Remedies

Question 1

REMEDIES

Temporary Restraining Order

Answer 1

REMEDIES

Temporary Restraining Order

__________

Emergency court order that requires

1. Inadequate legal remedy
2. Irreparable harm
3. Balancing of hardships
4. Necessary to maintain status quo
   
   • no substantial harm to public
5. Likelihood of success on the merits
6. Immediate harm

__________

A Temporary Restraining Order (TRO) is a short-term, emergency court order designed to prevent irreparable harm and preserve the status quo until a hearing can be held on a preliminary injunction. A TRO may be issued ex parte (without notice) in California, but only upon a showing of specific facts by affidavit or verified complaint demonstrating that immediate and irreparable injury will result before the opposing party can be heard.

__________

A Temporary Restraining Order (TRO) is an extraordinary, short-term remedy available in California courts under Code of Civil Procedure section 527. Its purpose is to preserve the status quo and prevent irreparable harm from occurring before a more formal hearing can be held on a preliminary injunction.

Requirements for Issuance:

• Verified Pleading/Affidavit: The application for a TRO must be supported by a verified complaint or an affidavit (declaration under penalty of perjury) that sets forth specific facts demonstrating the grounds for relief.
• Irreparable Harm: The applicant must show that they will suffer immediate and irreparable injury, loss, or damage before the opposing party can be heard. This means that monetary damages would be inadequate to compensate for the harm.
• Likelihood of Success: While not the primary focus for a TRO, demonstrating a reasonable probability of prevailing on the merits of the underlying claim strengthens the application.
• Notice (Generally): California generally requires that notice be given to the opposing party before a TRO is issued.
• Ex Parte TRO (Without Notice): A TRO may be issued ex parte (without notice) only if the applicant makes a very strong showing, by affidavit or verified complaint, that:
  
  • Great or irreparable injury will result to the applicant before the matter can be heard on notice; and
  • The applicant or their attorney certifies in writing the efforts made to give notice, or the specific reasons why notice should not be required.

Duration: A TRO is a very short-term remedy. In California, it typically lasts no more than 15 days (or 22 days with a showing of good cause). It expires automatically unless extended by the court after a hearing.

Bond: The court usually requires the applicant to post a bond (undertaking) to protect the restrained party from damages if the TRO is later found to have been improperly granted.

Dissolution: The restrained party can move to dissolve or modify the TRO.

Relationship to Preliminary Injunction: A TRO is often the first step in seeking preliminary injunctive relief. The hearing on the preliminary injunction is a more formal proceeding, with a greater opportunity for both sides to present evidence and arguments.

Policy: TROs are powerful tools, but they are granted cautiously because they can impose significant restrictions on a party’s conduct before a full hearing on the merits.

__________

1. Inadequate Legal Remedy
   
   • The court must look at whether money damages are sufficient to compensate the P for their loss. Additionally, the court will consider if the measure of damages is uncertain or difficult to ascertain.
2. Irreparable Harm
   
   • The court must consider whether it is likely/probable that the plaintiff will suffer irreparable harm if the remedy is not granted. A mere possibility of irreparable harm is insufficient.
3. Balancing of Hardships
   
   • The court must balance/weigh the hardships that each party would suffer if the remedy were granted.
4. Necessary to Maintain the Status Quo (no Substantial Harm to the Public)
   
   • When considering public interest the court will assess if granting the TRO will cause harm to the general public. However, the court may also look at whether it is necessary to maintain the status quo (last peaceable uncontested status) between the parties until the underlying claim is adjudicated.
5. Substantial Likelihood of Success on the Merits
   
   • P must show that there is a likelihood they will succeed on the merits of the underlying claim. Court will only review if there is evidence supporting P’s underlying claim but will not fully analyze the issues or defenses.
6. Immediate Harm
   
   • Plaintiff must show that in the absence of a TRO immediate harm will occur.

