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Flashcards in Remedies Deck (9)
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Damages - Tort

  1. Compensatory damages - plaintiff entitled to put her in the position she would have been in had the wrong not occured. must show:
    1. causation
    2. foreseeability
    3. certainty - damages cannot be speculative
      1. applies to actual damages, not pain, suffering, etc
    4. Unavoidability - plaintiff myst take reasonable steps to mitigate damage
    5. calculation - single lump sum, discounted to present value.  no inflation
  2. Nominal Damages - where the plaintiff has no actual injury - court may award nominal damages to vindicate the plaintiff's rights
  3. Punitive damages - where the plaintiff's injury results from willful, wanton, or malicious conduct.  court may punish the defendant with damages
    1. plaintiff must first be awarded nominal, compensatory or restitutionary damages
    2. calculation - must be relatively proportional to actual damages


Restitutionary remedies - Tort

  1. Restitutionary Damages - where the defendant has been unjustly enrished, the court may award damages based on the benefit to the defendant
    1. the amount is calculated based on the value of the benefit
    2. you can't get restitution and compensatory damages
  2. Replevin - action to recovery possession of specific personal property: must show
    1. Plaintiff has right to possess and
    2. there is a wrongful withholding by defendant
    3. Timing - as long as defendant is in possession, plaintiff can recover the chattel before tiral
      1. but to do so, plaintiff will have to post a bond
      2. and defendant may defeat an immediate recovery by posting a re-delivery bond.  
    4. generally coupled with damages for lost use of the benefit
    5. no recovery if sale is to a bona fide purchaser
  3. Ejectment - action to recovery specific real property.  must show
    1. right to possess
    2. wrongful withholding by defendant
    3. usually coupled with damages for lost use of the benefit
  4. Constructive Trust - equitable remedy imposed by the courts when the retention of property by defendant would result in unjust enrichment.  defendant serves as trsutee and must return the property to plaintiff
    1. legal remedies must be inadequate (defendant insolvant)
    2. tracing - plaintiff can follow property whatever form it takes
    3. bona fide purchaserrs prevai over plaintiff
    4. plaintiff prevails over unsecured creditors
  5. Equitable Lien - where the defendant has improperly acquired title to a property, an equitable lien allows a court to enter an immediate sale of the property, and the moneis recieved will go to the plaintiff. must show
    1. defendant misappropriated plaintiff's property creating a debt or obligation to pay
    2. plaintff's property can be traced to property held by defendant
    3. retention of traced property would be unjust enrichment
    4. if proceeds from sale are less than FMV, a deficiency judgment will issue for the difference
    5. where misappropriated money is used to improve property, only an equitable lien is available
    6. tracing allows, BFP prevail


Temporary Injunctive Relief

  1. To recover temporary inj. relief, plaintiff must meet a two part test
    1. Irreparable injury - plaintiff must show that wihtout the injunction, she will incur irreparable injury while waiting for a full trial on the merits
      1. balancing test - harm to plaintiff if injunction is denied v. harm to defendant if injunction is granted
      2. where D created the hardship, balance likely to weigh in P's favor
    2. Likelihood of success - plaintiff must show that he has a strong likelihood of success on the merits,. the court will look to the probability of this success
      1. this is not an inquiry on success of obtaining permanent injunction
      2. the court should also impose a bond requirement on plaintiff to remiburse the defendant if injunction injured him and plaintiff does not succeed. 


Permanent Injunctive Relief

Plaintiff must meet five part test

I Put Five Bucks Down

  1. Inadequate legal remedy - money damages too speculative, d insolvent
  2. property interest?protectiable interest
    1. traditional view - equity will grant relief only were there is a protectible property right involed
    2. modern view - any protectble interest will suffice
  3. Feasibility of enforcement - only an issue with mandatory injunction. enforcement problems may stem from the difficulty of supervision, or concern with effectively ensuring compliance
  4. Balancing of hardships - plaintiff's benefit vs. defendant's hardship plus Public's hardship (no balancing test if D conduct was willful)
  5. Defenses -
    1. Laches - unreasonable lapse of time between when P learned of injury and when plaintiff filed lawsuit.  
    2. unclean hands - person seeking equitable relief must not be guilty of any improper conduct that is realted to lawsuit
    3. impossibility - it would be impossible for defendant to carry out injunction
    4. free speech - injunction may be denied on free speech grounds



