Judge: Armen Tamzarian, Case: BC647861, Date: 2022-12-08 Tentative Ruling

Case Number: BC647861    Hearing Date: December 8, 2022    Dept: 52

Defendants’ Ex Parte Application to Stay Enforcement of Preliminary Injunction Pending Appeal on Motion for Reconsideration

Defendants apply ex parte to stay enforcement of the preliminary injunction the court issued on July 29, 2020.  Defendants have appealed the court’s orders denying their motion to dissolve or modify that preliminary injunction and their motion for reconsideration.

California Rules of Court, rule 3.1202(c) provides, “An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.” 

Defendants fail to show irreparable harm or immediate danger that warrants granting ex parte relief. 

Moreover, defendants’ application fails on the merits.  Defendants’ reliance on Code of Civil Procedure section 916 is misplaced.  Under that statute, the order “appealed from” is stayed upon the perfection of an appeal.  The order defendants’ appeal from is the November 28, 2022, order denying defendants’ motion for reconsideration, not the preliminary injunction.   

Defendants rely on the principle that “an injunction requiring the defendant to take affirmative action (a so-called mandatory injunction) is automatically stayed during the pendency of the appeal.”  (Daly v. San Bernardino County Bd. of Supervisors (2021) 11 Cal.5th 1030, 1035.)  “[T]he object of the rule” is “to preserve the status quo.”  (Id. at p. 1041.)  The status quo at the time was—and has long been—that the July 29, 2020, injunction was in effect.

The application is denied.