IN THE SUPREME COURT OF 

CALIFORNIA

MICHAEL GOMEZ DALY et al.,

Plaintiffs and Respondents,

v.

SAN BERNARDINO COUNTY BOARD OF 

SUPERVISORS et al.,

Defendants and Appellants;

DAWN ROWE,

Real Party in Interest and Appellant.

S260209

Fourth Appellate District, Division Two

E073730

San Bernardino County Superior Court

CIVDS1833846

August 9, 2021

Justice Kruger authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, 

Cuéllar, Groban, and Jenkins concurred.
1

DALY v. SAN BERNARDINO COUNTY BOARD OF 

SUPERVISORS

S260209

Opinion of the Court by Kruger, J.

To prevent injuries “from the premature enforcement of a 

determination which may later be found to have been wrong,” 

the law has developed a set of rules and procedures for staying 

enforcement of certain court orders while they are reviewed on 

appeal. (Scripps-Howard Radio v. Comm’n (1942) 316 U.S. 4, 

9.) In California, a long-established set of rules governs stays of 

injunctive orders — that is, orders to do something or to refrain 

from doing something. What rule applies depends on which 

kind of order it is. An injunction that requires no action and 

merely preserves the status quo (a so-called prohibitory 

injunction) ordinarily takes effect immediately, while an 

injunction requiring the defendant to take affirmative action (a 

so-called mandatory injunction) is automatically stayed during 

the pendency of the appeal.

In this case we consider how these rules apply to an order 

requiring a local legislative body, the San Bernardino County 

Board of Supervisors, to remove and replace one of its members. 

The order was based on a ruling that the board had violated 

statutory open-meeting requirements in making an 

appointment to a vacant board seat; as a remedy, the superior 

court required the board to rescind the appointment and to seat 

a replacement board member to be named by the Governor, 

according to the terms of the county charter. The board filed a 

petition for a writ of supersedeas to stay the effect of the 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

2

superior court’s order, which the Court of Appeal denied. We 

now reverse. The superior court’s order to remove and replace 

the board member was a mandatory injunction — a command 

that the board take affirmative action to remedy the violation 

found by the trial court. As such, under long-established 

precedent, the order should be stayed until the appellate court 

has determined whether the trial court was correct. 

I.

The San Bernardino County Board of Supervisors consists 

of five members elected from districts within the county. The 

county charter provides that within 30 days of a vacancy on the 

board, the remaining members of the board are to appoint a 

replacement by majority vote. If the board does not fill the 

vacancy within 30 days, the appointment is to be made by the 

Governor. (San Bernardino County Charter, art. 1, §§ 1, 7, as 

amended through Nov. 6, 2012.)

The supervisorial seat for San Bernardino County’s Third 

District became vacant on December 3, 2018, when the 

incumbent left to join the California Assembly. The board’s 

remaining supervisors began the process of appointing a 

replacement. The board received 48 applications from 

candidates meeting the eligibility requirements. Rather than 

interviewing all 48 applicants, the supervisors instead decided 

they each would submit nominees to the board’s clerk by e-mail; 

only those candidates who had received at least two nominations 

would be interviewed. Through this e-mail nomination process,

the board selected 13 candidates to be interviewed at a public 

meeting. At that meeting, the board then winnowed the field to

five finalists, including real party in interest Dawn Rowe. The 

finalists were to be interviewed again at a special meeting on 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

3

December 13, at which time the board expected to make the 

appointment.

Before that special meeting took place, the board received 

a letter from a resident who claimed the e-mail nomination 

process had violated the Ralph M. Brown Act (Brown Act), 

Government Code section 54950 et seq., which generally 

requires local legislative bodies to hold open meetings. The 

board then deferred further action on the appointment to its 

regular meeting set for December 18, 2018. Before the 

December 18 meeting, plaintiff Michael Gomez Daly sent the 

board a letter on behalf of the civic organization he directed, 

plaintiff Inland Empire United, also asserting that the board’s 

nomination process had violated Brown Act provisions against 

“seriatim” meetings (that is, a series of closed communications 

or deliberations between members that collectively add up to the 

work of a legislative quorum) and secret ballots. Daly demanded 

the board adopt a new selection process in which all qualified 

applicants would have the opportunity for an interview. 

At the December 18 meeting, the board took action in 

response to the claims that the e-mail nomination process 

violated the Brown Act. It voted to rescind its prior actions in 

the selection of a new Third District supervisor, including the 

creation of the list of 13 nominees to be interviewed, and to adopt 

a new process under which each supervisor would publicly

submit up to three names and the board would publicly 

interview each candidate who received at least one vote. Using 

that process, the board, at the same meeting, selected six 

candidates to be interviewed, including Rowe. After the 

interviews, the board selected Rowe, who was then sworn in.
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

4

Plaintiffs Daly and Inland Empire United promptly filed 

a petition for a writ of mandate, naming as respondents the 

board and the four members who had participated in Rowe’s 

appointment (collectively, the Board), with Rowe as the real 

party in interest. Plaintiffs sought a judicial determination that 

the initial nomination process violated two provisions of the 

Brown Act: Government Code section 54952.2, subdivision 

(b)(1), barring the use of seriatim communications in lieu of a 

meeting, and Government Code section 54953, subdivisions (a) 

and (c), requiring local legislative bodies to meet and vote 

openly. They also sought a determination that the violations 

had not been cured or corrected by the Board’s actions at the 

meeting on December 18, 2018, and that Rowe’s appointment 

was therefore “null and void under [Government Code] section 

54960.1.” As a remedy, they asked the superior court for an 

order requiring the Board to rescind the appointment and for a 

declaration that, no lawful and timely appointment having been 

made by the Board, the appointment of the Third District 

supervisor “shall be made by the Governor.”

The superior court granted the mandate petition. In its 

statement of decision, the court concluded the Board’s initial email nomination process violated the Brown Act’s “prohibition 

against seriatim meetings and secret ballots.” The court further 

found the Board’s attempted corrective actions at the December 

18 meeting were “pro forma at best and did not constitute a 

cure.”1 The superior court accordingly determined Rowe’s 

appointment was null and void under Government Code section 

1 The merits of the superior court’s decision on these points 

is not before us, and we express no opinion regarding them.
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

5

54960.1 and had to be rescinded, with a new appointment to be 

made by the Governor.2 

In its subsequent judgment issuing a peremptory writ of 

mandate, the trial court ordered the Board to: “1. Rescind the 

appointment of Rowe as Third District Supervisor; [¶] 

2. Refrain from allowing Rowe to participate as Third District 

Supervisor in any Board meetings or actions; [¶] 3. Refrain 

from registering or otherwise giving effect to any further votes 

cast by Rowe; [¶] 4. Refrain from making any appointment to 

the position of Third District Supervisor of the San Bernardino 

Board of Supervisors; and [¶] 5. Immediately seat any person 

duly appointed to the position of Third District Supervisor by 

the Governor.” 

