REMEDIES

2020
Test pointers
Remedies are goal orientated.
Remember you cannot always get what your client wants.

Remedies are dependent upon:

1) Tort law (Law & Equity)
2) Contract law (Law & Equity)
3) Real Property law (Law & Equity)
4) Restitutionary law (Law & Equity)

1) Overview
I. What is a remedy?
1. Getting a judge to enter an order
a. On his/her own
b. Or after a jury verdict
2. Having it enforced by
a. The bailiff/sheriff
b. Jail time
c. Contempt powers of the court
II. Types of orders (Remedies)
1. Legal (at law) Historically in the Kings court with a judge and subject to jury.
Focused on the defendant’s property
a. Usually for damages in a monetary judgment.
b. Generally for past harm
2. Equitable (in equity) Historically in Ecclesiastical courts with a chancellor.
Focused on the defendant (acts in Personam)
a. Enforced by the contempt power of the court (jail or fine)
b. To have an equitable remedy you must prove that there is no adequate
remedy available at law. (Exception – UCC 2-716 in “other proper
circumstances”)
c. No jury, moves through courts quickly, cheaper to bring, and
sometimes available before a trial on the merits.
d. Generally for future harm
3. Be careful about mixing equitable and legal remedies
a. Be consistent
i. Remedies
ii. Defenses

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2) Remedies
I. Legal Remedies
1. Damages – Most Common Remedy
a. Past and Future (from time of Judgment)
b. Reduced to a present day value but also adjusted for inflation.
c. American rule - No attorney fee recovery absent statute or contract
authorizing such.
d. Interest on damages
i. Conventional, contractual interest - (written into contract) unless
it is unconscionable.
ii. Prejudgment - from the accrual of the cause of action to the
entry of judgment:
1. There must be a judgment (settlements are not
judgments)
2. Tort – Cal. C.C.P. §998 offer allows for prejudgment
interest and costs
3. An appeal stops enforcement of the interest but it will
continue to accrue
4. Post Judgment - between judgment and satisfaction of
judgment
e. Damages can not be:
i. Remote – Must be foreseeable (Contract –Consequential, Tort
Proximate Causation)
ii. Speculative - damages have to be calculated without speculation
or conjecture but you need not prove them to a mathematical
certainty.
iii. Uncertain - reasonable certainty that a legally protected right
has been invaded and has caused harm.
f. Mitigation of damages – Only from the point of accrual of the claim.
i. Affirmative mitigation - Allows the recovery of additional
damages that are reasonably incurred in an attempt to reasonably
mitigate damages.
ii. Negative mitigation - Precludes recovery of damage that could
have been reasonably avoided by taking steps after the accrual of
the cause of action.
1. Employment must be comparable and be substantially
similar.

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2. Tort damages - Collateral Source Rule – benefits received from a source
independent (collateral) of the tortfeasor are not deducted from the damages
award against the tortfeasor look out for reimbursement clauses (subrogation).
a. Nominal damages are damages awarded for the infraction of a legal
right, where the extent of the loss is not shown, or where the right is one
not dependent upon loss or damage.
b. Compensatory damages are damages that are sufficient in amount to
indemnify the injured person for the loss suffered.
i. Economic loss rule - In Negligence no claim for economic loss
alone.
1. Exception to the economic loss rule - professional
negligence.
ii. General damages are the damages that a plaintiff normally
encounters and are presumed to follow from the type of wrong
complained of.
1. Pain & Suffering, Emotional Distress, Hedonic
Damages, Loss of Consortium.
ii. Special damages are the plaintiff’s personal, idiosyncratic
losses, things that would not happen to every plaintiff and must be
specifically claimed and proved.
1. Loss of Earnings and Medical Bills.
2. Property/Good/Chattel – Damaged.
A. Destroyed - Fair market value at time and place
of destruction.
B. Repairable - Cost of repair, unless it exceeds fair
market value at time and place of destruction prior
to damage due to economic waste.
C. Loss of use - to compensate for the lack of use of
a valuable property
I. Measured by fair rental value of the
property (but you are not required to rent
anything because you have lost the use of
your property whether or not you rent a
replacement)
II. If the item is totaled (cost of repair
exceeds fair market value once repaired) you
are entitled to the fair rental value until you
receive the check from the defendant.
iii. Punitive/Exemplary damages, which are intended to punish
egregious conduct and thereby deter blameworthy conduct.
1. If greater then 9:1 ratio to Compensatory damages look
to guideposts (State Farm. v. Campbell, 538 U.S. 408
(2003).
A. Degree of reprehensibility of conduct
B. Ratio of Compensatory to Punitive damages
C. Comparison to other similar cases.

