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CA Bar Prep 2022 > Remedies > Flashcards

Remedies Flashcards

1
Q

Question

A

Answers

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2
Q

What are the types of remedies?

A

(1) Legal, (2) Restitutionary, and (3) Equitable.

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3
Q

What are damages?

A

Paying money to the victim.

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4
Q

What are the types of damages?

A

(1) Compensatory, (2) Nominal, and (3) Punitive.

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5
Q

What are compensatory damages?

A

Damages designed to restore a plaintiff to their state before the injury or breach.

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6
Q

What is four elements are required to obtain compensatory damages?

A

(1) Causation of injury (2) Foreseeability, (3) Certainty, and (4) Unavoidability.

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7
Q

How are compensatory damges made “certain”?

A

By looking at the historical value or costs associated with an injury or something that was lossed.

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8
Q

What is the “all or nothing” rule?

A

Damages in the future must be more likely than a coin toss.

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9
Q

What is “unavoidability”?

A

All damages must be the result of injuries that cannot be avoided. If an injury is exacerbated by a failure to mitigate then the injuries are not unavoidable.

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10
Q

What is the certainty rule?

A

The economic damages must be the sort of thing that is actually calculable.

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11
Q

What are non-economic damages?

A

All uncertain non-calculable damages such as pain & suffering.

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12
Q

What is the proper form of payment?

A

The judgment must be a single lump-sump payment that will be discounted to present value without taking inflation into account.

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13
Q

What are nominal damages?

A

An award of damages when there is no actual injury designed to vindicate a plaintiff’s rights.

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14
Q

What are punitive damages?

A

A legal remedy designed to punish the defendant.

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15
Q

What are the elements of punitive damages?

A

(1) Must not be alone, (2) the defendant’s fault must be willful, wanton, or malicious, and (3) punitive damages ought to be proportional to actual damages, not to exceed 10x.

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16
Q

What is the purpose of restitutionary remedies?

A

To avoid the unjust enrichment of the defendant.

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17
Q

How are restitutionary damages calculated?

A

The value of the benefit obtained by the defendant.

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18
Q

What damages are frequently found together?

A

Restitutionary and compensatory.

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19
Q

What is the consequence of eligibility for both restitutionary and compensatory damages?

A

The plaintiff may only obtain one and it is the greater of the two.

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20
Q

What is Replevin?

A

(1) Plaintiff recovers possession of a chattle from (2) a wrongful possession.

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21
Q

How may a plaintiff achieve replevin prior to judgement?

A

By placing a bond with the court for the value of the chattle.

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22
Q

What is ejectment?

A

The recovery of real property from a rightful possession deprived by a wrongful withholding.

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23
Q

Who is subject to ejectment?

A

Only a defendant who actually possesses the land.

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24
Q

Who may execute ejectment and replevin?

A

Only the sherriff.

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25
Q

What are the legal restitutionary remedies?

A

(1) Compensitory Damages, (2) Replevin, and (3) Ejection

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26
Q

What are the equitable compensatory remedies?

A

A constructive trust or equitable lien.

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27
Q

When does the constructive trust arise?

A

When the defendant has an illicit title to the property of the plaintiff.

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28
Q

What is the effect of an equitable lien?

A

The wrongful title of property will be sold in order to repay the value owed to the plaintiff.

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29
Q

When can an equitable remedy apply?

A

Only after the exhaustion of legal remedies and are inadequate.

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30
Q

How is it determined whether to use an equitable lien or a constructive trust?

A

If the value increases use an equitable trust. If the value of the property decreases, then an equitable lien or if the title to the property is not traceable.

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31
Q

What is the pure equitable relief for torts?

A

Injunction.

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32
Q

What is an injunction?

A

An order to do or refrain from doing something. (Enjoined)

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33
Q

What are the types of injunctions?

A

(1) Permanent and (2) temporary or preliminary.

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34
Q

What is necessary for a permanent injunction?

A

A final judgement.

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35
Q

What is necessary for a preliminary injunction?

A

(1) An irreparable injury will occur in the time frame of the trial. (2) Plaintiff is more likely than not to prevail. (3) A bond on the plaintiff to reimburse in the event of an injury to the defendant.

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36
Q

How is an irreperable injury established?

A

A balancing of harms and hardships between the plaintiff and the defendant.

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37
Q

What is a TRO?

A

A sub-species of injunctions called Temporary Restraining Order for 10 to 15 days.

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38
Q

How is a TRO different from a preliminary injunction? 🔽

A

(1) The harm is imminent and (2) can be issued ex parte (3) after a good faith effort to contact if feasible.

39
Q

What is necessary for a permanent injunction?

A

(1) Legal remedies fail,
(2) enforceable,
(3) hardship ratio, and
(4) no valid defenses.

40
Q

Why might money damages be insufficient?

A

(1) Too speculative, (2) insolvent defendant, (3) irreparable injury, (4) avoiding a multiplicity of actions.

41
Q

When are money damages likely to be inadequate?

A

Land disputes.

42
Q

What is a negative injunction?

A

An order to refrain.

43
Q

What is a mandatory injunction?

A

An order to act.

44
Q

When are mandatory injunctions likely to be denied?

A

Any act (1) requiring taste, skill, or judgment or (2) outside of the jurisdiction.

45
Q

What do courts balance in denying a permanent injunction?

A

(1) Gross disparity between the defendant’s detriment and the plaintiff’s benefit, (2) defendant’s conduct was not willful, (3) the plaintiff can receive money damages, and (4) no substantial hardship to the public.

46
Q

When do the denials of injunctions often arise?

A

Nuisance and tresspass.

47
Q

What is the unclean hands defense?