The Board and Rowe appealed. After obtaining a 

temporary stay of the judgment from the superior court, the 

Board and Rowe petitioned the Court of Appeal for a writ of 

supersedeas and requested an immediate stay. The Court of 

Appeal issued a temporary stay pending briefing on the 

supersedeas petition, but then denied the stay for the pendency 

of the appeal. The Court of Appeal opined that the trial court’s 

order was not automatically stayed as a mandatory injunction 

because “upon a finding that [the Board’s] appointment of real 

2 Government Code section 54960.1, subdivision (a), 

provides: “The district attorney or any interested person may 

commence an action by mandamus or injunction for the purpose 

of obtaining a judicial determination that an action taken by a 

legislative body of a local agency in violation of Section 54953,

54954.2, 54954.5, 54954.6, 54956, or 54956.5 is null and void 

under this section. Nothing in this chapter shall be construed 

to prevent a legislative body from curing or correcting an action 

challenged pursuant to this section.”
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

6

party Dawn Rowe was null and void as arising out of a violation 

of the Brown Act [citation], the seemingly mandatory acts 

required in the superior court’s injunction and writ of mandate 

are merely incidental to that finding and the injunction and writ 

of mandate are prohibitory in nature. [Citation.] The same 

finding of a null and void appointment means there was no 

change in status quo by the superior court’s order.” The court 

also denied a discretionary writ of supersedeas, reasoning that 

the Board and Rowe had neither shown they would be 

irreparably injured by the injunction nor “facially demonstrated 

the merits of the issues they present.” 

The Board and Rowe filed a joint petition for review asking 

whether the superior court’s order should have been 

automatically stayed as a mandatory injunction. We granted 

the petition for review and stayed the judgment and further 

proceedings below pending our further order. We also asked the 

parties to brief an additional question bearing on the Board’s 

entitlement to a discretionary writ of supersedeas (Code Civ. 

Proc., § 923); specifically, we asked whether plaintiffs had 

properly brought this action as a petition for writ of mandate 

under the Brown Act’s remedial provision (Gov. Code, § 54960.1, 

subd. (a)) or whether plaintiffs were instead limited to 

challenging the Board’s appointment by means of an action in 

the nature of quo warranto under Code of Civil Procedure

section 803. We now conclude the order here should have been 

automatically stayed as a mandatory injunction; we accordingly 

do not address whether a discretionary writ of supersedeas 

should have issued based on the likelihood of the Board’s success 

on the merits of the quo warranto exclusivity issue. 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

7

II.

A.

The rules governing stays pending appeal are found in 

Code of Civil Procedure part 2, title 13, chapter 2. The relevant 

statutes codify the common law rule under which an appeal 

ordinarily operates to stay proceedings to execute the trial 

court’s judgment. (See, e.g., Hovey v. McDonald (1883) 109 U.S. 

150, 157, 160–161.) The codification of this default rule dates to 

our earliest civil procedure statute, the 1851 Practice Act. The 

act required undertakings, receiverships, or deposits to stay 

money judgments for orders involving personal or real property 

or execution of instruments. (Stats. 1851, ch. 5., §§ 349–352, 

pp. 106–107.) The act went on to provide that in other cases 

(and except for orders directing the sale of perishable property), 

“the perfecting of an appeal, by giving the undertaking . . . , 

shall stay proceedings in the Court below upon the judgment or 

order appealed from . . . .” (Id., § 356, p. 108.)

Today, Code of Civil Procedure section 916 continues to 

make stay pending appeal the default, subject to various

exceptions that are irrelevant here: “Except as provided in 

Sections 917.1 to 917.9, inclusive, and in Section 116.810, the 

perfecting of an appeal stays proceedings in the trial court upon 

the judgment or order appealed from or upon the matters 

embraced therein or affected thereby, including enforcement of 

the judgment or order, but the trial court may proceed upon any 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

8

other matter embraced in the action and not affected by the 

judgment or order.” (Code Civ. Proc., § 916, subd. (a).)3

Where the statutory conditions have been met and a stay 

on appeal is prescribed, the courts lack discretion to deny it 

except as other statutes may authorize — for instance, a trial or 

appellate court on appeal from a writ of mandate may direct the 

judgment not be stayed “if it is satisfied upon the showing made 

by the petitioner that he will suffer irreparable damage in his 

business or profession if the execution is stayed.” (Code Civ. 

Proc., § 1110b.)

Even when the statutes do not call for an automatic stay 

on appeal, the trial and appellate courts both have the power to 

issue discretionary stays. (Code Civ. Proc., §§ 918, 923.) A 

discretionary writ of supersedeas is appropriate where “difficult 

questions of law are involved and the fruits of a reversal would 

be irrevocably lost unless the status quo is maintained.” (People 

ex rel. S. F. Bay etc. Com. v. Town of Emeryville (1968) 69 Cal.2d 

533, 537; see Deepwell Homeowners’ Protective Assn. v. City 

3 The exceptions described in the first clause cross-reference 

provisions setting out the scope and manner of stays for certain 

types of judgments and orders. Code of Civil Procedure section 

116.810 relates to small claims court judgments and orders, 

while Code of Civil Procedure sections 917.1 to 917.9 address 

various judgments and orders rendered in the superior courts. 

Section 917.1, for example, requires the appellant to deposit a 

monetary undertaking for a money judgment to be stayed on 

appeal. Code of Civil Procedure sections 917.2, 917.3 and 917.4 

specify the types of undertakings and deposits required to stay 

judgments and orders directing delivery or sale of personal 

property, execution of an instrument and delivery or sale of 

realty, respectively. 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

9

Council (1965) 239 Cal.App.2d 63, 66 [supersedeas appropriate 

where the appellant has shown sufficient merit in the appeal 

and a stay is necessary “ ‘to preserve to an appellant the fruits 

of a meritorious appeal’ ”].) 

No statute in chapter 2 of the Code of Civil Procedure part 

2, title 13, specifically addresses the stay of injunctive orders, as 

distinct from other kinds of judgments.

4

 From the start, 

however, courts have understood the default statutory rule 

governing stays pending appeal to apply to some injunctive 

orders but not others, embracing a common law distinction 

between prohibitory, or preventive, injunctions and those 

mandating performance of an affirmative act. (See generally 2 

High, A Treatise on the Law of Injunctions (4th ed. 1905) 

Appeals, § 1698a, pp. 1647–1648 [describing common law rule]; 

A.R. Barnes & Co. v. Chicago Typographical Union No. 16

(1908) 232 Ill. 402, 405–409 [83 N.E. 932, 933–935] [same]; Sixth 

Ave. R.R. Co. in City of N.Y. v. Gilbert El. R.R. Co. (1877) 71 N.Y. 

430, 432–434 [no stay of prohibitory injunction].) 