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3. Contract damages
a. Contracts Clauses:
i. Liquidated Damages Clause – A legal remedy created by a
clause in the contract, which fixes what damages will be in case of
a breach that a court will enforce so long as it is not a penalty
1. Common Law - Majority – Must be reasonable at
formation to not be a penalty.
2. Common Law – Minority and UCC 2-718 – Must be
reasonable at formation and as applied at breach to not be a
penalty.
ii. Limitation on Liability Clause - A limitation on legal remedies
created by a clause in the contract, which establishes a maximum
legal liability of what damages will be in case of a breach, however
legal damages must still be proven. (Expectancy, Reliance,
Consequential, etc.)

a. Compensatory
i. General are the damages that a plaintiff normally encounters and
are presumed to follow from the type of wrong complained of.
1. Expectancy damages are a legal remedy in which
damages are in the amount that will place the plaintiff in
the position had the contract been fully performed which
must be definite and certain.
A. Alternate Measures of Expectancy Damages:
I. UCC
1. Buyer
a. Rightfully unaccepted or
wrongfully undelivered
goods –
i. Refund of
overpayment (2-
711(1))
ii. Cover, good faith
purchase on open
market within a
reasonable time (2-
712)
ii. Market price at
time and place of
breach minus contract
price (2-713)
b. Accepted non-conforming
goods -
i. Value as promised
minus value as
received (2-714)

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 2. Seller
a. Wrongfully unaccepted
goods –
i. Resell, Contract
price minus resale
price (2-706) if at a
private auction seller
must give notice to
buyer.
ii. Wrongful
nonacceptance,
unpaid contract price
minus both market
price at time and
place of breach and
any savings caused by
the breach. (2-708(1))
1. Lost
Volume
Seller, If
Seller had
capacity for
both sales then
seller is
entitled to lost
profit on the
contract even
if identified
goods were
sold to
another. (2-
708(2))
a. Accepted goods –
i. Contract Price
minus any saved
expenses caused by
the breach of the
buyer. (2-709)
II. Real Property
1. Title defects in conveyance of
Real Property
a. American rule (Contract
Expectancy Damages)- buyer
is entitled to benefit of the
bargain damages regardless

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 of the nature of the sellers
default.
b. English rule (limitation on
liability)- if seller’s breach
was not in bad faith then
buyer is entitled to only
earnest money and reliance
damages.
2. Construction Defect, Contract
Real Property - Price of repair
(Contract Expectancy Damages) or
diminution in value to the land
(limitation on liability) due to
economic waste.

ii. Special damages are the plaintiff’s personal, idiosyncratic

losses, things that would not happen to every plaintiff and must be
specifically claimed and proved.
1. Reliance damages is a legal remedy in which damages
are to compensate the plaintiff for injuries caused by the
plaintiff to himself in performing his promise to the
defendant in reliance to the contract, which must be definite
and certain.
2. Consequential damage is a legal remedy in which
damages are compensated for that are not expectancy (not
directly caused by the breach) but were foreseeable at the
formation stage of the contract and are definite and certain.
(Buyer 2-715 Seller 1-103 vs. 1-305)
A. UCC incidental damages are always
foreseeable in a UCC contract for care and custody
of goods. (Buyer 2-715, Seller 2-710)

