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38 Cards in this Set
- Front
- Back
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What are compensatory damages?
General? Special? |
An award of money to compensate plaintiff for loss or injury.
General damages compensate foreseeable losses. Special damages compensate losses not necessarily foreseeable. |
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What are nominal damages?
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Damages that are often recoverable when no actual injury is sustained.
Nominal damages are not available in cases where ACTUAL injury is a required element (example: fraud). |
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What are punitive damages?
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Damages that may be awarded to PUNISH a defendant for "willful, wanton, or malicious conduct."
Punitive damages are generally limited to intentional torts, although they may also be recoverable for reckless conduct. |
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Punitive damages that are grossly excessive are invalid under:
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the Due Process Clause of the Fifth and 14th Amendments.
KEY ISSUE: did defendant have fair notice of the possible magnitude of the punitive damages, considering: (1) reprehensibility of conduct (2) disparity between harm and punitive award (3) difference between punitive award and criminal or civil penalties; |
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How do you spot a remedies question on the bar?
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The call of the question will use one of the following words:
"remedies," "relief," or a specific type of remedy. |
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What are the the three steps involved in approaching a remedies question?
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(1) Determine area(s) of law and what specific problem is at issue
(2) Make sure plaintiff has a case; otherwise no remedies (3) Determine what remedies require discussion in the following order: (i) legal remedies; (ii) restitutionary remedies; (iii) equitable remedies |
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What are the remedies available in a tort action?
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LEGAL: Damages
LEGAL RESTITUTIONARY: resitutionary damages, replevin, and ejectment EQUITABLE RESTITUTIONARY: constructive trusts/equitable liens EQUITABLE: injunctive relief |
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What are the FOUR requirements for compensatory damages?
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(1) factual causation
(2) proximate causation (foreseeability) (3) certainty (4) mitigation CONCERNING CERTAINTY *Past losses must be established with more certainty than future losses. **Historical record helps to provide certainty. ***Future damages, plaintiff must show that they are MORE LIKELY TO HAPPEN THAN NOT |
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When calculating compensatory damages, when does the basic certainty rule apply?
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Only for economic losses (special damages). For non-economic losses (general damages), the jury can award whatever they want.
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What are the THREE RULES regarding punitive damages?
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(1) ONLY if compensatory or nominal awarded first.
(2) Defendant's fault must be greater than negligence ("bad guy" conduct) (3) Award must be proportionate to actual damages (single digit multiple) |
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Restitutionary damages are based on:
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the benefit to the defendant (unjust enrichment).
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Can a plaintiff receive both compensatory and restitutionary damages?
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NO! Plaintiff will take the greatest award.
*Discuss both on the exam though! |
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What is replevin? What are the elements required for a plaintiff to be entitled to replevin?
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It is the remedy in which plaintiff recovers possession of specific personal property.
Plaintiff must establish that: (1) he has a right to possession; and (2) there is a wrongful withholding by the defendant. *Replevin is almost always coupled with damages (compensatory or restitutionary) |
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Under replevin, can plaintiff recover the chattel BEFORE the trial?
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Yes, if plaintiff: (1) posts bond; and (2) defendant doesn't defeat by posting a redelivery bond.
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What is ejectment? What are requirements?
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Ejectment is the remedy in which plaintiff recovers possession of specific real property.
SAME TEST AS REPLEVIN: (1) right to possession by P; and (2) D's wrongful withholding |
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What is a constructive trust?
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It is a "trust" imposed on defendant's property which he improperly acquired title to through fraud, undue influence, etc.
Defendant serves as "trustee" and must transfer property to plaintiff. NO DEFICIENCY JUDGMENT AVAILABLE. Plaintiff may "trace." P has priority over unsecured creditors. P loses to BFP. |
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What is an equitable lien?
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It is a lien imposed on defendant's property which was improperly obtained OR improved through misappropriation of Plaintiff's property.
Property is subject to immediate court-directed sale and proceeds go to plaintiff. If proceeds less than FMV of property when it was taken, a deficiency judgment will issue for difference. |
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What are the FOUR rules regarding constructive trusts and equitable liens?
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(1) Inadequate legal alternative
(2) Tracing permitted (3) BFPs prevail over plaintiff' (4) Plaintiff prevails over unsecured creditors |
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How does a plaintiff choose between a constructive trust and an equitable remedy?
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(1) If property value goes up, go with constructive trust.
(2) goes down, go with equitable lien (3) if D's property can't be traced SOLELY to plaintiff's property, only an equitable lien is available. |
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What is injunctive relief?
Permanent vs. Temporary (aka interlocutory, preliminary) |
Injunctive relief is the remedy that requires defendant to do (enjoined) or refrain from doing something.