Question 2

REMEDIES

Preliminary Injunction

Answer 2

REMEDIES

Preliminary Injunction

__________

1. Inadequate Legal Remedy: money damages are not sufficient
2. Irreparable Harm: likely/probable that P will suffer irreparable harm if the remedy is not granted
3. Balancing of Hardships: balance/weigh the hardships that each party would suffer if the remedy were granted
4. Necessary to Maintain the Status Quo (no Substantial Harm to the Public): will not cause harm to the general public and necessary to maintain the status quo until adjudicated
5. Substantial Likelihood of Success on the Merits P must show that there is a likelihood they will succeed on the merits of the underlying claim

__________

• A preliminary injunction is a provisional remedy granted by a court to preserve the status quo pending a trial on the merits.
• To obtain a preliminary injunction, the moving party must demonstrate a likelihood of success on the merits and that they will suffer irreparable harm if the injunction is not granted.

__________

• A preliminary injunction is a provisional, equitable remedy that a court may issue before a full trial on the merits of a case.
• Its purpose is to preserve the status quo pending a final judgment, preventing irreparable harm that might occur during the litigation.

Requirements (Two-Part Test):

• Likelihood of Success on the Merits: P must demonstrate a reasonable probability of prevailing on their underlying claim at trial. This does not require a conclusive showing, but P must present a prima facie case.
• Irreparable Harm/Balance of Hardships: P must show that they will suffer irreparable harm if the injunction is denied – meaning that monetary damages would be inadequate to compensate them. The court must also balance this potential harm to P against the harm D would suffer if the injunction were granted. The greater the showing on one factor, the less must be shown on the other (sliding scale).

Procedure:

• A preliminary injunction is typically sought by noticed motion, with supporting declarations and points and authorities.
• The opposing party has an opportunity to respond and present evidence.
• The court may hold an evidentiary hearing.

Bond: The court will almost always requires P to post a bond (undertaking) to cover potential damages to D if the injunction is later found to have been improperly granted.

Policy: Preliminary injunctions are extraordinary remedies, granted cautiously to prevent irreparable harm. They are not a determination on the merits, but rather a temporary measure to preserve the status quo until a full trial can be held.

__________

1. Inadequate Legal Remedy: The court must look at whether money damages are sufficient to compensate P for their loss. Additionally, the court will consider if the measure of damages is uncertain or difficult to ascertain.
2. Irreparable Harm: The court must consider whether it is likely/probable that P will suffer irreparable harm if the remedy is not granted. A mere possibility of irreparable harm is insufficient.
3. Balancing of Hardships: The court must balance/weigh the hardships that each party would suffer if the remedy were granted.
4. Necessary to Maintain the Status Quo (no Substantial Harm to the Public): When considering public interest, the court will assess if granting the TRO will cause harm to the general public. However, the court may also look at whether it is necessary to maintain the status quo (last peaceable uncontested status) between the parties until the underlying claim is adjudicated
5. Substantial Likelihood of Success on the Merits: P must show that there is a likelihood they will succeed on the merits of the underlying claim. Court will only review if there is evidence supporting P’s underlying claim but will not fully analyze the issues or defenses.

Question 3

REMEDIES

Permanent Injunction

Answer 3

REMEDIES

Permanent Injunction

__________

1. Inadequate Legal Remedy: money damages are not sufficient
2. Irreparable Harm: likely/probable that P will suffer irreparable harm if the remedy is not granted
3. Balancing of Hardships: balance/ weigh the hardships that each party would suffer if the remedy were granted
4. Necessary to Maintain the Status Quo (no Substantial Harm to the Public): will not cause harm to the general public and necessary to maintain the status quo indefinitely

__________

• A permanent injunction is a final equitable remedy granted after a trial on the merits.
• It is a court order that either prohibits a party from engaging in certain conduct (prohibitory injunction) or commands a party to perform a certain act (mandatory injunction).
• To obtain a permanent injunction, P must prove the elements of their underlying cause of action and that legal remedies (monetary damages) are inadequate.

