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Cal Bar Review > Remedies > Flashcards

Remedies Flashcards

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1
Q

For a remedies question what’s the first question?

A

Tort, contract, or unjust enrichment?

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2
Q

Categories of tort remedies.

A

-Damages
-Restitution
-Injunction

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3
Q

Types of tort damages.

A

-compensatory
-nominal
-punitive
-interest and attorneys’ fees

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4
Q

standard tort remedy

A

compensatory damages

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5
Q

Elements necessary to establish tort compensatory damages.

A
  1. but for cause
  2. proximate cause
  3. reasonable certainty
  4. could not reasonably have been avoided
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6
Q

Elements necessary to receive tort nominal damages.

A

No actual injury or loss

NOTE: given standing requirement, this is almost impossible in federal court.

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7
Q

What is necessary to receive tort punitive damages.

A
  1. compensatory or nominal damages are appropriate
  2. defendant engaged in willful, wanton, or malicious conduct
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8
Q

When can tort interest and attorney’s fees be awarded?

A

At common law never. Need a statute.

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9
Q

Types of tort restitution.

A

-replevin
-ejectment
-constructive trust
-purchase money resulting trust
-equitable lien

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10
Q

When is tort restitution available?

A

When damages are not or are inadequate

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11
Q

What is replevin?

A

Giving someone back their chattel property.

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12
Q

What is required for a tort constructive trust restitution?

A
  1. P can’t get damages or they’re inadequate
  2. D holds title
  3. Traceable ENTIRELY to the wrong (not just an improvement traceable to the wrong)
  4. D’s retention of the property would constitute unjust enrichment
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13
Q

What is required for tort replevin restitution?

A
  1. Damages unavailable or inadequate
  2. D has the chattel property
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14
Q

What is required for tort ejectment restitution?

A
  1. Damages unavailable or inadequate
  2. D is still on P’s real property
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15
Q

What is a constructive trust remedy?

A

D has wronged P. The court takes the fruit of that wrong and says “ok, I’m putting it in trust for P and D you’re the trustee now, with these conditions.”

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16
Q

What is required for a tort equitable lien?

A
  1. P can’t get damages or they’re inadequate
  2. D holds title
  3. Traceable partially to the wrong (improvements count)
  4. D’s retention of the property (or improvement) would constitute unjust enrichment
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17
Q

When is a tort injunction appropriate?

A
  1. Damages AND restitution are either impossible or inadequate.
  2. Feasible
  3. Harm to plaintiff without > EITHER Harm to defendant with OR Harm to public with
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18
Q

What is the rule of thumb limit on punitive damages?

A

No more than ten times compensatory.

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19
Q

Defenses to tort injunction suits.

A

-Laches
-Unclean hands
-Interference with freedom of speech
-Injunction against criminal prosecution
-Injunction against crime
-Injunction involving political or civil rights

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20
Q

Laches defense elements

A
  1. Tort suit for injunctive or restitution relief OR contract suit for specific performance
  2. Unreasonable delay in bringing suit
  3. Prejudicial to D
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21
Q

Defenses to tort restitution relief.

A

-Laches
-Unclean hands

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22
Q

Laches excuses

A

-concealment, fraud, or inequitable conduct by defendant
-reasonable lack of awareness to facts giving rise to relief

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23
Q

Unclean hands elements

A
  1. P engaged in wrongful conduct
  2. With respect to the transaction or subject matter of the suit they bring
  3. That wrongful conduct injured D
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24
Q

Interference with freedom of speech elements

A
  1. Defamation suit
  2. P has asked for an injunction
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25
Q

Injunction against criminal prosecution elements.

A
  1. P asks court to enjoin a criminal prosecution
  2. No irreparable injury to P’s rights
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26
Q

Injunction against political or civil rights defense.

A

Common law: pure.
Modern trend: not a defense.

27
Q

Torts remedies question think of…

A

-compensatory damages
-punitive damages
-interest and attorneys’ fees

28
Q

Torts remedies question compensatory damages impossible think of…

A

-nominal damages
-punitive damages
-interest and attorney’s fees

29
Q

Torts remedies question damages impossible or inadequate think of…

A

-replevin
-ejectment
-constructive trust
-purchase money resulting trust
-equitable lien

30
Q

Torts remedies question restitution impossible or inadequate think of…

A

injunction

31
Q

Torts restitution damages awarded think of…

A

-laches
-unclean hands

32
Q

Torts injunction think of…

A

-Laches
-Unclean hands
-Interference with freedom of speech
-Injunction against criminal prosecution
-Injunction against crime
-Injunction involving political or civil rights

33
Q

Preliminary injunction elements

A
  1. irreparable injury
  2. Harm to P if not granted > Harm to D if granted
  3. Plaintiff is likely to succeed on the merits
  4. D given notice
  5. D given an opportunity to be heard
34
Q

Ex parte TRO Elements

A
  1. irreparable injury
  2. Harm to P if not granted > Harm to D if granted
  3. Plaintiff is likely to succeed on the merits
  4. Strong showing why notice shouldn’t be required
35
Q

Breach of contract remedy types.

