Remedies Mentor Outline

Disclaimer: This outline does not contain every issue in the class.
The rules and application are from my understanding. If

the rules or the application is inconsistent with your professor or your notes, go with the professor’s application of the law.
Remedies Mentor Outline
Torts Remedies

Legal Remedies
Damages

General Damages
Damages that place P back in position had wrong not occurred – makes the P whole. General
damages are damages that reasonably and naturally flow from the tort.
P must show damages are (1) causal – but for; (2) foreseeable – “proximate cause”; (3) certainty; (4)
unavoidable – duty to mitigate damages.
Example: P steals D’s dog. The dog is worth $100. P’s general damages are $100 since the $100 will
make P “whole”. (Note- the tort is conversion).
Special Damages
Damages that do not necessary flow from the tort. They must be specially plead.
P must show damages are (1) causal – but for; (2) foreseeable – “proximate cause”; (3) certainty; (4)
unavoidable – duty to mitigate damages.
Example: P steals D’s dog. P uses the dog for his business. P can plead loss of earnings.

Nominal Damages
Awarded to vindicate the P rights. No actual damages. Served as a peg for punitive damages.

Punitive
Punish and deter future conduct by D. Requires malice. In order to get, P must be awarded damages.
Must be reasonable – courts factors: (i) Reprehensibility – of D’s conduct; (ii) Disparity between harm to
P and actual punitive award; and (iii) Disparity between punitive award and criminal/ civil penalties for
comparable conduct – rule of thumb: no more than 10 times compensatory damage.
Interest
Prejudgment interest is typically based statutory. Generally, the prejudgment interest is from the time
the debt is due if damages are certain or capable of being made certain.
Attorney’s Fees
Generally, recoverable by contract or statute.
Restitution
Restitutionary remedies may be legal or equitable where D has obtained a benefit which amounts to unjust
enrichment. There need not be an injury to the P. The objective is to restore the D's unjust gain to P. Exam:
Ask yourself - Has the D been unjustly enriched at P’s defense?

Note: There is legal restitution and equitable restitution.
Legal Restitution consist of: Restitutionary damages; Replevin; and Ejectment
Equitable: Constructive trust; Equitable lien, Injunction
Legal Restitution
Daryoush Zolfaghari, 2019

Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
Restitutionary Damages
D to pay P the reasonable value of a benefit unjustly obtained. The benefit can be conferred as a result
of mistake, duress, tort, or breach of contract. P has the option of both compensatory and resitutionary
damages but cannot have both – pick the highest on exam. These are based on the benefit to the D
and calculated on the value of the benefit receive. Restitutionary remedies are not available for
encroachment and nuisance. Punitive damages may be attached.
Example: P steals D’s dog. P uses the dog to win dog shows. P has won over $100,000. D may recover
$100,000 since P is unjustly enriched (winning money). D cannot recover $100,100 (restitution plus
general damages – needs to pick one).

Replevin
Recovers possession of specific personal property through sheriff. Always couple replevin with
damages for lost use (compensatory) or benefit to D (resitutionary) during time of wrongful detention.
Requires: (1) P has a right of possession and (2) D is wrongfully withholding the property.
Procedure: A judicial hearing; P posts bond; D can post a redelivery bond;
Example: P steals D’s dog. P wants the Court to order P to return the dog because “damages” ($100 –
general damages) is inadequate as the dog has sentimental value to D.

Ejectment
Recovers possession of specific real property through sheriff.
Requires: (1) P has a right to possession and (2) D is wrongfully withholding the property.

Equitable Restitution
Constructive Trust
Constructive trust is an equitable resitutionary remedy that creates a "trust" to compel a D convey title
of property unjustly retained. P must show that (1) D has legal title to property which can be traced;
(2) D's retention of property is unjust enrichment; and (3) legal remedy is inadequate (note there is
split of authority that legal remedies must be inadequate so this remedy wont fail because legal remedy
may be adequate) P is entitled to any appreciation in value of newly acquired property.
Example: P steals D’s dog. P uses the dog to win dog shows. P has won over $100,000. P uses the
$100,000 to buy a $100,000 house. D may be entitled recover the house through a constructive trust
remedy.

