Remedies Flashcards
Tort Remedies - Legal Remedies
Compensatory (give larger vs restitutionary), Punitive, Nominal
Compensatory Damages
injury to Π: What Π would be entitled to had the injury not occurred.
Requires CFCU California Fresno California U
1. Causation: actual causation (“but for” test)
- Foreseeability: proximate causation (injury was foreseeable at time of tortuous act)
- Certainty: damages cannot be too speculative
a. For future damages, show they are more likely than not
b. Historical record helps (e.g., in business for 3 years vs. 3 days)
c. If general (non-economic) damages pleaded, certainty element is inapplicable
i. Compensate for foreseeable loss. Jury may award any amount
d. Voluntary waste = diminution in value of the property or the cost of repairs
e. Permissive waste = cost of repairs - Unavoidability: Π must have taken reasonable steps to mitigate damages
Punitive
Awarded to punish for willful or wanton misconduct (intentional torts) or reckless misconduct
Nominal
Awarded when Π is slightly or not injured. Establish or vindicate Π’s rights
Restitutionary Remedies
(prevent unjust enrichment retained by Δ) – give larger of compensatory/ Restitutionary
i. Not available against bona fide purchasers (paid full value + no notice of wrongdoing)
ii. Restitutionary damages = value of benefit to Δ that Δ did not pay for = amount required to prevent unjust enrichment (UE)
Legal Restitutionary Remedies
Replevin OR Ejectment: Recover possession of personal OR real property wrongfully withheld
1. Couple with compensatory or restitutionary damages for Π’s lost use or benefit to Δ
2. Replevin: Π can recover personal chattel before trial by posting a bond (Δ can redeliver bond)
3. Ejectment: Can eject adverse possessor or holdover tenant from land
Equitable Restitutionary Remedies
Imposed on improperly acquired property has title to
1. Use when: Inadequate legal remedy (insolvent Δ, unique property)
a. If value of property goes up, recommend CT; if value goes down, recommend EL
2. Tracing allowed: Π can follow the property to whatever form it takes
a. Where funds comingled, can get CT/EL to extent of lowest intermediate balance
Constructive Trusts vs Equitable Lien
Constructive Trust
Better if property has gained value
Get title back. Δ serves as trustee, returns property to Π
a. May impose CT on bank account if insolvent
Equitable Lien
Better if property has lost value
Get security interest. Property subject to court-ordered sale, $ goes to Π
a. Regardless of whether misappropriated funds were used to acquire different property
b. If proceeds < FMV of property @ time taken, can seek deficiency judgment v. Δ
Tort Equitable Remedies (Injunctive Relief)
Δ is ordered to do or refrain from doing something
Temporary Restraining Order
I Be Pulling Ladies
may be issued pending temporary injunction hearing. Requires IBPL:
1. Irreparable injury: Π will incur irreparable injury while waiting for temporary injunction (tighter timeframe for TRO vs. temporary injunction—is there immediate, irreparable harm?)
a. Balancing of interests favors Π: Π’s irreparable injury vs. Δ’s hardship
b. Public interest favors granting
2. Likelihood of success on the merits: Probability > 50% Π will prevail
3. Can be ex parte, i.e., issued by a judge before a hearing
4. Duration: Usually 10 days. 14 days in federal courts
Temporary Injunction
may be issued pending trial on the merits maintain status quo. Same IBPL as above
1. Duration: Until completion of judicial proceeding (conclusion of full trial)
Permanent Injunction
(PI) may be sought after a trial on the merits IPFBD; Ich Prost Fun Beer Drinking
1. Inadequate legal remedy: Factors: $ damages inadequate or too speculative, injury irreparable (insolvent Δ, land interest, unique property), unable to recover or act (replevin or ejectment ineffective), continuous wrongful behavior by Δ or multiple ongoing suits needed to recover dmgs
- Protectable property right: Modernly, any protectable interest (including intangible)
- Feasibility of enforcement: Decree may be mandatory/affirmative (“Δ must do X”) or negative (“Δ cannot do X”). PI is disfavored if difficult for court to supervise or ensure compliance:
a. Involves great taste, skill, judgment, or requires a series of acts
b. Requires out-of-state acts by nonresident Δ (harder to monitor if no personal jurisdiction) - Balancing of hardships: PI disfavored if disparity where benefit to Π < hardship to Δ (or public)
a. No balancing if Δ’s conduct was willful - Defenses (for all equitable remedies)? unclean hands related to present case and Δ, laches (unreasonable delay before statute of limitations (SOL) that results in prejudice to Δ), undue hardship, equitable estoppel, free speech (v. defamation, privacy, 1st Amendment case), injunction sought against Δ’s crime (EXCEPT if crime is also public nuisance)
- Duration: As long as necessary
iv. Who is bound? Δ, employees or agents acting w/ notice, others acting in concert on notice
Contract Legal Remedies (types of compensatory damages)
i. Expectation/Actual: causation, foreseeability, certainty, unavoidability (duty to mitigate) (see above)
1. If UCC, damages = K price – cover/resale price
ii. Reliance: Expenditures made in reliance of K (especially if expectation damages are speculative)
iii. Consequential: Damages a reas. person would have foreseen from a breach of K (e.g., lost profits)
iv. Incidental: Costs incurred reas. incidental to a breach (e.g., inspection, appraisal, storage, shipping)
v. Liquidated: Valid liquidated damages (LD) clause if damages are difficult to ascertain at formation + LD clause is a reasonable forecast of damages
1. If valid, only LD amount available. If invalid, only actual damages available. If LD clause allows actual or liquidated damages, invalid → Π gets actual damages
vi. Nominal: Allowed but not favored (can seek more damages in K case) Punitive: Not available in K actions
Contract Restitutionary Remedies
(where unjust enrichment retained by Δ, fraud, K fails after partial/complete performance)
i. Restitutionary damages = value of benefit rendered, even if Δ never uses it or even if value > K price
ii. Choices for land-sale K (LSK) if property is unique or Δ is insolvent:
1. Pick appropriately based on facts: ejectment, constructive trust, equitable lien (see § I-b)
iii. UCC: Buyer right of replevin for goods ID’d in K if after reas. effort, unable to effect cover (insufficient $)
iv. Quasi-K: Court may create a quasi-K where there is UE but no enforceable K, such as emergency services, or where there is a mistake, fraud, or misrepresentation. It seeks to have Δ repay value rendered by Π