A

The plaintiff’s improper conduct relates to the action and issue.

48
Q

What are defenses to permanent injunctions?

A

(1) Unclean hands, (2) latches, (3) impossibility, (4) free speech.

49
Q

What is latches?

A

An action can be barred (1) even if SOL has not passed, (2) and after the plaintiff learns of the injury they delay such that (3) the plaintiff’s delay is unreasonable and prejudicial to the defendant.

50
Q

Who are bound by injunctions?

A

(1) Parties, (2) agents & employees after notice, and (3) others acting in concert after notice.

51
Q

What are the types of contempt?

A

(1) Civil and (2) criminal

52
Q

What is civil contempt?

A

A tool to coerce parties to comply with the injunction.

53
Q

What is criminal contempt?

A

A punishment for defying the court order.

54
Q

What are the types of civil contempt?

A

(1) Fines or (2) imprisonment with the possibility of release upon compliance.

55
Q

What are the types of criminal contempt?

A

(1) Fines or (2) imprisonment with no possibility of release until time served.

56
Q

Who holds the keys of release during imprisonment from civil contempt?

A

The defiant defendant holds the keys to his cell.

57
Q

What are the questions to ask for tort remedies?

A

(1) Injury? - Compensatory Damage (2) Benefit to D? - Restitutionary Damages (3) Return of property? - Replevin or Ejectment (4) Continued harm? - Injunctions.

58
Q

What torts are more likely to occur on the exam?

A

75% Property torts and 25% personal injury and fraud.

59
Q

What damages are available for breach of contracts?

A

(1) Legal, (2) Restitutionary, and (3) Equitable

60
Q

What are the equitable remedies for contracts?

A

(1) specific performance, (2) recision, (3) reformation.

61
Q

What are the legal remedies for contracts?

A

(1) Compensatory and (2) Restitutionary

62
Q

What are the requirements for contract compensatory remedies?

A

(1) Cause, (2) Foreseeability, (3) Certainty, and (4) Mitigation

63
Q

What are expectation damages?

A

The position the plaintiff would be in had the contract been performed.

64
Q

What are consequential damages?

A

Foreseeable and indirect effects of a breach.

65
Q

What are incidental damages?

A

Damages that necessarily and directly arise from the breach.

66
Q

What is necessary for liquidated damages?

A

(1) Damages are difficult to ascertain at contract formation, (2) reasonable forecast of potential damages.

67
Q

When are liquidated damages void?

A

If the amount is excessive, unrelated to potential damages, and appears to be a punishment.

68
Q

What happenss if liquidated damages are void?

A

The plaintiff is still entitled to actual damages.

69
Q

What are the contract restitutionary damages?

A

The damages owed from partial performance and unjust enrichment.

70
Q

How are restitutionary damages calculated?

A

The benefit gained by the defendant.

71
Q

What is the difference between traditional and modern for recovery to a breaching plaintiff?

A

Traditional - no recovery; Modern - yes.

72
Q

What is specific performance?

A

An order from the court to perform the contract as specified.

73
Q

When can specific performance apply?

A

(1) Valid, certain, and definite contract, (2) Conditions by the plaintiff must be satisfied, (3) inadequate legal alternative, (4) feasibility, (5) defenses.

74
Q

What happens when there are deficiencies?

A

The value may be abated.

75
Q

What is the equitable maxim?

A

Equity abhors forfeiture.

76
Q

When is chattle subject to specific performance?

A

Unique, speculative, personal significance, or special.

77
Q

What is the general nature of property in contract claims?

A

Real: Per se Unique,
Personal: Not per se unique, but potentially if rare, customized, or of sentimental value.

78
Q

What is the general rule on liquidated damages?

A

Liquidated damages do not per se remove the possibility of specific performance unless explicitly stated as the only remedy.

79
Q

When does the statute of frauds not apply?

A

(1) land, (2) oral, (3) valuable performance?

80
Q

What is valuable performance?

A

(1) Possession, (2) payment, (3) improvements

81
Q

What prevents contract formation?

A

Mistakes, misrepresentation, coercion, duress, illegality, etc.

82
Q

What is recision?

A

The voiding of an invalid contract.

83
Q

What is the rule on mistake?

A

(1) Mutual on material fact: granted, (2) Mutual mistake of collateral effect, (3) Unilateral mistake: denied.

84
Q

When is a unilateral mistake eligible for recission?

A

If the party knows or should have known that the other party making the mistake was making a mistake and would cause undue hardship.

85
Q

What is the rule on misrepresentation?

A

(1) Actual misrepresentation, and (2) plaintiff relied on the misrepresentation.

86
Q

What is not a defense to recision?

A

Negligence of the plaintiff.

87
Q

When is recision barred?

A

If the plaintiff sues for damages first seeking resolution. They may be sued simultaneously, but not before.

88
Q

What is reformation?

A

(1) An equitable remedy (2) changing the contract (3) to reflect the true intent (4) where there has been an error.

89
Q

What is required for reformation?

A

(1) Meeting of the minds, (2) grounds for reformation, (3) valid defenses.

90
Q

When is there grounds for reformation?

A

Mutual mistake. Unilateral may only apply if the non-mistaken party knew of the mistake.

91
Q

What defenses will not work for reformation?

A

(1) Parole evidence rule, (2) negligence, (3) statute of frauds.

92
Q

What is the contract remedy roadmap?

A

(1) Injury? Compensation (2) Benefit? Restitution, (3) Return?, (4) Performance? Specific performance. (5) Contract destroyed: Recission (6) Change to contract: Reformation.

93
Q

May a restitution exceed the contract price?

A

Yes.

CA Bar Prep 2022 (14 decks)

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