__________

• A permanent injunction is a final, equitable remedy issued by a CA court after a trial on the merits.
• It is a court order that either prohibits a party from engaging in specified conduct (a prohibitory injunction) or compels a party to perform a specified act (a mandatory injunction).
• Mandatory injunctions are viewed more cautiously than prohibitory injunctions.

Requirements for Issuance:

• Success on the Merits: P must prevail on their underlying cause of action (eg, breach of contract, trespass, nuisance, violation of statute).
• Inadequacy of Legal Remedies: P must demonstrate that monetary damages are inadequate to provide a complete and just remedy. This often involves showing:
  
  • Irreparable Harm: The harm is ongoing or threatened and cannot be adequately compensated by money (eg, unique property, environmental damage, ongoing interference with business).
  • Difficulty of Calculating Damages: Damages are speculative or difficult to quantify.
• Balance of Equities (Hardships): The court must balance the hardship to D if the injunction is granted against the hardship to P if it is denied. The injunction will generally be denied if the hardship to D is greatly disproportionate to the benefit to P.
• Public Interest: The court may consider whether granting or denying the injunction would serve the public interest.
• Feasibility: The injunction must be feasible.

Defenses: In addition to challenging the elements above, D may raise equitable defenses, such as:

• Laches: Unreasonable delay by P in bringing the action, causing prejudice to D.
• Unclean Hands: P’s own wrongful conduct related to the matter.
• Estoppel

Policy: Permanent injunctions are powerful remedies designed to prevent future harm, not to punish past conduct. They are granted only when necessary to provide a just and complete remedy, and they must be carefully tailored to address the specific harm without imposing undue burdens.

__________

1. Inadequate Legal Remedy: The court must look at whether money damages are sufficient to compensate P for their loss. Additionally, the court will consider if the measure of damages is uncertain or difficult to ascertain.
2. Irreparable Harm: The court must consider whether it is likely/probable that P will suffer irreparable harm if the remedy is not granted. A mere possibility of irreparable harm is insufficient.
3. Balancing of Hardships: The court must balance/weigh the hardships that each party would suffer if the remedy were granted.
4. Necessary to Maintain the Status Quo (no Substantial Harm to the Public): When considering public interest, the court will assess if granting the TRO will cause harm to the general public. However, the court may also look at whether it is necessary to maintain the status quo (last peaceable uncontested status) between the parties indefinitely.

Question 4

REMEDIES

Constructive Trust

Answer 4

REMEDIES

Constructive Trust

__________

1. D wrongfully acquires P’s property
2. If D keeps the property, they are unjustly enriched
3. Money damages are inadequate
4. The property is specific

__________

• Trust imposed on equitable grounds against one who has obtained property by wrongdoing, thereby preventing the wrongful holder from being unjustly enriched.
• Arises out of operation of law to prevent D from wrongfully benefitting from property, which can be traced to P, of which D has title.
• Used where the property in question can be traced wholly to P.

★ If you raise constructive trust, then also raise equitable lien.

__________

• A constructive trust is not a true trust, but rather an equitable remedy used to prevent unjust enrichment.
• It is imposed by a court when a party has acquired or holds legal title to property through fraud, breach of fiduciary duty, undue influence, mistake, or other wrongful conduct, and it would be inequitable for them to retain the property.

__________

• A constructive trust is an equitable remedy, imposed in invitum (against a person’s will) by a court to prevent unjust enrichment.
• It is not a true trust based on intent, but rather a judicial creation designed to achieve a fair and just result.

