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REMEDIES (LEGAL REMEDIES: primary legal remedy is the recover of money…
REMEDIES
LEGAL REMEDIES
: primary legal remedy is the recover of money damages. Money damages are assessed against litigants for a variety of different reasons- damages in general are a legal concept as opposed to an equitable remedy
NOMINAL DAMAGES
: where the damages to be assessed is just to identify which party has prevailed in the litigation. the opposite of compensatory damages because they indicate that the π was wronged, such as where there's a breach of k but no party is harmed. Their purpose is to declare a winner in the litigation
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COMPENSATORY DAMAGES
: to compensate injured party for legally recognized actual harm or less caused by the offending party. the opposite of nominal damages b/c compensatory damages measure a loss while nominal damages indicate that a π was wronged
General Damages
: damages that must necessarily arise as the result of the ∆'s legally actionable conduct. Damages that the law presumes to occur as a necessary result of a particular claim or injury. General damages (unlike special damages) don't have to be pleaded to be recovered. Always ask... "is it likely to result?"
How to recover
: The mere fact that the ∆ has committed some type of legally actionable conduct (or omission) is sufficient alone to establish the π's legal right to recovery- but the π still has to prove the amount of the loss
Examples
: "pain and suffering" in a personal injury case. Even though medical costs seem like they would be general damages, they aren't because not every personal injury suit involves medically dangerous injuries- like a fist fight for example. So therefore the π would be required to prove the extent of the suffering, but not the fact of it. :warning:
Elements to be proven in order to recover
(based on cause of action):
Negligence
:
Trespass to land
: damages aren't necessary to prove and π can recover general damages w/out pleading or proving them
General Damages for Physical Injury
mental anguish, disfigurement, future medical expenses, future lost wages, long-term physical pain and suffering, loss of consortium, inconvenience, loss of enjoyment of life, loss of opportunity
Specific Damages
: those additional damages which do in fact occur in a given situation. They are special because they do not necessarily have to occur.
How to recove
r: Unlike general damages, in order for a π to recover special damages, they have to prove both the fact of the damages as well as the amount of the loss
Example:
∆ trespasses on π's land. π can recover general damages stemming from the trespass, π doesn't have to provide evidence of the fact that he suffered harm, just the amount. But if ∆ also trampled flowers or broke a fence, these harms would be special damages because they have occurred as a direct consequence of ∆'s original trespass :warning:
Compensatory Specific Damages for Physical Injury
Earl v. Bouchard
: Factors to consider when calculating tort victims depleted work-capital: (1) past earnings, (2) marketplace value of an individual's skills, (3) availability of suitable employment, and (4) average work-life expectancy as projected by gov't statistic tables :red_flag: ALSO- tort victim has a duty/obligation to try and find another job- but they can still collect a reduced reward as long as they prove they didn't have a lot of options because of the injury
Determining Damages:
what the π's earnings would have been had he survived in good health, multiplied by π's work life expectancy with the resultant dollar figure discounted by present value
Compensatory Specific Damages for Recovering Lost Profits
: the non-breaching party must make reasonable efforts to avoid lost profits and can only recover portions of the lost profits that couldn't be avoided through reasonable efforts. (don't have to be extraordinary efforts) they just have to take reasonable steps to avoid the loss. Reasonableness is determined by individual circumstances of the non-breaching party
Contract
Compensatory damages in tort
: compensates you to have it fixed or for lost use. EX: someone stole something from you so you sue for trespass
PUNITIVE DAMAGES
: focus on punishing ∆'s state of mind. There are no punitive damages in contract cases b/c punitive damages punish and we don't want to punish for breach of k b/c we want to promote breach of k where there's a more efficient deal elsewhere. Therefore only available in
tort
cases
Jaque v. Steenberg Homes
: jacques are old people, their neighbors buy a mobile home, there's 7 feet of snow on the ground and the public road has too sharp a turn for the mobile home to be delivered so the ∆ decides to deliver mobile home and ask to cross π's property but they say no so ∆ does it anyways and π calls the police and ∆ gets a $30 fine. π sue for intentional trespass. ∆ receive $1 in nominal damages and $100,000 in punitive damages.
Is the punitive damage award excessive/violative of due process?
