I.

Introduction and Overview

1. Structure of course: Injxt, Damages, Restitution, Declaratory Judgments (DJ), Torts, K's.
2. Theme: every wrong has a remedy.
3. Legal History:
a. Merger of cts of law and equity: 1 ct to hears both equitable and legal matters.
i. Distinctions b/t case as law and equity:
1. Jury: only in law action.
2. "Inadequate remedy at law": Have to show to get equitable remedy
i.e. show $ is inadequate.
3. Enforcement of orders: law/parties and equity/ct.
4. Discretion in Equity: Equity ct has discretion in ordering remedy
unless statute says otherwise, law ct doesn't.
4. Overview: Legal: SS= S:CNPM, S: S, K. Equitable:T:I, K:SP, R, R. Rest: QK, CT, EL, DJ.
a. Legal Remedies:
i. Substitutionary Remedy: sub for something lost or harmed. Biggest = $$.
1. Compensatory Damages: compensate the P for the harm or the
loss.
a. General Damages: part and parcel of c/a = have this c/a
have these damages. "Flow as natural from the harm."
Always in contemplation of the parties.
b. Special Damages: some P's may have this; not all. Must be
pleaded and proven specifically.
i. Hadley v. Baxendale: have to show damages w/in
contemplation of the parties.
2. Nominal damages: tend to justify the c/a. When proof problems but
want to award P. Vindicate wrong.
3. Punitive Damages: punish. Focus on D's actions.
4. Measurement goal: comp but not over-c. diff w/ K or tort.
a. Tort: "Make P whole." Pre-tort condition. Backward looking.
b. K: put non-breaching party in position had K been
performed. BOB/Expectancy/Reliance. Forward looking.
ii. Specific legal remedies: remedies wrong specifically.
1. Statutory: deal w/ a particular c/a.
a. Legal Replevin: P gets back PP property that is taken.
b. Ejectment: P gets possession of RP
2. K:
a. Liquidated damages: parties set by agreement the specific
remedies they want should there be a breach.
b. Equitable Remedies:
i. Tort:
1. Injxt. keep tort from occurring or occurring again.
2. Equitable Replevin:
ii. K:
1. Specific performance:
2. Reformation:
3. Rescission:
c. Restitution look at D: how was D unjustly benefited & enriched.
i. Legal Restitutionary causes of action and remedies: Quasi-K
ii. Equitable Restitutionary causes of action and remedies:
1. Constructive trust
2. Equitable lien
d. Declaratory judgment: declaration of rights but no relief.
II. Equitable Remedies
A. Introduction to Injxt: (remember injxtless does not necessarily mean remediless).
1. Characteristics of Injxt's (TRO's, Prelims, Permanent): R/M IRAL IH D B P/F TI PR E

a. Rights/merits/underlying wrong: the remedy once you have a cause of action.

Must have an underlying c/a to get an injxt. Do you have all the elements?
b. Inadequate remedy at law: $ won't compensate P or its not what they want.
c. Irreparable Harm: tied w/ IRAL i.e. that may be enough. Should separate the two
anyway. If get don't get injx P will suffer IH.
d. Discretionary: unless req'd by statute injxt is discretionary by Ct. More you show
in each category more likely ct will exercise discretion.
e. Balance: ct will balance rights of the parties in exercising its discretion:
i. What is the harm to P if the injxt is not granted vs.
ii. What is harm to D if injxt is granted?
f. Present/Future: injxt's look to present or future harms. Past harm is damages.
Can't enjoin something that has already happened.
g. Tribunal integrity: cts want to be respected; they want D's to follow their orders.
i. Is the order going to be effective? Is it feasible?
ii. Will the order accomplish the end?
iii. Can the ct supervise it?
h. [Property Rights:] is P's property right at stake? Does the underlying case
involve RP or PP? If so it's easier get an injxt.
i. Emergency Situation: TRO ONLY.
B. Forms/Classification of Injxt:
1. Preventive/Coercive Injxt: prevents harm to P & coerces D to do something or to refrain
from doing something.
a. Prohibitory: prohibits/restrains D from doing something. (Easier to get than
mandatory b/c more supervision req'd there) (ex. Clinton)
b. Mandatory: requires a D to affirmatively do something.
2. Specialized Injunctions:
a. Structural Injunction: goal is to change the structure of the D.
b. Prophylactic Injunctions: seek to prevent future harm but not necessarily to just P.
Ex. sexual harassment policies etc. Not really recovery for individual P, larger than
just the two parties.
3. TYPES of INJUNCTIONS (3): getting one doesn't mean you get the others. If can't get any
may just mean injxtless but not remediless, could mean have an adequate remedy at law.
a. TRO:
i. Purpose: freeze status quo for short period to gather evidence for hearing on
prelim.
ii. Balance: harm to P if it granted v. harm to D if it is.
b. Preliminary injxt (interlocutory injxt):
i. Purpose: keep D from doing something until we get to full trial. Longer
period of time need stronger evidence.
ii. Balance: same but longer time period i.e. time frozen till trial = bigger burden.
c. Permanent injunction:
i. Balance: same but infinite period. Need strongest evidence.
B. TRO's: issued prior to trial on merits. Freezing the status quo for time to develop evidence till
fuller hearing.
1. Substantive Req's:
a. P has to show likely success on the merits = more than no chance but less than
total success, more than just allegations or speculation, like a PF case. (Clinton).
i. May have to show more in employment context b/c asking for coerced
relationship. (Ahmad)
b. + IRAL, IH, D, B, P/F, TI PLUS
c. Emergency Situation: something has happened and we need the injxt right now.
2. Procedures and Standards for Issuing TRO's:
a. Notice: P has to give D notice that they are going into ct seeking a TRO.

i. Hearing (adversarial) give the D a chance to say no to any of the

characteristics or to raise any of the defenses.
ii. Ex Parte (non-adversarial) D has no notice. Allowed under certain circs:
Balancing two things: 1) P's emergency situation not time to give notice, 2)
D's due process rights.
1. Req's:
a. Can't find D.
b. Harm if notify D possible destruction of thing or no time
c. Notice of TRO once in place b. Bond: P has to post a bond since likely success is standard (less than complete
evidence) if wrong ct wants to protect D. Amount equal to that which will compensate
D if turns out TRO wrongly issued.
c. Duration: FRCP 65: TRO can be in effect no longer than 10 days or until hearing on
motion for prelim, whichever is less.
d. Appeal: generally cannot appeal a TRO b/c it is temporary.
C. Preliminary Injunctions: asking for more so ct wants more from P.
1. Elements of Prelim: (like TRO but stronger evidence in some places).
a. P has to show probable success on the merits a strong case. Better than likely
but not 100%. No emergency.
b. Irreparable Harm: something more that IH for TRO.P will suffer irreparable harm for
a longer period of time and P should be able to do that b/c needs more time to
develop evidence.
c. + All other elements.
2. Procedures and Standards for Issuing PI's:
a. Notice: req'd
b. Bond: yes.
c. Duration: until trial on merits
d. Appeal: yes.
3. In any particular case: The Possible Analysis (as to TRO/Prelim): (Able, Ayers)
a. View merits of he case at early state (TRO/Prelim):
b. Irreparable harm to P and how that balances against any harm to D. (Obviously also
IRAL, TI etc.)
c. 3 tests:
i. Traditional test: (glass has equal amounts of each) (D's like = highest
burden)(equal amounts of everything means no sliding scale).
1. Likely (TRO)/Strongly likely (Prelim) success on the merits
2. Balance of irreparable harm favors P.
ii. Alternative 1: P needs to show: (glass filled more w/ merits than harm)
(Sliding scale)
1. Probable success and;
2. Possible irreparable harm
iii. Alternative 2: P needs to show: (glass filed more with harm than merits)
(P's like since they have to show less merits)(Sliding scale).
1. Serious questions are raised and
2. The balance of hardship sharply tips to P.
D. Bonds: (only as to TRO and Prelim, does not apply to permanent injxt)
1. Procedural Necessities: Req's and purposes: P must post a bond w/ the ct if they want a
TRO or a prelim.
a. Purpose: trying to protect everyone. Protects Whom?:
i. D: if wrong in enjoining D w/ less than full trial, can be compensated w/ $.
ii. Ct: ct grants w/out full info so if mistake you can't sue the ct.
iii. P's: protects P's from themselves. Can't be do it on a whim or frivolously.
iv. The System: Want people to respect the system and use is properly.
b. Exception: times when P doesn't have to post a bond:

i.
ii.
iii.
iv.

