“Mandatory” Injunction re: 2010 Mudslides Just Ordered in Murrieta, CA (Bear Creek)

Injunction Comment:  This case is reported because mandatory injunctions are generally more difficult to obtain.  Mandatory injunctions also may not involve the need for instantaneous relief associated with ex parte Temporary Restraining Orders (“TRO”), preliminary / prohibitive injunctions designed to prevent irreparable harm.  Both types are intended to preserve the status quo.

http://murrieta.patch.com/articles/landowner-blamed-for-bear-creek-mudslides-ordered-to-fix

The above link reports on an order from Murrieta, CA involving an April 23,  2012 order regarding two landslides that occurred in 2010.

The report states the landowner abandoned the property in the middle of construction, and failed to implement erosion control measures.  Many times, in public permitting for commercial projects, the applicant is required to post a bond to secure complete performance of the project to avoid erosion issues and other problems associated with large incomplete projects.  We do not suggest that CA institute a bond requirement for individual residential projects.

A copy of the order by Judge Daniel Ottiola can be obtained for a fee at http://public-access.riverside.courts.ca.gov/OpenAccess/SearchByNameInfo.asp?CourtCode=A&RivInd=Riv  – The landowner being enjoined has a last name of “Eitzen.”

According to John T. Blanchard, author and editor of California Remedies: Commentary, Materials and Problems (3rd ed., 1997),  at http://www.jtblaw.com/injunctions.shtml , under CA law, the following would be required to obtain an injunction in CA:

• Inadequacy of Legal Remedy. As an equitable remedy, it is always necessary that the moving party’s legal remedy be “inadequate” before equity may be invoked. Thus, if a legal remedy is available then permanent injunctive relief should always be denied. However, as noted above, provisional relief may, depending on the weighing of other factors, be available even when only legal relief is sought. However, provisional relief, though technically possible (that is, not jurisdictionally or otherwise improper), is often deemed unsuitable merely because a legal remedy would, assuming everything the claimant alleges is true, be available.
• “Irreparable” Injury. Both the remedy statute and the common law provided for issuance of at least provisional relief in cases of so-called “irreparable” injury. The problem with this factor is not its general conception but in its specific definition. “Irreparable” does not mean “that which, if suffered, could not under any circumstances be repaired or compensated because all other remedies are utterly worthless”; such a definition (however appealing as a matter of “plain language”) would unduly restrict the flexible powers of a court of equity. The term has often been defined as “that species of damages, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other.” However, especially when the reference to “small” is highlighted, suggests that any offense, however trivial, is a proper subject for injunctive relief. While it remains an unsatisfactory formulation, definition of “irreparable” as meaning wrongs of a “repeated and continuing character” and/or including “an overbearing assumption . . . of superiority and domination over the rights and property of others” is more workable (at least as long as care is taken not to equate personal offense, “overbearing”, with “actionable — personal offensiveness or arrogance is not, by itself, actionable).
• Likelihood of Success. Though parties who succeed in obtaining provisional relief consistently brandish their success, and the judicial finding that it is “likely” that they will ultimately succeed in the action, throughout the balance of the litigation, all that a trial court need do to support issuance of the provisional remedy is find a “reasonable probability” of the moving party’s ultimate success. Of course, the more likely it is that the moving party will ultimately succeed in the action (whether by complaint or cross-complaint), the more likely it is that provisional injunctive relief will be granted. Obviously, this factor applies only to provisional relief; permanent injunctive relief is granted only if it is not only likely that the moving party will succeed, it will (since such relief is granted only following trial) be a certainty.
• Balance of Hardship. The tactical advantage of injunctive relief pendente lite is difficult to overestimate. Many provisional remedies (of which injunction is only one) operate as practical blackjacks in litigation. Thus, if the damage to the moving party if the injunction is not granted does not equal or outweigh the disadvantage or hardship to be visited on the opposing party if it is granted then the injunction will be denied.

Eugene Kinsey in Seal Beach, CA also writes on injunctions under CA law at http://www.kinseylaw.com/clientserv2/civillitigationserv/injunction/injunction.html .  Kinsey provides a concise summary of the four elements of proof to obtain an injunction under CA law, along with statutory citations (e.g., CA. Civ. Code §3367(2) (mandatory injunctions and Civ. Code §3368 (prohibitory injunctions)).

1. an inadequate remedy at law, meaning that compensation would be insufficient;
2. a serious risk of irreparable harm absent injunctive relief;
3. a likelihood that the plaintiff will prevail on the merits of the underlying controversy; and
4. a comparison of the harm to defendant in issuing an injunction versus the harm to plaintiff in withholding it, which on balance favors the plaintiff.

See also White v. Davis, 68 P.3d 74, 91 (Cal. 2003) (cited in Injunctive Relief, by Kristin Stoll-Debell,  and Nancy L and Bradford E. Dempsey (ABA 2009)).

The above ABA book by Kristin Stoll-Debell and Nancy and Brad Dempsey is a highly recommended resource for any practitioner that expects to be filing for injunctive relief at any point in their career, and that should be pretty much all litigation attorneys.  You will be glad you had this book when crunch time hits and your clients needs an emergency hearing the next day.   Order your office a copy today at www.amazon.com/Injunctive-Relief-Restraining-Preliminary-Injunctions/dp/1604424028

Stay tuned for an upcoming post / coverage of Gang Injunctions.

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