In commercial real estate, Los Angeles litigation lawyers must often deal with emergencies. And emergencies often involve temporary restraining orders and preliminary injunctions. These legal tools are especially important in real estate matters where a building can be torn down (or built) before a lawsuit has a chance to be heard on the regular calendar. The idea of the temporary restraining order and the preliminary injunction is to preserve the status quo until the legal issues can be addressed. Because everything moves fast the parties must rely on experienced business attorneys to quickly put together a winning application and get to court before the damage occurs.
What Is A Preliminary Injunction?
An injunction is a writ or order requiring a person to refrain from a particular act. Or, more completely, it is an order that may command a person to either perform or refrain from performing a particular act. It is an equitable remedy intended to prevent the invasion of a legal right. These are described as prohibitory or mandatory injunctions. The prohibitory injunction seeks to refrain a person from acting while the mandatory injunction requires a party to affirmatively act—not just to refrain from doing something but to do something against his will. A mandatory injunction is not permitted except in extreme cases where the right thereto is clearly established. A mandatory injunction carries a much heavier burden than a prohibitory injunction.
What Is The Purpose Of An Injunction?
The purpose of the preliminary injunction is to preserve the status quo pending final resolution upon a trial. Keep in mind that a trial in the Los Angeles Superior Court may not take place for a year or more. A lot of things can happen during that year. The status quo is defined as the last actual peaceable, uncontested status which preceded the pending controversy. While that sounds like legalese, the status quo means that a party will be barred from destroying, building, excavating, cutting down, removing, etc., until the dispute at issue can be ruled on.
How Does The Process For A Preliminary Injunction Work?
A preliminary injunction usually follows an ex parte application for a restraining order. A complaint must be filed and must (usually) plead injunctive relief. The party seeking the injunction will usually give 24-hour notice of an ex parte application for a temporary restraining order. The lawyer defending against the application must quickly prepare an opposition before the hearing, usually on the following morning. At the TRO hearing the court, if it grants the TRO, will enjoin the activity until a preliminary injunction hearing can be heard, usually within 21 days of the TRO hearing.
While the TRO hearing is held on an emergency basis, the preliminary injunction hearing is held pursuant to a noticed motion. The court typically sets the hearing at the TRO hearing and the ex parte application is considered Plaintiff’s motion. This process allows the court to rule immediately in cases of emergency (TRO) but to then go through a more thorough process before issuing the injunction. It also allows the defendant more time to investigate and research the claims before preparing a more thorough opposition.
In order to get a preliminary injunction the plaintiff must use competent evidence that creates a sufficient factual showing for relief. The burden of proof is on the plaintiff as the moving party. Often a plaintiff’s attorney will argue that the plaintiff is “concerned” that a defendant may do something or has a “fear” of something occurring. The judges in Los Angeles are usually clear that the plaintiff has to have evidence, real evidence. Mere fear or speculation is often insufficient grounds for a preliminary injunction.
What Standard Does The Court Use For A Preliminary Injunction?
A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. In other words, mere money damages must be inadequate since monetary damages can be awarded at any time without entering an injunction. The idea is that an injunction is an extraordinary remedy that will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff. Preliminary injunctions are therefore common in real property lawsuits since property is considered unique and commercial buildings and land are at risk.
In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial, and (2) a balancing of the “irreparable harm” that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction.
The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.
A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction.
In determining whether to issue a preliminary injunction, the second factor which a trial court examines is the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. This factor involves consideration of the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.
Practical Tips From An Experienced Real Estate Litigation Attorney
The hearing on a preliminary injunction is a mini-trial on the merits of the case and gives all parties a good insight into how the court will treat the case. In Los Angeles, a different judge often hears the TRO and preliminary injunction applications so the insight may be limited but helpful. It also forces all of the parties and their attorneys to put their cards out on the table upfront. In a recent case we handled, two different judges (one for the TRO and a different one for the preliminary injunction) both told the plaintiff that its case lacked merit. We are hopeful that we can get the plaintiff to dismiss the case without any additional litigation based on these rulings.
Real estate lawyers who deal with preliminary injunctions must be familiar with the court’s standards and requirements. An experienced litigation attorney who is familiar with the law regarding preliminary injunctions is able to quickly compile an opposition to that last-minute emergency application.
Laine T. Wagenseller is an experienced real estate litigation attorney in Los Angeles. He is the founder of Wagenseller Law Firm in downtown Los Angeles. The firm specializes in helping clients resolve commercial real estate disputes and lawsuits throughout Southern California. For more information contact the firm at www.wagensellerlaw.com/contact or call (213) 286-0371.