P has $: P can cover if mistake.

If P is the govn't. Have money and do things in public interest.
P is indigent. Access, don't want to shut poor out of process.
P case about Denial of Const Rights: Ex. Clinton. If P acting in public
interest in order to get D govn't to perform as it should. We all have stake.
v. No $ harm to D: Type of case where no chance of financial harm to D.
c. Amount of Bond P has to post:
i. Totally discretionary w/ the ct. BUT the cts usually use some sort of standard.
Basic standard: amount of money that would compensate D if the
TRO/Prelim were wrongfully issued.
d. Recovery by D: Wants to req a bond as high as possible. Its prohibitive for P. So
how does D recover on it?
i. D's recovery triggered by:
1. Fed: D gen req'd to ultimately prevail on the merits. OR
2. State standard: only req TRO/Prelim to have been "wrongfully"
issued. Who ultimately prevails is irrelevant.
3. D must show damages: No matter what standard is used, D must
prove damages caused by wrongfully granted order: have show they
were financially harmed (expended $) or ct used wrong standard.
4. Maj rule: amount of bond is ceiling for the amount of damages a D
can claim. Note: doesn't include Atty's fees and costs.
E. Appealing TRO's and Prelims:
1. Can you Appeal?;
a. Prelim: YES: YES, findings of fact and conclusions of law in record for basis
b. TRO: NO: Gen rule = NO = can't appeal a TRO. Practical: don't have time, ex parte.
i. Exceptions: If TRO is prelim its appealable.
1. TRO is really a prelim: labels not controlling. LC is wrong. Appellate
ct will decide this. How can we tell?
a. Adversarial hearing w/ notice and full development of a
record. Were there Findings of fact, conclusions of law,
Notice, Adversarial, Timing. (Ex. Clinton).
b. Is there any more interlocutory relief available prior to
trial? If not then may be appealable. (Ex. Clinton)
c. If the TRO extends beyond the normal time for a TRO.
Has it "ripened into a prelim." (Fernandez, Nutrasweet).
i.

Fernandez: 62 day TRO against deportation, since no effort to

dissolve it by govn't, the consented to continue to be bound by
TRO. No ripen, just same order. Ripen not just passage of time,
need action by parties.

ii. Procedure: How do you appeal? Find the right ct and file papers. Two things
to consider in appealing:
1. Merits Panel Rulings: Hear appeals. Looking at merits of the injxt
i.e. the substance. Is it wrong decision, test etc.
a. Substance: merits. Did the trial ct make a mistake? Is it
substantively the wrong decision? Ct apply the wrong test
i.e. is it a prelim or TRO?
i. Standard of Review: Abuse of discretion.
2. Motions Panel Rulings: provides pre-appeal injunction relief.
a. Procedure: Make a motion in trial or appellate ct. Most jxd
have a motions panel.
i. Motions that are made w/ TRO or Prelim while on
appeal: seek to have order stayed/modified/restored
pending appeal.
1. Stay The Order:
a. Fed Ct: no automatic stay, must
make motion for one. (FRCP 62(a)).

b. Cal Ct: mandatory is automatically

stayed; prohibitory is not automatic,
have to ask the ct (make a showing
of hardship see n. 3 p 136).
c. Proof: appeal has success on
merits, IH if not granted etc.
2. Restore: want to restore the status quo.
3. Modification: want to change the injxt.
F. Permanent Injunctions: had trial or something like it. No more extraordinary relief. For judge.
1. Issuance:
a. Same basic req's: indefinite future. Elements must be stronger
1. Actual [Success on the Merits]: You have to win. No bond.
2. IRAL: P doesn't want $ i.e. $ is inadequate b/c:
1. Multiple or recurring damages: ongoing nature of harm, pollution,
trespass.
2. Future harm: hasn't happened yet. (See Smith v. Western Electric).
Cts will issue if harm is relatively certain to happen w/out the injxt.
3. Intangible harm: Hard to put $ value on it, you can put a value on it,
but according to P it is inadequate. Ex. Clinton.
4. Money will not compensate:
a. Speculative: you don't know for sure. Ex. Baccarat. Napster.
b. Unique Subject Matter: Ex. RP, sentimental. Even if you
could put a value on it uniqueness takes it out.
c. Practical Problems in getting $ from D: Ex. judgment
proof, liability in equity but not at law can be enjoined but
can't get damages.
5. Equity is superior:
a. Quick: No jury = smoother. Some jxd injxt given priority.
b. Efficient: ct maintains continuing jxd and can see if order
has been complied w/.
3. Irreparable harm: harm you will suffer in the future for a long time.
4. Discretion:
5. Balance: focus shifts. Harm to P if not granted v. harm to D if it is. Is there
any public interest that weighs in on either side.
6. Tribunal integrity: what kind of order and is the ct going to be able to
enforce it in the conceivable future.
b. Procedural Req's:
1. Notice: delivered in judgment or order.
2. Bond: not req'd.
3. Duration: forever.
4. Appeal: yes.
c. Case: Sara Creek cost/benefit analysis If cost of damages exceeds cost of giving
injxt then injxt will win out or visa versa. Only econ cases.
2. Modification of a Permanent Injunctions:
a. FRCP 60(b)(5): allows modification on final judgment if no longer equitable or any
other reason that can be justified. CL also allows for mod.
b. Generally: Not an appeal. Occurs after injxt has been put in place, not appealed, and
one of the parties wants a change. Can be tightening, loosening or dissolution of PI
based on:
1. Ambulatory decree: an injxt walks w/ time. Ct maintains continuing jxd for
review.
2. A change in the underlying law:
3. A Change in the operative facts:
1. Rufo: mod req's only change in law in facts, additional good reason no longer req'd.

4. Consent Decree: a stipulated judgment where both parties agree that injxt
can issue or judgment can be entered. Unlike settlement b/c its an order
1. Fed ct you can modify a consent decree b/c it is a ct order.
2. States: some say an consent decree is a K. Ct's not going to
unilaterally change K terms; parties have to modify it.
G. Equitable Defenses: looking from D's standpoint.
a. Elements: tend to meld w/ elements of getting the injxt.
b. D's standpoint: the P may not have been as good as we thought.
1. Latches: the non-action defense.
a. The Elements of Latches: "Equity aids the vigilant. "
i. Unreasonable/inexcusable/knowing.
ii. Delay (by the P) any length of time i.e. contextual.
iii. Which (unduly) prejudices D:
1. Defense prejudice: ability to mount defense has been hampered by
the delay of time.
2. Economic prejudice: due to delay D must expend an unacceptable
additional level of $.
2. Estoppel: Something that one party did in the past. You are estopped from doing it now
a. Types:
i. Collateral Estoppel: b/c of result previously can't bring it again.
ii. Promissory Estoppel: b/c of what your said you can't bring it again
iii. Equitable Estoppel: The action defense.
1. Inconsistent or false *act/conduct or *statements by P.
2. Intending D to rely on them
3. To which D reasonably relies
4. All to D's prejudice/damage
a. Idea: The P is now estopped from seeking equitable relief.
3. Unclean Hands (defense):
a. Maxims: "He who seeks equity must do equity." "Ct will not sully itself w/ he who has
unclean hands."
b. Elements:
i. Serious (unethical/immoral)
ii. Prior conduct by P
iii. Related to P's claim now.
4. Variation of Unclean Hands: Unconscionabilility (Unclean hands in K situation)
a. Characteristics:
i. Defense not a c/a. Ex. Raised when someone else seeks to enforce K.
ii. Something that shocks the conscience of the ct.
iii. At the time K is made. Doesn't look at events as they have progressed.
iv. Also legal via UCC 2-302. applies to legal actions as well.
v. Can relate to whole K or just particular terms.
vi. Can be either:
1. Substantive U: something the K itself that is shocking OR
2. Procedural U: relates to the formation of the contract.
5. Election of Remedies: you just get one recovery even if you have lots of claims.
a. Characteristics:
i. P must choose one remedy per c/a (injxt or damages ):.
ii. P must elect at some time, either:
1. Judgment.
2. Filing complaint.
3. Actions before complaint.
iii. Purposes:
1. Purpose 1: Avoid a double recovery.
2. Purpose 2: to avoid undue prejudice to the D.

