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CA Essay Bar Studies > Remedies > Flashcards

Remedies Flashcards

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1
Q

Compensatory Damages

A 
Intended to compensate plaintiff for 
Legally recognized harm or injury
Attempts to place plaintiff in
Same position if had not been 
Harmed by tort or breach of k
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2
Q

Compensatory Damages Harm to Land (Trespass, Injury to Land, Nuisance)

A 
Cost to Repair
Or replace destroyed prop plus 
Any recovery for loss in use
Loss in Value
Diminution in value of prop
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3
Q

Limits on Damages

A 
Causation: but for
Foreseeable: at time of tort or k
Certainty: calculated w/ reasonable certainty
Unavoidable: duty to take reasonable 
Steps to mitigate losses
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4
Q

Nominal Damages

A 
Not suffered harm or loss
Plaintiff may be awarded 
Trivial sum of money
Have effect of declaratory judgment or 
Entitle plaintiff to recover litigation costs
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5
Q

Consequential Damages

A

Reasonably foreseeable damages
Related to tort or breach of k i.e. loss of profit
Use limitations

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6
Q

Punitive Damages

A

Serve to punish defendant
Who engages in serious misconduct
W/ improper state of mind
To deter others from similar conduct

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7
Q

Injunction

A

Court order directing person

To act or to refrain from acting

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8
Q

TRO

A 
For short time, usually 10 days
May be obtained ex parte
W/out notice to defendant
Preserve status quo until
Prelim hearing can be held
Cannot be appealed but not effective 
Until defendant receives notice
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9
Q

Elements of TRO

A 
Emergency
Likely to prevail on merits
Plaintiff will suffer irreparable harm
Balance of hardships
In public interest
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10
Q

Preliminary Injunction

A 
Issued before or during trial that 
Generally effective until 
Final judgment
Cannot be issued unless defendant
Given notice of hearing and 
Opportunity to be heard
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11
Q

Elements of Preliminary Injunction

A

Likely to prevail on merits
Plaintiff will suffer irreparable harm
Balance of hardships
In public interest

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12
Q

Permanent Injunction

A 
Equitable remedy that 
Discretionary by court
Carried out via in personam
Meaning attaches to person
Prohibitory or mandatory
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13
Q

Elements of Permanent Injunction

A 
No adequate remedy at law
Irreparable harm
Balance of hardships
Feasible
Public interest
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14
Q

Defenses of Injunctions

A

Laches

Unclean Hands

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15
Q

Laches Defenses of Injunctions

A

Unreasonable bringing claim and

Prejudice to defendant if allowed

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16
Q

Unclean Hands Defenses of Injunctions

A

Plaintiff engaged in serious misconduct

Directly related to subject matter

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17
Q

Restitution

A 
Disgorge defendant from 
Unjust enrichment when
Derived benefit
Intended to put party in same position 
As if tort or contract never occurred
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18
Q

Quasi-K

A

No legally binding k but
Defendant derived benefit and
Fairness requires payment to plaintiff

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19
Q

Compensatory Damages Harm to Personal Property (Trespass to Chattels, Conversion)

A

Cost to Repair

Loss in Value

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20
Q

Replevin

A

Have plaintiff’s prop returned
May also recover damages for
Loss of use of prop

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21
Q

Elements of Constructive Trust/Equitable Lien

A

Defendant holds title to prop to be subject to trust or lien
Defendant’s retention of prop would unjustly enrich defendant, and
Legal remedies inadequate

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22
Q

Constructive Trust

A 
Court imposes 
Duty to convey specific prop to 
Plaintiff if defendant would be 
Unjustly enriched by retaining prop 
Cannot  seek additional satisfaction of 
Value less than original amount
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23
Q

Equitable Lien

A

Results in forced sale of
Prop and plaintiff can seek additional
Money from defendant to satisfy claim

24
Q

Compensatory Damages Personal Injury (Intentional Torts, Negligence, Strict Liability)

A

Pain & Suffering
Medical Expenses
Lost Wages

25
Q

Compensatory Damages Pain & Suffering

A

Pecuniary loss not required
Must be aware i.e. experience pain
Award of medical expenses does
Not automatically mandate pain & suffering
May recover loss of enjoyment of life and
Emotional distress damages always allowed
As ancillary for injury arising to
Cause of action or action
Intentional and outrageous
Limits may be imposed for negligent conduct

26
Q

Compensatory Damages Medical Expenses

A

Reasonable expenses necessarily
Incurred in treating injury or illness
Suffered as consequence of defendant’s action
Including diagnostic and future expenses
Receiving medical bill not proof of reasonableness