A

Damages

36
Q

Breach of contract remedy types

A

-compensatory damages
-punitive damages
-interest and attorney’s fees
-rescission
-specific performance
-reformation

37
Q

Contract compensatory damages elements.

A
  1. Causation
  2. foreseeable at time of formation
  3. sufficiently certain
  4. couldn’t have been reasonably avoided
38
Q

What is the standard contract damages?

A

First, liquidated.
Second, compensatory (expectation) damages

39
Q

What are the elements of contract punitive damages?

A

Trick question. Not recoverable.

40
Q

What are the elements of contract interest and attorneys’ fees?

A

Not at common law. Must be statutory.

41
Q

When are liquidated damages provisions unenforceable?

A

-compensatory damages less than extremely difficult to ascertain at the time the contract was made
-they were NOT a reasonable forecast, at the time the contract was made, of the compensatory damages

42
Q

Unjust enrichment remedy

A

Restitution

43
Q

What is the measure of unjust enrichment restitution?

A

Put the injured party in the position they were in before the incident.

44
Q

What are the specific performance elements?

A
  1. A contract exists
  2. P has performed or is ready, willing, and able to perform
  3. Monetary damages inadequate (in a real property contract, this is presumed)
  4. Specific performance enforcement is feasible
  5. D has no defenses available
45
Q

Defenses to specific performance

A

-laches
-unclean hands
-hardship

46
Q

Hardship defense elements.

A

WAY ONE = Share Hardship:
1. Contract suit
2. for specific performance
3. P’s consideration for what D owed was inadequate at the time the contract was entered into OR contract so unjust and unreasonable as to shock the conscience
4. Marked inequality
5. Unfair advantage

WAY TWO = Disproportionate Hardship:
1. Contract suit
2. for specific performance
3. specific performance harm to D&raquo_space;»> harm to P of no specific performance OR specific performance harm to public&raquo_space;»> harm to P of no specific performance

47
Q

What is contract rescission?

A

What Baird called restitution in class.

48
Q

When should contract rescission be awarded?

A

Liquidated damages and compensatory should not.

49
Q

Defenses to contract rescission.

A

-laches
-unclean hands
-election of remedies
-choice of substantive rights

50
Q

Election of remedies elements.

A

Plaintiff can’t both seek rescission based on fraud AND damages for tortious fraud.

51
Q

Choice of substantive rights defense to rescission elements.

A
  1. P seeks contract rescission.
  2. P, by words or conduct, affirmed the contract
  3. After learning of the facts giving rise to the rescission possibility
52
Q

When is contract reformation available?

A
  1. Contract suit
  2. Monetary damages inadequate
  3. Contract was in writing
  4. No invalidity defense besides mistakes or fraud applied
53
Q

What is contract reformation?

A

The court changes the contract, for a party who was taken advantage of, to what they thought it was.

54
Q

Defenses to reformation.

A

-Laches
-Sale to bona fide purchaser

55
Q

Elements of sale to bona fide purchaser defense to reformation.

A
  1. the instrument’s subject matter was sold to a purchaser
  2. for value
  3. without notice of the right to reformation
56
Q

Remedies contract question think of…

A

-liquidated damages
-Compensatory (expectation) damages
-punitive damages
-interest and attorneys’ fees

57
Q

Liquidated damages think of…

A

Reasons for unenforceability

58
Q

Compensatory (expectation) damages impossible or inadequate think of…

A

Rescission (restitution)

59
Q

Rescission (restitution) think of…

A

-laches
-unclean hands
-election of remedies
-choice of substantive rights

60
Q

Rescission (restitution) inadequate or impossible think of…

A

-specific performance
-reformation

61
Q

Specific performance think of…

A

-laches
-unclean hands
-hardship

62
Q

Reformation think of…

A

-Laches
-Sale to bona fide purchaser

63
Q

Imminent harm think of…

A

-preliminary injunction
-ex parte TRO

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