H. Contempt:
1. Introduction: The Nature of Contempt: D doesn't obey injxt. Equity has cont jxd and ability
to enforce its own order through its contempt power. Notion: Tribunal integrity.
a. Semantics of the situation:
i. D is a contemnor when he disobeys the underlying action (injxt), there is a
contempt hearing which results in a punishment contempt order.
Problem: 2 kinds contempt: civil = not crime, criminal = crime.
b. Contempt Characteristics:
i. The order must be explicit: violate letter not the spirit. Be explicit so that
everyone knows what conduct constitutes violation. D wants more explicit, P
wants more general.
ii. D has to have the ability to obey the order: order often assumes ability to
pay so hard to raise i.e. should have done it earlier.
1.

Erwin: must make at least some effort at compliance.

2. Wronke: Where injx, ct can jail intransient & non-compliant D for tribunal integrity.
iii. Civil/Criminal Contempt Dichotomy: Same act can be both. Big distinction
is criminal safeguards. Look at cts motivation.(See handout for distinctions)
1. Criminal contempt: Disrespect to orders or disrespect to the ct
itself.
a. Purpose: to punish = punitive.
b. Big distinction: need criminal safeguards/crim pro for
indirect. Jury if more than 6 mo's or $500 for IND; biz gets if
fine "major", BRD. If underlying order overturned then no
effect on contempt.
c. Direct: in presence of ct, summarily punish w/out safeguards
2. Civil contempt: disrespect to the cts orders. Jail forces compliance,
can be held until compliance; "P's carry the keys".
a. Purpose: coercive =to ensure compliance w/ orders.
b. Big Distinction: no need criminal safeguards, no jury, POE.
If underlying order overturned then contempt tossed out.
3. The act: could be either, its how the ct chooses to punish you.
4. Distinction: criminal safeguards i.e. jury trial, w/ civil you don't.
iv. Persons Bound by Contempt Order: (FRCP 65(d) book pg. 219)
1. Contemnor (D) is person bound by the order: this is the D.
2. Party/agent: agent doesn't have sep legal identify from D or D.
3. "In active concert": can hold in contempt those who act in active
concert w/ the injxt D. Strong factual/contextual connection to the D.
a. Aiders/abetters: not agents but lack in indep interest. What
they are doing advances interest of D.
i.

Roe: more connections w/ the enjoined w/ notice more likley to be

considered aiders/abetters.

b. Successor in Interest: Ex. selling biz won't get you out.

c. Someone acting w/ right/duty: ct may hold more than just
name/party D in contempt for underlying injxt. (Hall)
i. Right/duty analysis: if non-injxt D interferes w/ injxt
D's duty to obey order, as well as P's right to have
that order obeyed, they may the order ineffective
and they can be held in contempt. Req's notice.
4. AND: has notice of the order:
a.

Sega: injxt binds only current officers in capacity as officers. Injxt is not like
a tattoo.

v. Defenses: What defenses can contempt D raise? .

1. Are all the above criteria satisfied? Was order explicit, were you a
person bound etc.
2. Is this really criminal contempt rather than civil and you haven't
given me all the safeguards?

3. Collateral Attack: violate injxt order then claim attack injxt's

correctness at contempt hearing. Ex. unconst, vague, unfair,
mistake etc. Direct attack = appeal. (See Walker)
a. Generally No Collateral attack of Injxt, you are supposed
to go through channels i.e. modification or stay and appeal.
b. Unless:
i. No jxd: If no jxd for ct to enter order then the injxt is
void and can't be held in contempt of not obeying
void order = no valid injxt to obey. (Bandera)
ii. Jxd allows it: if a state says its alright then you can
do it. Cal allows but do so at your peril b/c if you lose
your admitting your in contempt = violation (Berry).
iii. The underlying order has transparent invalidity:
Ex. it is absolutely clearly unconst. (Providence).
4. Contempt analysis:
a. Order?
b. Violation? If yes to both thats it. But, see above for possible
attacks on order and defenses D can raise.
III. Damages Remedy:
A. Introduction:
1. Overview of Damages: much deals w/ semantics of what we label them.
a. Compensatory: compensate the P for past harm and in some cases future harm.
i. General Damages: damages that flow as natural from the harm. Can't have
the harm w/out these damages. Every P will have this. Part/parcel of c/a.
ii. Special Damages: only some P's. Have to show they are in contemplation of
parties. Must be pleaded and proven specifically. Mitigation. (See Am List)
1. Personal injx: anything that result from what happened that aren't
generals: med expenses, lost time from work, wage loss etc.
2. K: foreseeable & in contemplation of the parties at time K was made
(Hadley).
3. UCC semantics for certain types of special damages. (Am List)
a. Consequential: Usually b/t P and 3rd party.
b. Incidental: Usually b/t P and D.
b. Statutory Damages: P need not prove. Leg decides entitlement. Set amount ex.
Treble damages. Purpose: compensation and discouragement.
c. Punitive Damages: no set amount.
d. Nominal: awarded when proof problems to vindicate the wrong done.
e. Attorney's Fees: usually each party's own, but exceptions.
f. Pre-judgment interest: Some circs P entitled to interest on the damages amount.
Amount of loss plus amount on loss of use during lit. Has limitations. Statutory. (not
usually awarded)
g. Costs: Procedural costs of suit. Ex. filing fee, service of process fees, ct reporter
fees, jury fees. Basic Rule: Usually awarded the prevailing party. Statutory.
h. Post-judgment interest: Statutory. Interest accrued from time of judgment to time of
collection. (Usually awarded)
i. Molzof- can't get punies when suing govn't. Compensatories include past and in some cases
ii.

iii.

future harm.
American List: in K gen damages are those that are natural and probable consequences of the
breach. Special damages are extraordinary in that they don't flow so directly from the breach.
Special are only recoverable on showing that they were foreseeable and in contemplation of the
parties at time K was made. Since profits were built into the K, they were not special but general.
Simon can't have special damages only b/c generals part/ parcel of c/a so if don't have
generals your missing an element i.e. negl. = DBCD, and you've lost the case.

2. Analysis generally of damages:

a. What are the various categories for damages?
b. What kind of damages are you going to have?
c. What is the amount of damages?

B. Principles of Measurement: Speculation and Uncertainty:

1. Certainty: Want a level of certainty in the measuring the damages.
a. Characteristics/Rationale for Certainty:
i. Reduce speculation. Don't want jury to go too far.
1.
2.