In Merced Mining Co. v. Fremont (1857) 7 Cal. 130

(Merced Mining), for instance, this court acknowledged that the 

language of the 1851 Practice Act’s section 356 prescribing 

automatic stay pending appeal was facially broad enough to 

include “the appeal from an order granting an injunction.” But 

4 Certain provisions do prescribe special rules for specific 

types of injunctions, none of which are at issue here. (See, e.g., 

Code of Civil Procedure sections 917.15 [no default automatic 

stay for order remedying or preventing release of hazardous 

substances], 917.8, subdivision (c) [same for order barring use of 

building or place declared a nuisance], 917.9, subdivision (a)(2) 

[undertaking may be demanded where order requires appellant 

“to perform an act for respondent’s benefit”].)
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

10

this court concluded that the language was best understood in 

context to reach orders requiring the defendant “to do some 

affirmative act, not to refrain from doing a thing.” (Merced 

Mining, at p. 132.) We explained that an affirmative act, “if 

completed, would change the condition of the parties, and render 

a reversal . . . partially ineffectual.” (Ibid.) By contrast, when 

an order instead merely restrains the defendant, an automatic 

stay on appeal does not serve the same purpose; the defendant 

“is not injured in contemplation of law” when the defendant is 

required to abide by the restraint pending appeal. (Ibid.) We 

thus described the governing rule as follows: “A stay of 

proceedings, from its nature, only operates upon orders or 

judgments commanding some act to be done, and does not reach 

a case of injunction.” (Ibid.)5

We reiterated the same rule some decades later, following 

the adoption of the Code of Civil Procedure. (Dewey v. Superior 

Court (1889) 81 Cal. 64.) We explained: “An appeal perfected 

as this was, under section 949 of the Code of Civil Procedure, 

stayed all proceedings upon every part of that judgment 

‘commanding some act to be done.’ (Merced Mining[, supra], 

7 Cal. 130; Bliss v. Superior Court [(1881)] 62 Cal. [543,] 544.)

A prohibitory injunction remains in full force pending such an 

appeal, and the court below may enforce obedience thereto; but 

5 The Merced Mining court here used “injunction” in the 

limited sense of an ordered restraint. That definition is still 

extant in the statutes. (See Code Civ. Proc., § 525 [“An 

injunction is a writ or order requiring a person to refrain from a 

particular act.”].) But in broader legal usage, an injunction is a 

court order either “commanding or preventing an action.” 

(Black’s Law Dict. (11th ed. 2019) p. 937, italics added.) This 

opinion uses the term in the broader, more familiar sense.
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

11

a mandatory injunction is stayed by the operation of such 

appeal, the object of the rule in both cases being to preserve

the status quo.” (Dewey, at p. 68.)6 

As Dewey told the story, the core rationale underlying the 

mandatory-prohibitory distinction was based on an abiding 

concern with preserving the status quo pending appeal. The 

idea was that a prohibitory injunction is exempt from stay 

because such an injunction, by its nature, operates to preserve 

the status quo; by definition such an injunction prevents the 

defendant from taking actions that would alter the parties’ 

respective provisions. To stay enforcement of such an order 

pending appeal would not preserve the status quo but instead 

invite its destruction; a stay would leave the parties free to alter 

conditions during the appeal, with sometimes irreversible 

consequences. As we put it in Heinlen v. Cross (1883) 63 Cal. 

44, if our law had no exception for purely preventive injunctions, 

the appealing party could renew or continue any destructive 

conduct during the period of appeal, even if that would cause 

irreparable damage, while the victorious party below “ ‘must 

stand by, and without possibility of redress, see the subjectmatter of the litigation destroyed, so that if he succeeds in 

affirming the judgment it will be a barren victory.’ ” (Id. at p. 46, 

quoting Sixth Ave. R.R. Co. in City of N.Y. v. Gilbert El. R.R. Co., 

supra, 71 N.Y. at p. 433; see Heinlen, at p. 46 [“ ‘If the 

respondent here is right in its contention, pending an appeal 

6 Former section 949 of the Code of Civil Procedure, a 

predecessor to section 916, contained terms similar to those in 

section 356 of the 1851 Practice Act. (See Foster v. Superior 

Court (1896) 115 Cal. 279, 282.)
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

12

from a judgment staying waste, which if committed will destroy 

the freehold, the appellant in simply staying the plaintiff’s 

proceedings on the judgment may with impunity do the very act 

forbidden and destroy the freehold.’ ”].) 

Not so with the injunction that mandates the performance 

of an affirmative act — the so-called mandatory injunction. 

Such an injunction, by definition, commands some change in the 

parties’ positions. The cases hold that before such orders are 

executed and the defendant must detrimentally alter its 

position, the defendant is entitled to know whether the order is 

correct. (See, e.g., Kettenhofen v. Superior Court (1961) 55 

Cal.2d 189, 191; Byington v. Superior Court (1939) 14 Cal.2d 68, 

70; United Railroads v. Superior Court (1916) 172 Cal. 80, 82; 

Clute v. Superior Court (1908) 155 Cal. 15, 18; URS Corp. v. 

Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 884; 

Paramount Pictures Corp. v. Davis (1964) 228 Cal.App.2d 827, 

835.) 

Like many distinctions in the law, the distinction between 

a mandatory and a prohibitory injunction sometimes proves 

easier to state than to apply. (URS Corp. v. Atkinson/Walsh 

Joint Venture, supra, 15 Cal.App.5th at p. 884, citing 

Kettenhofen v. Superior Court, supra, 55 Cal.2d at p. 191; see pt. 

III., post.) But the law contains certain benchmarks that help 

guide the inquiry. Perhaps the prototypical mandatory 

injunction is an order requiring the defendant to remove an 

improvement it has made to challenged property. For example, 

“in an action to establish an easement, a preliminary injunction 

ordering a party to remove an existing fence that blocks the 

easement is a mandatory injunction,” while “restraining the 

party from parking or storing vehicles along the easement is a 

prohibitory injunction.” (URS Corp., at p. 884, citing 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

13

Kettenhofen, at pp. 190–191.) But mandatory injunctions in 

property disputes are not limited to tear-down orders. For 

instance, in Byington v. Superior Court, supra, 14 Cal.2d 68, we 

held that an order limiting San Francisco’s storage of Tuolumne 

River water in Hetch Hetchy Reservoir to the amount of the 

city’s prescriptive right was mandatory rather than prohibitory. 

We explained how the limitation altered the parties’ relative 

positions: “Throughout the trial of the main action, and up to 

the present moment, the city has contended that in addition to 

the prescriptive right recognized in and awarded to it under the 

decree of the respondent court, it was the owner and possessor 

of certain appropriative rights in and to the waters of the 

Tuolumne River.” (Id. at p. 72.) Insofar as the order required 

San Francisco to surrender its appropriative rights, the order 

was mandatory and automatically stayed on appeal. (Ibid.)

A substantial body of case law addresses the mandatoryprohibitory distinction in the context of disputes concerning 

employment, board membership, and the like. The cases have 

characterized orders requiring officers to surrender their 

positions as mandatory as well. For example, in Foster v. 

Superior Court, supra, 115 Cal. 279 (Foster), we held an order 

that a particular candidate be recognized as a member of a 

railway company board in place of another competitor who had 

already been seated was mandatory in that its enforcement 

“would change the relative positions of the parties from those 

existing at the time the decree was entered, and might render a 

reversal of the judgment entirely ineffectual.” (Id. at p. 284.) 

We expanded on this analysis in Clute v. Superior Court, 

supra, 155 Cal. 15 (Clute), which involved an injunction against 

a hotel corporation treasurer and manager who had been 

removed by the board of directors but who refused to vacate the 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

14

position, claiming the removal was invalid. On its face the 

injunction merely restrained the officer from attempting to 

direct or control the hotel’s employees. We concluded that the 

injunction was nonetheless mandatory in substance, and 

therefore automatically stayed on appeal, because it required 

the defendant to undertake the affirmative act of transferring 

management of the hotel. We wrote: “If Clute was in the actual 

possession of the hotel and the personal property in it, an order 

punishing him for preventing another person from entering and 

taking charge of the books, keys, and other property could have 

no other purpose or effect than to compel him to turn over his 

possession to such other, or at least to surrender his theretofore 

exclusive possession.” (Id. at p. 19.) And “[i]f the injunction 

compels him affirmatively to surrender a position which he 

holds, and which, upon the facts alleged by him, he is entitled to 

hold, it is mandatory.” (Id. at p. 20.) In making this 

determination, we explained that the relevant comparison is 

“[t]he status of the parties, at the time the injunction was 

issued”; we observed that an order for Clute to turn over control 

to other claimants “would certainly, if executed, operate to 

change that status.” (Id. at pp. 19–20.)

