Remedies Flashcards
Torts compensatory damages
compensate for P’s harm & typically includes general damages and special damages
General (noneconomic) damages
compensate for physical harm
Special (economic) damage
compensate for out of pocket expenses
Hedonic loss
compensate for loss of enjoyment of life
Emotional distress damages
compensation for IIED or emotional distress that is ancillary to physical harm
Nominal dmgs
Trivial monetary award where harm is slight
Punitive dmgs
Punish D who engaged in serious misconduct w/ improper state of mind (e.g., malice). constitutional limitation of 9:1 ratio (compensatory dmgs to punitive dmgs) & D’s ability to pay
Injunctive relief
Court order directing a person to act or refrain from acting
Temporary Restraining Order (TRO)
Goal is to preserve the status quo pending a preliminary injunction hearing, does not require notice to D or an opportunity to be heard and is limited to 14 days federal (15 days CA).
Elements of TRO
P must demonstrate 1) irreparable harm (no legal remedy), 2) P’s hardship outweighs D’s and 3rd parties (balancing), AND 3) P’s likelihood of success on merits.
Preliminary injunction
Goal is to preserve the status quo pending trial, requires notice to D and D’s opportunity to be heard.
Elements of preliminary injunction
P must demonstrate 1) irreparable harm (no legal remedy), 2) P’s hardship outweighs D’s and 3rd parties (balancing), AND 3) P’s likelihood of success on merits.
Permanent injunction
granted after P has won the case to prevent violation of P’s rights or to restore to P rights that have been violated
Elements of permanent injunction
1) P succeeded on merits, 2) irreparable harm (no legal remedy), AND 3) P’s hardship outweighs D’s and 3rd parties (balancing).
Restitution damages from conscious wrongdoer
P entitled to all D’s gains derived from D’s wrongful taking
Restitution damages from innocent/negligent D
P only entitled for direct benefit derived from use of P’s property
Constructive trust (equitable)
Judicially created remedy that imposes duty to convey specific property to P if D would be unjustly enriched by retaining it
Elements of constructive trust
P must show 1) D holds title to the property, 2) D’s retention would unjustly enrich D, AND 3) money damages inadequate
How is tracing used for constructive trusts or equitable liens
P can trace D’s use of P’s money to purchase of property that P can obtain through constructive trust, UNLESS D transferred title of property to a 3rd party BFP in which case P can only get proceeds of sale to 3rd party BFP
Constructive trust is the better option between it and equitable lien if the property’s value has
Increased, b/c P can obtain a property’s increased value through a constructive trust
Equitable lien
Forced sale of D’s property and P receives money derived from sale
Elements of equitable lien
P must show 1) D holds title to the property, 2) D’s retention would unjustly enrich D, AND 3) money damages inadequate
Equitable lien is the better option between it and constructive trust if the property’s value has
Decreased, b/c P cannot obtain a property’s increased value through an equitable lien
Purchase money resulting trust
When one party purchases property and obtains title, but another party supplies all/some of the consideration, the court imposes resulting trust on the purchasing party who is considered a trustee holding pro rata interest in property for the party that supplied consideration
Replevin
when D takes P’s personal property, P may pursue replevin action to order D to return it and obtain damages for loss of use
Ejectment
P may bring CL ejectment action demonstrating title of land to regain possession of land held by another, and P may recover damages for loss of use & any harm to the land
