CA Remedies

Question 1

Introduction –> General Categories of Remedies

Answer 1

1. The three categories in order of consideration are:
   a. remedies at law (damages);
   b. restitution; and
   c. equitable remedies.

Question 2

Remedies at Law –> Damages in Tort Cases: Purpose

Answer 2

The purpose of damages in torts actions is generally compensation (i.e. provide award in the form of a $ judgment to the aggrieved party to compensate for any loss/injury resulting from the unlawful act or omission of another).

Secondary purpose: punishment or deterrence

Question 3

Remedies at Law –> Damages in Tort Cases: Basic Types of Damages - Three Categories of Damages

Answer 3

(1) compensatory; (2) nominal; and (3) punitive.

Question 4

Remedies at Law –> Damages in Tort Cases: Basic Types of Damages - Compensatory Damages (Purpose) + (3 Key Concerns)

Answer 4

Purpose: compensate the P for the wrong suffered.

Three Key Concerns:
Compensatory damages must be:
(1) FORESEEABLE;
——> Usually handled through causation.

(2) CERTAIN (must be able to calculate damages with certainty; cannot be speculative);
- ——> Much stronger in K than tort; in tort, more flexible because harder to determine.
- ——> Public policy interest in compensating at expense of wrongdoer; if some justification for award, certainty element will be satisfied.

(3) UNAVOIDABLE.
- ——> P must: take reasonable steps to mitigate loss suffered.
- ——> Two Key Points
1. If the P fails to take reasonable steps to mitigate the damage suffered, then: the P is unable to recover for any damage that could have been avoided by reasonable mitigation.
2. If the P does take steps and expends some $ in doing so, then: any expenditures that were reasonable will be recoverable from D.

Question 5

Remedies at Law –> Damages in Tort Cases: Basic Types of Damages - General Damages

Answer 5

Damages that: naturally flow from the D’s act.

General damages are presumed.
—-> They do not have to be pleaded by the P.

Question 6

Remedies at Law –> Damages in Tort Cases: Basic Types of Damages - Special Damages

Answer 6

Damages that arise bc of the D’s harm.
—-> Must be: separately pleaded and proven.

Examples of personal injury claims:

(1) pain and suffering;
(2) reputation; or
(3) privacy.

Question 7

Remedies at Law –> Damages in Tort Cases: Involving Personal Property

Answer 7

Standard measure of damages: [the diminution of value OR the cost of repair] (whichever is less) + loss of use damages.

For destruction of personal property, standard measure of damages: [market value OR replacement value] - depreciation.

Conversion vs. TTC

• —> Both involve: damage to personal property or chattel.
• —> Conversion involves: a more substantial interference with the property interest, i.e., more damage or dispossession.
• —> TTC involves: a lesser period of interference or damage.
• —> The general remedy for conversion is: a forced sale of the item.
• —> The general remedy for trespass to chattels is: the repair value or rental value.

Question 8

Remedies at Law –> Damages in Tort Cases: Involving Real Property - Standard Measure of Damages

Answer 8

MISUSE of property
[Diminution of value OR cost to repair] + loss of use.

DESTRUCTION of property, standard measure of damages (whichever is LESS):

• –> [market value before the destruction] - [market value afterwards] (diminution of value), OR
• –> the cost to rebuild.

Question 9

Remedies at Law –> Damages in Tort Cases: Involving Real Property - Trespass

Answer 9

If the trespasser DAMAGES the land, the owner may recover for those damages.

If NO injury results to the land from the D’s trespass, the typical damage award is: NOMINAL damages.
—> EXCEPTION: Where the trespasser commits ouster (wrongful denial of entry to land: when the P is prevented from making use of the land, the P will be entitled to recover the rental value for the period of that occupation).

Question 10

Remedies at Law –> Damages in Tort Cases: Involving Harm to Economic Interests - General

Answer 10

Harm to economic interests must be TACKED onto personal injury or property damage.
—–> Under ECONOMIC LOSS RULE, you CANNOT recover for PURE economic loss.

