An application for a temporary restraining order in California is the topic of this blog post.
This blog post will discuss an application for a temporary restraining order as well as a preliminary injunction in California.
The main focus of this blog post will relate to a real property dispute although the same general principles discussed herein would apply in other civil litigation in California as well.
Requesting a temporary restraining order (TRO) and preliminary injunction can be made using a regular noticed motion but is usually done using the ex parte application procedure. The party requesting a preliminary injunction and TRO by ex-parte application must meet their burden of proof by showing competent evidence the great and irreparable harm that will result if a TRO is not issued and an order to show cause why a preliminary injunction should not also issue on an ex-parte basis.
Statutory authorization for an application for a temporary restraining order in California.
The statutes that authorize temporary restraining orders and preliminary injunctions in California are found in Code of Civil Procedure section 527. California Rule of Court 3.1150 also governs preliminary injunctions and California Rules of Court 3.1200 through 3.1207 govern ex-parte notices.
The purpose of a preliminary injunction in a real property dispute is to preserve the status quo pending final resolution of the issues involved at the trial. In ruling on the request for a preliminary injunction the trial court will determine the likelihood that the plaintiff will prevail on the merits and the trial, and the harm the plaintiff will suffer if the requested relief is not granted as compared with the harm the plaintiff would suffer if the preliminary injunction is issued.
In most situations if the Court grants the request they will issue a TRO and also issue an order to show cause why a preliminary injunction should not issue. The issue of whether to grant the preliminary injunction will be made at a later hearing to be scheduled by the Court.
In most situations requests for injunctive relief in California are routinely granted when an interest in real property is involved. This is due to the fact that real property is deemed unique by California law and injury or loss cannot be compensated in damages. See Civil Code § 3387 which states that, “It is to be presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation. In the case of a single-family dwelling which the party seeking performance intends to occupy, this presumption is conclusive. In all other cases, this presumption is a presumption affecting the burden of proof”; see also Korean Philadelphia Presbyterian Church v. California Presbytery, (2000) 77 Cal.App.4th 1069, 1084.
Temporary restraining orders in California are generally issued using an ex parte application on very short notice. If a temporary restraining order is granted without notice pursuant to Code of Civil Procedure §527(c), the matter must be made returnable on an order to show cause why a preliminary injunction should not be granted on the earliest day that the business of the court will allow, but no later than 15 days or, if good cause appears to the court, 22 days from the date the temporary restraining order is issued. See Code of Civil Procedure § 527(d)(1).
If you are requesting a preliminary injunction in California and you demonstrate a reasonable probability that you will succeed on the merits of your claim the Court must issue a preliminary injunction.
However if you want to file an application for a temporary restraining order and preliminary injunction in California you need to act quickly in filing your application and include enough competent evidence in your supporting declarations to support your application.
An experienced litigation attorney can evaluate your situation and determine if the circumstances of your case entitle you to file an application for a temporary restraining order and preliminary injunction in California. Contact attorney Nathan Mubasher for a consultation and evaluation of your case.
Schedule a consultation today with attorney Nathan Mubasher.
Call (800) 691-2721 and let’s talk about your options.
CONTACT INFORMATION FOR NATHAN MUBASHER:
Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com
DISCLAIMER:
Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.
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