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CA Bar - Checklists > Remedies > Flashcards

Remedies Flashcards

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1
Q

Remedies - Torts Checklist

A
  1. Damages
  2. Legal Restitution
  3. Equitable Restitution
  4. Injunction (equity)
  5. Defenses
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2
Q

Tort Damages

A
  1. Compensatory
    - — Causal
    - — Foreseeable
    - — Certain
    - — Unavoidable
  2. Nominal
  3. Punitive
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3
Q

Tort Legal Restitution

A
  1. Money
  2. Replevin (chattel)
  3. Ejectment (real property)
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4
Q

Tort Equitable Restitution

A
  1. Constructive Trust

2. Equitable Lien

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5
Q

Tort Injunction (Equity)

A
  1. TRO
  2. Preliminary Injunction
  3. Permanent Injunction
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6
Q

Contracts Remedies Checklist

A
  1. Damages
  2. Legal Restitution
  3. Equitable Remedies
  4. Injunction (equity)
  5. Defenses (equitable)
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7
Q

Equitable Defenses

A
  1. Laches

2. Unclean Hands

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8
Q

Contract Damages

A
  1. Expectation
  2. Consequential
  3. Incidental
  4. Reliance
  5. Liquidated
  6. Nominal
  7. No punitives
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9
Q

Contract Legal Restitution

A
  1. Money (quasi-contract)
  2. Replevin (chattel)
  3. Ejectment (real property)
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10
Q

Contract Injunction (Equity)

A
  1. TRO
  2. Preliminary Injunction
  3. Specific Performance
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11
Q

Tort Legal Damages - Compensatory

A
  1. General (all Ps - natural result)
  2. Special (this P - unique to each specific P)
  3. Past & Future
  • Compensatory limitation:
  • — Causal: but for causation
  • — Foreseeable: at the time of the tortious act
  • — Certain: capable of being calculated
  • — Unavoidable: P has a duty to take reasonable steps to mitigate
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12
Q

Tort Legal Damages - Compensatory

A
  1. General (all Ps)
  2. Special (this P)
  3. Past & Future
  • Compensatory limitation:
  • — Causal
  • — Foreseeable
  • — Certain
  • — Unavoidable
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13
Q

Torts - Equitable Restitution:

Constructive Trust

A

Legal fiction created by a court to compel D to convey title to unjustly retained specific prop to P. Elements:

  1. Wrongful Act
  2. Legal Title to Convey
  3. Inadequate Legal Remedy
  4. Property can be traced
    - — P gets benefit of value increase
    - — Property must be solely traceable
    - — Lowest intermediate balance rule
  5. 3d Party Priority
    - — BFP over P
    - — P over unsecured creditors
  6. No deficiency judgment
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14
Q

Torts - Equitable Restitution:

Inadequate Legal Remedy

A
  1. Damages too speculative
  2. Insolvent D
  3. Replevin not available
  4. Property is unique
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15
Q

Torts - Equitable Restitution:

Equitable Lien

A
  1. Wrongful Act
  2. Legal title for security interest
  3. Inadequate Legal Remedy
  4. Property can be traced
    - — OK if not solely traceable
    - — Lowest intermediate balance rule
  5. 3d Party Priority
  6. No deficiency judgment
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16
Q

TROs and Preliminary Injunctions

A

Irish Lads Inhale Beer in Dublin

  1. Irreparable Harm
  2. Likelihood success on merits
  3. Inadequate legal remedy
  4. Balancing of hardships if granted v. denied
  5. No defenses
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17
Q

Permanent Injunctions

A

I Pray For Big Desserts

  1. Inadequate Legal Remedy
  2. Property interest (not required in CA and modernly invasions of personal rights can support an injunction)
  3. Feasibility of enforcing (negative injunction easier to enforce b/c ct can order contempt for noncompliance)
  4. Balancing of hardships
  5. No defenses
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18
Q

Tort - Injunction (Equity):

Permanent Injunction - Inadequate Legal Remedy

A
  1. Damages too speculative
  2. Inadequate b/c health/safety issues
  3. Insolvent D
  4. Replevin, ejectment unavailable
  5. Multiplicity of suits
  6. Prospective Tort
  7. Property is unique
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19
Q

Contract Damages:

Expectation Damages Limitations

A
  1. Causation
  2. Foreseeable
  3. Certainty
  4. Unavoidable
  5. Liquidated Clause Controls
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20
Q

Liquidated Damages

A

Stipulated to in a contract - controls a damages award when:

  1. Difficult to Calculate
  2. Reasonable Relationship
21
Q

Contract - Injunction (Equity):

Specific Performance

A

Chocolate Cheesecake Is My Favorite Dessert

  1. Contract is valid
  2. Contract conditions satisfied
  3. Inadequate legal remedy
  4. Mutuality of performance
  5. Feasibility of enforcement
  6. No defenses
22
Q