Question 11

Remedies at Law –> Damages in Tort Cases: Involving Harm to Economic Interests - Fraud (General)

Answer 11

General damages for fraud are measured by either the “out of pocket” loss approach or the “benefit of the bargain” approach.

Question 12

Remedies at Law –> Damages in Tort Cases: Involving Harm to Economic Interests - Fraud (Benefit of the Bargain (Majority))

Answer 12

Damages are measured by the difference between: the value of what the P thought she was receiving and the value of what she actually received.

Question 13

Remedies at Law –> Damages in Tort Cases: Involving Harm to Economic Interests - Fraud (Out of Pocket)

Answer 13

Damages are measured by the difference between: the sale price and the value for what the P actually received.

Question 14

Remedies at Law –> Damages in Tort Cases: Nominal Damages

Answer 14

When a tort occurs w/o damages, the P can still
recover nominal damages.

Nominal damages can be a sufficient basis for the award of punitive damages.

Question 15

Remedies at Law –> Damages in Tort Cases: Punitive Damages

Answer 15

Punitive damages are designed to punish the D for egregious conduct and to act as a deterrent against future such conduct by the D or others.

Punitive damages are available when there has been: willful, wanton, or malicious conduct (need more than simple negligence; must have intentional or reckless conduct).

A P is never entitled to an award of punitive damages, but may receive them w/ compensatory or nominal damages in a majority of jdxs.

Question 16

Remedies at Law –> Damages in Tort Cases: Collateral Source Rule

Answer 16

If a P gets benefits from a collateral source (i.e., not the D) in a tort or K action, this amount recovered is not deducted from the amount D owes in their personal situation.
—-> Unless: it arises from the D’s CoA.

Question 17

Remedies at Law –> Damages in Breach of Contract Cases: Generally

Answer 17

The goal is to put the P: in the position that he or she would have occupied had the K actually been performed.
—-> These are known as: expectation damages.

Question 18

Remedies at Law –> Damages in Breach of Contract Cases: Liquidated Damages

Answer 18

A liquidated damages clause: est’s what the penalty will be in the event of a breach.
—–> Where enforceable, cts will find liquidated damages to be the extent of the damages in the event of a breach.

Two Important Considerations:

(1) Damages must be: difficult to ascertain.
(2) Parties must make: a reasonable attempt to forecast what those damages might be.

Where those req’ments are not met, the ct will find it to be a penalty clause and not enforce it.

Question 19

Remedies at Law –> Damages in Breach of Contract Cases: Expectation Measure

Answer 19

The standard measure that flows from that type of K, together with any consequential damages.
—-> These must be shown w/: reasonable certainty.

Question 20

Remedies at Law –> Damages in Breach of Contract Cases: Involving Sale of Real Estate - Breach by Seller

Answer 20

The measure of damages is the difference between: the K price and the FMV of the property at the time of breach.

Where the market price is the same as or lower than the K price: there is no recovery for the buyer.

Question 21

Remedies at Law –> Damages in Breach of Contract Cases: Involving Sale of Real Estate - Breach by Buyer

Answer 21

The measure of the seller’s damages is the difference between: the K price and the FMV on the date the buyer’s performance was due.

Where the K price is the same as or lower than market price: there will be no recovery.

Question 22

Remedies at Law –> Damages in Breach of Contract Cases: Involving Sales of Goods Under Article 2 - Breach by Buyer

Answer 22

The seller’s measure of damages is: the K price minus the market price (so remedy only if the K price exceeds the market price).

The seller can also resell the item and then pursue damages, provided:

(1) the resale is done in GOOD FAITH;
(2) the resale is conducted in a COMMERCIALLY REASONABLE manner; and
(3) the resale must occur reasonably SOON after the breach.
- –> When this happens, the seller’s damages are: the K price minus the resale price.

