Dickey v. Rosso

California Court of Appeal Feb 14, 1972 No. Civ. 38325Published

Before: Fleming

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Holding. The court held that statutory limits on damages for improperly issued injunctions are constitutional and that a defendant's recovery is limited to the amount of the undertaking, though the defendant is entitled to prove damages under each separate bond posted during the proceedings.

Issues

Whether the statutory limitation of damages for an improperly issued injunction to the amount of the undertaking is obsolete or unconstitutional.
Whether a plaintiff waives the limitation of liability by failing to post a required bond.
Whether a defendant may recover damages under multiple surety bonds posted during the course of the litigation.

Disposition. Affirmed in part and reversed in part.

Quotations verified verbatim against the opinion

“A defendant’s common law right to be made whole at the conclusion of litigation is limited to an independent action for abuse of process or malicious prosecution.”

“The state has established an entirely reasonable scheme for the use of injunctive relief, in that plaintiff is told in advance what his maximum summary liability will be”

Opinion

FLEMING, J.

David B. Dickey, on behalf of himself and all other homeowners and residents of Palos Verdes Estates, brought this action against Frank and Ellen Rosso to enjoin the Rossos from building a house of a particular design in Palos Verdes Estates. The trial court granted temporary restraining orders and then a preliminary injunction against the Rossos. But after a hearing on the merits the trial court found in favor of the Rossos, refused to issue a permanent injunction, dissolved the preliminary injunction, and awarded the Rossos damages against Dickey for the delay in construction caused by this action. Although the parties stipulated that damages exceeded $2,000, the trial court limited its award to $2,000, the value of a bond posted in support of one of the temporary restraining orders. The Rossos appeal.

[496]

The Legal Framework

“On granting an injunction, the court or. judge must require ... a written undertaking on the part of the applicant, with sufficient sureties, to the effect that he will pay to the party enjoined such damages,

not exceeding an amount specified,

as such party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled thereto.” (Code Civ. Proc., § 529; italics added.) On granting a temporary restraining order, the court may also require an undertaking.

(Biasca

Superior Court,

194 Cal. 366 [228 P. 861].)

“After trial and final decision that the party in whose behalf such restraining order or injunction was issued was not entitled thereto, the liability of such party and his surety or sureties, if any, may be enforced on motion filed in the trial court, without the necessity of an independent action.” (Code Civ. Proc., § 535.)

Chronology of Events

28 November 1969: The trial court issued a temporary restraining order requiring $2,000 surety bond or $4,000 personal bond.

Dickey v. Rosso

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FLEMING, J.

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