Remedies Flashcards
Temporary Restraining Order (Equity)
A temporary restraining order (TRO) is an emergency order imposed to maintain the status quo until a regular, adversary-type hearing may be held on a motion for preliminary injunction. A TRO can be granted ex parte to the nonmoving party if the moving party can make a strong showing as to why notice and an adversarial hearing should not be required. In any case, the moving party must prove that he will suffer irreparable harm before the preliminary injunction can be obtained and a likelihood that he will succeed on the merits of his underlying claim. TROs can last only for 10 days in CA, or 14 days in federal court.
Preliminary Injunction (Equity)
A preliminary injunction is an order that maintains the status who until a trial on the merits can be held. It is imposed after notice and a regular, adversary-type court hearing. A preliminary injunction requires (1) proof of irreparable harm that would occur before trial can be held; (2) balancing of hardships; and (3) a likelihood of success on the merits.
Specific Performance (Equity)
Specific Performance (SP) is a mandatory decree or injunction that orders a contracting party to perform that which she has promised to perform under the contract. The purpose of SP is to give the injured party the benefit of actual performance, rather than its equivalent in money damages. To obtain an order of SP: (1) there must be a valid contract with definite and certain terms; (2) the contract conditions of the plaintiff must be satisfied (or the plaintiff must be ready and able to perform all his conditions); (3) the legal remedy must be inadequate; (4) it must be feasible for the court to enforce the decree; and (5) the defendant must not have any defenses. [“Cha Cha Is my Favorite Dance”]
Unclean Hands (Equitable Defense)
Unclean hands is a defense that arises when the plaintiff is guilty of some misconduct in regard to the same transaction that is the basis of her action against the defendant.