(1) degree of reprehensibility of the conduct, (2) disparity between harm/potential harm suffered by π and punitive damage award, (3) difference between this remedy and the civil or criminal penalties authorized in most cases :red_flag:
Contract
Tort
PECUNIARY DAMAGES
All damages are somewhat pecuniary in nature, because they can be reduced to a specific monetary amount and paid w/ legal currencydamages that are incurred by a π that have at least some pecuniary (monetary) basis for their determination. They differ from
Non-Pecuniary Damages
which are those Pecuniary damages differ from non-pecuniary damages in that the actual amount of these damages can be established by evidence of specific monetary losses
Example
: damages like lost wages, medical expenses, and other out-of-pocket expenses that have at least some actual monetary basis upon which they can be computed :warning:
NON-PECUNIARY DAMAGES
: damages that can
never
be quantified on any monetary basis solely by reference to an objectively-provable evidence. damages for which a precise monetary amount can be predetermined w/out the application of any discretion by the fact-finder. amount of any non-pecuniary damage must be determined by fact-finder's use of discretion, w/ little or no evidentiary guidance as to precisely how that amount is to be calculated- so they can't be ascertained in advance of trial
Example:
- typically include such individual damage items as pain and suffering, disability, or disfigurement damages, punitive damages, or loss of business goodwill :warning:
Differences between pecuniary and non-pecuniary
:
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legal and procedural significance, depending on whether damages are categorized as pecuniary or non-pecuniary, different standards might apply for the type of evidence admissible, the quantum of proof necessary to establish damages, or the degree of specificity required by the parties' pleadings
LIQUIDATED DAMAGES
: damages that the parties agree to pay in advance in the event that the contract is breached.
Contract: damages that the parties designate during the formation of a contract
Tort
EQUITABLE REMEDIES
: Equity developed as a flexible system of addressing problems the common law couldn't.
INJUNCTIONS
: most common form of equitable relief. an injunction is a court order to do or refrain from doing something. Decision to grant or deny an injunction is made by a court rather than a jury. Whether and what form of an injunction will be granted is not a matter of right but is w/in the judge's discretion, judges generally exercise that discretion guided by principles of fairness and restraint
PERMANENT INJUNCTION
TEST 2:
e-Bay
: (1) Irreparable injury, (2) Inadequate legal remedy, (3) Balance of hardships tips to the π, (4) Injunction is in the public interest
(Traditional) TEST 1
: (1) actual success, (2) inadequate legal remedy, (3) Balance of the hardships tips to the π, (4) injunction is in the public interest
Differences between preliminary and permanent injunction
: after winning a case, π is no longer concerned with proving likelihood of success, or obtaining a bond. The court isn't looking irreparable harm- looking at whether π is faced with inadequate remedy at law.
Situations w/ inadequate remedy of law
: bodily injury, inability to work, environmental harm, destruction of property, requirement to protect damages years in the future (
Walgreens
), public embarrassment- publishing facts that might not be true
PRELIMINARY INJUNCTION
: issued at the beginning of a lawsuit and is designed to last during the pendency of the suit
TRADITIONAL 4 FACTOR TEST
: (1) substantial likelihood of success on the merits (2) irreparable harm if no injury issued, (3) balance of hardships tips to the π, (4) injunction is in the public interest :warning: This test comes from
Winter
, Ginsberg said that SCOTUS would leave the door open for sliding scale test- this is how the 9th circuit went forward with the sliding scale test in
Alliance
EX PARTE TRO
: One sided TRO issued by the court in the presence of only one party. Party can get ex parte TRO only if it has attempted to provide notice to the other party. BUT, most domestic violence laws establish an automatic process that requires no notice to the ∆ prior to the issuance of the initial TRO.