Baker damages not awarded when to speculative and conjectural

Lewis River- expert testimony that is speculative will be striken.

ii. "Reasonable" certainty not "exact" measurement:

iii. More exact in K than tort: Easier to figure out damages in relation to K.
b. Two Components of certainty/speculation:
i. Fact of damage/liability: damaged (elements), breach of K, P&S etc..
ii. Amount of damage:
C. Adjustments for Time: Prejudgment Interest:
1. Overview. :
a. Schematic: Triggering event complaint filed judgments.
b. During above time period from when P has been harmed and judgment P has a loss
w/ nothing coming in. Also during this period D has the use of the money.
c. Prejudgment Interest: Meant to compensate the P for the loss of that $ from
triggering event to judgment. Meant to give P a "true recovery."
i. Statutory creation: no prejudgment interest in CL. All of it is statutory so
language in jxd can vary as well as start and end dates.
d. 2 Purposes of Pre-judgment Interest: need both to get PI.
i. To give a "true recovery" for the P: want to make P whole.
ii. Want to promote settlement: If D knows they will be on hook for loss &
loss of use (i.e. the interest) for the period D will be more prone to settle.
e. Majority rule: can get PI on "amounts certain." When know for certain what
amount will be entitled to PI. Ex. liquidated damages = in the K.
f. Minority Rule: "amounts certain" or "capable by calculation" to be certain. More
than liquidated damages when can figure out damages by calculation, entitled to PI.
i. K's: would include almost all K cases. K damages are easier to figure out.
ii. Tort: Would not include torts b/c you usually don't know what damages are
until the judgment (Ex. PI, may be allowed for property damage).
1. Rat: since you don't know how much it doesn't promote settlement.
2. Cal: torts that involve obligations that are not K's, but include malice
and fraud P will be entitled to prejudgment interest.
g. Statutory.
D. Adjustments for Time: Present Value:
2. Present value: Unified Judgment compensates P for past and future damages.
a. Past damages: usually set = they are capable of being calculated.
b. Future damages: doesn't happen in every case. Not set, have to estimate what
damages will be. Experts calculate.
i. Discounted to Present Value: Ct figure out what it take to compensate in
future, what do you need today, which is discounted b/c if properly invested
will see you through that period and result in the awarded amount. Your not
going to get the full 2m b/c by investing it you are going to end up w/ a profit
i.e. the interest that the 2m will earn.
1. Figure based on a life expectancy. Inflation considered either in initial
figure or in discount (Stringham).
2. D wants high discount rate b/c he will pay less in the present.
3. P wants a low discount rate so gets as much as possible now.
ii. Structured Settlement: parties agree to be flexible in future, act like equity ct
and adjust payment according to actuality.
iii. Note: general and special damages can go into the future so long as they
can be proven.

E. Collateral Sources: The Collateral Source Rule:

1. Rule: P's in PI cases can still recover full damages even though they have already received
compensation from other collateral sources such as insurance.
2. The rule: If payments ($) to P come from a source that is collateral (unrelated) to the D (the
one who must pay) THEN the D cannot use those payments ($) to offset (reduce) whatever
damages D owes AND the fact and amount of payment from the collateral source cannot be
introduced into evidence.
a. Ex. of collateral sources, friend, employer, family, insurance co etc.
b. Direct source: when payments come from D.
3. Policy and Rationale:
a. Want to encourage people to have insurance, don't want to penalize this
b. Person paying the collateral source did so to benefit P not to help D escape liability.
4. Possible exceptions in some jxd: may be able to get around rule. BUT gratuitous gift
usually considered collateral source i.e. won't let D take advantage of gratuitous $ for P.
Arambula.
F. Punitive Damages (Tort) (SEE HANDOUT)
1. Punitive/exemplary Damages in Tort:
a. Switching our point of view.Not compensating P but punish D. Look at D's conduct
= "yucky".
b. Purpose:
i. Punish the D
ii. Set example: Discourage this and other D's from doing similar things.
c. No bright line/Discretionary: in ct or the juries discretion. Anything it takes in order
to punish. Overcompensation of P. Look at context to see if they might apply.
d. Tort, not K (unless breach accompanied by tort): Normally, intentional torts (willful)
but can have gross negligence that will allow for it. Intentional doesn't necessarily
mean malicious enough for punnies.
i. BMW v. Gore (clarifies TXO 3 pronged test): Punnies are allowed, states
have flexibility in determining amount but can't be grossly excessive:
1. Factors:
a. Chance of conduct recurring:
b. Potential harm to P:
c. "Degree of reprehensibility".
e. Some jxd: punitive damages should have a "not disproportionate relationship to
compensatory damages.
G. Liquidated Damages (K):
1. Def: amount put into the K saying should D breach parties agree P entitled to a certain sum.
2. Function: Want to less litigation.
3. When: D breaches, says P should only get actual damages b/c LDC amount excessive.
4. 2 prongs for Validity of LD Clause: (Truck Rent)
a. The clause is good faith estimate of what harm could be if the K were breached.
b. At the time of contracting, actual damages (compensatory) for breach were hard to
calculate.
5. Void if they are really a "penalty": no punnies in K. based on econ efficient breach
possible. Indicators of penalty:
a. Is it "grossly" disproportionate to actual damages?
b. Does it compel performance by fear?
6. Prejudgment interest: applies to liquidated damages b/c this is an "amount breached."
H. Attorney's Fees:
1. Overview:
a. General rule (American Rule): pay your own atty fees.
b. Unless: (exceptions)
i. By K Parties can provide in the K for atty's fees if you have to go to ct.
ii. By Statute: leg has said in certain cases winner gets fees.
iii. By CL:

10

1. Bad Faith litigation: sanction by paying other side for having to deal
w/ vexatious litigation. It involves a finding of bad faith.
2. Common Fund: the P's actions have resulted in pot of money that
will be beneficial to others as well.
3. Common Benefit: benefit derived from lit benefits all the people so
D should pay atty's fees.
4. "Private Atty General": P acting as atty gen sues D
individual/private. Private person does what the atty general should
be doing. P gets the fees.
IV. Restitution (SEE HANDOUT)
A. Introduction: both legal and equitable remedy. Remedy when case may fall through cracks.
1. Can be conceptually Difficult: Restitution is can be two things:
a. Remedy: it restores, OR
b. Substantive C/a:
2. Elements of Restitution (whether legal or equitable):
a. A loss to the P. Can be tangible or intangible.
b. Concurrent benefit to the D.
c. To allow D to retain the benefit w/out compensation to P would be unjust i.e.
unjust enrichment.
3. Situations Where Used (see handout).
4. Legal = Quasi K: (get cold hard cash) (big differences b/t legal and equitable causes of
action in restitution): Big difference here is that you want money. Remedy is in the form of $.
a. The Theory: quasi-K or a K implied in law, i.e., there is no real K but to allow benefit
would be unjust enrichment. Elements: loss to P, benefit to D, unjust enrichment.
b. QK is generally the theory of recovery, taking the form of:
i. The basic pleading of Assumpsit. (Modern terminology also calls the basic
cause of action "quasi contract").
1. Assumpsit D assumes an obligation when he takes from P.
ii. Common Counts or short pleadings:
1. Money counts i.e., money had and paid, money lent.
2. Quantum Counts i.e. quantum meruit, quantum valebant.
a. Quantum meruit: how much it's worth. If I can show there
was a loss to me and benefit to you and if I can show it was
unjust for you to retain it P can get something.
c. Issues to think about: see pg. 52 of my notes.
5. Equity/Equitable Restitution: get specific property or right to something. Just $ won't do.
a. Constructive Trust/Equitable Lien: remember both are legal fictions.
i. Constructive Trust: (compare to equitable lien)
1. Object: want title to specific property returned to P. (Bender)
a. Don't get CT over general assets, must be specific property.
2. Use when value goes up: when value of thing taken increases want
increase value of as well as what was taken.
3. Legal fiction: using it to prevent unjust enrichment. A remedy.
4. B/c this is Equitable there is usually an inadequate remedy at law.
5. D's Breach of duty: usually some sort of fiduciary duty owned to P.
6. Remember: still may have a legal restitution cause of action but
some reason to want this instead.
ii. Equitable Lien (compare to constructive trust)
1. Object: want security interest specific in property.
2. Use when value has gone down or has b/c so severely comingled that we can't extract it.
3. Its a Legal fiction: using it to prevent UE.
4. Inadequate Remedy At Law: B/c this is Equitable there is usually an
inadequate remedy at law.
5. D's Breach of duty: usually some sort of fiduciary duty owned to P.

