Kaplan Pgs 456-496

Question 1

What are the two different types of compensatory damages?

Answer 1

General and special

Question 2

When do general and special damages come up?

Answer 2

Under compensatory damages

Question 3

Can nominal damages be a sufficient basis for an award of punitive damages?

Answer 3

Yes

Question 4

What is the other name for punitive damages?

Answer 4

Exemplary damages

Question 5

Are plaintiffs entitled to punitive damages?

Answer 5

No, but a jury can award punitive damages at its discretion

Question 6

Because Juries can sometimes make awards that are reversed overturned if they are excessive, what is the rule for a jury reward of punitive damages?

Answer 6

Dash due process says that punitive damages must not be grossly excessive in these areas:
– the degree of reprehensibility of the conduct: intentional malicious or with reckless disregard, connecters repeated or isolated, the harm caused the plaintiff was economic or non-economic
– ratio between the plaintiffs compensatory damages and the punitive amount: should not exceed 10 times the compensatory award
– difference between the punitive award and the civil or criminal sanctions that could be imposed for similar misconduct

Question 7

What is involved in the English rule and the American rule with regard to a seller breaching a contract to sell real property question

Answer 7

– English rule: the buyer can only get his reliance interest, which is a reimbursement of any payments that he already paid such as a down payment, or expenses with regard to inspecting the property, examining title, or preparing to perform
– American rule: the buyer recovers his expectancy interest in the contract, which is the difference between the contract price and the fair market value

Question 8

What is the difference between attachment and garnishment?

Answer 8

• attachment: attaches to any real or tangible property that is in the possession of the judgement debtor
  – garnishment: reaches property held by a third-party that is payable to the judgement debtor, like wages or bank account

Question 9

How does restitution sometimes result in a windfall?

Answer 9

Because the defendant has to return any benefits he unjustly held, and sometimes that means that when he holds at the end is more than what he took from the plaintive

Question 10

If you want to get replevin of your property, what do you have to apply to the court for?

Answer 10

A writ of possession to take possession of the property before trial

Question 11

Replevin only applies to what?

Answer 11

Tangible personal property. It is not available for to recover real property or in tangible personal property

Question 12

What are the three things that you must show in order to get ejectment?

Answer 12

– Proof of legal title
– proof of the plaintiffs right to possession
– wrongful possession by the defendant

Question 13

If a defendant mistakenly trespasses on or takes possession of the plaintiffs property and makes improvements on it, under common law and California law is the plaintive entitled to recover the property without having to compensate the defendant for the improvements?

Answer 13

Dash Camila: yes he has no need to compensate
– California: if it was a good faith improver, the improver can set off the value of improvements against a claim for damages based on his unlawful possession of the property

Question 14

What are the requirements for a constructive trust?

Answer 14

– The defendant holds legal title to specific property that rightfully belongs to the claimant
– a confidential or fiduciary duty was breached
– the retention of the property would result in unjust enrichment

Question 15

What are the most common grounds for a rescission?

Answer 15

• misrepresentation

- mistake

Question 16

What is required for misrepresentation to apply?

Answer 16

Plaintiff must show that the misrepresentation was material and that he reasonably relied on it

Question 17

If a plaintiff contracts to purchase an engagement ring for his girlfriend, and he picks out a diamond from the jeweller who tells him [believing it is true] that the diamond weighs two carats and is internally flawless, and after the contract is signed before the plaintiff picks up the ring, the jeweller discovers that it is actually cubic zirconia, what should he do?

Answer 17

Rescission is appropriate because the misrepresentation happened that the stone was a diamond and that was material and the plaintiff relied on it

Question 18

What is necessary for rescission to be granted for a mutual mistake?

Answer 18

The mistake must go to the very essence of the contract

Question 19

Courts are usually reluctant to grant rescission for one party’s unilateral mistake, but in what situation will they grant it?

Answer 19

If the mistake is basic and the mistaken party will suffer extreme hardship by enforcement of the contract, or if the other party knew of the mistake and proceeded anyway

Question 20

What is an example of a unilateral mistake that would warrant rescission?

Answer 20

If the plaintiff is bidding on a contract and makes a miscalculation when composing his bid so that it would be unreasonable hardship to force him to perform under the bid price

Question 21

Injunction or not granted as a matter of right, but instead they require what?

Answer 21

A balancing of equity is between the parties and the consideration of the public interest

Question 22

What does the balancing of equities require for a court to figure out if they will issue an injunction?

Answer 22

They balance the inadequacy of the legal remedy to the plaintiff against the burden on the defendant of complying with the equitable relief. If the burden on the defendant of granting the relief outweighs the benefit to the plaintiff of granting the relief, then the court may deny the equitable relief

Question 23

What is the most common form of equitable remedy?