Defenses
1. Laches (see below)
2. Unclean hands (see below)
3. Transfer of legal title to BFP - equitable rights (i.e. constructive trust) are cut off by transfer of
legal title to BFP (pays valuable consideration and no notice of constructive trust)
4. D changed position in reliance
5. Or there can be a showing that the benefit conferred was a gift

Equitable Lien
Improperly acquire property to which D has title. The requirements and defenses are similar to
constructive trust. In other words, if D uses the property of P to improve property which D already owns,
P may have equitable lien on D's property. This is used when value of property goes down.


Example: P steals D’s dog. P uses the dog to win dog shows. P has won over $100,000. P uses the
$100,000 to remodel his million-dollar mansion. D can place an equitable lien on the mansion for
$100,000. (D is not entitled to the entire mansion).
Injunction - discussed below
Injunction
An injunction orders the D to refrain from engaging in certain conduct or activities (negative injunction) or to
perform a particular act (mandatory or affirmative injunction). (Note - always bring a damage claim with
injunctive relief for injuries occurring during the time period prior to obtaining the injunction.)

Types: Permanent Injunction Preliminary Injunction Temporary Restraining
Order
Requirements: 1. Inadequate legal remedy 6. Irreparable Injury - leading up Imminent and irreparable
2. Irreparable injury to harm - leading
3. Balance of hardship permanent hearing up to preliminary hearing
4. Feasibility 7. Balance hardship - leading
5. Overcome defenses up to permanent hearing
8. Likelihood of prevailing
Notice & Bond required
Notice & Bond required Notice required - ex parte
exception

Purpose: To grant relief sought Preserve the status quo Preserve the status quo
Duration: As long as necessary Until completion of proceeding Until preliminary injunction
for (usually 10
permanent injunction days - 14 in federal court

Permanent Injunction
Where remedies at law cannot provide adequate relief, a plaintiff may be able to get an injunction ordering the
defendant to refrain from engaging in certain conduct (i.e. prohibitory injunction) or ordering the defendant to
perform (i.e. mandatory injunction). The P must show: (1) inadequate legal remedy; (2) P suffered irreparable
injury; (3) balance the hardship between the P and D and public interest; (4) feasibility; and (5) overcome
defenses. Requires notice

Inadequacy of Legal Remedy
The P must show that remedy at law is inadequate.
Ways to show legal remedy is inadequate: Be sure to discuss all that are applicable:
1. Money damages inadequate – i.e. D is insolvent (broke) or damages are too speculative
2. Irreparable harm – money cannot compensate – i.e. property unique or family heirlooms
3. Avoid multiple suites - prospective tort threatening but not committed
4. Replevin – sheriff unable to recover personal property
5. Ejectment – sheriff refuses to eject D

Balancing Hardship
In balancing the equities, the court will balance P benefit of injunction versus D’s detriment (there must
be gross disparity). The court ill also balance the hardship to the public.
Exam Analysis:
1. Discuss benefit to P - i.e. stopping factoring from emitting fumes over P's house
2. Discuss hardship to D - i.e. D would have to close down the factory an relocate
3. Discuss public interest/ hardship - i.e. the factor employs more than half the community

Feasibility of Enforcing the Decree
Whether an injunction is feasible to enforce largely depends on whether the injunction is negative or
mandatory in nature. Court will not grant a decree if it would be difficult to supervise.
Negative (prohibitory) Injunction

Negative injunctions stop D from acting. There usually is no enforcement problem as the court
has the contempt power should D not obey.
Mandatory injunction
Mandatory injunctions order D to do an affirmative act. This is hard for the court to enforce
because it is difficult for the court to supervise.
An act that is based on skill or taste will be denied. Out of state D will be denied. Involuntary
servitude issues (i.e. slavery).
Contempt - Method of Enforcement

If D fails to comply, D can be enforced by civil contempt (imprisonment) until D complies -
however, where imprisonment is punishing the D for disobeying rather than coercing his future
compliance, the contempt is criminal rather than civil and must comply with criminal law
procedures (i.e. due process). Parties with notice or those acting on concert with party may be
held in contempt.