4. Real Property damages

a. Compensatory – Special damages are the plaintiff’s personal,
idiosyncratic losses, things that would not happen to every plaintiff
and must be specifically claimed and proved.

i. Injury to land
1. Permanent - diminution in value only.
A. SOL starts on day land became permanently
inured
B. Minerals -
I. Minimal intrusion - value of minerals in
place
II. Middle - value at the surface minus cost
to extract

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 III. If theft - Value at surface with no setoff
2. Temporary- cost of repair up to diminution in value.
A. Argue damage is continuing so SOL starts again
every day.
ii. Title defects in conveyance of Real Property
1. American rule (Contract Expectancy Damages)- buyer is
entitled to benefit of the bargain damages regardless of the
nature of the sellers default.
2. English rule (limitation on liability)- if seller’s breach
was not in bad faith then buyer is entitled to only earnest
money and reliance damages.
iii. Construction Defect, Contract Real Property - Price of repair
(Contract Expectancy Damages) or diminution in value to the land
(limitation on liability) due to economic waste.

5. Restitution at Law– Remedy at law in which the measure of recovery is

usually based not on the plaintiff's loss, but on the defendant's unjust enrichment.
a. Assumpsit - a common-law action for breach of an implied promise,
not under seal, by which one person undertakes to do some act or pay
something to another.
b. Detinue – an action at law for rightfully taken and wrongfully held
property.
c. Replevin - an action at law for the repossession of personal property
wrongfully taken and wrongfully held property. UCC 2-716 for
identified goods.
d. IILK - Quasi Contract (Quantum Meruit for service provided/Quantum
Valebant for goods provided) Not available if there is a valid and
enforceable contract.
i) The moving party had an expectation of receiving a benefit in
return for his performance,
ii) The moving party has in fact conferred a benefit and
iii) it would be unjust to allow that party to retain that benefit
without compensation.

II. Legal Defenses

1. Statute of Limitations - a law that bars claims after a specified period based
on the date when the claim accrued.

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III. Equitable Remedies
1. When the equitable cleanup doctrine is properly invoked the legal claims are
subsumed into equity to obtain more final and effectual relief for the parties.
2. In Personam - Works on the person not the property and enforced by the
contempt power of the court.
a. Tort Equitable Remedies
i. Injunction - Injunctions can compel or prohibit conduct
1. Prohibitory injunction -
A. Invasions of land
B. Intangible business interest (competition)
C. Nuisance
D. Civil rights cases
E. Waste (preventing damage by life tenant)
2. Generally injunctions work against the person
A. Exception - Injunction In Rem - against the
property of the person if the person is no longer in
the jurisdiction of the court and those in who act in
concert or privity with them.
3. Elements within injunctions:
A. Merit of underlying Tort Substantive legal issue
I. Tortuous conduct or violation of a statute
B. Irreparability of injury
I. Must not be harm reparable by damages.
C. Inadequacy of the legal remedy,
I. Multiplicity of suits - (repeated intentional
trespass)
II. Uniqueness of land or chattel (all land is
unique)
III. Supervision problems - if it will take an
inordinate amount of the courts time to
supervise then the court will lean to a legal
remedy. (Construction project)
IV. Extremely hard to value
D. Balance of hardships, and
I. What is Plaintiff’s hardship if the
injunction is denied?
II. What is Defendant’s hardship if the
injunction is granted?
1. Free speech/association
2. Interfere with the function of the
criminal justice system

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 a. Except if to enjoin criminal
activity that is a public
nuisance.