In Feinberg v. One Doe Co. (1939) 14 Cal.2d 24, where a 

clothing manufacturer had been ordered to discontinue 

employment of an individual who had been expelled from the 

labor union representing the company’s employees, we 

explained that although the injunction was purportedly 

prohibitive in form, it was mandatory in substance: “It is an 

order compelling affirmative action on the part of the 

defendants. Inasmuch as Amelia Greenwood at the time of the 

issuance of the order was already in the employ of the 

defendants, and the very controversy arose out of the 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

15

continuance in employment of said Amelia Greenwood, it is 

apparent that the result intended to be accomplished by the 

issuance of said order was the compulsory release of said Amelia 

Greenwood from employment by the defendants. In short, the 

order directed and commanded the defendants to discharge said 

employee.” (Id. at p. 27, italics omitted; see also Agricultural 

Labor Relations Bd. v. Superior Court (1983) 149 Cal.App.3d 

709, 713 [order that agricultural employer discontinue 

replacement workers’ employment until all strikers were 

rehired was mandatory under Feinberg because it required 

employer “to take affirmative action by terminating present 

employees”].)

Similarly, in cases involving contractual duties, the 

Courts of Appeal have deemed injunctions mandatory because 

they required the defendant to act contrary to her contractual 

obligations at the time the order was made, thereby altering the 

status quo. (Paramount Pictures Corp. v. Davis, supra, 228 

Cal.App.2d at p. 838 [order that actress Bette Davis appear for 

additional filming for Paramount while under contract to 

Aldrich for another film was a mandatory injunction; rather 

than “maintain the status quo as it existed at the time of its 

issuance,” the order “compels defendant to violate her contract 

with Aldrich and to surrender a status and rights lawfully held 

by her at the time the injunction issued”]; Ambrose v. 

Alioto (1944) 62 Cal.App.2d 680, 686 [where defendant had 

contract to deliver fish to one cannery, order that she deliver to 

another was mandatory in that it “contemplates a change in the 

relative position or rights of the parties which existed at the 

time the decree was entered” (italics omitted)]; see also URS 

Corp. v. Atkinson/Walsh Joint Venture, supra, 15 Cal.App.5th 

at p. 884 [order is prohibitory “ ‘if its effect is to leave the parties 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

16

in the same position as they were prior to the entry of the 

judgment’ ”]; Dosch v. King (1961) 192 Cal.App.2d 800, 804

[order is mandatory if it “contemplates a change in the relative 

rights of the parties at the time injunction is granted”].) 

In each case, the court considered whether the order was 

mandatory by reference to the position of the parties at the time 

the injunction was entered, and declined to require the 

defendant to take affirmative steps to remedy an adjudged 

violation of law until the correctness of the judgment had been 

considered on appeal. In the general run of cases, this approach 

makes sense, given the doctrine’s overarching concern with 

avoiding injuries “from the premature enforcement of a 

determination which may later be found to have been wrong.” 

(Scripps-Howard Radio v. Comm’n, supra, 316 U.S. at p. 9.) If 

the appeal is successful, freezing conditions from the time the 

injunction issues assures that the defendant will get the full 

benefit of his or her success and will not be compelled to take 

remedial steps the law never in fact required; if the appeal is 

unsuccessful, the plaintiff will typically be no worse off than if 

no appeal had been taken.7 

In other cases, however, our cases have suggested a 

different point for measuring change in the parties’ relative 

positions. We addressed this issue in United Railroads v. 

Superior Court, supra, 172 Cal. 80 (United Railroads). In that 

case, San Francisco had been operating its municipal street 

railway on facilities owned in part by United Railroads, which 

7 Typically, but not always; in some instances the equities 

might support immediate enforcement of even a mandatory 

injunction, though existing California law prescribes an 

automatic stay. More on this in part III., post.
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

17

claimed the city was running more cars than their agreement

allowed. (Id. at pp. 81–82.) United Railroads obtained an 

injunction pendente lite “requiring the defendant to desist and 

refrain from operating this excess number of cars upon the 

tracks and around the loops.” (Id. at p. 82.) San Francisco 

appealed, and the question arose whether the injunction was 

automatically stayed pending the appeal as a mandatory 

injunction. (Ibid.)

We answered no. On its face, we noted, the injunction 

“would appear to be an order to defendant to stop doing 

something, not to compel it to do something else, and no more 

mandatory in character than an order telling a man to desist 

from throwing his rubbish in his neighbor’s vacant lot.” (United 

Railroads, supra, 172 Cal. at p. 84.) But San Francisco argued 

the injunction was “mandatory in effect” (ibid.) because it 

compelled the city to give up a position held by right, “an interest 

in real property which can be enjoyed only by use, and the 

possession of which can be manifested only by running the cars 

over the tracks” (id at p. 86). San Francisco urged, that is, that 

maintaining the status quo during the pendency of the litigation 

required allowing the city to continue its disputed usage of the 

tracks.

We rejected San Francisco’s argument as inconsistent 

with the principle that equity may be invoked to prevent 

repeated trespasses. (United Railroads, supra, 172 Cal. at 

pp. 86–87.) We went on to add: “There is no magic in the phrase 

‘maintaining the status quo’ which transforms an injunction 

essentially prohibitive into an injunction essentially mandatory. 

The phrase is commonly employed in discussing mandatory 

injunctions compelling the surrender of possession of realty by 

the actual peaceable occupant at the time the injunction has 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

18

been secured. Indeed, the phrase has been defined to mean ‘the 

last actual peaceable, uncontested status which preceded the 

pending controversy.’ There was no such uncontested 

possession here. It is undisputed that petitioner protested 

before beginning its action, protested vigorously against the

misuse of its property, and only brought its action when its 

protests were disregarded.” (Id. at p. 87.) We observed, finally, 

that there was no stopping point to San Francisco’s argument: 

“If this be a mandatory injunction, then must every injunction 

restraining waste and trespass be equally mandatory.” (Id. at 

p. 90.)

A concurring justice explained the matter succinctly: “The 

fact that the defendant had for some time been enjoying its 

asserted right to so run cars does not change the character of the 

order. If this were not so, almost any injunction against the

doing of repeated acts would be mandatory if the performance of 

the acts had begun and been carried on for any considerable 

time prior to the application for the injunction.” (United 

Railroads, supra, 172 Cal. at p. 91 (conc. opn. of Sloss, J.).)

In this discussion, our opinion in United Railroads

introduced a different baseline for measuring the status quo. 

We explained that the status quo relevant in that case was not 

that prevailing at the time of the injunction — i.e., when San 

Francisco had already begun its disputed use of the tracks and 

sought to keep going — but an earlier “ ‘actual peaceable, 

uncontested status which preceded the pending controversy.’ ” 

(United Railroads, supra, 172 Cal. at p. 87.) Courts have since 

repeated that formulation in other cases. (See People v. 