Defenses to Injunctive Relief
Laches
Laches is (1) an unreasonable delay of asserting equitable claim that (2) prejudices other party.
Unclean Hands
A party seeking equity cannot be guilty of unfair dealings related to transaction
Freedom of Speech
Prohibits injunction against defamation
Injunction Against Crimes

Equity will not enjoin a crime. Arises when attorney general attempts to enjoin conduct that is
normally criminally punishable. Exception: public nuisance.

Preliminary Injunctions
Preliminary injunctions are granted after an adversary-type court hearing and remain in effect until conclusion
of trial. The purpose is to is preserve the status quo to prevent irreparable injury before a trial can be held.
Requirements: (1) irreparable injury before permanent injunction is heard; (2) balance hardship before
permanent injunction is heard; and (3) likelihood of prevailing on permanent injunction; (4) notice; and (5)
prejudgment bond.

Irreparable Injury
P must show the injury from now until the court hears the permanent injunction case is heard.

Balance of Hardship
P harm must outweigh the harm that the D would suffer if interlocutory injunction was granted before
the case is decided on merits. Also, the public interest in the matter.


Likelihood of Prevailing
P must show a substantial likelihood of success on the merits of his claim.

Notice
Notice must be given to defendant. For TRO, notice may be less formal (i.e. phone call) since it is an
emergency. (Not a major issue on exam)

Prejudgment Bond
Most jurisdictions, including California, require seeking party to post a bond sufficient to reimburse the
enjoined party for damages if the injunction was not granted and now the defendant has been harmed.
(Not a major issue on exam)

Temporary Restraining Order (TSO)
TRO are emergency orders issued to protect the status quo for a period leading up to a preliminary hearing.
Requires (1) imminent and irreparable harm; (2) necessary to preserve the status quo; and (4) bond.
TRO is limited duration - states put a 10-day limit on TRO and 14 days in federal court.
Notice is required, however, a TRO may be granted ex parte (meaning without notice) if good faith is shown.
Imminent and Irreparable Harm

P must show the irreparable harm from now until preliminary hearing is heard.
Preserve Status Quo

The issuance of TRO must be necessary to preserve the status quo.
Bond
Most jurisdictions, including California, require seeking party to post a bond sufficient to reimburse the
enjoined party for damages if the injunction was not granted and now the defendant has been harmed.
(Not a major issue on exam)

Contract Remedies

Legal Damages

Compensatory / Expectation Damages
Remedy is to place the P in the position he would have been in had the contract not been breached.
Damages must be (1) causal, (2) foreseeable (at time K was entered), (3) certain (not too speculative)
and (4) unavoidability (duty to mitigate). Generally, the measure of damages is difference between
contract price and the current market value at time of breach.
Example: P and D contract for P to buy TV for $100. D breaches. The fair market value at time is $150.
P may recover $50 to give P benefit of his bargain.
Special/ Consequential Damages

Loss that are unique or peculiar to particular P. P may recover damages that are within the
contemplation of the parties at time the contract was made.
Incidental Damages
Damages that occur after a breach that the P incurs.
Reliance
Damages that P suffered in reliance of the contract - putting her in a position she would have been in if
the contract was never formed. Where P's expectation damages are too speculative (i.e. profits too
speculative), she can elect to recover damages in reliance, rather than expected.

Liquidated
These are damages that are specified in contact. To be enforced, court must determine two things: (1)
that parties made reasonable estimation for damages in case of breach (cannot be a penalty); and (2)
damages were not ascertainable (too a). If upheld, not duty to mitigate since parties have agreed on
what damages are. Note - fact pattern has to tell you there is a damage clause and for how much.
(Liquated damages will replace expectancy damages)

Punitive
Generally, not recoverable regardless of willfulness of the breach.
Prejudgment Interest
May be recovered by statute or in an enforceable contract
Attorney Fees
Recoverable if provided by statute or in an enforceable contract.