Permanent: issued only after full trial on merits. Temporary: issued pending trial. |
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What must a plaintiff demonstrate in order to be entitled to a temporary injunction?
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(1) Irreparable injury will be suffered while waiting for full trial (can't wait!); AND
(2) Likelihood of success (probably will win!) |
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When is a temporary restraining order (TRO) issued?
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It is issued PENDING a hearing to determine whether temporary injunction should issue.
Must show: (1) imminent irreparable injury and (2) likelihood of success in litigation *Can be EX PARTE, thus notice and adversarial proceeding not required, but must make good faith effort to give notice and opportunity to defendant. **LIMITED to 10 days |
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What are the 5 elements in analyzing a permanent injunction request?
"I Put Five Bucks Down" |
"I Put Five Bucks Down"
(1) Inadequate legal remedy alternative (2) Protectable property interest (modern view: only protectable interest) (3) Feasibility of enforcement (example: difficult of supervision) (4) Balancing of Hardships (5) Defenses (unclean hands, laches, impossibility, free speech) |
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If an granted injunction becomes "erroneous" in that it would no longer be granted because law or circumstances changed, must it be obeyed?
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YES, must have it modified or dissolved.
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What are the remedies available under contract?
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Legal:
DAMAGES: only compensatory (general--direct, consequential--indirect to extent foreseeable, incidental, liquidated) and nominal (NO punitive--must use tort) Legal Restitutionary: RESTITUTIONARY DAMAGES REPLEVIN EJECTMENT Equitable Restitutionary: CONSTRUCTIVE TRUSTS/EQUITABLE LIENS Equitable: SPECIFIC PERFORMANCE RESCISSION REFORMATION |
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Consequential damages for breach of contract are only available for:
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damages related (indirectly) to breach of contract, but were FORESEEABLE at the time of formation.
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A liquidated damages clause is valid if:
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(1) damages are very difficult to ascertain at the time of contract formation; and
(2) forecast is reasonable |
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What are the six requirements to get specific performance of a contract?
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(1) Contract is valid
(2) Conditions satisfied by plaintiff (3) Inadequate legal remedy (4) Mutuality of remedy (5) Feasibility of enforcement (6) Defenses |
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What is abatement?
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When the court lowers the purchase price of a contract, where there is a defect.
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In a contract with a "time of the essence" clause, where a buyer has made partial performance, the court will:
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almost always award specific performance. If under the modern trend, if SP not granted, restitutionary relief would be granted.
"Equity abhors forfeiture" |
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Cha Cha Is My Favorite Dance
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SPECIFIC PERFORMANCE:
Contract valid Conditions of plaintiff satisfied Inadequate legal remedies Mutuality of remedy Feasibility of enforcement Defenses |
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What is the two-step analysis for RESCISSION of contract?
Mnemonic: "Good Dog" |
"Good Dog"
(1) Grounds for rescission? (i) ***mistake, (ii) misrepresentation; (iii) coercion; (iv) undue influence; (v) lack of capacity; (vi) failure of consideration; (vii) illegality (2) Valid defenses? (i) unclean hands; (ii) laches *(negligence of p is not a valid defense) |
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If a plaintiff first sues for damages, is he entitled to rescission?
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NO, but if he sues for rescission first, damages are allowed.
Or, if he sues for BOTH at the same time, he must ELECT the preferred remedy before judgment. |
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What is the three-step analysis for REFORMATION of contract?
Mnemonic: "Very Good Dog" |
"Very Good Dog"
(1) Valid Contract? (2) Grounds for Reformation? (3) Defenses? (i) unclean hands, (ii) laches *(negligence of p, SoF, parol evidence rule are not valid defenses) |
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test
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test
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TYPES OF REMEDIES (MIXED)
Mnemonic: PREREQIS California Contracts Not Remedies |
Punitive damages (only Torts)
Replevin Ejectment Reformation (only K) Equitable lien Quasi-K (Restitutionary damages) Injunction (temp, TRO, permanent) Specific performance (not for services) Compensatory damages Constructive trust Nominal damages Rescission (only K) |
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Where a defendant commingles proceeds from plaintiff's property (improperly acquired) into his bank account and then purchases new property from that account, an equitable lien will be applied to:
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BOTH defendant's bank account and the new property.
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Where a defendant withdraws and dissipates funds from a bank account which includes monies improperly acquired from plaintiff, below the amount of plaintiff's claim AND THEN defendant makes personal additions to that account, plaintiff may only obtain an equitable lien to:
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the extent of the "lowest intermediate balance of the account," meaning the account balance prior to his ADDITIONS (see pg. 13 remedies long outline).
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