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  1. compensatory damages
    • based on the P's injuries & put P in the position he would have been had injury not occurred.
    • requires:
    • 1. causation - actual cause
    • 2. foreseeability - injury must have been foreseeable at time of tortious act
    • 3. certainty - damages cannot be too speculative
  2. damages for personal injury torts
    • economic losses (special damages) - certainty apply, calculation must be within sufficient certainty.
    • non-economic losses (general damages) - like pain and suffering, permanent disfigurement. jury may award any amount it wishes.
  3. nominal damages
    P has suffered no actual injury. Actual injury required for claims like fraud, so nominal damages cannot be recovered in such cases.
  4. punitive damages
    • P has to 1st been awarded compensatory OR nominal damages. (punitive damages can also be attached to restitutionary damages)
    • D's fault must be greater than mere ordinary negligence
  5. punitive damages are limited by ...
    • no "grossly excessive" damages. they are invalid under dur process clause of the 5th and 14th amendments. Key issue - whether D had fair notice of the possible magnitude of the punitive damages, considering criteria like ...
    • reprehensibility of D's conduct; disparity between actual harm suffered by P and the punitive award, rule of thumb (no more than 10 times compesatory damages)
  6. restitutionary damages
    • based on benefits to the D. amount calculated based on the value of the benefit.
    • P cannot get both compensatory and restitutionary damages.
    • Punitive damages can be attached to restitutionary damages as long as the underlying cause of action is in tort.
  7. replevin
    • P recovers possession of specific personal property
    • 2 part test:
    • 1. P has a right to possession
    • 2. There is a wrongful witholding by D
    • * not available to one who holds equitable title where property is sold to a bona fide purchaser for value.
  8. ejectment
    • P recovers possession of specific real property
    • 1. P has a right to possession
    • 2. there is wrongful witholding by D
  9. constructive trust
    • imposed on improperly acquired property to which D has title. D's retention of property would result in unjust enrichment and P has no adequate remey at law.
    • P becomes a secured creditor; P gets the benefit of any enhanced value of the property. D must transfer title to P.
  10. equitable lien
    • an eqitable charge on property imposed by law to prevent unjust enrichment.
    • to impose an equitable lien on the D's property to secure a debt, it must be shown that (1) the wrongdoer misappropriated the P's property under circumstances creating an obligation to pay, (2) P's property can be traced to property held by the D, and (3) the retention of property would result in unust enrichment.
    • property will be subject to an immediate court-directed sale. $ go to the P. If proceeds of sale less than fair market value of the property when it was taken, a deficiency judgment will issue for the difference and can be used against D's other assets.
  11. injunctive relief in tort
    • where damages or restitution are inadequate to remedy a tort, P may be able to get an injunction if ...
    • 1. legal remedy inadequate ($ damages inadequate, damages too speculative, multiple suits, irreparable harm, inadequacy of replevin.
    • 2. property right requirement must be overcome - traditionally equity protected only property rights. few courts still follow this rule.
    • 3. court won't issue a decree that would be difficult to supervise.
    • 4. balancing of hardships - (majority view) if harm to P does not outweight the harm to the D or the public
    • 5. defenses must be overcome - laches, unclean hands (party seeking equitable relief must not be guilty of any "unfair dealing" with respect to the transaction sued upon)
  12. quasi-contract
    • law impose obligation to pay for unjust gain received pursuant to an unenforceable K. Common case - D unjustly enriched due to mistake, fraud, material breach, or performance of unenforceable K.
    • P is awarded a sum of $ measured by the reasonable value of the D's ill-gotten gain (value pf performance). this is imposed by law to avoid unjust emrichment.
  13. specific performance
    • mandatory decree or injunction / orders a contracting party to perform / what he has promised to perform under K
    • to get this P must show ...
    • 1. the legal remedy is inadequate
    • 2. terms of the K are definite and certain
    • 3. feasibility of enforcement
    • 4. mutuality of performance not necessary
    • 5. equitable defenses bar relief
  14. interlocutory injunction
    • to preseve the status quo between parties until a full trial on the merits. notice generally required to be given to a D, bond is usually needed to secure D's losses in case the injunction should not have been issued.
    • P must show likelihood of prevailing on the merits,
    • but will suffer irreperable harm before trial can be held.
    • * Preliminary Injunction - only after regular adversarial court hearing.
    • * Temporary Restraining Order - where irreperable harm will occur before hearing on a preliminary I can be held. may be granted without notice to D if moving party makes strong showing.
