A trial court may issue a preliminary injunction mandating an affirmative act that changes the status quo, but only in extreme cases when the right to the injunction is clearly established; in this case, the trial court properly ordered defendant software developer to turn over source code to its customer, the plaintiff, so plaintiff could alter the software to make it work and avoid irreparable harm to plaintiff’s business. Although preliminary injunctions generally preserve the status quo, a trial court may issue a preliminary injunction which mandates an affirmative act that changes the status quo. That power is reserved for extreme cases in which the right to the injunction is clearly established. Though the appellate court applies the same abuse of discretion standard in reviewing any preliminary injunction, it scrutinizes a status-quo-changing preliminary injunction more closely. Here, a preliminary injunction ordered the developer of computer software to turn over the source code and technical specifications to the company that contracted to buy the software. The software was inoperable as delivered, and the customer needed the source code and technical specifications so that it could alter the software to make it work. Its right to the source code and specifications was clearly set out in its contract with the developer. The developer could not prove that the customer had breached the contract by non-payment since the software did not work and had not been accepted, pre-conditions to the customer’s obligation to pay. The customer would suffer considerable harm unless the injunction issued since it needed the software in functional condition to avoid loss to its business.
California Court of Appeal, Second District, Division 2 (Hoffstadt, J.); December 22, 2016; 2016 WL 7406411