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Injunctive Relief Barring Enforcement Is Not Automatic Where Law Is Invalidated—C.A.
Opinion Says Charity Groups Challenging Law Granting State Power to Issue Cease, Desist Letters Must Plead, Prove Entitlement
By Kimber Cooley, associate editor
Div. Seven of this district’s Court of Appeal has held that a trial judge improperly issued a permanent injunction barring the state Attorney General’s Office from enforcing two statutes—which, when taken together, were found to amount to unconstitutional prior restraints on speech—where the need for relief was not pled and proven by the plaintiffs.
In an opinion, filed Wednesday and joined in by Justices John L. Segal and Natalie P. Stone, Presiding Justice Gonzalo Martinez wrote:
“We conclude the trial court abused its discretion by granting the injunctions. Permanent injunctions are not issued as a matter of course, even in cases implicating the First Amendment. Rather, plaintiffs seeking a permanent injunction must plead and prove they are entitled to such extraordinary relief. Accordingly, we vacate the injunctions and remand to have the trial court determine whether plaintiffs should be granted leave to amend to plead for injunctive relief and, if so, whether they can prove they are entitled to a permanent injunction.”
The question arose after two charities, Catholic Medical Mission Board Inc. (“CMMB”) and Food for the Poor Inc. (“FFP”) requested a declaration that the sections in question were unconstitutional under the First Amendment and sought “such other relief as the Court deems fair and equitable,” an appeal the court found insufficient to put the state on notice that injunctive relief was being sought.
At issue is Government Code §12591.1(b) which grants authority to Office of the Attorney General to issue cease and desist orders to charities under certain circumstances including, in subdivision (b)(4), if they have “engaged in any act prohibited pursuant to Section 12599.6.”
Sec. 12599.6(f)(2) provides that “[r]egardless of injury, the following acts and practices are prohibited in the planning, conduct, or execution of any solicitation or charitable sales promotion,” and lists, as a forbidden practice, “[u]sing any unfair or deceptive acts or practices or engaging in any fraudulent conduct that creates a likelihood of confusion or misunderstanding.”
Appealing the injunction was the Attorney General Rob Bonta whose office issued cease and desist orders to CMMB and FFP in 2018 after determining that they each overvalued in-kind donations of medication, intended for international distribution, by basing the worth on domestic rather than foreign pricing.
According to the state, this overvaluation led to misrepresentations of their respective “program efficiency ratios”—which tells potential contributors how much of the organization’s donations go to helping the needy rather than administrative costs—in promotional materials. The Office of the Attorney General demanded that the entities cease and desist from including the misleading information in their solicitations and imposed civil penalties of $1.1 million against FFP and $409,575 against CMMB. After both charities unsuccessfully appealed to an administrative law judge, they each filed substantially identical verified complaints and petitions for writ of administrative mandamus in Superior Court.
Unconstitutional Restraint
On Jan. 7, 2021, Los Angeles Superior Court Judge James C. Chalfant found that §12591.1(b) creates an unconstitutional prior restraint on speech in violation of the First Amendment, saying that “[b]y its own terms, section 12591.1(b) authorizes the Attorney General to enjoin solicitations which have not yet occurred or even be drafted” and that the statute “provides none of the procedural safeguards required for a prior restraint.”
At a June 17, 2021 hearing, Supervising Deputy Attorney General James M. Toma argued that there should be a declaration of rights “as to these parties alone,” seemingly indicating an intention to send similar cease and desist letters to other organizations. Chalfant told him:
“[A]n injunction goes hand in hand with First Amendment cases. Yeah, no, you’re not going to talk me out of an injunction. The more you argue, the more convinced I am that there should be an injunction.”
Chalfant ordered issuance of a permanent injunction and also vacated the penalties imposed on CMMB and FFP.
After the Office of the Attorney General requested that the court sever subdivision (b)(4) from §12591.1 to preserve the rest of the provision, the judge instead ordered the reformation of §12591.1(b) to add language providing that cease and desist orders be permissible “except for a violation of Section 12599.6.”
The Attorney General’s Office and the Registrar of the Registry of Charitable Trusts appealed the order issuing the injunction and the charities cross-appealed, challenging the reformation.
Permanent Injunction
Martinez noted that plaintiffs seeking a permanent injunction must prove that they are faced with irreparable injury in the absence of such relief, lack an adequate remedy at law, and face a likelihood of recurring or future harm.
Saying that “[t]his is an application of the general rule that in declaratory relief actions, parties seeking injunctive relief must still plead and prove entitlement to it,” the jurist pointed out that neither CMMB nor FFP requested injunctive relief in its pleadings. He added:
“Although a complaint may be amended after trial to conform to proof…, respondents never sought to amend their complaints in the trial court to plead for injunctive relief.”
CMMB and FFP argue that a permanent injunction is “essential” to the enforcement of a declaratory judgment announcing that a statute is facially invalid, asserting that the order is otherwise toothless. Rejecting this notion, he wrote:
“But none of respondents’ cases considered the proposition that a permanent injunction automatically flows from a ruling that a statute is facially invalid, nor did any of these cases so hold.”
The charities alternatively contend that cases involving facial challenges under the First Amendment “per se” demonstrate irreparable harm. Unpersuaded, he remarked:
“[E]ven if we were to assume respondents demonstrated irreparable harm because the First Amendment is involved, respondents also needed to demonstrate future or recurring injury. Even in cases involving facially invalid statutes, California courts have consistently required evidence of future injury or the threat of future injury before authorizing a permanent injunction.”
Adequate Protection
Reasoning that “[p]resumably the declaratory judgment stating the challenged provisions are facially unconstitutional would protect respondents from the threat of future enforcement,” Martinez commented that Chalfant seemed motivated by a “concern the Attorney General would enforce the challenged statutory provisions against nonparties.”
He said that “[t]he Attorney General’s positions in this court raise similar concerns,” but concluded that “California courts have also required evidence of recurring harm or the threat of future harm against nonparties before authorizing a permanent injunction covering nonparties.”
As to the ordered reformation of §12591.1(b), the presiding justice said:
“The trial court did not err by functionally severing subdivision (b)(4) and reforming section 12591.1(b) by adding certain language (“except for a violation of Section 12599.6”) to comply with constitutional principles, rather than invalidating the provision in its entirety.”
The case is Catholic Medical Mission Board Inc. v. Bonta, 2025 S.O.S. 565.
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