Remedies Flashcards
Unclean Hands
Bars a P’s recovery when P is guilty of unlawful, unethical, or otherwise improper conduct related to lawsuit
Damages for Conversion of Property
1) possession
2) FMV
Constructive Trust
Used to prevent unjust enrichment resulting from wrongful conduct.
1) D wrongfully acquired title to property and 2) would be unjustly enriched if allowed to keep the property
D required to hold property as a trustee and return property to P. P can trace property and entitled to increase. N/A to BPFs
SOF N/A
Preliminary Injunction
Maintains the status quo pending the outcome of an action to prevent irreparable harm to a party
Can only be issued upon 1) notice to adverse party and 2) moving party gives proper security
Moving party must show:
1) likelihood of success on the merits
2) likely threat of irreparable harm
3) balancing of the hardships
4) public interest
5) no adequate legal remedies
People Need Big Lemons & Limes (likely threat, likely success, balancing, public interest, no remedies)
Damages for Fraud
1) actual loss
2) benefit of bargain (what P received — what he fraud led him to believe he’d receive)
Expiration of TRO
Fed Ct = automatically expires after 14 days, but can be extended 1) for good cause, or 2) consent from other party. Adverse party can move for dissolve/modify TRO with 2 days notice
CA ct = preliminary injunction hearing is set if TRO is granted. Hearing must be within 15 days or 22 days w/good cause
Ejectment
Allows recovery of specific real property if
1) D has actual possession
2) D is wrongfully withholding property and
3) P has right of possession
Equitable Lien
D 1) wrongfully acquired title and 2) would be unjustly enriched if allowed to keep property.
Court forces sale & P keeps proceeds. Not available for BFPs
Replevin
Recovery of specific personal property if D is wrongfully withholding it & P has right of possession
Laches
P is barred from recovery because there’s delay between time of breach and when action was filed & D is prejudiced by delay
Damages for Trespass to Chattels
Actual damages, including cost of repair
Permanent Injunction
1) inadequate legal remedies
2) protectable personal/property interest
3) feasibility of enforcement
4) balancing of hardships
5) no valid equitable defenses
I’m Feeling Pretty Bold & Determined
(Inadequate, feasibility, protectable, balancing, defenses)
Mitigation of Damages
P can’t recover damages from breach that could’ve been avoided. Must take reasonable steps to mitigate his losses, otherwise court will reduce total damages by amount that could’ve been avoided
Affirmative steps to avoid loss not required if they involve undue, risk, burden or humiliation
Temporary Restraining Order (TRO)
An emergency remedy to maintain the status quo pending the outcome of a hearing or applicable and is only available when plaintiff will suffer immediate and irreparable harm.
TRO can be issue ex party if:
1) facts clearly showing immediate & irreparable injury
2) certifies efforts made to give notice to adverse party & why notice shouldn’t be required
3) gives security in an amount deemed proper by courts
Free Ed and Gregg!
Punitive Damages
Awarded to punish D
1) P awarded actual damages
2) punitive damages are proportional to actual damages
3) D’s conduct was willful, malicious or egregious (more than negligent)