Due process argument
: adverse parties in domestic violence ex parte TRO cases claim that their due process has been violated, but states have justified this by the emergency need to expedite these matters and the fact that any due process violation is minimal since ex parte order usually lasts about 10 days
SLIDING SCALE TEST #1
: (1) strong likelihood of success on the merits, (2) possibility of irreparable harm, (3) balance of hardships tips to the π, (4) injunction is in the public interest
SLIDING SCALE TEST #2
: (1) serious questions are raised (on the likelihood of success), (2) irreparable harm if no injunction issued, (3) Balance of hardships tips sharply in the π's favor, (4) injunction is in the public interest
TEMPORARY RESTRAINING ORDER (TRO
): an emergency injunction that is designed to preserve the status quo for a very short period of time- usually no more than 10 days, so the court can decide whether or not to grant a preliminary injunction
EX PARTE TRO// TEST:
issued w/out notice to the enjoined party. Won't last usually more than 28 days but typically a TRO is granted for 14 days but the court will extend it to another 14 for good cause. (1) notice is impossible, (2) danger to life or limb, (3) notice might render the suit moot- TRO's are almost always granted where there's violence threats
Exception- Collateral Bar Rule
REGULAR TRO TEST:
(1) substantial likelihood of success, (2) irreparable harm, (3) Balance of the hardships, (4) public interest
BALANCING TEST FOR EX PARTE TRO
: Determining whether or not an Ex parte TRO is warranted comes down to a 3 part balancing test- (1) importance of the issue at stake, (2) risk of erroneous deprivation, and (3) the gov'ts interest
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SPECIFIC PERFORMANCE:
in order to get an order for specific performance, π must have an enforceable right, have fully performed all conditions or stand ready to perform, prove that the legal remedy is adequate, demonstrate that the balance of hardships tips in favor of the injunction, prove that enforcement of the injunction is consistent w/ the public interest and won't threaten tribunal integrity
OTHER PROVISIONAL REMEDIES
EQUITABLE REPLEVIN
APPEALING AN INJUNCTIONS
BONDS AND OTHER SECURITY
CONTEMPT
: an injunction is an
in personam
order- it is enforced by the court through the power of contempt
VIOLATION OF JUDICIAL RULES AND ORDERS
Non-Summary
Summary
: immediate punishment for a threat to the court's authority
VIOLATION OF EQUITABLE DECREES
Criminal
: punitive (punishing past acts of disobedience) must be in compliance with general requirements of crim pro
governed by criminal procedure, the judge appoints the prosecutor, there's a right to a jury with a determinate jail or fine
Young
: not ok for lawyers to do the prosecuting b/c a prosecutor is supposed to consider the public's interest first. Court believes LV's corporate lawyers will have a hard time representing LV's interests first- conflict of interest :red_flag:
Civil
: remedial (until performance occurs) violation of a decree ordering the ∆ to take action or prohibiting them from doing specific things. Can result in confining the ∆ until they comply w/ terms of the decree (can't be imprisoned for nonpayment of debts)
Coercive
: conditional penalty imposed to coerce compliance. The ∆ holds the key- and the bad act hasn't happened yet. Avoidable
governed by civil procedure, with an indeterminate jail or fine
Punishment
is (
1) jail
- can be indefinite so long as he holds his own keys, must end when ∆ complies or compliance is no longer possible. ∆ demonstrates he isn't coercible, some statutory caps for certain cases (usually 18 months)
(2) purgeable fines
: payable to the gov't (don't have to pay if you comply) per diem or lump sum conditional fine require criminal constitutional provisions (
Bagwell)
(3) creative sanctions
: when there's a history of non-compliance- common w/ gov't institutions
Bagwell
Contempt fine is considered civil/remedial if it either (1) coerces the ∆ into compliance, or (2) compensates the π for losses sustained - Where a fine isn’t compensatory, it’s civil only if the contemnor is afforded an opportunity to purge - So, a flat, unconditional fine after finding of contempt is criminal if the contemnor has no subsequent opportunity to reduce or avoid the fine through compliance :red_flag:
Compensatory
: ∆ holds the key- the act has happened and is monetarily measured
CIVIL VS. CRIMINAL CONTEMPT SANCTIONS
DEFENSES
LACHES
: Remedial defense related to a party's unreasonable delay in the case
UNCLEAN HANDS
: bars a π's recovery where the π has engaged in wrongful conduct
APPEALS FROM INJUNCTION RULING
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stay- motions - merits
RESTITUTION
: restitution developed in equity as a means of preventing "unjust enrichment" - and mostly focuses on unjust enrichment even though there are a variety of contexts
Measuring Unjust Enrichment
:
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Unjust Enrichment
: many different definitions involving same principles: (1) ∆ has been enriched by the receipt of a benefit, (2) the ∆'s enrichment is at the π's expense, (3) it would be unjust to allow the ∆ to retain the gain
THEORIES OF RESTITUTION
:
QUANTUM MERUIT
: theory seeking recovery for value of π's services unjustly conferred on ∆
CONSTRUCTIVE TRUST
: Holds ∆ accountable for benefits as a trustee. accrued from wrongdoing. Fictional trust is implied. Generally requires fraud and use of π's specific property
§ 55 Constructive Trust
: If a recipient is unjustly enriched by the acquisition of legal title to specifically identifiable property at the expense of the claimant or in violation of the claimant's rights, the recipient may be declared a constructive trustee, for the benefit of the claimant, of the property in question and its traceable product
constructive trust is
measured
by the amount of profits and appreciation of those profits retained by the ∆ :!?:
Hunter v. Shell Oil
:
QUASI-CONTRACT
: Implied contract at law as basis for awarding monetary relief
not based on the intent of the parties, it's a contract implied by law (unlike express and implied contracts which are based on the agreements of the parties). Example: person hit by car and is unconscious- gets taken to hospital and receives treatment. Even though there was no express or implied k between motorist and hospital, the hospital can invoke
restitutionary principles
to allow it to recover for the services rendered. Hospital didn't intend to give a "gift" to the motorist, so the motorist would be
unjustly enriched
(by receipt of free services) if recovery is denied.
RECISSION
: cancels the contract and returns parties to their original pre-k positions
EQUITABLE LIEN
: secures debt owed w/ ∆'s tangible property
equitable lien is
measured
by the amount of debt owed to the π from the unjust benefit gained by the ∆ :!?:
ACCOUNTING FOR PROFITS
: requires ∆ to account for and then disgorge the amount of profit unjustly gained at the π's expense
EQUITABLE VS. LEGAL RESTITUTION
: Equitable restitution was developed to address gaps in relief provided by other causes of action. Include
constructive trust, equitable lien, and accounting for profits
Equitable restitution doesn't include the right to a jury trial and may trigger irreparable injury requiring that legal remedies are inadequate. Equitable relief also permits π to trace the funds by following the money through changes in forms and ownership.
PRINCIPLES OF MEASUREMENT
(legal remedies)
Defenses
Avoidable Consequences or Mitigation
Albert v. Monarch Federal Savings
: π trips on a curb and gets hurt. Sues premises owner for negligence. Judge tells jury π had duty to mitigate damages by getting surgery. Ct held that unless a surgery poses a "peril to life," "undue risk to health" or "anguish that goes beyond the bounds of reason" a mitigation instruction is appropriate if evidence is presented that surgery offers a reasonable prospect of restoration or relief from the disability- so here the trial court properly told the jury that the π had a duty to mitigate her damage by undergoing surgery for carpal tunnel syndrome. :red_flag:
Comparative/contributory negligent conduct v. failure to mitigate damages conduct
: comparative/contributory: applies to π’s actions/omissions before an accident occurs and contributes to the injury Failure to mitigate: arises when π fails to act after the accident in a manner that would have minimized or eliminated the π’s injuries
Exception to the rule
: failure to wear a seatbelt- even though failure occurs before the accident, some courts have considered the failure to wear a seatbelt to be a failure to mitigate damages
Offset Benefit Rule
Chaffee v. Seslar
: π sues dr. for negligence resulting in failed sterilization. seeks damages for future expenses of raising the child through college, including all medical and educational expenses. The
minority
approach (followed by CA) is that the parents of a child born after a negligently performed sterilization procedure are entitled to recover all costs incurred in rearing the child w/out any offset for the benefits conferred by the presence of the child. But the majority held that a child isn't a damage and therefore the parents are only entitled to pregnancy and child bearing expenses :red_flag:
Adjustments for time
Calculating Prejudgment and Post-judgment Interes
t: Prejudgment = P x t x r (principal amount x time period x interest rate)
Encon
: prejudgment interest available where amount of damages owed is subject to math calculations. Not appropriate in cases of personal injury, wrongful death, defamation of character, and false imprisonment- aka where the losses can only be calculated by broad discretion. :red_flag:
Prejudgment Interest
: the prevailing π is entitled to prejudgment interest if their claim is liquidated and ascertainable. Claim is liquidated or ascertainable where the damages can be computed by reference to an objective source or formula (like fair market value)