Answer 23

The injunction

Question 24

What is a mandatory injunction and what is required to get one?

Answer 24

An issue to do a particular act. Request for these are subject to heightened scrutiny and there must be a showing that the facts and law clearly favour the moving party

Question 25

What is an example of a mandatory injunction?

Answer 25

If a 30-year-old male brings an action against an all women’s health club to allow him to take aerobics classes there, and the court requires the club to admit him

Question 26

What are the things a plaintiff must show in order to get an injunction?

Answer 26

• that he is about to suffer or will continue to suffer an irreparable injury that money damages are not adequate to fix
  – a balance of the hardships between the two parties supports an equitable remedy
  – the public interest would not be dis-served by the injunction

Question 27

How long can a TRO last?

Answer 27

Anywhere from 15 to 21 days, or 25 days if the court extends the time for a hearing

Question 28

If an ex parte TRO is issued, when must notice be given to the other party?

Answer 28

The party who got the TRO must serve notice on the opposing party up to five days from the date of the order, or two days prior to the hearing

Question 29

What are two situations that you do not need a bond in a TRO or a preliminary injunction?

Answer 29

• for injunctions by one spouse against the other that are asking for separation or divorce
• an applicant seeking protection from an alleged perpetrator of domestic violence
• the government is the party that is seeking interlocutory relief

Question 30

How long does a permanent injunction last question

Answer 30

It continues until it is dissolved or expires on its own terms

Question 31

How do you enforce an injunction?

Answer 31

Through the power of contempt

Question 32

What are the two different contempt powers?

Answer 32

– Civil contempt

– criminal contempt

Question 33

What is civil contempt and what are the two different types of civil contempt?

Answer 33

This is tailored to achieve its desired aim and it should not be punitive or disproportionate to the harm that compliance with the order would avoid. The two types are compensatory contempt and punitive contempt

Question 34

What is the type of civil contempt that is called compensatory contempt?

Answer 34

This compensates the plaintiff for any losses that were caused by the defendant’s disobedience of the court order

Question 35

What is punitive contempt as a subcategory of civil contempt?

Answer 35

This insurance compliance of the order by the defendant and it is meant to coerce compliance. Once compliance with the injunction has been achieved, the sanction is lifted

Question 36

What is criminal contempt?

Answer 36

This is a crime against the dignity and authority of the court, so it is punishable by a fixed sentence. Ie: Susan McDougal spent 18 months in prison for refusing to testify in the special prosecutor’s investigation of President Clinton’s activities. She was charged with criminal contempt and obstruction of justice

Question 37

When can criminal contempt be appealed and when can civil contempt be appealed?

Answer 37

– Criminal: immediately appealable

– civil: appealed at the same time as the underlying order

Question 38

Do criminal and civil contempt survive as a separate offense without regard to the success of the underlying action?

Answer 38

• criminal: yes

– civil: no, whether it survives or not depends on the ultimate success on the merits of the underlying case

Question 39

What are examples of contracts that specific performance is typically available for?

Answer 39

Dash land sale contracts
– noncompetition agreement
– the sale of rare or irreplaceable chattel
– the sale of goods
– the sale of closely held corporate stock
– contracts to insure or indemnify when there has been difficulty getting other insurance
– contracts for which damages are conjectural

Question 40

How does California view noncompetition agreement?

Answer 40

Generally frowns on them because it doesn’t like to restrict a person from engaging in a lawful business. So these kind of covenants are usually void, with the exception of the following:
– if they were entered into in connection with the sale of the goodwill of a business, and
– when a partnership is dissolved or a partner disassociate from a partnership

Question 41

What is the theory behind reformation?

Answer 41

There was a valid agreement between the parties, but the writing fails to conform to that understanding

Question 42

What is a good defence to reformation?

Answer 42

SOF: if the written agreement fails to comply with any of the requirements of the SOF, it cannot be reformed

Question 43

If a seller orally contracts with a buyer to buy a car for $750, but when it was written down it accidentally said $75, what would happen?

Answer 43

The statute of frauds would usually bar this from being reformed, but if the seller delivered the car to the buyer and the buyer tendered a check for $750, then the contract can be reformed because of full performance

Question 44

What is partition?

Answer 44

• sometimes the court will use this as a remedy by dividing real or personal property that is subject to joint or multiple interests.
• or the court can order that the property be sold and that the proceeds be divided among the parties according to their interests in the property if the parties agree to this relief or the court finds that a sale is more equitable than division of the property

Question 45

What is subrogation?

Answer 45

This happens when one party discharges an obligation for which another party is primarily liable and which the latter ought to pay

Question 46

Can equitable estoppel be applied against a government body?

Answer 46

Yes, where justice and right require it, but it is not applicable where it would nullify a strong rule of public policy adopted for the benefit of the public