Question 23

Remedies at Law –> Damages in Breach of Contract Cases: Involving Sales of Goods Under Article 2 - Breach by Buyer (Lost Volume Seller Rule)

Answer 23

When a seller is in the business of selling goods of this kind, and has a fairly unlimited supply of those goods, any time the seller loses out on a sale: the seller is always entitled to the lost profits on that sale.

Question 24

Remedies at Law –> Damages in Breach of Contract Cases: Involving Sales of Goods Under Article 2 - Breach by Seller

Answer 24

The buyer’s standard measure of damages is: the market price minus the K price.

The buyer can also recover the difference between: the cover price and the K price.

• —-> The buyer covers by buying replacement goods w/o:
  1) unreasonable delay;
  2) in good faith; and
  3) for a reasonable price.

Question 25

Remedies at Law –> Damages in Breach of Contract Cases: Involving Employment - Breach by Employer

Answer 25

The employee’s standard measure of damages is the lost wages the employee would have earned had he not been fired.
—–> However, this is subject to an affirmative duty to mitigate.

Key Rule: the employee is not req’d to take on any job; but must take a similar job in a similar area.

Question 26

Remedies at Law –> Damages in Breach of Contract Cases: Involving Employment - Breach by Employee

Answer 26

The employer’s standard measure of damages is the cost of finding somebody else to do the job.
—–> If you have to pay more, the extra salary is recoverable from the breaching employee.

Question 27

Remedies at Law –> Damages in Breach of Contract Cases: Involving Construction on Real Estate - Breach by Owner or Purchaser

Answer 27

The builder’s standard measure of damages is: the lost profits the builder expected to make on the job, together with the cost expended.

Question 28

Remedies at Law –> Damages in Breach of Contract Cases: Involving Construction on Real Estate - Breach by Builder or Contractor

Answer 28

The owner’s remedy if the work is not yet completed is: the additional cost to complete above the K price.

If the builder or contractor completes the work but with defects, the owner may recover either:

(a) the cost to repair minor defects or deficiencies; or
(b) the difference between the K price and the value of the improved property.

Question 29

Remedies at Law –> Damages in Breach of Contract Cases: Consequential Damages

Answer 29

Any other damages which are a foreseeable consequence of the breach.
—-> It must be shown that they were reasonably foreseeable to the breaching party at the time the K was formed.

Question 30

Remedies at Law –> Damages in Breach of Contract Cases: Incidental Damages

Answer 30

A subset of consequential damages recognized by the Uniform Commercial Code (UCC).

Question 31

Remedies at Law –> Damages in Breach of Contract Cases: Reliance Damages

Answer 31

An alternative method of determining damages.

If a party chooses not to pursue or cannot determine expectation damages, they can seek these.
—-> These consist of any expenditure made in preparation for performance on a K, or in partial performance of a K.

Question 32

Restitutionary Remedies –> Remedial Purpose

Answer 32

A restitutionary remedy seeks to: prevent the unjust enrichment of the D by returning to the claimant any benefits unjustly conferred by the claimant on the D.

Question 33

Restitutionary Remedies –> Restitutionary Remedies in Tort Cases: Legal Remedies

Answer 33

(1) Ejectment
Ejectment is an action to: remove a D who is in wrongful possession of the P’s land.

(2) Replevin
Replevin is an action: by P for the return of wrongfully dispossessed chattel.

Question 34

Restitutionary Remedies –> Restitutionary Remedies in Tort Cases: Equitable Remedies

Answer 34

Both equitable remedies arise out of: a quasi-K
analysis.

Some cts req: a showing that legal remedies are inadequate before a P can seek either a constructive trust or an equitable lien.

2 Kinds: Constructive trust and

Question 35

Restitutionary Remedies –> Restitutionary Remedies in Tort Cases: Equitable Remedies - Constructive Trust

Answer 35

A constructive trust is a legal fiction that D, who has wrongfully dispossessed the P of property, is: holding that property in trust for the P.
—–> If successful, a trust is imposed on that property to order the D to return that property.