27
Q

Compensatory Damages Lost Wages

A 
Pretrial period from time of tort 
Until trial and any subsequent period
If self-employed measured by 
Profits of business and 
Measurement of earning capacity linked to
Services to business
Future Earnings:
Age, education, employment history, and
Physical condition
28
Q

Compensatory Damages Financial Harm (Intentional Misrepresentation, Negligent Misrepresentation)

A

Loss of Bargain

Out of Pocket

29
Q

Compensatory Damages Loss of Bargain

A

Difference between value of
What promised and market value of
What he received
Also cost of conforming to prop

30
Q

Compensatory Damages Out of Pocket

A

Difference between amount paid and market value of
What he received
CA generally limits amount

31
Q

Reformation

A 
Judicial rewriting of agreement or 
Other document to reflect true intent
Usually stepping stone to claim 
Damages or restitution
Cannot be used if meeting of minds 
Does not exist (i.e. formation)
32
Q

Ways to Get Reformation

A

Mutual Mistake

Unilateral Mistake

33
Q

Reformation Mutual Mistake

A

Writing may be reformed

34
Q

Reformation Unilateral Mistake

A 
Reformation turns on whether 
Other party aware of mistake
If aware and induced mistake or 
Does not attempt to fix it
Mistaken party may seek reform
If unaware of mistake
Reformation not allowed
35
Q

Defenses to Reformation

A

Laches
Unclean Hands
BFP

36
Q

BFP Defense to Reformation

A

Prevent reformation of writing
Judgment creditor or tee in bk
Not protected from reformation

37
Q

Rescission

A 
Invalidate k and restore parties to 
Where they would be had bargain 
Not been entered into
Must be k formation problem such as 
Fraud, duress, mutual or unilateral mistake, or 
Material misrepresentation
38
Q

Defenses to Rescission

A

Laches
Unclean Hands
Promissory Estoppel

39
Q

Compensatory Damages Land Contracts

A

Difference between k price and FMV

40
Q

Punitive Damages K

A

Only for bad faith or malice

41
Q

Specific Performance

A

Form of mandatory injunction that ensures
Enforcement of otherwise valid
Contractual obligations to protect
Expectancy interest of non-breaching party
By requiring breaching party to perform
Under terms of k

42
Q

Elements of Specific Performance

A 
Valid k & terms definite & certain
No adequate remedy at law:
Damages too speculative
Not be able to cover or find replacement
Land 
UCC: unique or other circum

Conditions must be satisfied
Mutuality of performance
Feasibility of enforcement, and
No defenses available

43
Q

Specific Performance Abatement

A 
If doesn’t own all land 
Purported to sell, court may 
Require specific performance but w/ 
Reduction in price for amount of 
Land not owned by seller
44
Q

Defenses to Specific Performance

A

Laches
Unclean Hands
Underlying Defenses

45
Q

Compensatory Damages Personal Property (Goods)

A

Difference between k price and FMV
Buyer Cover
Seller Lost Profits
Seller Action for Price

46
Q

Buyer Cover

A

Difference between k price and substitute goods

47
Q

Seller Lost Profits

A

Costs reasonably incurred and
Due credit for payments or
Proceeds for resale

48
Q

Seller Action for Price

A

Goods were accepted or conforming
Goods were lost or damaged w/in
Commercially reasonable time after
Risk of loss passed to buyer or

Goods were identified to k if
Seller unable to resell at
Reasonable price, and
Buyer fails to pay

49
Q

Incidental Damages

A 
Reliance-type reasonable expenses 
Incurred including such things as 
Charges or expenses for stopping 
Delivery, or in return of goods
Expenses associated w/ cover or resale
50
Q

Compensatory Damages Building (Construction) Contracts

A

Loss of value or cost to complete/fix building defect

Loss of profit

51
Q

Loss of value or cost to complete/fix building defect

A

Diminution in value due to
Defect or cost in fixing defect
Courts careful not to require cost
To fix if economic waste

52
Q

Loss of profit

A

Owner breaches and
Job incomplete, builder
Entitled to k price less any
Cost of completing project

Can be reduced by any materials
Builder may be able to use and
Any payments owner already made

53
Q

Compensatory Damages Employment Contracts

A

Salary or wages under the k

54
Q

Specific Performance Employment Contracts

A

Cannot require employee to work
Under specific performance b/c
Violates 13th amendment indentured servitude

55
Q

Covenant Not to Compete Remedies

A

Must be reasonable in scope, and
Must be no broader than necessary
To protect employer

CA Essay Bar Studies (15 decks)

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