Legal remedy/remedy at law

A
  • Money damages to compensate a P for a loss to make them “whole”
  • Preferred remedy by the courts
23
Q

Restitution remedies

A

Prevent the unjust enrichment of the D - can be legal or equitable

24
Q

Punitive Damages

A

Awarded where the D has displayed willful, wanton, or malicious tortious conduct. Awarded ONLY IF:

  1. Actual damages are awarded; and
  2. Culpability of D is grater than negligence; and
  3. They are relatively proportionate to actual damages.
25
Q

Goal of equitable restitution

A

Prevent unjust enrichment

26
Q

Lowest intermediate balance rule

A

applies to commingled funds

27
Q

Lowest intermediate balance rule:

Investor fiction

A

Presumes a D invests his own money first, so any investments are deemed to come from the wrongdoer’s own funds first, with any balance coming from the wrongfully obtained funds after his own funds are exhausted.

28
Q

Lowest intermediate balance rule:

Spender fiction

A

Presumes a D spends his own money first, so any purchases are deemed to come from the wrongdoer’s own funds first, with any balance coming from the wrongfully obtained funds after his own funds are exhausted.

29
Q

Lowest intermediate balance rule:

Once traced proceeds are withdrawn, they are gone.

A

If the wrongfully obtained funds can’t be traced to a new piece of property, the funds are gone and the P cannot get a constructive trust.

30
Q

When is a constructive trust better than an equitable lien?

A

When the value of the wrongfully acquired property goes up (because P will receive the benefit of the increase in value to prevent D’s unjust enrichment).

31
Q

When is an equitable lien better than a constructive trust?

A

When the value of the wrongfully acquired property goes down (because P can still get a deficiency judgment for the difference), or when property can’t be solely traced to its current form.

32
Q

Balancing of Hardships for Injunctions

A
  • Ct will weigh hardship to the P if denied against hardship to the D if granted.
  • Large disparity in hardships weighs in favor of the more severely impacted party
  • Willful misconduct weighs very heavily against the wrongdoer
  • Public interest
33
Q

When do you analyze laches?

A

whenever a time delay is stated in the facts

34
Q

When do you analyze unclean hands?

A

whenever one party expressed any idea/wish/desire to the other party that was later ignored

35
Q

TRO v. Prelim Injunction

A

Prelim Injunction:

  • more difficult to get
  • key is preventing irreparable harm during waiting time for the full trial on merits

TRO:
- prevent irreparable harm during waiting time for a prelim injunction hearing

36
Q

Other names for TRO and Prelim Injunction

A

interlocutory orders or provisional remedies

37
Q

Consequential Damages

A

seek to compensate for damages that are a direct and foreseeable consequence of the contract not being performed and are found in addition to expectation damages

38
Q

Expectation damages

A

aka compensatory damages - compensate P for the value of the benefit P expected to receive from the contract

39
Q

Incidental damages

A

costs reasonably incurred when the other party is in breach, such as by a seller in reselling goods incurring storage and shipping costs

40
Q

Reliance damages

A

seek to put the P in the same position he would’ve been in had the contract never been made - can be awarded in place of expectation damages

41
Q

Quasi-contract

A

Appropriate where D has derived a benefit, or been unjustly enriched, and it would be unfair to allow the D to keep the benefit without compensating the P, or where the P wants his property back.

42
Q

3 Ways Quasi-Contracts Arise

A
  1. No attempt to contract
  2. Unenforceable contract
  3. Breached contract:
    - — P is nonbreacher: P can recover the value of the benefit conferred or get his prop back
    - — P is in breach: traditional maj rule provides for no recover, but the modern trend allows for recovery with limits.
43
Q

Rescission

A

Equitable remedy that permits a party to invalidate a contract and restores the parties to the position each would have been if the bargain had not been entered into.

No meeting of the minds (formation problem resulting from fraud, duress, mutual mistake, unilateral mistake, or a material misrepresentation).

Typically only available to the wronged party.

44
Q

Reformation

A

Equitable remedy that permits a contract to be rewritten by the court to reflect the parties true agreement when:

  1. the parties had a meeting of the minds, and
  2. contract as written doesn’t reflect the parties’ agreement because of an error (fraud, mutual mistake, mutual mistake, or a material misrepresentation).

Typically only available to the wronged party.

45
Q

Multiplicity of Suits

A

An ongoing wrong would lead to a multiplicity of suits by the same litigants over the same issue of not resolved by injunction.

46
Q

Encroachments

A

Trespasses where a D’s structure invades the P’s prop. With an encroachment, a P is entitled to damages, ejectment, and injunction.

47
Q

Remedy for Voluntary Waste

A

damages for the diminution of value or the cost of repair, and/or injunction

48
Q

Remedy for Permissive Waste

A

damages for the cost of repair

49
Q

Remedy for Ameliorative Waste

A

no damages because there is no loss in value, but an injunction may be granted

CA Bar - Checklists (13 decks)

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