It differs from replevin because if the property has changed form, the constructive trust can be imposed on the new form.

• —> You are allowed to trace the new form and recover whatever property is available.
• —> Note: you cannot trace property that is sold to a bona fide purchaser.

Question 36

Restitutionary Remedies –> Restitutionary Remedies in Tort Cases: Equitable Remedies - Equitable Lien

Answer 36

This is a situation where: the P is allowed to get a
lien imposed on property.
—-> The benefit of either equitable remedy is that you become a secured creditor on the property and gain priority over a general creditor.
—-> Cts will impose a lien for: the value of the property that was taken.

Question 37

Restitutionary Remedies –> Restitutionary Remedies in Tort Cases: Lowest Intermediate Balance Rule

Answer 37

Under this rule, to determine the maximum amount that can be traceable to the stolen property:

(1) look towards the point of the wrongful conduct of the defendant;
(2) look to the point of the current lawsuit; and
(3) look to the lowest balance in between those two points.

The maximum that can be traced back to the P is:
the lowest amount that can be traced back to the stolen amount.

Question 38

Restitutionary Remedies –> Restitutionary Remedies in Contract Cases: General Rule

Answer 38

The general rule of remedies is:

(1) compel D to return the benefit that the P has conferred on the D; or
(2) pay its value in a situation where it would be unjust to allow D to keep that benefit without compensating the P.

Question 39

Restitutionary Remedies –> Restitutionary Remedies in Contract Cases: Quasi-Contract

Answer 39

Quasi-contracts are Ks: implied in law to order D to pay P the reasonable value of the benefit incurred.

• —-> However, the key concern is that when this benefit was conferred by mistake, was there a reasonable expectation of payment from this person?
• —-> W/o the expectation of payment, there can be no recovery.

W/ regard to improvements to land, if improvements can be removed but the owner refuses to do so, either acceptance or conversion, but recovery of payment possible either way.

Another area quasi-contracts arise is: unenforceable Ks.
(1) Where two parties enter into a K that would otherwise be unenforceable for whatever reason: cts will impose a quasi-K.

Question 40

Restitutionary Remedies –> Restitutionary Remedies in Contract Cases: Rescission

Answer 40

A party may also seek restitution when: there has been a breach of a K.
—-> The aggrieved party can choose where the D has breached the K and choose to pursue expectation damages or restitutionary award.

EXCEPTION
Where the aggrieved party has: already fully performed his end of the K, the aggrieved party cannot sue for restitution, and can sue only on the K.

Question 41

Equitable Remedies –> Injunctions: Definition

Answer 41

An injunction is a ct order directed to a person or entity usually to refrain from doing a particular act (a prohibitory injunction) or to perform a specific act (a mandatory injunction).

Question 42

Equitable Remedies –> Injunctions: Three Types

Answer 42

(1) temporary restraining order;
(2) preliminary injunction; and
(3) permanent injunction.

Question 43

Equitable Remedies –> Injunctions: TROs and Preliminary Injunctions - Generally

Answer 43

These will be seen most often when: there is some immediacy of harm before litigation can even begin.

TROs are issues most often at the very commencement of litigation, ex parte.
—-> They are issued in situations where: it is necessary to maintain the status quo during litigation or pending arbitration.

Question 44

Equitable Remedies –> Injunctions: TROs and Preliminary Injunctions - Duration

Answer 44

A TRO granted without notice remains in effect: for only a specified number of days, generally 10 to 20 days.

Question 45

Equitable Remedies –> Injunctions: TROs and Preliminary Injunctions - Bond

Answer 45

On granting a TRO or preliminary injunction pending a final decision on the merits, the ct or judge will req the applicant to post a bond for the payment of any damages that the party enjoined may sustain by reason of the injunction, in the event the ct should finally decide that the applicant is not entitled to the injunction.

Question 46

Equitable Remedies –> Injunctions: TROs and Preliminary Injunctions - Preliminary Hearing

Answer 46

When a TRO has been issued ex parte, a preliminary hearing is held, and the ct will review the order and may issue a preliminary injunction.