Present Value Inflation
: Because courts award lump sums when judgments are final (unless settlement/statute says otherwise) so money to compensate future losses is paid before it is needed- this presents two realities, (1) π can invest and earn more with that money, or (2) value of the money can decrease in the future b/c of inflation and become inadequate. So courts have to decide how to make sure the π doesn’t get too little or too much by accounting for present value and inflations
Calculating Present Value
: the future value of any sum is the present value, multiplied by one plus the interest rate per compounding period, multiplied by the number of compounding periods. Awards that compensate for future pecuniary expenses that will recur periodically must be reduced to present value (expenses for daily nursing care). Future losses- π will incur after trial (just being pecuniary isn’t enough)
Calculating Inflation
Stringham
: wrongful death/car accident. There’s multiple ways to calculate for inflation: (1) incorporating inflation into computation of future earnings and then discounts that amount using the market interest rate, (2) doesn’t consider inflation in estimating total earnings and instead uses a discount rate minus the inflation rate * 1 and 2 yield the same result. (3) “partial offset” method assumes that market interest rate :red_flag:
Post-judgment interest
: accrues from the date of the judgment until the ∆ satisfies the judgment. In most jx's, it's awarded automatically by statute regardless of the nature of the claim. Unlike prejudgment, post-judgment is available even if a claim is unliquidated- so it's available even if the amount of the damage is committed to the discretion of the jury
Collateral Source Rule
: if an injured party receives some compensation for their injuries from a source wholly independent of the tortfeasor, payment shouldn't be deducted from damages π would otherwise collect from the tortfeasor. The policy behind this is that it encourages citizens to have insurance for personal injuries etc. Example of a collateral source- insurance, pension, continued wages, or disability payments
Helfend
: case where tort victim had received partial compensation from medical insurance coverage entirely independent of tortfeasor. Trial court properly followed collateral source rule and didn't allow ∆ to mitigate damages by means of collateral payments :red_flag:
Arambula
: to promote charity- collateral source rule applies also to gratuitous payments by family/friends :red_flag:
COMBINING CONTRACT LAW AND NEGLIGENCE ACTIONS
: courts allow a person to plead under both contract and tort causes of actions because sometimes a π may not be able to assess the damages, proof, and evidence prior to trial or discovery. So it's allowed to do both, but not they can't knowingly plead inconsistent facts
Limitations on negligence recovery in contract actions w/out harm to body or property
Emotional Distress and Pain and Suffering
Erlich v. Mendez
: contractor breached k by building a crappy house, the jury awarded π's emotional distress damages for stress of living in a crappy house. General rule- damages for mental suffering and emotional distress are generally not recoverable in an action for breach of an ordinary commercial contract in CA. The exception to that general rule is that when the express object of the contract is the mental and emotional well-being of one of the contracting parties, the breach of the contract may give rise to damages for mental suffering or emotional distress. Here- available damages for defective construction are limited to the costs of repairing the home, including costs of relocation expenses, or diminution in value.
Economic Loss Rule
: a preexisting contractual relationship, without more (?) won't support a recovery for mental suffering where the ∆'s tortious conduct has resulted only in economic injury to the π.
DECLARATORY JUDGMENT
: legal and equitable remedy- shows who's right and who's wrong. But you can't go to the court and specifically ask for a declaratory judgment, the court just decides to issue one- enabling a judge to decide whether or not to take a case.
When does this happen?
(1) judge looks at the facts and believes their not sufficiently developed, or (2) thinks possibly the remedy isn't appropriate and instead the parties should be suing for damages, etc.
How is it enforced?
because it can be either a legal or a statutory remedy, it can be enforced with either damages or w/ injunctive remedy
How does it happen?
there must be a case or controversy to resolve- advisory opinions aren't allowed, can be about many things, and those things don't have to have happened yet (for example a breach of k doesn't have to happen but a disagreement is enough) BUT, no damages or specific performance will occur- it's just to resolve disputes in advance of a breach of k, or commission of a tort