Remedies California

Front 1

DECLARATORY JUDGMENT

Back 1

A declaratory judgment is a judicial remedy that determines the rights, obligations and status of a party. It is often used by prospective defendants. It is not an advisory opinion, which is prohibited by the Constitution.

Front 2

DECLARATORY RELIEF
Effect of judgment

Back 2

A declaratory judgment has the force and effect of a final judgment on the matter and is reviewable as such, and collateral estoppel applies to these judgments.

Front 3

DECLARATORY RELIEF
Defenses

Back 3

The statute of limitations and laches are defenses. Declaratory relief is barred to the extent that comparable legal remedy is barred by the statute of limitations.

Front 4

DECLARATORY RELIEF
Elements

Back 4

To get a declaratory judgment, one must show that there is an actual case or controversy, which involves showing:
1. substantial controversy between the parties
2. adverse legal interests and
3. those adverse legal interests are of sufficient immediacy and reality to justify declaratory relief.

Front 5

DECLARATORY RELIEF
When courts will refrain

Back 5

Courts will usually refrain from a declaratory judgment when
1. A federal court is presented with an issue that is already pending in state court.
2. Where there are suits in both federal and state courts (fed courts will hear fed-only claims and state will hear state-only and mixed claims)
3. There is only a threat of prosecution because there will be no standing. But a declaratory judgment may appropriate if there is specific warning of an intent to prosecute. If there is a prosecution in process, courts will not issue declaratory relief.

Front 6

EQUITY

Back 6

Equity is the name given to the set of legal principles that supplement strict rules of law where their application would operate harshly, so as to achieve what is sometimes referred to as "natural justice.” Equitable remedies are more specific and personal.

Front 7

INJUNCTION

Back 7

An injunction is an equitable remedy in the form of an in personam court order, usually issued by a trial court of general jurisdiction. A mandatory injunction directs the defendant to do something while a prohibitory injunction requires the defendant to refrain from doing something. Courts find prohibitory injunctions are easier to administer.

Front 8

INJUNCTION
Procedural requirements

Back 8

The procedural requirements for injunctive relief are:
1. Notice to the other side (except for TROs in certain circumstances)
2. Pleading
3. Declaration
4. Points and authorities in support of the motion

Front 9

REQUIREMENTS FOR AN INJUNCTION

Back 9

An injunction must
1. Set forth reasons for its issuance
2. Be specific in its terms
3. Describe in reasonable detail the acts required or proscribed
4. Be binding on the parties to the actions, and their officers and agents, who receive actual notice of the order by personal service or otherwise.

Front 10

IINJUNCTIONS
Key factors

Back 10

There must be:
1. Irreparable and immediate harm
2. Balance of harms
3. Likelihood of success on the merits
4. Public interest

Front 11

INJUNCTIONS
Irreparable harm

Back 11

Immediate and irreparable injury will occur to the moving party if the injunction is not issued, and the legal remedy is not adequate.

Front 12

BALANCE OF HARMS

Back 12

The possible injury to the moving party if the injunction is not issued outweighs the injury to the non-moving party from issuing the injunction.

Front 13

INJUNCTION
Likelihood of success

Back 13

In state court, the moving party must show that he or she has a good chance (60/40) chance of winning the case. Some federal courts use a sliding scale in which if there is at least some likelihood of success and the harm threatened is great, the injunction will be issued.

Front 14

INJUCTIONS
Public interest

Back 14

Issuing the injunction should further, and not harm, the public interest. There also may be constitutional considerations, particularly when the First Amendment is involved.

Front 15

TEMPORARY RESTRAINING ORDER

Back 15

A TRO is a provisional remedy that is issued before trial and is intended to maintain the status quo, pending the issuance of a preliminary injunction. A TRO must be short term. In California, they are good for 15 days, and, in federal court, for 10 days. Notice to the other party can be skipped if some harm will result from the giving of notice. A bond is required except in domestic violence cases or if one of the exceptions, discussed below, applies.

Front 16

EX PARTE TROs

Back 16

Ex parte TROs can be issued in emergency situations. In federal court, the moving party must show efforts to give notice or reasons why. In California, moving party must give 24 hours notice except in domestic violence cases or where good cause not to give notice can be shown.

Front 17

PRELIMINARY INJUNCTION

Back 17

A preliminary injunction is issued before a trial on the merits, but it differs from a TRO in that all parties are present at a hearing and make a presentation, although witnesses are not called. A bond is required. The preliminary injunction lasts until the trial or a subsequent order of the court. It must meet the same key factors as for a TRO.