Damages - Contract

  1. Compensatory Damages - based on injury to plaintiff.  requires
    1. causation
    2. foreseeability
      1. tested at time of formation
      2. certainty
      3. unavoidability (mitigation)
    3. consequential damages - available for related damages forseeable at time of formation
    4. seller breackes a land sale contract CD are out of pocket loss or benefit of the bargain
  2. Nominal damages - are also allowed.  punitive damages not allowed
  3. liquidated damages clauses are permissible, if they are valid.
    1. damages are very difficult to ascertain at the time of the K formatoin
    2. this was a reasonable forecast of what the would be


Restitutionary Remedies - Contract

  1. If K is unenforceable after P performed
    1. P can get restitution for property money given to, or services renderd to D for the VALUE of the BENEFit recieved
      1. not necessary to find that D actually benefited, just that he receievd the benefit
      2. if value of services is greater than K rate, P can still recoverf it. 
    2. P can get back property if it is unique or D is insolvent
    3. Quasi-K- P is awarded the reasonable valye of D's illgotten gain or difference between the present valye of the good less the valye before the benefit conferred by P
  2. If K is breached
    1. WHere P is non-breaching party
      1. P may recovery restitutionary damages for property/money given to or services rendered for D for the valye of the benefit
      2. P can get back proprty if unique/D insolvent
    2. Where P is breaching party
      1. Traditiona view - P gets nothing
      2. Modern View - P may recover restitutionary interest, but it cannot be greater than K rate and is reduced by any damages suffered by D as a result of breach


Specific Performance

  1. 5 part check list (I'm doing fine mom and dad) P must show:
    1. Inadequacy of legal remedies - damages may be inadequate b/c
      1. they're speculative
      2. defendant is insolvent
      3. multiple suits are necessary
      4. thing bargained for is unique
    2. Definite and Certain terms - Terms of K must be sufficiently certin to constitute valid K
    3. Feasibilty of enforecment - jurisdiction over parties, too much court supervision?
    4. Mutuality of remedy - must show the other side can also secure performance 
    5. Lack of Defenses - unclean hands, laches, unconscionability, mistake, misrepresentation, equitable conversion, SOF
  2. Special Problems
    1. Deficiencies - fact pattern
      1. Seller as P:  CAN enforce K if defect is minor.  Cannot enforce K if defect is major unless seller can cure K before closing
      2. Buyer as P: Can enforce the K even if defect is major (abatement, court will lower the purcahse price, etc).  Cannot enforce K if defect is very major.
    2. Time of the essence clause - w/forfeiture provision. equity abhors a forfeiture.
      1. avoid forfeiture and award SP where
        1. loss to seller is small
        2. tardiness is de minims
        3. waiver - seller has accepted late payments in teh past
        4. buyer would suffer undue hardship
      2. modern trend - courts would give P restitutionary relief if SP were not granted. but if buyer has not made initial payment, forfeiture clause will be strictly enforced
    3. Equitable conversion - real proprety interest o fthe buyer and seller are switched upon execution of land K
      1. Thus buyer will be regarded as having the real property interest
      2. seller will be regarded as having the personal property interest
    4. Personal service K's - Covenants not to compete
      1. covenant must protect a legitmate itnerest
      2. covenant must be reaonable in both is geographical and durational scope



  1. equiable remedy whereby one who is fraudulently induced into entering a K may rescind K.  2-step analysis
    1. Determine if there are grounds for the rescission:
      1. formation grounds
        1. mistake
        2. misrepresentation 
        3. coercion
        4. undue influence
        5. lack of capacit
        6. failure of consideration
        7. illegality
      2. Mutual mistake of material fact is ground to rescind
      3. mutual mistake of collateral fact is not grounds to rescind
      4. unilater mistake is not grounds to rescind unless the non-mistaken party knows or should have known of the mistake
    2. Determine if there are valid defenses
      1. unclean hands
      2. laches
    3. Special problems
      1. election of remedies
        1. P sues for damaegs first. rescission is not allwoed
        2. P sues for rescission first, damages are allowed
      2. availabilty of restitution.  P who has right to rescission can get restitution if P has already rendered performance
      3. Legal rescission - P accounplices this by her own actions
        1. P gives notice and tenders back any consideration received
        2. P then sues for restitution for anything given to D



Court modifies a written agreement to conform with the parties' original understanding.  3 steps

  1. Determine if there is a valid contract
  2. Determine if there are grounds for reformatoin
    1. mutual mistake
    2. unilateral mistake if non-mistaken party knows of mistake
    3. misrepresenation
  3. Determine if there are valid defenses
    1. unclean hands
    2. laches