California TROs and preliminary injunctions: 15 days to the hearing, and a certification about notice

California's ex parte injunction procedure is stricter about notice than the federal rule and looser about duration. The certification requirement in CCP 527(c) is the part that most often defeats an application.

A TRO without notice needs two things

CCP 527(c): "No temporary restraining order shall be granted without notice to the opposing party, unless both of the following requirements are satisfied:"

(1) It appears from facts shown by affidavit or by the verified complaint that great or irreparable injury will result to the applicant before the matter can be heard on notice.

(2) The applicant or the applicant's attorney certifies one of the following to the court under oath: (A) That within a reasonable time prior to the application the applicant informed the opposing party or the opposing party's attorney at what time and where the application would be made; (B) [that the applicant in good faith attempted but was unable to inform the opposing party, specifying the efforts made]; or (C) [that for reasons specified the applicant should not be required to inform the opposing party].

Two features distinguish this from FRCP 65(b)(1).

The default expectation is notice of the ex parte application itself. Option (A) contemplates that you told the other side when and where you would be appearing — which is notice of the hearing, not notice of the lawsuit. California ex parte practice assumes that call was made.

The certification is under oath. The federal rule requires the attorney to "certify in writing"; California requires certification "under oath," and it may be given by the applicant or the attorney.

The standard is also worded differently: "great or irreparable injury," where the federal rule requires "immediate and irreparable injury."

The hearing comes fast — 15 days, or 22

CCP 527(d)(1): where a TRO is granted without notice,

The matter shall be made returnable on an order requiring cause to be shown why a preliminary injunction should not be granted, on the earliest day that the business of the court will admit of, but not later than 15 days or, if good cause appears to the court, 22 days from the date the temporary restraining order is issued.

California does not put an expiry on the TRO itself the way FRCP 65(b)(2) and TRCP 680 do with their 14 days. Instead it constrains the hearing date — the order to show cause must be heard within 15 days, extendable to 22 for good cause.

CCP 527(d)(2) then sets the briefing: the party who obtained the TRO must, "within five days from the date the temporary restraining order is issued or two days prior to the hearing," whichever is earlier, serve on the opposing party the complaint, the order to show cause, and the supporting papers.

The rest of subdivision (d) addresses the opposing party's papers and the consequences of failing to serve — including that the TRO shall be dissolved if the applicant fails to serve as required.

Injunctions in class actions

CCP 527(b): a TRO or a preliminary injunction, or both, "may be granted in a class action, in which one or more of the parties sues or defends for the benefit of numerous parties upon the same grounds as in other actions, whether or not the class has been certified."

Relief before certification is expressly authorized — a point worth knowing because the federal position is less clearly stated.

The grounds are statutory

Unlike the federal rules, California puts the substantive grounds in the statute. CCP 526(a) lists the cases in which an injunction may be granted, including where it appears that the applicant is entitled to the relief demanded and the relief consists in restraining the commission or continuance of the act complained of; where the commission or continuance of some act during the litigation would produce waste or great or irreparable injury; where the adverse party is doing or threatening some act in violation of the applicant's rights tending to render the judgment ineffectual; and the further categories the section sets out.

CCP 526(b) lists the cases in which an injunction cannot be granted — including to stay a judicial proceeding pending at the commencement of the action, to prevent the execution of a public statute by officers of the law for the public benefit, and to prevent the breach of a contract the performance of which would not be specifically enforced.

CCP 525 defines an injunction as "a writ or order requiring a person to refrain from a particular act."

Security

CCP 529(a): on granting an injunction, the court "must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction."

"Must require" — the undertaking is mandatory in form, with the amount left to the court.

CCP 529(b) exempts specified applicants, including in certain family-law and employment contexts the section identifies.

How the three systems compare

A short checklist

Applying:

1. Make the notice call, and be ready to certify under oath what you did — CCP 527(c)(2)(A) is the cleanest of the three options.
2. Support it by affidavit or a verified complaint showing great or irreparable injury before the matter can be heard on notice.
3. Calendar the OSC hearing within 15 days of issuance, or 22 with good cause.
4. Serve within 5 days of issuance or 2 days before the hearing, whichever is earlier — failure dissolves the order.
5. Prepare the undertaking — CCP 529 makes it mandatory.

Responding:

1. Check the certification. An ex parte TRO without a compliant CCP 527(c)(2) certification was not properly obtained.
2. Check the service dates under CCP 527(d)(2).
3. Check CCP 526(b) — some injunctions cannot be granted at all.
4. Address the undertaking amount at the hearing; it is the court's call and it is your protection.

Where these rules live

• CCP 525 — Injunction Defined
• CCP 526 — When Injunction May Be Granted
• CCP 527 — Temporary Restraining Orders and Preliminary Injunctions
• CCP 529 — Undertaking
• CCP 1005 — Notice of Motion

The California courts run a free self-help site at selfhelp.courts.ca.gov. Local rules add ex parte appearance requirements on top of CCP 527. This page explains what the statutes say. It isn't legal advice.