Facing the prospect of a potential lawsuit, many soon-to-be defendants choose to go on the offensive by filing first for declaratory relief. Often, these are nothing but damages suits, except flipped. In the usual case, the party allegedly harmed is the one that sues for damages; in the preemptive declaratory-relief actions, the party that would have been the defendant usurps the role of “plaintiff” and seeks declaratory judgment that it is not liable for damages. This tactic has multiple strategic advantages, as it very often permits these faux plaintiffs to seize the initiative, choose the forum and dictate the trial schedule.
In a recent but little-known line of California cases, however, courts have increasingly clamped down on this use of the declaratory procedure. While there have long been cases percolating in the background, where courts have held that declaratory relief is improper when the case involves only damages and is purely “backward looking” — a somewhat nebulous standard — recent courts have built on this foundation and come out strongly against using the declaratory procedure as a means to simply flip the procedural posture of a case.
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