Hill (1977) 66 Cal.App.3d 320, 331 [order restraining defendant 

from using certain allegedly deceptive professional terms in 

business held to preserve the status quo under United Railroads 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

19

formulation: “The pleadings clearly indicate a long history of 

appellant’s contested use of the words ‘accountant’ and 

‘accountancy.’ The status quo to be established is that which 

existed before appellant started using the prohibited words”].)

United Railroads thus naturally raises the question where 

the proper baseline should be fixed. Should courts measure the 

status quo from the time the order is entered, as Foster, Clute

and other cases hold, or instead from the “ ‘last actual peaceable, 

uncontested status which preceded the pending controversy’ ” 

(United Railroads, supra, 172 Cal. at p. 87)? 

To answer the question requires us to consider the 

particular circumstance addressed in United Railroads. Our 

decision in that case recognizes that in some instances, an 

injunction that is essentially prohibitory in nature may involve 

some adjustment of the parties’ respective rights to ensure the 

defendant desists from a pattern of unlawful conduct. This is 

bound to be true when the defendant attempts to convert its 

contested conduct into something resembling a property right, 

as San Francisco did when it insisted on continuing to run 

excess trains on the plaintiff’s tracks. The United Railroads 

decision makes clear that an injunction preventing the 

defendant from committing additional violations of the law may 

not be recharacterized as mandatory merely because it requires 

the defendant to abandon a course of repeated conduct as to 

which the defendant asserts a right of some sort. In such cases, 

the essentially prohibitory character of the order can be seen 

more clearly by measuring the status quo from the time before 

the contested conduct began.

But United Railroads did not address an order like the 

ones issued in Clute or Paramount Pictures, in which the 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

20

injunctive order aims not to prevent injury from future conduct 

but instead offers a remedy for a past violation. To the extent a 

remedial order calls for the performance of an affirmative act —

ripping out a building or other improvement (Kettenhofen v. 

Superior Court, supra, 55 Cal.2d at pp. 190–191), say, or firing 

one worker and rehiring another (Agricultural Labor Relations 

Bd. v. Superior Court, supra, 149 Cal.App.3d at p. 713) — our 

cases have not understood United Railroads to mean the order 

is merely prohibitory, and therefore enforceable while an appeal 

is pending, because it would return the parties to the “ ‘last 

actual peaceable, uncontested status’ ” that existed before the 

property dispute ever arose. (United Railroads, supra, 172 Cal. 

at p. 87.) Our cases have instead adhered to the rule that such 

orders are mandatory, and thus automatically stayed while an 

appellate court determines whether the order is legally correct.

B.

With these principles and precedents in mind, we turn to 

the proper characterization of the order in this case.

On its face, the superior court’s order that the Board 

“[r]escind the appointment of Rowe as Third District 

Supervisor” and “[i]mmediately seat any person duly appointed 

to the position of Third District Supervisor by the Governor” fits 

the description of a mandatory injunction. Although it is true 

that in some cases an order that appears facially mandatory 

may prove to be prohibitory “in essence and effect” (Kettenhofen 

v. Superior Court, supra, 55 Cal.2d at p. 191), this is not such a 

case. What the order says on its face is also what it does in 

practice: namely, require the Board to perform affirmative acts 

that, once performed, will change the relative position of the 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

21

parties by ousting Rowe from her position so that a replacement 

can be seated. 

Resisting this conclusion, plaintiffs offer a series of 

arguments for characterizing the order as merely prohibitory in 

nature. They first briefly argue that the facially mandatory 

aspects of the superior court’s judgment — ousting Rowe and 

seating her replacement — were merely incidental to parts of 

the judgment declaring Rowe’s appointment null and void as a 

violation of the Brown Act, barring her from participating in 

Board meetings or actions, and restraining the Board from 

making any other appointment to the position. Plaintiffs’ 

argument draws on our observation in United Railroads, supra, 

172 Cal. at page 88, that “the character of a prohibitive 

injunction [is] not transformed and made mandatory because it 

incidentally involved the doing of an affirmative act.” The 

observation in United Railroads remains true, as far as it goes. 

For example, an order prohibiting a defendant from using a 

particular trade name might incidentally require the defendant 

to remove the name from its signage; the incidental steps 

required to take the trade name out of circulation does not 

convert what is essentially a prohibitory injunction into a 

mandatory one. (See Jaynes v. Weickman (1921) 51 Cal.App. 

696, 699–700; see also People v. Mobile Magic Sales, Inc. (1979) 

96 Cal.App.3d 1, 5 [defendant was ordered to refrain from 

displaying mobilehome models for sale at a mobilehome park; 

requiring the defendant to remove the mobilehomes currently 

on display did not render the injunction mandatory].) But here, 

the requirement to remove Rowe from the Third District 

supervisor position and seat the Governor’s replacement cannot 

plausibly be described as merely incidental to other aspects of 

the order; it was not a necessary means to a prohibitory end, but 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

22

the end in itself.8 Under the circumstances, any prohibitory 

elements in the order might better be described as incidental to 

the mandatory, rather than vice versa.9

Plaintiffs’ second and more central contention is that 

rescission of Rowe’s appointment merely returns the parties to 

the positions they occupied before the Board engaged in the 

challenged appointment process, consistent with the teaching of 

United Railroads. Of course, a true return to precontroversy 

conditions presumably would leave the Board free to make a 

new appointment rather than being compelled to accept a 

replacement named by the Governor. But even setting that 

point aside, we reject plaintiffs’ argument as inconsistent with 

California law concerning stays of injunction pending appeal. 

As we have explained, United Railroads addressed 

situations in which the injunction being appealed restrains the 

defendant from repeating its unlawful conduct, while 

simultaneously requiring some adjustment of the parties’ 

8 To the extent plaintiffs attempt to characterize these 

mandatory orders as incidental in the sense that they merely 

implemented the court’s finding that the Board’s appointment 

of Rowe was null and void, the argument proves too much. In 

that sense, virtually every remedial order could be characterized 

as incidental to the underlying legal violation on which it is 

based.

9 We note as well that Rowe’s removal is clearly not 

incidental in any sense to plaintiffs, who asked the superior 

court not only to declare the appointment void but to order it 

rescinded and the Governor’s appointee seated. In this court, 

moreover, plaintiffs have made clear that one of their central 

concerns is whether Rowe would be permitted to continue 

occupying the seat, and thus claim incumbent status on the 

ballot in the Third District supervisor election, despite the 

alleged defect in the process that led to her appointment.
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

23

respective rights, such as an abridgment of the defendant’s 

claimed property right in continuing its challenged conduct. 

(See pt. II.A., ante; United Railroads, supra, 172 Cal. at p. 91 

(conc. opn. of Sloss, J.); accord, Jaynes v. Weickman, supra, 51 

Cal.App. at p. 699 [citing United Railroads for the proposition 

that “[a]n injunction that restrains the continuance of an act or 

series of acts may be just as much a preventive or prohibitory 

injunction as one that restrains the commission of an act”].) 