E. Public interest
I. Not the government’s interest but rather
what is the public interest on each hardship
discussed above.
4. T.R.O. - A temporary injunction issued at the very outset
of the litigation, for a limited time, when a court believes
that such an injunction is necessary to prevent irreparable
injury or to maintain the status quo. A TRO can be issued
after notice and adversarial hearing, or ex parte order can
be issued if exigent circumstances require it. Because a
TRO is an equitable remedy it is subject to the discretion of
the court.
A. Plaintiff’s probability of success on the merits
(Sliding Scale),
B. Irreparability of injury before an adversarial
court hearing can be held,
C. Inadequacy of the legal remedy,
D. Balance of hardships, and
E. Public interest
5. Preliminary Injunction - A temporary injunction issued
before or during trial to prevent an irreparable injury from
occurring before the court has a chance to decide the case
on its merits. Always subject to equitable discretion:
A. Plaintiff’s probability of success on the merits
(Sliding Scale),
B. Irreparability of injury before the judge can
decide on the merits
C. Inadequacy of the legal remedy,
D. Balance of hardships, and
E. Public interest
6. Permanent Injunction - An injunction granted after a
final hearing on the merits. Always subject to equitable
discretion: eBay test -
A. Plaintiff Suffered Irreparable injury
B. Inadequacy of the legal remedy,
C. Balance of hardships, and
D. Public interest

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b. Contract Equitable Remedies
i. Specific performance is an equitable remedy within the court's
discretion to award whenever the common-law remedy is
insufficient, either because damages would be inadequate or
because the damages could not possibly be established. Or under
UCC 2-716 for Buyer in “other proper circumstances.”
1. Employment Contract – Not available to employer in a
personal services contract due to the thirteenth amendment
to the U.S. Constitution. However a prohibitory injunction
preventing that employee from working for a competitor
and causing harm to the employer is possible.

c. Real Property Equitable Remedies

i. Specific Performance – Not available to the seller in a real
property contract as the legal remedy of expectancy damages of the
purchase price is sufficient.
ii. Injunctions for Trespass to land and nuisance under tort.

d. Restitution in equity - claim of unjust enrichment that seeks to recover

the defendant's ill-gotten gains.
i. Constructive Trust - an equitable remedy by which a court
recognizes that a claimant has a better right in equity to certain
property than the person who currently has legal title to it.
1. Defendant uses the plaintiff’s property to get title of
another property
2. Identify the Res
3. Trace the Res
A. BFP4V stops trace
I. Bona Fide – Takes without notice
1. Actual notice
2. Inquiry notice
3. Constructive notice
II. For value –pays consideration, did not
receive as a gift or bequest.
4. Assert legal fiction of Constructive Trust - legal
fiction that ne'er-do-well is a constructive trustee of yours
and is holding it for you the beneficiary (even if it increases
or decreases in value).
A. If he files BK then you are at the front of the line
because he never really owned it.

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ii. Equitable Lien - a right, enforceable only in equity, to have a
demand satisfied from a particular fund or specific property,
without having possession or title of that fund or property.
1. Defendant uses the plaintiff’s property to improve his
existing property.
2. This lien takes precedence over other liens.
3. If Comingled:
A. Rule in claytons case - (FIFO) first in first out
B. Rule in Hallets case (Jessels bag) presume that
defendant uses his money first
C. Modern option - Choice of funds drawn out first
or those withdrawn at a later time
D. Restatement -
I. Conscious wrongdoer - pro rata percent of
the commingled account and of what can be
traced out of it
II. Innocent wrongdoer - Limited to
equitable lien on the property purchased
with account funds
E. Replenishment - if defendant manifests intent to
replenish then the equitable lien will extend to it.

iii. Purchase Money Resulting Trust – The equitable beneficiary

furnishes consideration for the purchase of real property, which is
taken in the name of an equitable trustee who consents to title
being taken in their name.

iv. Rescission and Restitution –Justified unilateral disaffirmation

of the contract after part performance, can seek rescission and
restitution from the buyer for the reasonable value of any benefit
already conferred. Requires: fraud, misrepresentation, failure of
consideration, material breach of contract, mistake, duress, undue
influence, or Illegality for justification.

v. Accounting - an equitable proceeding for the comprehensive

investigation of partnership transactions and the adjudication of the
partners' rights.

vi. Declaratory Relief (both a remedy and a cause of action)

1. Ask court to declare the rights or legal relationship
between the parties.

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 2. Justiciability - standing, ripeness, political
question, and mootness.