11

6. Remember: still may have a legal restitution cause of action but

some reason to want this instead.
a. See hypo pg. 55
iii. Defense to claim of Unjust Enrichment: Bona fide purchaser: Two req's
for bona fide purchaser: A BFP:
1. Pays value: and
2. Have no notice of any other claim:
b. Accounting: Ex. breaking up of partnerships.
c. Subrogation: one party steps into another's shoes b/c we want to prevent unjust
enrichment.
i. Ex: creditor lends $ to X in exchange for collateral and gets Y to cosign as
surety. If creditor collects from Y, Y steps into creditors shoes and collects
collateral. Surety can now assert any claims that X had.
1. Result: Subrogation substitutes one person for another person and
allows them to assert restitution to prevent unjust enrichment:
a. Has been a loss to the obligor
b. A benefit to creditor
c. And to allow creditor to retain all would be unjust enrichment,
thus we want creditor to disgorge that, namely the collateral.
D. Defenses to Claims of Unjust Enrichment: (and Wrap up of Restitution)
1. Overview: Was the enrichment just?
a. BFP (Equity only)= bona fide purchaser. Someone who gives value w/out notice of
P's claim can cut off P's claim for title of particular property.
b. Tracing (Equity only): the P has to trace what happened if you want a constructive
trust or equitable lien.
i. Basic concepts and problems w/ tracing:
1. Problem #1: Commingling. Fictions/presumptions to help P trace.
a. CLAYTON first in/first out. If D's $ was already there in
account, then first $ to be w/drawn is D's.
1. this works when it works i.e. when its easy
case. Doesn't work to well when something
good is done w/ the money.
ii. JESSELL'S BAG D's $ w/drawn first.
iii. OATWAY P can choose either $ taken out of
acct or $ remaining in account.
2. Problem #2 Redepositing
a. General rule: no restitution w/out an intent to do so; so use
lowest intermediate balance (i.e. $2) because we know at
least that much was P's.
3. General Ideas
a. When there are multiple transactions w/ have presumptions.
b. P has the burden of proof.
c. These are fictions designed to help a P to come up w/ proof.
c. Volunteer and officious intermeddler: claim by D it is just enrichment b/c volunteer
didn't expect to get paid and officious meddler forces D to be enriched. (applies to
both legal & equitable).
i. Volunteers: at time P didn't expect to be paid, so according to D, they
shouldn't be. Properties Development.
ii. Officious intermeddler: expects to be paid but puts D in a position where
they can't refuse. It is a forced benefit to D.
1. When allowed: OI can get $ if Good Samaritan statutes.
d. Change of position: Now impossible for D to disgorge that unjust enrichment. Even
if you have a Restitutionary claim. D's claim would be unjust on me to disgorge.
i. Characteristics of Change of Position:
1. Doesn't work if the D was willful. Generally works if there has
been a mistake.

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2. Its not just used up,

3. the benefit has been used for something "good":
a. lost
b. destroyed
c. used for "good social purposes." See Messersmith.
e. Sum of restitution: Not just a remedy but can also be a separate cause of action.
Can get money (legal) or title or priority of title (equity).
V. Declaratory Relief/Judgment. (See handout problems on Declaratory Judgments).
1. Characteristics:
a. Def: statutory c/a and a remedy declaration by the ct (not order for $ or injxt).
i. Construe documents (deeds, K's ect) and statutes.
ii. Helps to determine rights and duties of the parties.
iii. "Terminates uncertainty" between the parties.
b. DJ is both:
i. Legal: might have a jury if facts in dispute
ii. Equitable: it is discretionary; there is no right to DJ.
c. Need "justicable" controversy: to get jxd/standing. Not actual controversy but more
than mere difference of opinion: "it touches the legal relations of parties who have
adverse interests." No actual suit yet.
d. Not granted if:
i. It will not terminate the controversy.
ii. There is a pending suit.
e. Purpose: speed and often entitled to priority.
Injunction VS.
Declaratory judgment
Need a bond
None
No Jury
Jury for facts
Contempt: if violate enforced by this
No ct enforcement if violation. Need another
suit.
Can be preventive and coercive.
Only preventative b/c no contempt power.
Appeal? Prelims & maybe not TRO
Final, appealable judgment
Must show inadequate remedy at law &
No showing needed.
irreparable harm
VI. Remedies in Action: Torts.
A. Interference w/ interests in Personal Property:
1. Personal Property: Torts overview: PP = anything not RP
a. Legal:
i. Damages
ii. Replevin P gets property back. Equitable concept.
b. Equitable (injunction aka "equitable replevin") = an injxt dealing w/ PP.
c. Restitution unjust enrichment where PP is involved.
2. To Find out which remedy is appropriate ask:
a. What condition is the property in? .
b. Who physically has it? if P don't need to get it back, if D do we want it back or do
we want the value of it.
3. Vocabulary:
a. Trover: tort of conversion. In conversion your remedy is a forced sale. In damages P
gets FMV of property b/c it has just been sold.
b. Replevin: recapture chattel after posting a bond.
c. Detinue: P gets wrongfully detained chattel back or FMV at option of D.
4. Damages:
a. Trespass to Chattels interfering w/ P's ownership of PP. (assume P has property)
i. TTC: Destroyed/lost:
1. General Damages: (try to go for #1, the rest are fallback positions)
a. FMV at the time of loss: look at the following:

13

i. Appraisal
ii. Similar assets
iii. Replacement (-) depreciation OR
b. Value to P (clothing/household) usually only look at this if
there is no secondary market to do FMV. Secondary market
is not as good as the primary value OR
c. Sentimental (Intrinsic/predominate/objective). 3rd fallback.
Have to look at the intrinsic value of the item. Ex. picture of
grandma. Has to be intrinsically sentimental.
d. (NOT) Replacement: you don't get this b/c your PP is not
brand-new. Even though P wants a replacement they are not
going to get it.
2. Special Damages: loss of use (unless replaced).
3. Prejudgment interest: may get this if you have something where
you know the FMV you have some certainty.
ii. TTC: Damaged
1. General Damages:
a. FMV diminution P gets diff b/t FMV at time of loss and
FMV now. Put you in a position you would be in had the tort
not occurred OR
b. Cost of repair (ceilinged by FMV diminution) b/c if can't
repair then its really destroyed). Ceiling repair b/c its econ
waste to spend more to repair something than its worth.
c. Special damages loss of use.
d. Prejudgment interest: if ready market.
b. Conversion (forced sale) both above assume P has PP, this assumes D has it.
i. Elements:
1. P owns property,
2. it was PP, and
3. D exercised unlawful dominion over PP.
ii. General Damages
1. FMV at conversion: same as destruction above. OR
2. Replacement b/c if sale is forced P is forced to replace, i.e.
especially if D is willful, i.e. accession (D adding value).
iii. Special Damages: loss of use.
iv. Prejudgment interest: if ready market
v. Punitives: Available but req's intention not just to do act but to harm the P.
c. Injury of Pets:
i. Damages: FMV. Additional damages when they have special use. No
sentimental value.
5. Replevin: (specific relief) (in effect, getting the property back). Specific remedy where you get
the object rather than the value of the object.
a. Legal Replevin: Legal remedy other than damages. Have to show both remedies at
law are inadequate (i.e. why money won't do). Return of PP. Often used as pretrial
remedy. (Cal: writ of possession)
i. P gets:
1. Object (the property) back through power of law ct not equity ct.
2. Damages for detention (i.e. loss of use) b/c D has P's property.
ii. Due process concerns especially when ex parte: Procedural Safeguards:
1. Judge not clerk.
2. Declarations w/ facts not conclusions regarding:
a. P's ownership interest
b. Extraordinary circumstances (fleeing)
c. Item is Not D's source of income: See Fuentes v. Shevin.
3. P has to Post a bond D has right to counter-bond, unlike in
equitable replevin.

