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CA Bar Exam- Ca Subjects > Remedies > Flashcards

Remedies Flashcards

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1
Q

Rem: What are Tort Remedies, in descending order?

A
  1. Legal Remedy
    - Compensatory (special and general)
    - Nominal
    - Punitive
  2. Restitutionary:
    (a) Legal: (i) restitution, (ii) replevin, (iii) ejectment

(b) Equitable: (i) constructive trusts and equitable liens
3. Equitable Remedies: Injunctive Relief

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2
Q

Rem: What’s nec’y to show for future damages?

A

Damages are more likely than not to occur

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3
Q

Rem: What are specific and general damages?

A
  1. Specific are economic damages that must be shown with sufficient certainty
  2. General are non-economic and flow from the tort
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4
Q

Rem: What is form of judgment in a personal injury action?

A

A single lump sump payment, discounted to present value without taking inflation into account

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5
Q

Rem: in tort, what must you show in order to receive punitive damages

A
  1. Awarded compensatory or nominal damages
  2. D’s fault must be greater than negligence (intentional, reckless disregard, despicable
  3. Punitive damages must be relatively proportionate to actual damages (9x Rule)
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6
Q

What is restitution?

A

Obligates the defendant to pay the plaintiff the reasonable value of a benefit unjustly obtained, this can take the form of an action in quasi-contract.

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7
Q

Rem: what is general theory of restitutionary damages?

A

D should not be unjustly enriched. Thus, they are based on the amount of the benefit to the D - not P’s harm.

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8
Q

Rem: what is definition of replevin? What are requirements?

A

-P recover possession of specific personal property.

  1. P has right to possession
  2. There is a wrongful withholding by D

Always coupled with damages

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9
Q

Rem: In replevin, can P recover chattel before trial?

A
  • P will have to post 100% value bond
  • D can defeat by posting 150% redelivery bond

SHERIFF, not P, recovers property

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10
Q

Rem: what is ejectment? what are requirements?

A

P recovers possession of specific real property

  1. P has a right to possession
  2. wrongful withholding by D

SHERIFF, not P, recovers property

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11
Q

Rem: what are constructive trust and equitable lien?

A

If defendant has wrongfully acquired title to property, legal remedies are inadequate, and defendant will be unjustly enriched, then seek constructive trust or equitable lien.

CT: Use if value of property increase, then D serves as trustee and returns property to P.

EL: Use if value of property decreases or if property cannot be traced entirely to plaintiff’s property, then property subject to immediate court-directed sale with proceeds to the plaintiff (deficiency judgment allowed)

BFP prevails plaintiff, but plaintiff prevails unsecured creditors.

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12
Q

Rem: When is TRO or preliminary injunction proper?

A

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  1. Irreparable injury while waiting for merits
  2. Balancing of Hardships
  3. Plaintiff has a Likelihood of Success (bond requirement)
  4. Notice (TRO- notice is not required if immediate injury will occur or if reasonable effort was made to give notice)
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13
Q

Rem: When is permanent injunctive relief proper?

A

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  1. Legal remedy is Inadequate
  2. Injunction is Feasible (not feasible if act involves application of great skill, if outside of court’s jurisdiction)
  3. Balancing of Hardships (but not if act was intention)
  4. No Defenses
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14
Q

Rem: What are the defenses to permanent injunctions?

A
  1. Unclean hands
  2. Laches (where delay is unreasonable and prejudicial to the D)
  3. Free Speech (defamation)
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15
Q

Rem: Contract Remedies?

A

Legal
Expectancy + incidental + consequential

Restitution
Quasi-Contract

Equitable Relief
Specific Performance
Rescission
Reformation

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16
Q

Rem: What are expectancy damages?

A

attempt to place the non-breaching party in the position they would have been in had the breaching party performed.

damages must be causal, foreseeable, certain, and unavoidable.

17
Q

Rem: What are incidental damages?

A

Reasonable costs resulting from the breach.

18
Q

Rem: What are consequential damages?

A

Damages that are related to the breach and were foreseeable at the time of contract formation.

19
Q

Rem: are liquidated damages permitted in contract?

A

Valid if actual damages are difficult to ascertain and amount stipulated ws a reasonable forecast of actual harm.

20
Q

Rem: When is restitution damages (quasi-contract) proper ?

A
  1. Contract is unenforceable or materially breached
  2. Defendant received a benefit
  3. Plaintiff expected to be paid for that benefit
  4. Unjust enrichment will occur if plaintiff is not paid

traditionally, the breaching party was not entitled to recover,
modernly, recovery by breaching party is allowed but not for anything greater that the contract amount.

21
Q

Rem: When is specific performance proper?

A

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  1. Contract is valid, certain and definite
  2. P must have Satisfied his contract Conditions
  3. Inadequate legal remedy
  4. Feasibility of enforcement (service contracts are not enforceable)
  5. No defenses
22
Q

Rem: What are defenses to specific performance?

A
  1. unclean hands
  2. laches
  3. unconscionability/hardship (if inadequate consideration and onerous terms)
23
Q

Rem: When is rescission proper?

A
  1. No enforceable contract (i.e. no mutual assent, fraud or mistake)
  2. Prompt good faith notice to defendant and tender back anything received under the contract
  3. No defenses (Laches or unclean hands)
24
Q

Rem: What is the election of remedies defense?

A

The legal remedies for fraud and recession of contract based on fraud are inconsistent because one reaffirms the contract and the other seeks to set contract aside.

However, if plaintiff seek to rescind contract first the subsequent suit for legal remedies is not barred.

25
Q

Rem: When is reformation of a contract proper?

A
  1. Valid original contract
  2. Neither party to an agreement is aware that there is a discrepancy between the writing and prior agreement.
  3. No defenses (unclean hands, laches)

CA Bar Exam- Ca Subjects (8 decks)

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