Restitutionary Damages
Restitution prevents unjust enrichment. Restitution can be a remedy not only for when a contract is breached,
but also when a contract is unenforceable, and in some cases where no contractual relationship existed
between parties.
Example: P (general contractor) contracts with D to build D a house for $70,000. P breaches after
$35,000 of work. D hires new contractor $40,000 to complete the house. P will recover quantum merit
recovery of $30,000 ($35,000 is what P was entitled to minus D’s damages of $5,000 for paying new
contractor).


For Bar Exam:

The most common scenarios for restitution occur: (1) unenforceable contract; (2) material breach

Unenforceable Contract
Where service or material are rendered pursuant to an unenforceable contract (i.e. SOF, incapacity,
illegality, fraud, duress, unconscionability, ambiguity, or mutual mistake), the resitutionary damages
depends upon the nature of the benefit conferred.
Example:
1. If D received services or goods, P may recover by the value of the goods and
services, rather than any economic gain to the D.
2. If property was obtained by D - P can recover (replevin, ejectment) if unique or D is
insolvent.
Material Breach of Contract

Measure of damages depend on whether P is the breaching party or non-breaching party:
1. If P is the non-breaching party - P can get resitutionary damages for property/money

given to or services rendered to D for the value of his performance, even in excess of the
contract rate.
2. If P is the breaching party - under traditional view, P cannot recover. However, modernly,
P can recover resitutionary damages for the benefit conferred to the D but (1) cannot be
greater than contract price and (2) are reduced by any damages suffered by D as a result
of the breach.

Equitable Remedies

Specific Performance
Mandatory decree or injunction that orders D is obligated to perform his obligation under the contract. In order
to obtain specific performance, a P must show: (1) the contract was valid; (2) the P's contractual conditions
have been fulfilled; (3) inadequate remedy at law (land is unique); (4) mutuality of remedy is no necessary; (5)
feasibility of enforcement; and (6) overcome defense. (Exam: generally tested with real property and chattel)

”Cha Cha is My Favorite Dance” = Contract; Conditions; Inadequate; Mutuality; Feasibility; and Defenses

Contract is Valid w/ CDT
There must be a valid contract with certain definite terms.
For Bar Exam:

 Options - under contract law, an "option" that is not supported by independent consideration is not
a true option, rather a revocable offer. A true option is a contract itself (irrevocable and may be
assigned) and it is not affected by death or insanity of the option or optionee.
 CDT - specific performance is only available where the terms of the contract are sufficiently
definite and certain so court can determine what each party must do.
 Custom and business usage - if missing term of contract may be inferred form custom or business
usage.

Contractual Condition Satisfied
Generally, P will not be able to obtain specific performance unless P has fulfilled all conditions under
contract (i.e. already performed), is ready and able to perform, or excused.

Inadequate Legal Remedies

Generally, a court will order specific performance only if the legal remedy (money damages) is
inadequate. The legal remedy is usually considered inadequate when the goods are rare or unique and
the plaintiff would not be able to buy replacement goods with monetary recovery.
Damages are Inadequate when:

1. Speculative or too small to compensate fully for the injury
2. D is insolvent
3. Multiple suits
4. Irreparable injury – uniqueness
 Real property – all land is unique so specific purpose is available
 Personal property – generally not unique except if very rare or personal
significance to buyer, or circumstances make chattel unique – test at time of
litigation not K formation
Replevin
D can post a bond; Sheriff may be unable to find the property
Ejectment (typically not involved in an action on a K)

Mutuality of Remedy
At one time, specific performance was granted only when the other party could also obtain specific
performance against the aggrieved party. Today, courts have replaced mutuality of remedy requirement
with a requirement for mutuality of performance. If the court feel satisfied that it can secure both parties
to perform then the court will award specific performance.
Feasibility
Personal services contracts are not specifically enforceable, but covenants not to compete are
enforceable if (1) services are unique and (2) scope, geographic and duration, is reasonable. The Court
must have jurisdiction.