14

4. Then have to have provisions for D to challenge the writ of

possession.
iii. Statutory characteristics
1. Bond P has to post usually 2x P's interest or the value of the
property. D has right to counterbond they can put up the $ and
keep the property, don't have this w/ equitable injxt. (Usually 2x
value and counterbond by D).
2. The Sheriff finds and delivers sheriff seizes the property, brings it
to ct, and brings it to P. (in injxt D is supposed to do it or they get held
in contempt).
3. Usually no appeal until time of final judgment b/c this usually
tends to be pretrial relief, i.e. writ not interlocutory appeal in
judgment.
b. Equitable Replevin: just a regular injxt which means you need to show all the
regular injxt characteristics: R/M IRAL IH D B P/F TI PR E.
i. IRAL: have to show why damages and legal replevin are inadequate.
ii. Bond in Injxt: discretionary w/ the ct. Amount is that amount of money that
would compensate the D if the injxt was wrongfully issued.
c. Main things on legal replevin:
i. Amount of the bond
ii. Counterbond
iii. The method for delivery and enforcement
iv. In context if above 3 things are going to make a mockery of the remedy of
replevin then it may be inadequate as a remedy. Think out the cases.
6. Restitution: (Personal and Intangible Property Interests) restoring personal property.
a. Elements: 1) loss to P, 2) benefit to D, 3) allowing D to keep = UE (intentional or
willful can be enough to show unjust).
i. Note cases in notes here good to go through again 70-72.
B. Real Property: (diff b/t RP and PP (fungible/replaceable) while RP is more unique.
1. Torts/main c/a's:
a. Trespass: any interference w/ P's ownership or possession of RP. Have to be on P's
property, need not be knowing.
b. Encroachment: trespass by a structure (building).
c. Nuisance: any unreasonable interference w/ P's use or enjoyment of RP. Can
emanate from D's own property.
2. Legal Remedies:
a. Damages: for both trespass and nuisance even if you have to show different things:
i. Trespass/Nuisance Damages:
1. Nominal: you can always get these, can be a springboard for
punitives.
2. Punitive: Remember amounts are always uncertain here.
3. General Damages: usually measured in one of two ways.
a. FMV diminution: differential b/t value b/f t/n and after OR
b. Cost to Repair/Removal: BUT
c. When Repair/Removal exceeds FMV diminution: (cases
generally deal w/ this situation, want to get around giving just
FMV dim)
1. General damages:
1. Majority: r/r ceilinged by FMV diminution
2. If no ceiling but r/r must be "not grossly
disproportionate" to the FMV diminution.
(fair, reasonable).
3. Below things ct looks at in assessing what
value to give.
2. Business (lesser) v. Personal (repair/removal)

15

1. Business: If commercial property cts tends

to look at lesser value i.e. FMV diminution or
r/r w/ ceiling.
2. Personal: ct more inclined to give you the r/r
w/out ceiling = higher value.
3. if T/N is Permanent (FMV dim) v. Temporary
(Repair/Removal): (see L'Enfant)
1. Perm: FMV diminution.
2. Temp: its abatable t/r (repairable). So r/r. sep
c/a everyday if this.
Temporary Trespass
Intermittent
Abatable: repairable

Permanent
Continuing- it is now and will be
Uninterrupted

4. Willful v. Innocent D: if willful more likely to give

higher r/r costs.
4. Special Damages:
a. Objective View: objective (land) loss of use. Harm to land
itself.
b. Subjective View: (person) annoyance and Discomfort.
Fungible nature.
5. Nominal: serve to vindicate the right rather than recovery for P.
(Steenburg trespass but no diminution and nothing to repair so
nominal awarded).
6. Punitive: since both t/n are intentional torts = available. .
b. Ejectment: D ejected from P's RP. Specific legal remedy.
i. P has to prove:
1. P's right to possession, and
2. D's wrongful withholding: D is physically on P's property, either
him or his stuff.
ii. P Gets:
1. Recovery of property (ejectment by sheriff) and in the appropriate
case
2. Mesne Profits: the lost rent during the period of wrongful w/holding.
iii. If D trespasses in Good Faith and improves the property: (can D make
claim that as good faith improver should get value of improvements).
1. CL: NO, don't reward trespasser = ejectment.
2. Set Off: may get it offset against the value of P's mesne profits.
3. Betterment Statutes (Cal Civ. Proc. Code 871.1 et seq.) Calls for
a balancing cost of improvements v. harm to P.
iv. Range of Remedies for Real Estate Owner (P) suing the Good Faith &
improving TRESSPASSER (D): (see Miceli)
1. P/Owner gets land and money.
2. P/owner gets land; no money
3. P/owner gets land and must pay for improvement:
a. Ceilinged by mesne profit or
b. No ceiling if business land or
c. No ceiling.
4. D/trespasser keeps land and pays owner money (forced sale/private
imminent domain thing)
5. D/trespasser keeps land and pays nothing. (Adverse possession)
3. Equitable (injunctions): Various types of torts. More fact driven. W/ all must show why $ or
ejectment won't do.
a. Injxt (Trespass):
i. Generally as to EI:
1. "Equity will not try title" legal cts can do that. Try ejectment.

16

2. Routine Injxt Analysis: ownership, IRAL, IH, TI etc. Below are

unique considerations as to factors in trespass context. Depending
on tort problems tend to occur as to balancing.
ii. Inadequate Remedy At Law: (show why $ or ejectment won't do)
1. Sheriff problems: problems w/ ejectment.
2. Continuous ergo multiple suits: continuing trespass=c/a everyday.
3. Land is unique not fungible.
iii. Balance: will D get his say i.e. does he get a right to be in the balance?
1. Traditional: No balance. CL says D doesn't get his say.
2. Exception to traditional view: (things P has to show to keep D out
of the balance i.e. telling his side of the story)
a. D had good faith, and (Vossen)
b. The trespass must be de minimus = contextual.
1.

Vossen: watch for easements, dealing w/ D's own land so may

let him in on balance.

3. Modern: Just good faith. Cts will let D in on balance if it was in GF.
b. Injxt: (Violation of Restrictive Covenant): infringement on an absolute ability to use
your property. Balance: ct is more likely to let D in on the balance b/c more like K
violation than interference/ownership of RP.
c. Injxt: (Violation of zoning ordinance): Balance: ct is less likely to let D in on
balance b/c regulatory violation, implicates public interest. Not just harming P but also
the community. Ordinance also provides D w/ notice.
d. Injxt (private nuisance): (Specific Relief against Interference w/ Use and
Enjoyment)
i. Intro:
1. Use Basic Injxt analysis +: Same basic injxt analysis but b/c of the
nature of what is going on it changes a little. R/M IRAL IH D B P/F TI
PR E.
a. ARL: Permanent v. Temp nuisance: permanent cannot be
removed so damages may be only remedy avail. D likes.
(Martin)
2. Private nuisance actions: one landowner suing another,
interference w/ P's use and enjoyment of their own RP.
3. Nuisance = Unreasonable Interference w/ use and enjoyment:
balancing act, some things the D can do can be reasonable.
4. WRT injxt analysis:
a. Is it a nuisance?: is this a reasonable or unreasonable
interference. If it is:
b. Then usual injxt balance:
1. More likely IH to P if unreasonable
2. Nuisance can be on D's property. So $ and
ejectment could be IRAL.
5. Nuisance tends to be something continuous. So cases might be
split by P: P can sue for:
a. Past Harm: damages for things that have already happened,
b. Future Harm: compensation for what may happen in future.
ii. Other remedial theories in these cases: Tribunal Integrity.:
1. General order vs. Specific order
a. General injxt: General order to stop doing thing. Ct sets
goal but D figures out method. D's like. Ex. stop polluting.
b. Specific Order: "you are hereby ordered to take the
following remedial steps." Ct sets method, D follows and it
doesn't work = no contempt.
2. Conditional orders: look for other methods to fix and if that doesn't
work ct will order injxt.
iii. Possible Defenses:

17

1. Compliance w/ zoning or other environmental types of

regulation: if I am in compliance you can't enjoin me. See Spur.
a. Per se nuisance is unreasonable in itself
b. Per Accidens activity that is lawful or good but the way its
done causes unreasonable interference. Compliance w/
zoning alone doesn't mean your OK.
1. Hobbs: Majority Rule: compliance w/ zoning laws just one
factor to consider as to whether unreasonable nuisance or in
the balance, not absolute defense.

