Opinion
H036024
10-24-2011
KAREN B. GOLDBERG, Plaintiff and Respondent, v. KENNETH L. CAMPBELL, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CH002923)
Defendant Kenneth L. Campbell appeals from an order denying a post-judgment motion to stay a restraining order issued against him on a petition by plaintiff Karen B. Goldberg under Code of Civil Procedure section 527.6 (§ 527.6). By decision filed today in a companion appeal (No. H035457), we have affirmed the restraining order itself. In this appeal we affirm the order denying his motion for a stay.
BACKGROUND
The history of this matter leading up to the court's entry of the underlying restraining order is set forth in the companion decision. After the court entered that order, defendant filed an "ex parte application for statutory stay pending appeal" in which he asked the trial court to "stay [the] injunction pending appeal pursuant to [Code of Civil Procedure section] 916." In support he contended that the injunction had been automatically stayed by his perfecting an appeal, but that if it had not, the court should stay it. The motion was accompanied by a copy of a police report indicating that defendant had been arrested on August 16, 2010, for violating the injunction when, pursuant to a report by plaintiff, an officer found defendant standing approximately 50 yards from the entrance to one of the churches he had been enjoined to stay at least 300 yards away from. The report indicated that after his arrest, defendant admitted having also sent plaintiff an e-mail in violation of the restraining order.
The trial court denied the motion for stay by striking a line across defendant's proposed order, writing the word "denied," and signing and dating it. Defendant filed a notice of appeal (No. H036024). The notice was timely, and the order appears to have been appealable as an order after judgment. (Code Civ. Proc., § 904.1, subd. (a)(2).) Defendant also filed an application in this court for writ of supersedeas or prohibition, which this court denied on January 24, 2011.
DISCUSSION
The theory of the motion to stay the restraining order, and apparently of the appeal, is that the order was either stayed automatically by defendant's appeal from it, or should have been stayed by order of the trial court. The first premise runs afoul of the longstanding rule that an appeal does not suspend the operation of a prohibitory injunction. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 276, pp. 330-331; see 6 Witkin, Cal. Procedure (5th ed. 2008) Provisional Remedies, § 403, p. 345.) In the absence of a demonstration to the contrary—which defendant does not attempt to provide—we must conclude that the injunction here is prohibitory, not mandatory, i.e., its effect is to prohibit, not compel action. (See 6 Witkin, supra, Provisional Remedies, § 278, p. 220.) The order is arguably mandatory in form insofar as it directs defendant to "stay . . . away" from plaintiff and from specified locations. However, in determining the character of an injunction, a reviewing court "will not be greatly influenced either by the designation or the form of the language, but will consider whether its effect is to prohibit or to compel action." (See 6 Witkin, supra, Provisional Remedies, § 278, p. 220.) An order to "stay away" from a person or place is in effect a prohibition against approaching that person or place. The required conduct—staying away—will generally constitute not an affirmative act but an abstention from acting. That it can be described in active terms is an accident of language; its essential character is passive.
It follows that the restraining order was not automatically stayed by the appeal. Defendant, at any rate, has failed to demonstrate otherwise. He can therefore secure a reversal only by establishing that the trial court erred prejudicially by failing to issue an order staying the restraining order pending appeal. (See 6 Witkin, supra, Provisional Remedies, § 403, p. 345) But the question whether to exercise that power was entrusted to the trial court's discretion. (See Reed v. Superior Court (2001) 92 Cal.App.4th 448, 455.) Defendant makes no attempt to show that such discretion was abused. The only reason he offered the trial court to stay the restraining order—apart from its supposedly having been automatically stayed—was that it had formed the basis for his subsequent arrest. This extravagant non sequitur could hardly justify, let alone require, the relief he sought.
Defendant wrote, "Whether or not automatically stayed under the statute, the facts presented indicates [sic] that [the] injunction is the basis of the [the] recent arrest and release from custody upon $20,000 bail bond. Accordingly, the court should grant [the] within exparte [sic] application for stay pending appeal."
No error appears.
DISPOSITION
The order denying the motion for stay is affirmed.
RUSHING, P.J. WE CONCUR:
PREMO, J.
ELIA, J.