Torts Remedies

Question 1

Legal Damages

Answer 1

Damages are a legal remedy awarded to make a plaintiff whole. There are various measures of damages available as a remedy for tort.

Question 2

Compensatory Damages

Answer 2

are awarded to compensate the plaintiff for injury or loss.

Question 3

Potential issues which may limit compensatory damages:

Answer 3

1. Causation- Damages must be caused by tortious act. This is actual “but-for” causation.
2. Foreseeability- Damages must be foreseeable by a reasonable person at the time of the tort
3. Certainty- must be capable of being calculated and not overly speculative
4. Unavoidable- P has duty to mitigate losses. The avoidable consequences doctrine limits damages to those that could not reasonably been avoided.

Question 4

Types of damages in tort:

Answer 4

1. General damages- noneconomic losses directly attributed to the tort that all the plaintiffs would have because they flow as a natural result of the tort (e.g. pain and suffering)
2. Special damages- economic losses directly attributable to the tort that some plaintiffs may have and are unique to each specific plaintiff. (e.g., medical bills)

Question 5

Pure economic loss

Answer 5

is not recoverable for most torts, absent a showing of property loss or personal injury
Except: Intentional interference with business relations does allow for pure economic loss recovery

Question 6

Nominal damages

Answer 6

are awarded where the plaintiff’s rights have been violated but the plaintiff suffered no loss.

Question 7

Punitive damages

Answer 7

will be found where the defendant has displayed a willful and wanton tortious misconduct. Punitive damages are only awarded if:

a. Damage award; and
b. Culpability of defendant is greater than negligence; and
c. Relative proportionality to actual damages (typically a multiplier normally max of ten times actual damages)

Question 8

Legal Restitution

Answer 8

is appropriate where the defendant has derived a benefit, or been unjustly enriched, and it would be unfair to allow the defendant to keep the benefit without compensating the plaintiff, or where the plaintiff wants his property back. The goal of restitution is to prevent unjust enrichment.

Question 9

Money restitution

Answer 9

is a legal remedy where the plaintiff is awarded the monetary value of the benefit received by the defendant.

Question 10

Replevin

Answer 10

allows the recovery, before trial, of a specific chattel wrongfully taken.

Question 11

Ejectment

Answer 11

is used to recover specific real property from which the plaintiff was wrongfully excluded.

Question 12

Equitable restitution

Answer 12

is only available when the remedy at law, money damages is inadequate. The goal of any equitable remedy is to prevent unjust enrichment.

Question 13

Constructive trust

Answer 13

restores property to the plaintiff that has been wrongfully acquired by the defendant. A constructive trust, fictitiously imposed by the court, compels the defendant to transfer title to unjustly retained property. The sole obligation of the constructive trustee defendant is to transfer property back to the plaintiff.

Question 14

Elements of a constructive trust

Answer 14

1. Wrongful act had led to the detention of property from its rightful owner.
2. Legal title to convey: mere possession is not enough
3. Inadequate legal remedy: money damages must be inadequate
4. Property can be traced
5. Priority of plaintiff over third parties with an interest

Question 15

Reasons why legal remedies are inadequate for creation of constructive trust/equitable lien

Answer 15

1. Money damages are too speculative to calculate with certainty.
2. Insolvent defendant such that any damages award is worthless
3. Replevin is unavailable because the property has been sold and thus can’t be ordered returned to plaintiff
4. Property is unique so money damages are inadequate to compensate for the loss of the property.
   a. Real property is always unique.
   b. Personal property is not unique, except if it is one-of-a-kind or very rare, or if the item has special personal significance to the plaintiff.

Question 16

Property can be traced

Answer 16

A constructive trust can apply specific property acquired by wrongdoer that is traceable to the wrongful behavior. If the improperly retained property is sold or exchanged for new property, the rightful owner can “trace” and obtain a constructive trust for the new property.

Question 17

Rules for tracing Constructive trust

Answer 17

1. Plaintiff receives the benefit of any increase in property value.
2. Property must be solely traceable to current form.
3. Lowest intermediate balance rule applies to commingled funds

Question 18

Rules for 3rd Parties and Tracing

Answer 18

1. Bona fide purchasers with legal title prevails over plaintiff (A BFP took for value without notice of the facts giving rise to the potential constructive trust)
2. Plaintiff prevails over unsecured creditors.

Question 19

Equitable Lien

Answer 19

creates a security interest in property held by the defendant. This is a legal fiction implied by the court where the property acts as collateral for the money owed to the plaintiff. An equitable lien is similar to a constructive trust, except property can be traced to commingled funds with an equitable lien.

Question 20

Elements of Equitable Lien

Answer 20

1. A wrongful act has led to the detention of property from its rightful owner.
2. Legal title: defendant must have illegally obtained legal title and not just possession
3. Inadequate legal remedy
4. Property can be traced
5. Priority of the plaintiff over 3rd parties

Question 21

Tracing for Equitable Lien

Answer 21

1. Property need not solely be traceable to current form. Unlike a constructive trust, with an equitable lien it is acceptable to trace the plaintiff’s property to a different piece of property even if the two are commingled and the plaintiff’s property was used to improve another piece of property owned by the defendant. The plaintiff can obtain an equitable lien on the commingled property in the amount of the debt.
2. Lowest intermediate balanced rule applies to commingled funds.

