Remedies

Front 1

Compensatory Damages (Generally)

Back 1

Compensatory damages are intended to compensate plaintiff for a legally recognized harm or injury.

This award seeks to place plaintiff in the same position that plaintiff would have been in had he not been harmed by defendant's tortious behavior or breach of contract.

Front 2

Compensatory Damages (Torts)

Back 2

Compensatory damages are retrospective and include:
1. Pain and suffering;
2. Emotional Distress;
3. Medical expenses;
4. Loss of income

Front 3

Pain and Suffering

Back 3

Plaintiff is entitled to compensation for the impairment or loss of physical abilities and emotional distress. In California, this encompasses hedonic loss, or loss of enjoyment of life.

Front 4

Emotional Distress

Back 4

Damages for emotional distress are always allowed as ancillary damages when plaintiff suffers physical injury or if defendant's action is intentional or outrageous.

Front 5

Reliance Damages

Back 5

Reliance damages are available in contract cases only. Plaintiff can recover expenditures made in preparation for performing the contract as well as expenditures made in performing the contract.

Front 6

Restitution Damages

Back 6

Plaintiff may be awarded monetary damages to return the value of what was lost.

Front 7

Nominal Damages

Back 7

Nominal damages are available when plaintiff cannot show great loss or harm. It can give plaintiff a declaratory judgment, entitling plaintiff to litigation costs.

Front 8

Punitive Damages (Generally)

Back 8

Punitive damages serve to punish a defendant who engages in serious misconduct with an improper state of mind. These damages are intended to deter others from similar conduct by making an example of defendant.

Front 9

Punitive Damages (Torts)

Back 9

Punitive damages in a civil action may violate DP if such damages impose a grossly excessive punishment on tortfeasor. In determining whether punitive damages violates DP, consider:
1. The degree of reprehensibility of D's conduct;
2. The disparity between harm suffered and punitive damages awarded; and
3. The difference between this remedy and civil penalties imposed in like cases in the past.

Front 10

Punitive damages (Contracts)

Back 10

Punitive damages are very rarely awarded in contract cases.

Front 11

Liquidated Damages

Back 11

Liquidated damages are damages that are agreed upon by the parties to a contract during the formation of the contract. Generally, liquidated damages are enforced if the amount is reasonable in light of either the anticipated loss at the time the contract was entered into or the actual loss caused by the breach.

Front 12

Limitations in Damages (Acronym)

Back 12

Four - Foreseeability
Cocks - Causation
Can - Consequences Naturally Arising
Creampie - Certainty
A - Avoidable Consequences
Butt - Benefits Already Received
Effortlessly - Emotional Damages

Front 13

Foreseeability (Limitation in Damages)

Back 13

For damages to be awarded, plaintiff's harm must have been reasonable foreseeable, or a proximate cause.

Front 14

Causation (Limitation in Damages)

Back 14

For damages to be awarded, defendant must have caused plaintiff's injury.

Front 15

Consequences Naturally Arising From (Limitation in Damages)

Back 15

Only damages that naturally arise from the breach are recoverable as consequential damages. These are damages that were within the parties' contemplation or reasonably should have been at the time of contract.

Front 16

Certainty (Limitation in Damages)

Back 16

To recover damages, plaintiff must establish such damages with reasonable certainty. Lost profits or earnings are particularly susceptible to challenge for uncertainty, especially when those profits or earnings are claimed for a new business.

Front 17

Avoidable Consequences (Limitation in Damages)

Back 17

Plaintiff is denied recovery for any harm or loss that plaintiff could have reasonably avoided. There is no affirmative duty for plaintiff to avoid future harms or losses, but failure to do so can be counted against plaintiff in the calculation of damages. The burden is on defendant to show plaintiff could have avoided the damages.

Front 18

Benefits Already Received (Limitation in Damages)

Back 18

Plaintiff's recovery is reduced by benefits that result from defendant's conduct but not by benefits obtained from collateral sources.

Front 19

Emotional Damages (Limitation in Damages)

Back 19

Emotional damages generally will not arise in a contract action

Front 20

Prejudgment Injunction

Back 20

A prejudgment injunction is sought to prevent irreparable harm to plaintiff until a court action is resolved.

Front 21

Temporary Restraining Order

Back 21

A TRO is an injunction for a short time, usually no more than 10 days. A TRO may be obtained ex parte, but is not effective until defendant receives notice of it. A TRO cannot be appealed.

Front 22

Interlocutory Injunction

Back 22

An interlocutory injunction is an injunction issued before or during a trial that generally is effective until there is a final judgment by the court. These cannot be issued ex parte.

Front 23

Prejudgment Injunction Factors

Back 23

I - Irreparable Harm
Perform - Probability of Success

Bomb - Balancing of Hardships
Diggity - Defenses
Fellatio - Feasibility of Enforcement

Front 24

Permanent Injunction

Back 24

A permanent injunction is issued to prevent the violation of plaintiff's rights or to restore plaintiff's rights that have been violated. A permanent injunction can be issued only after plaintiff has won on the merits.

Front 25

Equitable Defenses

Back 25

Laches and Unclean Hands

Front 26

Laches

Back 26

The doctrine of laches applies to bar a claim from a plaintiff who has unreasonably delayed the pursuit of an equitable remedy and as a result, has prejudiced defendant.

Front 27

Unclean Hands

Back 27

The unclean hands doctrine bars plaintiff from an equitable remedy because plaintiff acted in bad faith with respect to the subject of the complaint.

Front 28

Specific Performance

Back 28

Specific Performance is a contractual remedy by which a party to a contract is compelled to render the promised performance or a substitute.

Generally, it is not available unless there has been a breach by nonperformance or repudiation.

Front 29

Specific Performance (Factors)

Back 29

Very - Valid Contract
Deflated - Damages Inadequate

Cocks - Conditions Precedent
Can't - Certainty of Terms
Fuck - Feasibility of Enforcement

Daily - Defenses

Front 30

Rescission

Back 30

Rescission is the avoidance or unmaking of a contract. Rescission is followed by restitution.

Front 31

Unclean Hands

Back 31

A plaintiff who seeks equitable relief is denied an equitable remedy when he himself has engaged in serious misconduct closely related to his claim.

Front 32

Laches

Back 32

Laches is the denial of equitable relief because of an unreasonable delay in pursuing an equitable remedy of which plaintiff was aware or should have been aware, and which delay caused prejudice to the defendant.

Front 33

Replevin

Back 33

Plaintiff can regain possession of the property taken and recover damages for the loss of use of the property.