Requirements:

1. Wrongful Acquisition or Retention: D must have acquired or be holding legal title to specific, identifiable property through some form of wrongful conduct. Common grounds include:
   
   • Fraud: Misrepresentation or concealment of material facts.
   • Breach of Fiduciary Duty: Violation of a duty of trust and confidence (eg, by an agent, trustee, partner, or confidential relationship).
   • Undue Influence: Improper persuasion that overcomes the will of another.
   • Mistake: A mutual or unilateral mistake that results in unjust enrichment.
   • Duress: Coercion or threats.
   • Violation of a Confidential Relationship: Abuse of a confidential relationship to obtain property.
   • Conversion or Theft: Wrongful taking of property.
2. Unjust Enrichment: D would be unjustly enriched if allowed to retain the property. This means D has received a benefit that, in good conscience, they should not keep.
3. Inadequacy of Legal Remedy: P must show that a legal remedy (typically monetary damages) would be inadequate to fully compensate them. This is often the case when the property is unique.
4. Specific Res: Identifiable property.

Effect: The court declares D constructive trustee of the specific property for the benefit of P. D has a duty to convey legal title to P.

Policy: The constructive trust remedy prevents individuals from profiting from their own wrongdoing and ensures that property rightfully belongs to the person who, in equity and good conscience, is entitled to it.

Limitations: A constructive trust requires a specific, identifiable res (property) to which the trust can attach. It is not a general remedy for any type of wrongdoing.

Question 5

REMEDIES

Equitable Lien

Answer 5

REMEDIES

Equitable Lien

__________

• A right, enforceable only in equity, to have a demand satisfied from a particular fund or specific property, without having possession of the fund or property.
• Equitable liens are granted where the D’s property cannot be traced solely to P’s property (constructive trust can’t be granted). Look for commingling.
• P does not become a beneficial owner of the property even if they are entitled to reimbursement.
• An equitable lien, like other equitable interests, is cut off if the property is transferred to a BFP.
• Causes an immediate sale of the property – to pay P.
• If you raise equitable lien, also raise constructive trust.

__________

An equitable lien is an equitable remedy that creates a security interest in specific property to secure the payment of a debt or the performance of an obligation. It is imposed by a court when fairness and justice require it, even if there is no formal agreement creating a lien.

__________

An equitable lien is a remedy created by courts of equity to prevent unjust enrichment and to achieve fairness in situations where there is no valid legal lien (such as a mortgage or a mechanic’s lien). It is a right, not recognized at law, to have a specific fund or specific property subjected to the payment of a debt or obligation.

Requirements:

• Debt, Duty, or Obligation: There must be an underlying debt, duty, or obligation owed by the defendant to the plaintiff. This can arise from contract, tort, or other circumstances.
• Specific Res: There must be a specific, identifiable fund or property (the res) to which the lien can attach. The lien cannot be imposed on the defendant’s general assets.
• Intent or Unjust Enrichment: The plaintiff must show either:
  
  • An intent, express or implied, that the specific property would serve as security for the debt or obligation. This intent can be inferred from the parties’ agreement and conduct. OR
  • Circumstances where it would be unjust for the defendant to retain the full beneficial interest in the property without satisfying the debt or obligation. This often involves fraud, mistake, breach of fiduciary duty, or other wrongful conduct, but an equitable lien can be imposed even without wrongdoing if justice requires it.
• No Adequate Remedy

Examples:

• A lender advances money for the specific purpose of improving property, but there is no valid mortgage.
• A party makes improvements to another’s property in the mistaken belief that they own it.
• A co-tenant pays more than their share of expenses on jointly owned property.
• A party provides services or materials that enhance the value of property, with the expectation of being paid from the property or its proceeds.

Distinction from Constructive Trust: An equitable lien gives the plaintiff a security interest in the property to secure the debt; it does not give them ownership. A constructive trust, on the other hand, gives the plaintiff equitable ownership of the property.

Policy: Equitable liens are flexible tools used to achieve fairness and prevent unjust enrichment in a variety of situations where a legal remedy would be inadequate.

Question 6

REMEDIES

Ejectment

Answer 6

REMEDIES

Ejectment

Ejectment is a legal action brought by a plaintiff who has the right to immediate possession of real property to recover possession from a defendant who is wrongfully withholding it. The plaintiff must prove their right to possession and the defendant’s wrongful possession.