  15. misappropriation of money
    • damages (identifiable $ was taken)
    • restitutionary remedies (quasi K, constructive trust, equitable lien)
  16. injury to personal property
    • 1. destruction of chattels - damages measured by value of chattel at time destroyed, less salvage, plus interest. loss of use not recoverable unless it was making $.
    • 2. Injury to chattels - damages measured by either diminuition in value or cost of repair + loss of use.
    • 3. tresspass to chattel for minor dispossession - nominal damages or damages for loss of use.
    • 4. tresspass to chattel for major dispossession - market value at time of conversion (plus expenses in pursuit of property); P can force converter to purchase; punitive damages if conduct malicious.
    • 5. restitutionary remedies - reasonable self-help, replevin, quasi-contract, constructive trust, equitable lien, mandatory injunction.
  17. tresspass to land
    • a. simple trespass - nominal d, injunction where appropriate, may grant restitutionary relief
    • b. trespass causing severance - (where there is severance from realty like cutting timber) diminution in land value, or conversion measure. also replevin, restitutionary damages, and injunction.
    • c. trespass causing other injury - damages for injury. mandatory injunction if damages inadequate.
    • d. tresspass effecting ouster - ejectment (p proves right of possession and wrongful withholding by D). P gets property and mesne damage. injunctive relief not available.
  18. encroachments
    • D's structure invades P's land or airspace.
    • a. damages (rental value of occupied land, market value of occupied land)
    • b. restitutionary remedy - ejectment
    • c. injunction - legal remedies inadequate, balancing of hardships (courts won't balance if D did not willfully)
  19. destruction of or injury to realty
    damages for injury (diminution in vlaue). Look at what is lose and how much it costed P, how much to repair, loss of use
  20. waste
    • voluntary - damages or repair cost. injunction
    • permissive - cost of repair, courts reluctant to grant injunctive relief
    • ameliorative waste - generally no damages (no loss in value), injunction available if D is short-term tenant.
  21. nuisance
    • use by D of own property in a way as to cause unreasonable interference with use and enjoyment of P's property.
    • a. damages - loss of use and enjoyment, emotional distress.
    • b. Injunction - usually negative in form.
    • c. hardship balancing
    • d. coming to the nuisance - not a good defense, but may affect recovery $ if purchase price reflected the claimed nuisance.
  22. personal injuries
    • usual = compensatory damages
    • a. economic losses (special damages)
    • b. noneconomic losses (general damages) - pain and suffering, emotional distress, loss of enjoyment of life
    • c. limitations - collateral sources rules and avoidable consequences doctrine
  23. defamation
    • usually = damages
    • rare - injunction (unconstitutional prior restraint on speech)
    • declaratory relief - to protect reputation
  24. privacy
    • damages for mental anguish (often speculative
    • injuction most effective for continuing wrong
  25. fraud
    • no action will lie without proof of injury
    • * consequential damages recoverable
    • * punitive damages where "malice" is shown
    • * fraud by seller - benefit of bargain damages (K value - actual value)
    • * fraud by buyer - damages proximaetely caused
    • P may elect to recind K and seek restitution or have constructive trust imposed on property obtained by fraud
  26. business torts
    • inducing breach of K - damages for all losses proximately caused. restitution and injunctive relief are rare.
    • interference with proespective advantage - damages normally speculative. P can seek restitution of the "benefit" D would otherwise not have obtained.
    • trade libel - no cause of action without proof of special damages ($ loss). most court require show of loss of specific customers. injunctive relief normally denied out of free speech concerns.
  27. rescission
    • fuctions to terminate the K and restore to P the consideration given by him to D.
    • cancels the K where it results from mistake, fraud, or duress, or where K is materially breached. normally accompanied by restitution of benefits conferred.
    • grounds - mistake (mutual mistake affecting the basis of the bagain = ok; traditional rule deny rescission for unilateral mistake unless the other party knew or should have known; misrepresentation - P show reliance upon material misrep of fact.
  28. reformation
    • equitable remedy for changing a written instrument to reflect parties' true agreement
    • * original K valid
    • * grounds - does not relflect original agreement due to mistake or fraud
    • defenses - parol evidence rule = not a defense
    • statute of frauds = not a defense.
    • negligence by P (did not read K) = is not a defense.
Card Set:
2011-06-21 03:42:07
remedies CA

barbri remedies 2011
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