Front 18

PERMANENT INJUNCTION

Back 18

A permanent injunction is issued only after a trial on the merits at which witnesses are called. It is a final order on the merits, so the elements are the same as for TROs and preliminary injunction, but there has to be actual success on the merits, , and instead of a showing of irreparable harm, the emphasis is on showing that money damages are inadequate. No bond is required because all the evidence has been heard.

Front 19

BOND

Back 19

A bond is security posted by the moving party to pay the non-moving party if it is later decided that the injunction was wrongful.

Front 20

EXCEPTIONS TO BOND REQUIREMENT

Back 20

Some parties are exempted from the bond requirements. They are
1. indigent parties
2. government as plaintiff or defendant
3. public interest litigation
4. in domestic violence cases (by statute)

Front 21

INJUNCTION BOND RULE

Back 21

The bond serves as a cap on damages. The wrongfully enjoined party has recourse only against the bond. The burden is on the defendant to request a bond hearing to set the amount of the bond. The amount of the bond can’t be increased retroactively.

Front 22

RECOVERY ON THE BOND

Back 22

To execute the bond, the court must find that the party waswrongfully enjoined – the enjoined party had the right all along to do what the injunction prevented the party from and
2. provable damages – There is a rebuttable presumption that the wrongfully enjoined defendant has a right to have the bond executed and recover provable damages up to the amount of the bond. The damages must have been caused by the injunction and must be proven. (In federal court, attorney’s fees are not included.)
1.

Front 23

APPEALS OF TROs

Back 23

Appeals can be taken from preliminary and permanent injunctions. TROs are generally not appealable. However, there are exceptions in these cases:
1. TRO has an indefinitve time limit or no time limit is the equivalent of a preliminary injunction and can be appealed. (Maine v. Fri)
2. TRO for which the hearing is postponed beyond the statutory period (without the consent of the parties is also the equivalent of a preliminary injunction and can be appealed.
3. TRO that has serious, perhaps irrevocable consequences and can only be challenged by appeal
4. TRO that effectively gives one side complete relief is the equivalent of a permanent injunction can be appealed

Front 24

STAYS

Back 24

In federal court, there is no automatic stay on appeal. The moving party must
1. file a Notice of Appeal and move for a stay in District Court
2. If refused, can appeal to motions panel of the Court of Appeals, or an appellate judge (including a Supreme Court justice) can issue a stay if it’s impractical to convene a panel
3. The moving party must show
a. Irreparable harm/no adequate legal remedy
b. Balance of harms
c. Likelihood of reversal
d. Public interest
In California, an automatic stay is granted for a mandatory injunction. For a prohibitory injunction, a stay is granted upon a showing of hardship

Front 25

RELIEF FROM INJUNCTION

Back 25

Under the federal rule, a party may be relieved from final judgment or decree if
1. when it is no longer equitable that the judgment have prospective application (this applies to modification or dissolution.) In other words, if the circumstances (factual or legal) have changed, the injunction can be modified. 2. or when the purpose of the injunction has been satisfied, then the injunction may be dissolved.
3. It makes no difference if it is trial order or consent decree.
In California, the rule is the same for a trial order but a consent decree requires the consent of all parties for modification or dissolution.

Front 26

GENERAL DAMAGES

Back 26

Damages are intended to compensate the plaintiff’s actual loss. These points must always be considered:
1.Certainty -- Damages must be capable of being made certain by calculation, even if they are for a future harm not realized at the time of trial, such as future loss of earnings.
2.Reasonableness – Damages must be reasonable in amount and cannot be so grossly excessive as to “shock the conscience.”
3.Forseeability – Foreseeability is always considered, but is more limited in contract case.

Front 27

GENERAL TORT DAMAGES

Back 27

General damages compensate for the harm caused by the tort. They are intended to make the plaintiff whole. Money is paid for losses that naturally and necessarily result from the defendant’s tortious acts and can include
1.pain and suffering
2.mental anguish
3.and loss of enjoyment of life.

Front 28

PAIN AND SUFFERING

Back 28

An award for pain and suffering compensates the injured person for the physical discomfort and the emotional response to the sensation of pain caused by the injury itself. Separate damages can be given for mental anguish.

Front 29

LOSS OF ENJOYMENT OF LIFE

Back 29

Damages for loss of enjoyment of life compensate for the limitations, resulting from defendant's negligence, on the injured person's ability to participate in and derive pleasure from the normal activities of life, or for the individual's inability to pursue his talents, recreational activities or avocations.

Front 30

SPECIAL DAMAGES

Back 30

Special damages include compensation for harm that is peculiar to a particular plaintiff and are the natural but not necessary result of the defendant’s actions. They must be specifically pleaded and include economic losses such as medical expenses and lost earnings. The burden is on the plaintiff to prove that these items exist.