Question 22

Lowest intermediate balance rule

Answer 22

Where the wrongdoer commingles wrongfully obtained funds with his own funds in a single account. This rules includes application of investor fiction, which presumed a defendant invests his own money first, and spender fiction which presumes a defendant spends his own money first.

Question 23

Constructive trust v. Equitable lien

Answer 23

Constructive trust is better when the value of the wrongfully acquired property goes up (because the plaintiff will receive the benefit of the increase in value to prevent the defendant’s unjust enrichment). Equitable lien is better when the value of the wrongfully acquired property goes down (because plaintiff can still get a deficiency judgment for the difference), or when property can’t be solely traced to its current form.

Question 24

Injunction

Answer 24

an equitable remedy where the court orders one to perform an act (affirmative or mandatory injunction) or stop performing an act (negative injunction).

Question 25

Three types of Injunctions

Answer 25

1. Temporary Restraining Orders
2. Preliminary Injunctions
3. Permanent Injunctions

Question 26

Temporary Restraining Order (Def.)

Answer 26

designed to preserve the status quo for a short time pending further litigation regarding a preliminary injunction. TROs are only granted for a short time, typically ten days, and can sometimes be obtained ex parte.

Question 27

Requirements of a TRO

Answer 27

1. Irreparable harm during waiting period if not granted.
2. Likely success on the merits
3. Inadequate legal remedy
4. Balancing of hardships in favor of plaintiff

Question 28

Inadequate legal remedy TRO/preliminary injunction

Answer 28

1. Money damages too speculative.
2. Money damages inadequate
3. Insolvent defendant
4. Multiplicity of lawsuits - on going wrong
5. Prospective tort- tort has not yet occurred but it is expected to occur
6. Property is unique so money damages are inadequate to compensate for the loss of that property
   a. Real property is always unique
   b. Personal property is not unique, except if it is one-of-a-kind or very rare, or if the item has special significance to the plaintiff.

Question 29

TRO Balancing the interests

Answer 29

The court will weigh the hardship to the plaintiff if the injunction is denied against the hardship to the defendant if the injunction is granted. Court will consider:

a. A large disparity of hardships weighs in favor of the more severely impacted party.
b. Willful misconduct weighs heavily against the wrongdoer
c. Public interest: The hardship to the public and/or public benefit can also be factored into the analysis

Question 30

Preliminary injunctions

Answer 30

designed to preserve the status quo pending a full trial on the merits. A preliminary injunction is a bit harder to obtain than a TRO, but it is easier to obtain than an permanent injunction.

Question 31

Requirements for a preliminary injunction

Answer 31

1. Irreparable harm during the waiting time if not granted.
2. Likely success on the merits.
3. Inadequate legal remedy
4. Balancing the hardships must favor the plaintiff.
5. No defenses are available.

Question 32

Defenses to Preliminary Injunction

Answer 32

1. Laches
2. Unclean hands
3. Ineffective defenses
   a. Coming to the nuisance
   b. Sale to bona fide purchaser

Question 33

Laches

Answer 33

applies when the plaintiff has unreasonably delayed, resulting in prejudice to the defendant.

Question 34

Unclean Hands

Answer 34

applies when a plaintiff has conducted herself unfairly in the transaction in the dispute.

Question 35

Coming to the nuisance

Answer 35

Modernly, this is one of several elements used to determine if there is a nuisance at all and does not provide an effective defense to a nuisance action.

Question 36

Sale to a bona fide purchaser

Answer 36

is not an effective defense to the tort of conversion (where one is trying to get their personal property returned by a permanent injunction). However, sale to a BFP is a valid defense in a contract action.

Question 37

Permanent Injunction

Answer 37

is where a court orders one to perform an act or stop performing an act

Question 38

Requirements for Permanent Injunction

Answer 38

1. Inadequate legal remedy.
2. Property interest (CA does not require property interest)
3. Feasibility of enforcement
4. Balancing of hardships
5. no Defenses
   {I Pray For Big Desserts}

Question 39

Property Interest for Permanent Injunction

Answer 39

The requirement of a protectable property interest is a historical one and traditionally meant an injunction would only apply to property. California does not require a property interest right, and modernly, invasions of personal rights can support an injunction.

Question 40

Feasibility of Enforcement

Answer 40

The injunction cannot be too difficult to enforce. Consider:

1. Negative injunctions - easier to enforce due to court’s contempt power.
2. Affirmative injunctions - more difficult
   a. Series of acts over a period of time can be more difficult to enforce than one required act.
   b. Act requiring taste, judgment, skill is difficult to enforce because of the difficulty in determining if the act has been properly performed.
3. Jurisdictional issues can create further enforcement problems.