A preliminary injunction is issued to: maintain the status quo until a full hearing can be held to determine if the injunction should be made permanent.

The following must be proved for a preliminary injunction to be issued:

(1) the P is likely to succeed on the merits of the underlying claim;
(2) denial of injunctive relief would produce waste, or great or irreparable injury, to the P, such as where it appears, during litigation, that a party to the action is doing, or is about to do, some act in violation of the rights of another party to the action that would tend to render the judgment ineffectual;
(3) the balancing of hardships between the parties favors the grant of an injunction; and
(4) the public interest favors the granting of this relief.

Under an alternative test, the P has the option of est’ing the traditional 4-part test or satisfying a sliding scale test, under which the greater the potential the irreparable injury to the P if the injunction is not granted, the lesser the required showing of prevailing on the merits at the full hearing is req’d.

Question 47

Equitable Remedies –> Injunctions: Permanent Injunctions - Generally

Answer 47

A permanent injunction is issued at a full hearing on the merits after it is proven that the liability theory is there and that P is entitled to an equitable relief of injunction.

Question 48

Equitable Remedies –> Injunctions: Permanent Injunctions - Five-Point Test

Answer 48

Five-Point Test

(1) inadequate legal remedy;
(2) property right;
(3) feasibility;
(4) balancing; and
(5) defenses.

While the first four are elements to be proven, the availability of defenses is instead a factor to take into consideration.

EXAM TIP:
Mnemonic Device: I’m Passing the Freaking Bar, Damnit.

Question 49

Equitable Remedies –> Injunctions: Permanent Injunctions - Inadequate Legal Remedy

Answer 49

A legal remedy could be inadequate because:

(1) it is too speculative;
(2) it is on-going;
(3) of multiplicity of suits;
(4) the subject matter of the contract involves real property; or
- —> This is because all land is held to be unique.
(5) the injury is irreparable.
- —-> This arises when damages have not yet occurred, but will occur, and it is a situation where you cannot adequately compensate for that harm once it does occur.

Question 50

Equitable Remedies –> Injunctions: Permanent Injunctions - Property Right

Answer 50

Today, many jdxs have abolished the property right.
—–> Those keeping it have expanded it so much that it is not really an element at all.

Any interest will qualify as a property right where req’d.

Question 51

Equitable Remedies –> Injunctions: Permanent Injunctions - Feasibility

Answer 51

(1) The first key feasibility concern is: a jdx’l concern.
- —> This is only really a concern when you have a D outside the state, and wonder if the ct will have jdx over it, or the injunction would cause the D to refrain or have to do something outside the state.

(2) The second key feasibility concern is: whether the injunction is mandatory or prohibitory.
- —-> A mandatory (affirmative) injunction: reqs D to actually do something.
- —-> A prohibitory injunction: compels a D to stop doing something.

(3) Mandatory injunctions present a feasibility concern because cts will have to supervise the D while the D fulfills the injunctive order.

Question 52

Equitable Remedies –> Injunctions: Permanent Injunctions - Balancing

Answer 52

Two key concerns: what is balanced and when does
the balancing take place.

What is balanced?
The harm to the P if no injunction is issued against the burden on the D created by issuing the injunction.
—-> If the balancing weighs on the side of the P, the element is est’d.

When does balancing take place?
Balancing always takes place unless: the D’s conduct is willful.
—–> If the D’s conduct is willful, there is no balancing, and this element is eliminated.

Question 53

Equitable Remedies –> Injunctions: Permanent Injunctions - Defenses (Two Kinds)

Answer 53

The two most frequently tested defenses are:

1) laches; and
2) unclean hands.

Question 54

Equitable Remedies –> Injunctions: Permanent Injunctions - Defenses (Laches)

Answer 54

Laches arises when: the P unreasonably delays asserting his rights, and the delay prejudices the D.