Front 31

MEASUREMENT OF VALUE

Back 31

The amount of compensation is often the diminution of value (the difference between the pre-injury and post-injury value of any property lost or damaged as a result of the defendant’s actions.)
But there are a variety of ways that value can be calculated/

Front 32

MARKET VALUE

Back 32

Market value is used for property that is easily sold or trade.

Front 33

PERSONAL VALUE

Back 33

For items with little market value but high worth to an individual, the plaintiff can recover the personal value of the property as determined by such factors as the time and effort expended in acquiring the property and the damage caused to the plaintiff by its loss.

Front 34

COST OF REPAIR

Back 34

California allows plaintiffs to choose between the cost of repair and the diminution in value, whichever is greater.

Front 35

REPLACEMENT COST

Back 35

Sometimes the measure of value is what it would cost to obtain a similar item for the plaintiff. If the property was unique or its market value hard to determine, the question would be what it would cost to make or build another.

Front 36

LOSS OF INCOME

Back 36

If the property produces income, the court will look at the income stream and convert it by the process of the capitalization of earnings into a measure of value based on the market value of a property that is known to produce those earnings.

Front 37

COLLATERAL SOURCE RULE

Back 37

Personal injury plaintiffs may recover full amount of damages even if they were already compensated from a source independent of the tortfeasor. The collateral source rule precludes introduction of evidence of payments from collateral sources, so as not to influence the trier of fact.

Front 38

PUNITIVE DAMAGES

Back 38

Punitive damages are awarded to punish defendants and deter others from committing similar wrongful actions. They can be awarded for torts committed with

Hint 38

1. Fraud
2. Oppression
3. Actual malice
FOAM

Front 39

FRAUD AND MALICE

Back 39

Fraud and malice are types of socially deplorable conduct that have traditionally supported punitive damages.

Front 40

OPPRESSION

Back 40

Oppression is defined in California as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Conscious disregard falls short of intent but requires that the defendant was aware of the potential consequences but but acted anyway.

Front 41

LIMITS ON PUNITIVE DAMAGES

Back 41

There are constitutional limits on punitive damages. They must be proportionate to the harm done. In State Farm v. Campbell, the Supreme Court held that, although there is no bright line, few awards exceeding a single-digit ratio between compensatory and punitive damages will satisfy due process. Courts reviewing punitive damages should consider:

Front 42

OTHER LIMITS ON PUNITIVES

Back 42

Punitive damages
1.cannot be awarded in contract cases
2.cannot be awarded against a public entity unless specified by statute
3.can only be recovered by the injured party

Front 43

CONTRACT DAMAGES

Back 43

General damages are awarded to recover the value of the promised performance (the benefit of the bargain.) They can be measured as the difference between the contract price and market price of the goods at time of breach. If the profit is specified in the contract, it will be general damages.

Front 44

SPECIAL DAMAGES

Back 44

Special damages are awarded to cover further additional losses, which must be specially pleaded. Under Haley v. Baxendale, they must be foreseeable and reasonably within the contemplation of the parties at the time of formation. These could include lost profits or the value of a lost income-producing asset.

Front 45

LOST PROFITS

Back 45

Lost profits might be awarded as special damages if the profits are too speculative. Courts are more skeptical of claims of lost profits by new businesses.

Front 46

LOST-INCOME-PRODUCING ASSET

Back 46

The value of a lost-income-producing asset can be measured by the value of the asset at the time of breach, not lost future income.

Front 47

CONSEQUENTIAL OR INCIDENTAL DAMAGES

Back 47

Incidental damages are expenses incurred in taking steps to mitigate damages.

Front 48

LIQUIDATED DAMAGES

Back 48

A contractual provision fixing damages in the event of a breach, will be sustained if

Front 49

HYBRID TORT/CONTRACT DAMAGES

Back 49

Damages for emotional distress from breach of contract are generally not recoverable in an action for breach contract except, in California, when

Front 50

TORT DAMAGES IN CONTRACT CASES

Back 50

Tort damages are permitted in contract cases only if

Front 51

ECONOMIC LOSS DOCTRINE

Back 51

Under the economic loss doctrine, there is no recovery under negligence or strict liability for purely economic loss, which is damage to the product itself or monetary loss caused by a defective product that does not cause injury to others or property.

Front 52

EXCEPTIONS TO ECONOMIC LOSS DOCTRINE

Back 52

The economic loss doctrine does not apply if

Front 53

NEGLIGENT INTERFERENCE WITH CONTRACTUAL RELATIONS

Back 53

There is no cause of action for negligence that causes only economic losses except for losses that result from negligent interference with another’s contractual relationship unless if the plaintiff can prove the defendant had a duty to protect plaintiff’s economic interests.