That is not the situation here. The order on appeal here 

required the Board not to refrain from repeating its Brown Act 

violation, but rather to take affirmative action to undo the 

violation’s effect, that is, to rescind Rowe’s appointment and to 

seat another in her place. 

Like other injunctions our courts have deemed mandatory, 

the order that the Board replace Rowe with a gubernatorial 

appointment goes beyond restraint to demand affirmative acts, 

changing the status quo at the time the injunction was issued. 

In Foster, supra, 115 Cal. at page 281, for example, the trial 

court found one candidate, Smith, to have been elected to a 

corporate board and ordered the board president not to interfere 

with his exercise of the office. We held that the order, 

“[a]lthough preventive in form, . . . was, in effect, mandatory, as 

it required [the president] and the other directors to recognize 

Smith as one of their number, and to refuse to recognize [a 

competing candidate],” thereby “chang[ing] the relative 

positions of the parties from those existing at the time the decree 

was entered.” (Id. at p. 284.) The order in Foster, like the one 

in this case, required the defendants to refuse their approved

candidate and instead accept a different individual (in this case, 

the Governor’s appointee). The order was found to be 

mandatory because it did not restrain the defendants from 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

24

repeating their violation but instead mandated that they take 

affirmative action — seating a different candidate — to undo a 

past act found to be unlawful. (See also Ambrose v. Alioto, 

supra, 62 Cal.App.2d at p. 686 [order that catch be delivered to 

one cannery rather than another “compels the performance of a 

substantive act”].)

The United Railroads defendant proposed using the 

preservation of the precontroversy status quo as a basis to 

“transform[] an injunction essentially prohibitive into an 

injunction essentially mandatory,” a proposal we there rejected. 

(United Railroads, supra, 172 Cal. at p. 87.) Here, plaintiffs

invoke United Railroads with precisely the opposite aim. If 

United Railroads were understood as plaintiffs suggest, then 

the decision would all but negate the basic rule to which 

California courts, applying statutory law, have adhered since 

1857: that the defendant’s perfection of an appeal results in the 

stay of a mandatory injunction against the defendant. 

A brief review of the mandatory injunction cases will 

suffice to demonstrate the point. In Byington v. Superior Court, 

supra, 14 Cal.2d 68, for example, where San Francisco had been 

ordered not to take Tuolumne River water above the amount of 

its prescriptive right, and had violated that order by taking 

additional water to fill an enlarged Hetch Hetchy Reservoir, we 

held the order a mandatory injunction because it required the 

city to surrender a property right (an appropriative water right) 

it allegedly held at the time the order was made. (Id. at pp. 69–

70, 72–73.) If we had instead concluded that the status quo were 

properly measured by reference to conditions preceding the 

controversial acts that gave rise to the litigation, then we should 

instead have deemed the order prohibitory, as it merely 

returned the parties to their positions before San Francisco 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

25

began storing the extra water, and allowed it to take effect 

pending the decision on appeal.10

10 We acknowledge that the proper characterization of the 

injunction at issue in Byington is not free from ambiguity. 

Rather than view the trial court’s order there as requiring the 

affirmative abandonment of a property right, we might with 

equal plausibility have characterized it as restraining San 

Francisco from repeating its allegedly unlawful conduct of 

storing excess water — much as the city in United Railroads 

had been ordered to stop running excess trains on the plaintiff’s 

tracks. That we did not characterize the injunction that way 

may have had something to do with the fact that the city had 

prevailed on the merits in an intervening decision on appeal. 

(See Byington v. Superior Court, supra, 14 Cal.2d at pp. 72–73; 

see Meridian, Ltd., v. San Francisco (1939) 13 Cal.2d 424, 459–

460 [modifying the trial court’s order].) 

Byington is not the sole example of this type of ambiguity. 

In Clute, for example, we might plausibly have characterized the 

injunction as merely restraining the defendant from continuing 

to act unlawfully as manager and treasurer of the hotel, rather 

than as ousting the defendant from a possessory interest in the 

hotel and its associated personal property. (Clute, supra, 155 

Cal. at pp. 17, 19–20.)

We mention these ambiguities not to suggest that either 

of these decisions was wrongly decided, but only to illustrate the 

difficulties of application inherent in our traditional 

mandatory/prohibitory distinction, difficulties that contribute to 

our belief this area of the law may be ripe for reconsideration or 

legislative reform. (See pt. III., post.)

The point remains, however, that the outcome in Byington

would certainly have been different had we understood the 

question before us solely in terms of whether the injunction 

returned the parties to the last actual, peaceable status 

preceding the controversy, as opposed to asking more broadly 

whether the injunction effectively preserved the status quo 

pending appeal.
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

26

Similarly, in Paramount Pictures Corp. v. Davis, supra, 

228 Cal.App.2d 827, the appellate court held a preliminary 

injunction ordering Bette Davis to return to the Paramount 

studios and perform an additional day’s filming on one movie 

(Where Love Has Gone) — at a time when Davis was already 

engaged in filming another movie (Hush, Hush Sweet Charlotte) 

for another company — was mandatory rather than prohibitory 

because it commanded Davis to take affirmative action. (Id. at

p. 838.) Had the court decided to answer this question based 

solely on whether an additional day’s worth of Where Love Has 

Gone filming would return the parties to the state of affairs that 

existed before Davis signed her conflicting contract with the 

other movie studio, the court surely would have reached a 

different result.

Or to take one final example, consider an order directing 

an employer to fire replacement workers and rehire strikers. 

(Agricultural Labor Relations Bd. v. Superior Court, supra, 149

Cal.App.3d at p. 713.) The Court of Appeal labeled the order 

mandatory, and therefore automatically stayed on appeal, 

because it commanded the employer to take affirmative steps to 

remedy an alleged legal violation. Again, if the question were 

instead merely whether the order restored the status quo 

preceding the challenged acts, the answer would have been 

different; the injunction would have been considered 

prohibitory, and the employer would have been required to take 

affirmative steps to remedy an alleged violation before the 

appellate court had determined whether there was a violation 

to remedy. 

California law has long taken a different approach to such 

matters, under which the usual default rule of stay pending 

appeal extends to mandatory orders requiring the defendant to 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

27

undertake an affirmative act. Our decision in United Railroads

was not meant to, and did not, upend this settled law. In the 

cases cited above, the injunction was essentially mandatory in 

that it commanded the performance of affirmative acts to 

remedy a violation while the legal basis for that remedy was still 

subject to appellate review. So too here.

Plaintiffs next argue that because Rowe’s appointment 

was declared void by the superior court, she never lawfully held 

the seat, and the order that her appointment be rescinded made 

no change to the status quo. We rejected a similar argument in 

Clute. The corporation that owned the hotel argued it “was at 

all times entitled to the possession and in the actual possession 

of the hotel and its contents, and a surrender of the custody by 

one employee to another authorized to receive it leaves the

status of the property, so far as possession is concerned, 

unaltered.” (Clute, supra, 155 Cal. at p. 19.) But that argument, 

we explained, “fails to take into account the very point that was 

in dispute in the court below,” that is, the propriety of Clute’s 

ouster as manager. (Ibid.) Plaintiffs’ argument similarly 

ignores that the central points in dispute in the superior court 

and on appeal concern the validity of Rowe’s appointment and 

the superior court’s power to nullify it in this action. The goal 

of a stay is to preserve the status quo while a court determines 

the merits of the appeal; issuance of the stay cannot depend on 

the assumption that the appeal will fail.