Defenses
Equitable Defenses
1. Unclean hands
2. Laches
3. Unconscionability - unfairness in bargaining process at the time of contract formation
Contract Defenses
1. Mistake
2. Misrepresentation
3. Statute of Fraud
Bar: Exception: Part performance - look for (1) rendered valuable performance
(2) in reliance of the contract

Note - a liquated damage clause in the contract does not stop P from obtaining specific performance. If
LDC is construed as an alternative performance (i.e. giving on party the option to either perform or pay
stipulated amount) then specific performance will be denied. Alternative performances are rare - must
have clear language.

Rescission
Rescission is a remedy where the original contract is considered voidable and rescinded. The parties are left
as though the contract had never been made. The grounds for rescission must have occurred before or at
time the contract was entered into.

Exam Hint: Rescission is a two-part analysis: (1) what are the grounds to void the contract; and (2)
overcome valid defenses. "Good Dog" = Grounds and Defenses
Grounds for Rescission

1. Misrepresentation - material fact or law which relied upon
2. Mutual mistake - in formation
3. Unilateral mistake – generally denied except if other party knew/ should of OR if hardship by
mistake is so extreme
4. Others: duress, undue influence, illegality, lack of consideration
Note - Bar exam questions almost always misrepresentation and mistake

Defenses
1. Laches - P unreasonable delay in pursuing claim and the delay prejudiced the D.
2. Unclean hands - P has unfair dealings with respect to transaction sued upon.
3. Election of remedies:
 If P sues for DAMAGES FIRST - P has affirmed the K - RECISSION NOT ALLOWED.
 If P seeks to RESCRIND K FIRST - this won't bar P from suing for damages later.
 Thus, P may sue both (damages and rescind) but must elect the preferred remedy before
judgment
4. Estoppel - P detrimentally relied upon D's conduct
Exam Hint: On exam, when you are arguing damages and rescission, you may want to start the essay
with rescission first and then say, “in the alternative if the contract is not invalid, discuss damages (as
the K is affirmed).

Reformation
In reformation, the contract is valid and enforceable, but the written form of the contract is wrong. The contract
is rewritten correctly and then enforced.
Exam Hint: Three step analysis: (1) valid contract: (2) grounds for reformation; (3) any defenses
"Very Good Dog" = Valid K, Grounds, and Defenses

Valid Contract
There must be a valid contract – free from any defect (i.e. ambiguity, or missing terms).

Grounds for Reformation
1. Mutual mistake - where both parties are mistaken
2. Unilateral mistake - if one party knows of an error in the writing, reformation may be granted
3. Misrepresentation - where one party fraudulently represents to the other that the writing
contains the actual agreement of the parties, the wiring may be reformed

Defenses
4. Laches
5. Sale to BFP - the right to reformation will be cut off where the subject matter of the instrument
to be reformed is sold to a BFP (consideration and no notice)

6. Parol Evidence Rule - where parties hold K as integrated (intended by parties to be final
agreement), a party cannot admit evidence of prior agreement that is inconsistent - however
not a valid defense in cases of mistake or fraud
7. SOF - majority - not a defense
8. Negligence - majority - will not prevent reformation (i.e. P didn’t read over)


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Disclaimer: This outline does not contain every issue in the class.

The rules and application are from my understanding. If

Remedies Mentor Outline

Daryoush Zolfaghari, 2019

Daryoush Zolfaghari, 2019

Injunction - discussed below

Negative (prohibitory) Injunction

Contempt - Method of Enforcement

Injunction Against Crimes

Daryoush Zolfaghari, 2019

Imminent and Irreparable Harm

Preserve Status Quo

Daryoush Zolfaghari, 2019

Special/ Consequential Damages

Daryoush Zolfaghari, 2019

For Bar Exam:

Material Breach of Contract

1. If P is the non-breaching party - P can get resitutionary damages for property/money

For Bar Exam:

Daryoush Zolfaghari, 2019

Inadequate Legal Remedies

Damages are Inadequate when:

Ejectment (typically not involved in an action on a K)

Daryoush Zolfaghari, 2019

Grounds for Rescission

Daryoush Zolfaghari, 2019

Daryoush Zolfaghari, 2019

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