2. Cal Code of Civ Pro 731(a) if city has establ

zones for comm. or airport use no injxt for
reasonable operation w/in that zone.
2. Coming to the Nuisance: D was there first and P chose to come to
the nuisance. Not absolute defense, just a factor in reasonableness
or harm to D if injxt granted. Spur.
e. Injxt (public nuisance): same actions can be both private and public nuisance.
i. Public nuisance injxt:
1. Affecting Common rights of public at large to their Health,
Safety & Welfare.
2. Standing:
a. Public: Public (P) brings the suit via the govn't.
b. Private individual: can bring claim if they have challenge
to H, S & W + a special (different in kind) private harm
b/c of the nuisance.
3. Balance: balancing public's H, S & W against the nuisance.
4. Defense: Compliance w/ zoning? D's says zoning comes from
public and can't argue no good now, kind of estoppel. P wants this to
be just one factor.
5. Res Judicata:
a. Public/private: public nuisance suit denied then private
nuisance suit = res judicata.
b. Private/public: NO res judicata. Private person doesn't
include the whole public. Could have a separate harm from
the public.
4. Restitution Concerning RP Torts (Trespass and nuisance): (trespass and/or
improvements) (where RP is involved) not for return of RP but as a c/a where RP is involved
and had problems coming up w/ other remedies.
C. Crimes: (Injxt as Law Enforcement Tool)
1. Intro: Equity ct can be used to enjoin D from committing a crime in some circs.
a. Criminal Equity (Injxt for crimes): criminal system isn't enough for some reason.
i. Generally: can't enjoin crime unless
1. Public nuisance activity: an activity that could be the basis of
public nuisance suit, harms health, safety and welfare.
2. Property rights involved: generally things that harm health, safety
and welfare involve property rights.
ii. Do you have an inadequate remedy at law? Crime so criminal justice
system deals w/ it. Penal statute is an injxt.
iii. Constitutional Problems:
1. Balance/separation of powers: leg says criminal system should
deal w/ this not equity cts.
2. Crim Pro safeguards: don't get same level of these in civil ct.
3. First Amend: cts loath to issue injxt abridging speech rights.
iv. The Englebrecht analysis: (the "root cause" injxt, ok for gangs)
1. Start off w/ legal activity (standing, riding bicycles, talking to gang
members) Could turn into

18

2. Private/Public nuisance: graffiti, blocking sidewalks, loud music)

which could result in,
3. Crime: drugs, robbery and murder.
D. Constitutional Wrongs: remedies when we have violation of your const rights.
1. Intro: Remedies available include: 1) damages, 2) injxt and 3) restitution.
a. Same thing as w/ PP and RP, but our success on the merits, i.e. the underlying
case, deals w/ wrong regarding right guaranteed to us by the const.
b. 42 U.S.C. 1983: gives statutory c/a for const rights violations.
1. 1983: Any D under color of state law (acting w/ govnt' authority) who
violates P's const rights in liable to P in an action at law or in equity. Liable
either in damages or is capable of being enjoined.
2. D usually the govn't.
2. Damages: (Legal Relief)
a. How to assess damages for deprivation of const rights:
1. Presume damages or (presumed based on nature of the wrong)
1. Get nominal damages.
2. Prove damages: P has to prove the damage, actually testify to those
damages, if not you get nominal damages. (Focus on P's harms, treat it
like a tort)
1. If you prove damages you can't get presumed ones. Presumed a
substitute for proven ones. Can't get both.
3. Const Injxt: The state passes a law (usually penal) and P claims that this law violates P's
(and all citizens) const rights.
a. Routine Injxt analysis:
1. IH: Some cts like to see substantial violation of substantial const right.
some jxd say implication of const right is enough for IH.
2. Inadequate remedy at law:
1. May be more than one claim, denial of rights affects many
2. $ may be speculative (how do you value a right?)
3. D (govn't) is immune from damages. Ex. fed tort claims law.
3. Balance (public): where is the public interest?
1. Govn't has public interest on their side.
2. P has to prove public interest is otherwise.
4. Structural Injxt: (goes to TI)
1. Change structure of D (the govn't entity).
2. Separation of powers: judicial branch asserting supremacy.
3. Use of 3P receivers: use this w/ regard to sep of powers.
4. Philosophical split: liberal/conservative
4. Abstention: citizen P has been charged w/ a crime by D, and P claims that criminalization is
unconst. Will the civil equity ct enjoin the criminal ct (not the crime! But enjoining criminal
prosecution)?
a. In general: the equity ct is going to abstain (they will not enjoin), if the criminal
action is pending (as opposed to merely threatened [like DJ. "justicable"])
b. Exceptions: bad faith prosecutions in criminal ct, urgent or far-reaching, or property
rights involved. Will not abstain also if repeated bad faith "greatly irreparable" or
"four corners unconst"
c. Rationales for abstention:
1. Comity: respect for another jxd judgments and authority.
2. Federalism: state ct capable of deciding matters based on state law.
E. Interference with Dignitary Interests: harms to someone's dignity i.e. harms to interests in
their person, their mental well-being, reputation ect.
1. Damages:
a. Defamation: Two forms: (libel(written)/Slander(oral):
i. Elements: (need all 3 for c/a if something is true its not defamatory)
1. Falsehood about P told by D
2. It is published = said to a 3rd person

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ii.

iii.

iv.
v.

3. Subject matter tends to injure P's reputation or standing; or

holds P up to ridicule or contempt.
Damages:
1. General (non-economic) harm that flows as natural = mental
anguish, emotional distress.
2. Special Damages (economic) have to be pleaded and proven
particularly = lost job, medical attention.
3. Punitive: allowed if the defamation is malicious i.e. done knowingly.
Two types of defamation:
1. Defamation per se: some sort of statement that is:
a. Directed to P.
b. Injurious on its face.
c. Presume general damages.
i. 4 categories of Defamation per se:
1. Accusing someone of commission of a
crime (when they haven't).
2. Saying that P has a loathsome disease
3. Unchastity in Women (cal: anyone)
4. That which directly injx's your trade or
profession.
2. Defamation Per Quod:
a. Need extrinsic evidence to show either P or why its
defamatory.
b. Need to prove specials (actuals) to maintain c/a then get
generals. Must prove special damages to get general
damages.
Constitutional Problems: (since it IS speech that makes D liable!!!):
infringing const rights by making D liable here. see pg. 98
Invasion of Privacy: show same things as in defamation.

Person (P)
Private person

Subject matter (things said)

Private

Public person: public figure or public O.

Subject matter is
automatically public

Private P

Subject matter is of public

concern (see Burch v. Welch)

How to Get Generals

Have to show Per se or Per
Quod (meet req's above).
First have to show actual malice
or reckless disregard (then go
back to generals and specials
i.e. they need to go further than
above).
1. Show malice; or
2. Show actual damages
(specials) or
3. Show at least negligence.