Finally, plaintiffs worry that automatically staying orders 

that require the defendant to unwind the effects of a Brown Act 

violation, like the order at issue in this case, will “undermine the 

Brown Act’s force by permitting violating agencies to enjoy the 

fruits of their violations during the pendency of any appeal.” 

The worry is misplaced. For one thing, our holding here states 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

28

no general rule as to the stay of orders remedying violations of 

the Brown Act; we here have considered only one order 

prescribing one particular set of remedies for an alleged 

violation involving a challenge to the legitimacy of a public 

official’s claim to office. That order, as we have seen, centrally 

included commands for affirmative acts, going well beyond 

preventing the Board from “enjoy[ing] the fruits” of the 

violation. But even as to orders removing a public officer 

because of a Brown Act violation, plaintiffs’ concerns are 

overstated. Code of Civil Procedure section 803, which 

implements the common law writ of quo warranto in California, 

authorizes the Attorney General or a relator acting with that 

officer’s consent to seek the ouster of a person unlawfully 

holding office. In general, this procedure is the exclusive means 

to try the title of a person occupying a public office (see Stout v. 

Democratic County Central Com. (1952) 40 Cal.2d 91, 93; 

Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221, 

1225). And when judgment is rendered in favor of the 

challengers, the judgment is not subject to automatic stay on 

appeal. (Code Civ. Proc., § 917.8, subd. (a).)

The parties vigorously dispute whether quo warranto was 

the exclusive remedy available here. But even if it was not the 

exclusive remedy, it was at least an available remedy. (See Hills 

for Everyone v. Local Agency Formation Com. (1980) 105 

Cal.App.3d 461, 470 [“The availability of other statutory 

remedies ordinarily does not foreclose a proceeding in the nature 

of quo warranto by the Attorney General.”]; cf. 97 

Ops.Cal.Atty.Gen. 12 (2014) [2014 WL 1218410, p.*6] [where 

quo warranto action was authorized by Attorney General on 

other grounds, Brown Act claim may also be resolved in the 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

29

action].)11 Had plaintiffs proceeded by quo warranto and 

prevailed on the merits, they would have obtained an 

immediately enforceable judgment that Rowe “be excluded from 

the office.” (Code Civ. Proc., § 809.) They did not proceed by quo 

warranto, however, and so enforcement of the superior court’s 

order must await review of the judgment on appeal. 

III.

We have concluded that under the settled law of 

California, the order in this case was automatically stayed as a 

mandatory injunction. Neither party has asked us to eliminate 

or revise the automatic stay rule governing injunctions — or the 

automatic stay rule more generally, for that matter. And given 

the rule’s long tenure in our jurisprudence and its statutory 

roots (first in § 356 of the 1851 Practice Act, then in Code Civ. 

Proc., former § 949, and currently in Code Civ. Proc., § 916), the 

scope of our authority to do so absent statutory amendment is 

uncertain. (Cf. Agricultural Labor Relations Bd. v. Superior 

Court, supra, 149 Cal.App.3d at pp. 716–717 [Code Civ. Proc., 

§ 916 applies to a mandatory injunction notwithstanding 

absence of reference to it in statute authorizing the injunction; 

Legislature was presumably aware of California’s long-standing 

automatic stay rule when enacting statute providing for 

11 As stated earlier, we need not decide here whether 

Government Code section 54960.1, by specifying a mandamus 

remedy for violations of the Brown Act, creates an exception to 

the rule of quo warranto exclusivity. We also do not address 

here whether an action under Code of Civil Procedure section 

803 based on a Brown Act violation would need to meet any of 

the procedural prerequisites of a mandate petition brought 

under Government Code section 54960.1, or whether 

proceedings under the two statutes might be consolidated or 

coordinated.
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

30

injunctive relief].) We nevertheless pause briefly here to reflect 

on this area of our procedural law, which we have not addressed 

in many years, and to suggest an area that may be ripe for 

reexamination.

As noted earlier, our cases have long recognized that the 

mandatory-prohibitory distinction can prove challenging to 

apply. It is not always easy to distinguish a restraint from a 

command, or vice versa. There are no magic words that will 

distinguish the one from the other; the cases recognize that “ ‘an 

order entirely negative or prohibitory in form may prove upon 

analysis to be mandatory and affirmative in essence and 

effect.’ ” (URS Corp. v. Atkinson/Walsh Joint Venture, supra, 

15 Cal.App.5th at p. 884, quoting Kettenhofen v. Superior Court,

supra, 55 Cal.2d at p. 191.) And in some cases, the injunction 

will plausibly be characterized as involving both restraint and

command. The same order may, for example, be characterized 

as simply prohibiting the defendant from repeating conduct the 

trial court has found unlawful, or as mandating that the 

defendant act affirmatively to surrender a right or a position 

occupied under a claim of right. (See fn. 10, ante.) 

But problems of characterization aside, the 

mandatory/prohibitory distinction also appears imperfectly 

aligned with the equitable considerations relevant to the 

question of staying an order pending appeal. (See People ex rel. 

S. F. Bay etc. Com. v. Town of Emeryville, supra, 69 Cal.2d at 

p. 537 [courts seek to do “justice” in issuing stays pending 

appeal, considering “the relative hardships on the parties” and 

“the likelihood that substantial questions will be raised on 

appeal”].) There is reason to doubt a strict application of the 

rule automatically staying mandatory injunctions will produce 

the most just result in all cases. Because an appeal can take a 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

31

substantial time to resolve, and because during that time the 

plaintiff may, in some cases, be significantly injured by the 

maintenance of the status quo, an automatic stay will not 

always be fair to prevailing plaintiffs with strong cases that are 

likely to be upheld on appeal.12 A more flexible approach that 

permitted the trial and appellate courts to weigh the likelihood 

of each party’s success on appeal and the extent of irreparable 

injury each will suffer from the stay decision would allow courts 

to make more sensitive, case-specific judgments about whether 

the equities favor the stay of an injunctive order pending appeal.

Many jurisdictions provide courts with equitable 

discretion of this nature. Federal courts employ a four-part 

analysis that considers the likelihood of success on the merits as 

well as the types and extent of injuries, private and public, that 

may result from either course (stay or no stay). (Hilton v. 

Braunskill (1987) 481 U.S. 770, 776.)13 New York law 

12 See Lee, Preliminary Injunctions and the Status 

Quo (2001) 58 Wash. & Lee L.Rev. 109, 161 (noting, in the 

related area of rules governing issuance of preliminary 

injunctions, that “it may be that injunctions preserving the 

status quo are more likely to minimize irreparable harm, while 

injunctions upsetting the status quo tend to multiply such 

harms. But clearly there are exceptions to this ‘rule’ ”). Our 

general observation should not, of course, be taken as a 

reflection on the equities of the present case.

13 “Different Rules of Procedure govern the power of district 

courts and courts of appeals to stay an order pending appeal. 

See Fed. Rule Civ. Proc. 62(c); Fed. Rule App. Proc. 8(a). Under 

both Rules, however, the factors regulating the issuance of a 

stay are generally the same: (1) whether the stay applicant has 

made a strong showing that he is likely to succeed on the merits; 

(2) whether the applicant will be irreparably injured absent a 
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

32

establishes a set of presumptions favoring stays on appeal but 

allows courts the discretion to refuse or limit them in individual 

cases. (N.Y. C.P.L.R. § 5519.)14 Oregon law employs a test for 

discretionary trial court stays similar to the federal test (Or. 

