered” might empower the
appellate court to vacate or modify a stay of the trial court’s
order in some circumstances. (See Agricultural Labor Relations
Bd. v. Superior Court, supra, 149 Cal.App.3d at p. 719
[suggesting Code Civ. Proc., § 923 might be employed in this
manner “to prevent final ALRB actions from being mooted by
events”].) Limited as it is to orders aimed at preserving the
effectiveness of the court’s judgment, however, that clause has
not been construed as a general warrant for undoing automatic
stays of mandatory injunctions on equitable grounds.
33
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS
Opinion of the Court by Kruger, J.
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 Governor was subject to an automatic
stay of enforcement pending the Board and Rowe’s appeal on the
merits. (Code Civ. Proc., § 916, subd. (a).) The Board and Rowe
were entitled to a writ of supersedeas effectuating such a stay.
We therefore reverse the Court of Appeal’s order denying the
writ and remand for further proceedings consistent with our
opinion. The stay of proceedings previously issued by this court
is dissolved.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
JENKINS, J.
34
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Daly v. San Bernardino County Board of
Supervisors
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP order filed 1/8/20 – 4th
Dist., Div. 2
Rehearing Granted
__________________________________________________________
Opinion No. S260209
Date Filed: August 9, 2021
__________________________________________________________
Court: Superior
County: San Bernardino
Judge: Janet M. Frangie
__________________________________________________________
Counsel:
Meyers, Nave, Riback, Silver & Wilson, Deborah J. Fox, T. Steven
Burke, Jr., Matthew B. Nazareth; Michelle D. Blakemore, County
Counsel, and Penny Alexander-Kelley, Chief Assistant County
Counsel, for Defendants and Appellants and for Real Party in Interest
and Appellant.
McDermott Will & Emery, William P. Donovan, Jr., and Jason D.
Strabo for Real Party in Interest and Appellant.
Jarvis, Fay & Gibson, Alexandra Barnhill and Gabriel McWhirter for
League of California Cities as Amicus Curiae on behalf of Defendants
and Appellants and for Real Party in Interest and Appellant.
James R. Williams, County Counsel (Santa Clara), Karun Tilak and
Stephanie L. Safdi, Deputy County Counsel, for California State
Association of Counties as Amicus Curiae on behalf of Defendants and
Appellants and for Real Party in Interest and Appellant.
Altshuler Berzon, Stacey Leyton, Hunter B. Thomson; Rothner, Segall
& Greenstone, Glenn Rothner and Juhyung Harold Lee for Plaintiffs
and Respondents.
David Snyder, Glen Smith; Davis Wright Tremaine and Thomas R.
Burke for First Amendment Coalition as Amicus Curiae on behalf of
Plaintiffs and Respondents.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Deborah J. Fox
Meyers, Nave, Riback, Silver & Wilson
707 Wilshire Boulevard, 24th Floor
Los Angeles, CA 90017
(213) 626-2906
Glenn Rothner
Rothner, Segall & Greenstone
510 South Marengo Avenue
Pasadena, CA 91101
(626) 796-7555