• —-> Do not confuse this with statute of limitations: this is primarily a prejudicial harm concern.
• —-> The focus is less on the timing as on the harm caused by the unreasonable delay.

Question 55

Equitable Remedies –> Injunctions: Permanent Injunctions - Defenses (Unclean Hands)

Answer 55

Equity follows the maxims that “he who comes into equity must come with clean hands,” “no one can take advantage of his own wrong” and “between those who are equally in the wrong, the law will not interpose.”

• —-> Under this defense, if a P has committed wrongful conduct which injured D with respect to the dispute currently between the parties, then: the P’s hands are not clean, and the P’s unclean hands will be a defense that will prevent issuance of an injunction.
• —-> The wrongful conduct by the P has to be in connection with the dispute between the parties.

Question 56

Equitable Remedies –> Equitable Remedies in Contract Cases: Specific Performance - Generally

Answer 56

A specific performance decree is the equitable decree that is issued in response to a breach of K.
—–> It compels: a breaching party to perform his or her contractual obligation.

Question 57

Equitable Remedies –> Equitable Remedies in Contract Cases: Specific Performance - Five Key Concerns

Answer 57

(1) a definite and certain contract;
(2) an inadequate legal remedy;
(3) feasibility;
(4) mutuality; and
(5) defenses.

EXAM TIP: Mnemonic device: Do I Frame My Diploma?

Question 58

Equitable Remedies –> Equitable Remedies in Contract Cases: Specific Performance - Definite and Certain Contract (Generally)

Answer 58

It must be est’d that there is: an enforceable, definite and certain K between the parties.
—–> The concern is that it has to be definite and certain enough so that the ct can formulate an order instructing the wrongdoer what he or she is to do.

Question 59

Equitable Remedies –> Equitable Remedies in Contract Cases: Specific Performance - Definite and Certain Contract (Three Problems in Land-Sale Ks)

Answer 59

(1) Marketable title
- —-> In every land-sale K, there is: an implied covenant of marketable title, unless the parties expressly state otherwise.
- —-> If a seller seeks specific performance, the seller must be able to show that they have: marketable title that can be conveyed to the buyer.

(2) Time of the essence clause and installment payments; and

(3) An abatement situation.
- —-> This arises when it is determined that for some reason, the land seller is contracting to convey is not quite what was promised in the K.

Question 60

Equitable Remedies –> Equitable Remedies in Contract Cases: Specific Performance - Inadequate Legal Remedy

Answer 60

Same as injunctive relief for the same reasons.

—–> However, the inclusion of a liquidated damages clause does not mean that the legal remedy is inadequate.

Question 61

Equitable Remedies –> Equitable Remedies in Contract Cases: Specific Performance - Feasibility

Answer 61

Same as: injunctive relief.

• —> You cannot specifically enforce a: personal service K.
• —> This is because of the 13A ban on involuntary servitude and supervisory concerns.

P can still: prevent D from working for anybody else in opposition through an action known as enjoining a breach of the negative covenant.

Implied into a personal service K is a: negative covenant that the D will not work for someone else in opposition.

Question 62

Equitable Remedies –> Equitable Remedies in Contract Cases: Specific Performance - Mutuality

Answer 62

At CL, mutuality meant P could only get specific performance against D if D could get specific performance against P.

Today, mutuality is est’d if the party seeking specific performance has either:
(1) already substantially rendered performance; or
(2) can satisfactorily ensure that performance will be
rendered.

Question 63

Equitable Remedies –> Equitable Remedies in Contract Cases: Specific Performance - Defenses

Answer 63

In addition to laches and unclean hands, 2
additional defenses are:
(1) undue hardship; and
—–> If enforcement of the K would: work an undue hardship on the D because of the superior bargaining position of the P, then specific performance will not be ordered.
(2) equitable estoppel.
—–> Under this defense, where the P has: engaged in action or inaction that has cause the D from engaging in action or inaction that is now the subject of the lawsuit, the P may be estopped from asserting equitable rights.