Remedies Flashcards
Master remedies for the California bar exam.
Tort - damages - purpose and types
Purpose: compensate P for injury arising out of tort
Types:
Compensatory/actual
Nominal
Punitive
Tort - damages - compensatory/actual - requirements
- Causation (but for)
- Foreseeability at time of tortious act (proximate causation)
- Certainty (damages cannot be too speculative)
- Unavoidability
Tort - damages - form in personal injury tort
The judgment must be a single lump sum payment that will be discounted to present value without taking inflation into account (except under the modern rule).
Tort - damages - punitive - requirements
- P must have first been awarded compensatory, nominal, or restitutionary damages.
- D’s degree of fault must be greater than negligence
- Punitive damages must be proportionate to actual damages (no more than 10x)
Tort - restitution - legal restitution - types and requirements
- Restitutionary damages
- D must not be unjustly enriched
- Based on the value of the benefit D receives - Replevin and ejectment
- P recovers possession of specific personal property (replevin) or specific real property (ejectment)
- P has a right to possession
- There is a wrongful withholding
Tort - restitution - equitable restitution - types
- Constructive trust
- Imposed on improperly acquired property to which D has title.
- D serves as “trustee” and must return the property to P.
- No deficiency judgment available - Equitable lien
- Imposed on improperly acquired property to which D has title.
- Property will be subject to an immediate court-directed sale; money received goes to P
- Deficiency judgment available
Tort - restitution - equitable restitution - requirements
- Inadequate legal remedy
- Tracing is allowed
- BFPs prevail over P
- P prevails over unsecured creditors
Tort - equitable remedies - temporary/preliminary injunction & TRO - requirements
TRO
Issued pending hearing to determine whether PI should issue; ltd to 10/14 days (st/fed); ex parte hearing OK but should give notice if possible
PI
Issued pending trial on merits; court should impose bond req on P to reimburse D if injunction injures D and P does not succeed at trial
Requirements:
- Irreparable injury
- Time frame for injury key
- Balance against hardship to D - Likelihood of success
Tort - equitable remedies - permanent injunction
I’m Feeling Bold & Determined!
- Inadequate legal remedy
- Feasibility of enforcement
- Only problem with mandatory injunction - Balancing of hardships
- No balancing if D’s conduct willful - Defenses
- Unclean hands, laches, impossibility, free speech
Contract - damages - types
Compensatory/actual
Nominal
Liquidated
Punitive not allowed unless D’s conduct also constitutes fraud
Contract - damages - compensatory/actual - requirements and types
Requirements
- Causation
- Foreseeability at time of contract formation
- Certainty
- Mitigation
Types
- Direct damages: damages that flow inherently from the wrong
- Consequential damages: available for related damages (i.e., indirectly caused by breach) foreseeable at the time of formation
Contract - damages - liquidated - requirements and validity
Requirements
- Damages were very difficult to ascertain at time of K
- Amount provided for is a reasonable forecast and not a penalty
Validity
- If liquidated damages clause is valid: only liquidated amount is available.
- If liquidated damages clause is invalid: only actual damages are available.
- If clause provides that one can get either actual damages or liquidated damages: only actual damages are available.
Contract - restitution - legal restitution
- Restitutionary damages
- Benefits unjustly retained by D when K is void or unenforceable or when P chooses not to sue on K, permitting recovery in quasi-K or quantum meruit
- Breaching party may sometimes recover in restitution even though has breached; recovery cannot be greater than K rate and is reduced by any damages suffered by D as a result of breach
Contract - restitution - equitable restitution - types and requirements
Type: Specific performance
Requirements: Cha Cha Is Fairly Difficult!
- Contract is valid/certain and definite
- Conditions of contract satisfied by P
- Inadequate regal remedy alternative
- Speculative damages, insolvent D, multiple suits, object of K is unique - Feasibility of enforcement
- Personal services; non-competes - Defenses
- Equitable: unclean hands, laches, unconscionability
- Legal/K: mistake, misrep, SOF
Contract - equitable remedies - types and definitions
- Rescission
- K is void or voidable, and deal is called off - Reformation
- K is valid and enforceable, but written form of K is wrong; K is rewritten correctly and then enforced