Rev. Stat. Ann. § 19.350(3)) and allows the appellate courts to 

vacate or modify stays issued by the trial courts as well as to 

issue their own stays. (Id., § 19.360(4).) New Jersey case law 

holds that in order to obtain a stay pending appeal of a trial 

court’s order, the moving party “must demonstrate that (1) relief 

is needed to prevent irreparable harm; (2) the applicant’s claim 

rests on settled law and has a reasonable probability of 

succeeding on the merits; and (3) balancing the ‘relative 

hardships to the parties reveals that greater harm would occur 

if a stay is not granted than if it were.’ ” (Garden State Equality 

v. Dow (2013) 216 N.J. 314, 320.) In Washington, similarly, 

“[w]hether a stay pending appeal should be granted depends on 

(1) whether the issue presented by the appeal is debatable, and 

(2) whether a stay is necessary to preserve for the movant the 

stay; (3) whether issuance of the stay will substantially injure 

the other parties interested in the proceeding; and (4) where the 

public interest lies.” (Hilton v. Braunskill, supra, 481 U.S. at 

p. 776.)

14 New York continues to follow the rule that mandatory 

injunctions fall within the automatic stay provisions, while 

prohibitory injunctions are considered self-executing, serve to 

maintain the status quo, and therefore are not automatically 

stayed. (State of New York v. Town of Haverstraw (N.Y.App.Div. 

1996) 219 A.D.2d 64, 65.) But unlike California, New York 

empowers the appellate court to “vacate, limit or modify any 

stay” imposed under the statute’s automatic provisions, 

including stays of mandatory injunctions. (N.Y. C.P.L.R.

§ 5519(c).)
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

33

fruits of a successful appeal, considering the equities of the 

situation.” (Purser v. Rahm (1985) 104 Wash.2d 159, 177.)

In contrast, California statutes provide both trial and 

appellate courts general discretion (subject to certain statutory 

limits) to stay orders, including injunctions (Code Civ. Proc., 

§§ 918, 923), but do not appear to authorize the general exercise 

of equitable discretion to countermand or modify the stay of an 

injunction imposed automatically under Code of Civil Procedure 

section 916.15 (An exception, noted earlier, is Code of Civil 

Procedure section 1110b, which authorizes a court to leave a 

writ of mandate unstayed when the stay would cause the 

plaintiff “irreparable damage in his business or profession.”) In 

cases where the trial court’s order has not automatically been 

stayed, California appellate courts engage in a balancing of the 

equities in deciding whether to issue a writ of supersedeas 

pursuant to Code of Civil Procedure section 923. (People ex rel. 

S. F. Bay etc. Com. v. Town of Emeryville, supra, 69 Cal.2d at 

p. 537; Eisenberg et al., Cal. Practice Guide: Civil Appeals and 

Writs (The Rutter Group 2020) ¶¶ 7:279 to 7:281, pp. 7-79 to 7-

80.) Given the essentially equitable nature of the stay pending 

15 Some courts have suggested the provision of Code of Civil 

Procedure section 923 authorizing an appellate court to “make 

any order appropriate to preserve . . . the effectiveness of the 

judgment subsequently to be entered” might empower the 

appellate court to vacate or modify a stay of the trial court’s 

order in some circumstances. (See Agricultural Labor Relations 

Bd. v. Superior Court, supra, 149 Cal.App.3d at p. 719 

[suggesting Code Civ. Proc., § 923 might be employed in this 

manner “to prevent final ALRB actions from being mooted by 

events”].) Limited as it is to orders aimed at preserving the 

effectiveness of the court’s judgment, however, that clause has 

not been construed as a general warrant for undoing automatic 

stays of mandatory injunctions on equitable grounds.
DALY v. SAN BERNARDINO COUNTY BOARD OF SUPERVISORS

Opinion of the Court by Kruger, J.

34

appeal, it would seem to make sense for both trial and appellate 

courts to have the same authority to order, when justice 

demands it, that a mandatory injunction take effect 

notwithstanding the filing of an appeal from the injunctive 

order. This issue is beyond the scope of the questions presented 

and briefed in this case for our review, so we do not answer it 

here. But the Legislature may always, if it chooses, reexamine 

California’s statutory law governing stays pending appeal and 

decide whether the law would be better served by an approach 

that permits courts to take account of a wider array of equitable 

considerations than does present law.

IV.

The superior court’s order requiring the Board to rescind 

its appointment of Rowe as a supervisor and to instead seat an 

appointee named by the Governor was subject to an automatic 

stay of enforcement pending the Board and Rowe’s appeal on the 

merits. (Code Civ. Proc., § 916, subd. (a).) The Board and Rowe 

were entitled to a writ of supersedeas effectuating such a stay. 

We therefore reverse the Court of Appeal’s order denying the 

writ and remand for further proceedings consistent with our 

opinion. The stay of proceedings previously issued by this court 

is dissolved.

 KRUGER, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

GROBAN, J.

JENKINS, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion Daly v. San Bernardino County Board of 

Supervisors 

__________________________________________________________ 

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) 

Review Granted (unpublished) XX NP order filed 1/8/20 – 4th 

Dist., Div. 2

Rehearing Granted

__________________________________________________________ 

Opinion No. S260209

Date Filed: August 9, 2021

__________________________________________________________ 

Court: Superior

County: San Bernardino

Judge: Janet M. Frangie

__________________________________________________________ 

Counsel:

Meyers, Nave, Riback, Silver & Wilson, Deborah J. Fox, T. Steven

Burke, Jr., Matthew B. Nazareth; Michelle D. Blakemore, County

Counsel, and Penny Alexander-Kelley, Chief Assistant County

Counsel, for Defendants and Appellants and for Real Party in Interest

and Appellant.

McDermott Will & Emery, William P. Donovan, Jr., and Jason D.

Strabo for Real Party in Interest and Appellant. 

Jarvis, Fay & Gibson, Alexandra Barnhill and Gabriel McWhirter for

League of California Cities as Amicus Curiae on behalf of Defendants

and Appellants and for Real Party in Interest and Appellant.
James R. Williams, County Counsel (Santa Clara), Karun Tilak and

Stephanie L. Safdi, Deputy County Counsel, for California State

Association of Counties as Amicus Curiae on behalf of Defendants and

Appellants and for Real Party in Interest and Appellant.

Altshuler Berzon, Stacey Leyton, Hunter B. Thomson; Rothner, Segall

& Greenstone, Glenn Rothner and Juhyung Harold Lee for Plaintiffs

and Respondents.

David Snyder, Glen Smith; Davis Wright Tremaine and Thomas R.

Burke for First Amendment Coalition as Amicus Curiae on behalf of

Plaintiffs and Respondents.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Deborah J. Fox

Meyers, Nave, Riback, Silver & Wilson

707 Wilshire Boulevard, 24th Floor

Los Angeles, CA 90017

(213) 626-2906

Glenn Rothner

Rothner, Segall & Greenstone

510 South Marengo Avenue

Pasadena, CA 91101

(626) 796-7555