__________

Ejectment is a legal cause of action, with historical roots in common law, designed to recover possession of real property. It is codified in California’s Code of Civil Procedure.
Elements:
- Plaintiff’s Right to Possession: The plaintiff must have a present legal right to immediate possession of the property. This typically requires showing title (e.g., a deed) or a valid leasehold interest. The right to possession must be superior to the defendant’s.
- Defendant’s Wrongful Possession: The defendant must be in actual possession of the property, and that possession must be wrongful – without legal right or the plaintiff’s consent. This could be a holdover tenant, a trespasser, or someone claiming title under a defective deed.
- Description of Property:
Remedies:
- Judgment for Possession: The primary remedy is a judgment awarding possession of the property to the plaintiff. This is typically enforced by a writ of possession, directing the sheriff to remove the defendant from the property.
- Mesne Profits (Damages): The plaintiff can also recover damages for the defendant’s wrongful withholding of possession. These damages, historically called “mesne profits,” are usually measured by the reasonable rental value of the property for the period of wrongful occupation. The plaintiff may also be able to recover for any waste committed by the defendant.
Related Actions:
- Unlawful Detainer: A summary proceeding specifically for landlords to recover possession from tenants who are in breach of a lease (e.g., for nonpayment of rent). It’s faster and more streamlined than ejectment.
- Quiet Title: An action to establish the plaintiff’s title to real property against adverse claims. It’s used to resolve disputes over ownership, not just possession.
Limitations: Ejectment is a legal remedy, so equitable defenses (laches, unclean hands) are generally not available. However, the defendant can raise any legal defenses that would defeat the plaintiff’s claim of superior right to possession (e.g., a valid lease, adverse possession).

Question 7

REMEDIES

Constructive Trust vs. Equitable Lien

Answer 7

REMEDIES

Constructive Trust vs. Equitable Lien

__________

Constructive Trust

• Definition:
  
  • A constructive trust is an equitable remedy imposed by a court to prevent unjust enrichment. It’s not a formal trust created by an agreement, but rather a legal fiction created by the court.
  • Essentially, the court declares that someone holding legal title to property is obligated to hold it for the benefit of another person, because they acquired it unfairly.
• Examples:
  
  • Fraud: If someone fraudulently induces another person to transfer property to them, a court may impose a constructive trust, requiring the fraudulent party to return the property to the rightful owner.
  • Breach of Fiduciary Duty: If a trustee, lawyer, or other person in a fiduciary relationship uses their position to gain property for themselves, a constructive trust can be imposed.
  • Theft: If someone steals money and uses it to purchase property, a court can impose a constructive trust, making that property held in trust for the victim of the theft.
  • Example case: Someone uses inside information to buy stocks, therefore gaining money unfairly. A court could impose a constructive trust, forcing that person to give those gains to those who were wronged.

__________

Equitable Lien

• Definition:
  
  • An equitable lien is a right to have specific property applied to the payment of a debt. It’s a security interest created by a court of equity, rather than by a formal agreement.
  • It is different from a constructive trust, in that it does not force the transfer of the property, but allows the property to be used to satisfy a debt.
• Examples:
  
  • Improvements to Property: If someone makes improvements to another person’s property under the mistaken belief that they own it, a court may impose an equitable lien to allow them to recover the value of the improvements.
  • Misappropriated Funds: If someone uses misappropriated funds to improve their property, a court can impose an equitable lien on the property to secure repayment of the stolen funds.
  • Example case: A contractor does work on a property, but is not paid. The court could place an equitable lien on the property, allowing the contractor to force a sale of the property to get payment.

__________

• Key Distinction:
  
  • A constructive trust results in the transfer of title to property.
  • An equitable lien creates a security interest in property, allowing it to be used to satisfy a debt.
    In essence:
  • A constructive trust says, “That property isn’t yours; it belongs to someone else.”
  • An equitable lien says, “That property can be used to pay a debt you owe.”
    I hope this helps!