IV. Equitable Defenses

1. Unclean hands - misconduct in which the plaintiff was personally involved in
and that is related to the transaction being litigated. If the plaintiff was personally
involved in misconduct in the transaction she sues on, the chancellor will refuse to
grant her equitable relief.
a. Axiom – “He who comes into equity must come with clean hands”
2. Laches - bars a plaintiff’s equitable relief due to plaintiff’s unreasonable,
unexcused delay that prejudiced the defendant in their defense.
a. Axiom – "Equity aids the vigilant, not those that slumber on their
rights"
3. Estoppel - Plaintiff is acting/ed inconsistent with the very rights now being
asserted.
a. Axiom - “One can not sit and watch a fence be built and then go to
equity to have it removed"

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3) Contempt
I. Criminal contempt - To vindicate the court. Collateral bar rule: in a defendant’s
criminal contempt, the collateral bar rule will prevent the defendant from arguing that the
injunction was substantively incorrect. Exception to the collateral bar rule - if the order is
constitutionally invalid on its face.
1. Direct Criminal Contempt - contempt that occurs in the presence of the court
(Judge can not act as prosecutor due to separation of powers doctrine)
a. No safe guards - no trial, no jury.
i. Serious criminal contempt (more then 6 months jail or more then
$500 fine) requires a jury trial.
1. If more then one criminal contempt argue cumulative
effect to qualify for jury trial especially if at the same
hearing.
b. It is irrelevant if the court itself is civil or criminal.
c. Indicators - Fixed amount of time (jail) or fine paid to state.
2. Indirect Criminal Contempt - contempt that occurs outside the presence of
the court - you should be bound over for a criminal trial.
a. Indicators - Fixed amount of time (jail) or fine paid to state.
II. Civil contempt - To vindicate the rights of the other party, can be appealed and set
aside. No right to a jury and no criminal court rights (right to an attorney, etc.).
1. Coercive Civil Contempt -designed to compel the defendant and protect the
plaintiff.
a. Indefinite period of jail time or fines ("until you comply")
i. Exhaustion - a limit on CCC (mother jailed for CCC for failure
to turn her minor daughter over to her ex-husband - she was jailed
until the child reached 18, after that the CCC was meaningless)
ii. Court Justification - "you have the keys to your prison."
b. Defenses.
i. Substantial compliance.
ii. Impossibility.
2. Compensatory Civil Contempt - compensating the other party for damages
suffered by violation of the court’s order.
a. Usually paid to the other litigant not the state.
b. Defenses to contempt -
i. Impossibility OR impracticability - (versus unwillingness - i.e.
refusal to get a job to pay child support).

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4) Jury
I. Right to a jury trial (look to historical background for remedy)
1. Equity causes of action are not entitled to a jury
2. Remedies at law are entitled to a jury trial (must file a jury demand)
3. Constitutional right to a jury in a criminal matter.
4. If substantive equity matter then no jury (injunction, specific performance,
constructive trust, etc.)
II. Jury nullification - jury encroachment into the judges power where they disobey the
law as given by the judge.
III. Judge’s encroachment into the jury’s domain (longer trials, costly, and
cumbersome)
1. No jury in equity
2. JNOV / Additur / Remittitur

5) Death of a Litigant
I. Under the Common Law death of the litigant was the death of the case (better to
kill then injure).
II. Wrongful death statutes - different in every state and create a new cause of
action based upon a special relationship and loss of economic support (Parents,
Spouse, Children of deceased)
III. Survival statutes - statutory vehicle that allows a surviving relative to
continue the decedent’s suit. May have limitations on damages i.e. Pain &
Suffering.

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