Options After Temporary Restraining Order is Issued

A temporary restraining order (TRO) is a form of extraordinary emergency relief granted by the court to preserve the status quo to the requesting party. The requesting party must show must show that denial will result in irreparable injury to the moving party before the matter can be heard on notice (i.e. 16 court days). Thus, supporting declarations must set forth the facts showing immediate and irreparable injury; conclusory allegations of irreparable injury are inadequate.
Once a TRO has issued, counsel for the responding party may consider the following options:

  • Motion to dismiss. (Code Civ. Proc., § 418.10.) Counsel’s appearance at the hearing to resist the TRO does not constitute a general appearance precluding a motion to dismiss for lack of personal jurisdiction. (Code Civ. Proc., § 418.11.)
  • Motion for reconsideration. (Code Civ. Proc., § 1008.) This motion is not generally useful, because the show cause hearing often takes place before the motion can be adequately noticed and heard, absent an order shortening time.
  • Motion to dissolve or modify TRO. (Code Civ. Proc., §§ 532(a), 533.) Like the motion for reconsideration, this procedure is not terribly valuable, because the show cause hearing will probably be scheduled sooner than the motion can be heard, absent an order shortening time.
  • Filing appeal, with or without application for stay pending appeal. An appeal automatically stays a mandatory injunction. (Paramount Pictures Corp. v. Davis (1964) 228 Cal.App.2d 827, 835.)
  • Motion for change of venue. (Code Civ. Proc., § 396b. )The court has no jurisdiction to proceed with the show cause hearing until the venue motion has been heard and decided. (County of Riverside v. Superior Court (1968) 69 Cal 2d 828.)
  • Removing action to federal court. If diversity lies, or if a federal claim is made under the state court’s concurrent jurisdiction, the responding party may wish to remove the matter to federal court. For example, many pension and health benefit claims filed in state court are removed to federal court because they are governed by federal law (see 29 USC § 1132; e.g., Metropolitan Life Ins. Co. v. Taylor (1987) 481 U.S. 58.)
  • Motion for order shortening time for discovery. It may be advisable to depose the plaintiff or third party witnesses before the preliminary injunction hearing.
  • Motion for continuance. The opposing party is entitled as a matter of right to a continuance if the TRO was issued without notice. (Code Civ. Proc., § 527(d)(4).)
  • Moving to disqualify judge. (Code Civ. Proc., § 170.6 (peremptory challenge).)
  • Petition to compel arbitration and request a stay of all proceedings. (Code Civ. Proc., §§ 1281.2, 1281.4.)

None of the options are typically preferred, given the short amount of time the TRO is in place and the opportunity an order-to-show cause hearing provides the party that believes that TRO has been improvidently granted. However, they are all possible and should be reviewed with your client, given the circumstances of their case.