2. Injxt (specific relief) (defamation): injx so have to show all usual criteria.

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a. Injunction: Speech: (overhead)

i. Generally: no
ii. Exception: if infringe substantial PROPERTY right
iii. Inadequate remedy @ law? Usual adequate b/c damages presumed (so,
ok)
iv. Tribunal integrity - supervision is hard
v. First Amendment problems:
1. Prior restraint and no jury
2. Exceptions: public policy or part of other harms
a. Overriding public policy (war or national crisis).
b. Speech is part of other activity that is illegal/enjoinable:
c. Republication of something that has been found to be
defamatory:
d. "Business Speech"
3. (Minority) different for republication (saying it again): diff from
stopping someone from saying something to begin with v. stopping
someone from saying it again.
3. Injxt (specific relief) (deprivation of privacy): a civil wrong not const version.
a. Ways in which Privacy Can be Invaded: (first 2 harder to enjoin since speech
oriented, 2nd 2 are more like your property right)
i. Public exposure of private embarrassing facts.
ii. Portrayal in a false light.
iii. Intrusion on solitude.
iv. Appropriation of right of publicity or exploitation of identity
b. Injx: Invasion of right of privacy - do entire injxt analysis: need to show:
1. Invasion: he is intruding on solitude.
2. Irreparable harm:
3. Remedy at law inadequate:
4. Balancing (the public right to know v her right to privacy): the
right that is being infringed is greater than the public's right to know.
4. Injxt (specific relief) (personal relationships):
a. Former "Heart Balm" statutes - laws to soothe the aching heart we used to have;
most states have abolished them however (not N. Carolina) Cal says we arent going
to deal w/ these kinds of things.
i. Breach of promise to marry: .
ii. Alienation of affection (a loss of marital consortium)
iii. Criminal conversation (strict liability for sex w/ a spouse, not your own)
iv. Seduction (having sex w/ an unmarried female; P is her parents based on
damaged goods)
5. Restitution: when damages/injxt is difficult to get or not desired by the P.
F. Personal Injuries: Interference W/ The Person:
1. Overview:
a. How courts are going to calculate damages::
i. PI damages: P has a personal injx and can claim damages.
ii. Derivative action damages (someone else suffered b/c the P was injx'd)
when people beside P can claim damages:
1. Loss of consortium:
2. Wrongful death:
iii. Injunctions (rare, since PI's are usually done and not on-going events):
iv. Restitution = NONE (B/c there is usually no benefit to D that can be
disgorged).
2. PI Damages.
a. General:
i. Pain and Suffering: w/out p&s no c/a, like not being injx'd.
1. Pain = physical.

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3.

4.

5.

6.

2. Suffering = mental or emotional response attached to being injured

or in pain.
ii. Standard for damages:
1. "Fair and reasonable under the particular circumstances: more
hurt = more pain = more $.
2. Per diem based on a particular injury: jury figures expected
compensation for 1 days damages x number of days P will suffer.
b. Special Damages
i. "Economic" damages - those that P has had to, or will have to, pay for the
injury: (look to both past and future).
1. medicals
2. wage loss
3. Impairment/loss of earning capacity - looks to the future
ii. Past and future damages: necessary to consider b/c of SOL.
1. Past Damages: these must be proven. ex dr's bills or past pain and
suffering.
2. Future damages: must first establish that there will be future
damages, med experts, actuaries etc.
a. Presumed damages in the future deal with the idea of
certainty cut slack in proving the actual harm discount to
present value also all the things that we dealt with before
play into this aspect.
c. Punitives: harm + malice.
Lost Earning Capacity:
a. Special PI damages: Not just lost wages, but going into future do you have an
impaired earning
b. What you could have earned but for the injury. Assume decreased productivity over
time.
Derivative Causes of Action: c/a derived from another person's injx's = parasitic actions.
a. NIED negligent infliction of emotional distress: ex. you see a loved one get harmed.
b. Loss of consortium: someone close to P has been deprived of things associated w/
relationship. Ex. sex, love, affection, support, advise, services. Used to be only
husband could maintain COA for this.
c. Wrongful death: see below:
Wrongful Death: (SEE HANDOUT)
a. Statutory action by designated heirs or personal representatives: in Cal certain
designated SS, domestic partner, children, issue of children.
b. Damages:
i. Pecuniary damages: damages that have actually been expended b/c of the
death. Ex. funeral expenses.
ii. Non-pecuniary damages: (loss of X's services).
iii. Beneficiary's Grief? Not always available b/c may be in non-pecuniary.
iv. Survival Actions: Estate takes over as P or D. Deals w/ personal affairs
causes of action (unlike WD which deals w/ the death itself).
1. Actions by/against X:
2. Damages to to/from estate: this is where the damages come from.
Injxt (specific relief):hard to get. Usually PI is one time thing. Ex. DV RO's. Totally statutory.

VII. Remedies in Action: Contracts: how do damages etc fit into this context.
I. Introduction:
1. General Introduction: (assume a valid K).
a. How to enforce the promise that were made? (Put P in a position they would have
been had it been performed? Forward Looking).
b. Keep in mind:
i. Who are which parties? Is P buyer or seller? Who breached the K?

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ii. When was what type of K breached? Executory K, partially performed, or

executed K?
iii. What type of K? Good, land services? How remedies play out depend on
what type of K it is.
c. Efficient breach, punatives and mental distress no additional damages for EB.
Might get punitives if there is some sort of tort but otherwise no. Mental distress
rare cases.
2. Remedies:
a. Legal: go to law ct for and get them to order it.
i. Damages: substitute for performance of the K. BOB
ii. Liquidated damages: specific legal remedies. Parties have decided in
advance what cost of breach would be.
iii. (Rescission): legal remedy where you get out of K.
b. Equitable:
i. Specific performance: the K injxt. Same basic template as injxt but a little
bit of diff as to what we req b/c it is a K not a tort.
ii. Reformation: change the K that the parties are disputing.
iii. Rescission: there is no K, get out of K.
c. Restitution: quasi-K, not a K.
A. Affirming the K: valid K that has been breached.
1. Legal Damages:
d. Expectation Interests: position K would have been in had the K been performed.
i. General Damages: BOB = flows as natural when at breach.
ii. Special Damages: (foreseeable, certain, mitigation). Get specials if they are
foreseeable and certain. Must show in contemplation of the parties.
Mitigation applies to special damages b/c others flow natural.
a. UCC:
a. Incidental:
b. Consequential:
e. Reliance Interest: OOP = P will have out of pocket expenses. $ Spent in reliance on
the K. (not profit). Usually limited by expectation i.e. if spent more relying on K than
would have made w/ K your out of luck. Look at what P expected to get. Fallback
measure.
i. What did P spend in relying on K?
f. Restitution: P has Restitutionary interest in the K. The interest is that other party is
going to get what K calls for not something that is unjust. Usually use when
something is wrong w/ the K like SOF problems etc.
i. Was there unjust enrichment to D?
2. Specific Performance - Equity: injxt in K setting.
a. Characteristics:
i. IRAL: when problems figuring out how to asses damages or items are
unique.
ii. K you are suing to enforce is definite: (sort of replaces success on the
merits). Ct needs to know what to order to perform.
iii. P needs to show all conditions in the K being met (P has to perform): (no
success on the merits in K situation)
iv. Balancing/discretion: no absolute right to SP. Usual balance of harms.
v. TI: Is the enforcement feasible: is K definite or can the ct supervise.
vi. Mutuality of Remedies: for P to get SP the P has show that if D was suing
P, the P could perform. Comes up in K for services. (Bleecher: not req'd on
Cal.
B. Disaffirming the K: P wants our of K, doesnt want damages or SP.
1. Fraud: P reasonably relies on something D says signs K and is damaged.
a. Fraud Damages: (can affirm or disaffirm K)

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1. The K theory [BOB] look at fraud as part of the K, then damages done
on K theory of recovery, expectation, BOB. (Affirm)
1. Look at value represented less what you received: what did they tell
you the thing was worth less what it was really worth.
2. The tort theory: [OOP] if the fraud is a tort look at out of pocket
expenses, position you would have been in had tort not occurred.
(Disaffirm)
1. Look at value paid less the value of that you have received.
2. Two basic ways to disaffirm a K: Rescission and reformation.
a. Rescission: there is a K but something wrong w/ it and we want out.
1. Theory:
1. Undo the K: dont' want damages, don't want SP, they want out.
2. Return to status quo: (easier if executory i.e. just signed) If you
want out it is a tort-like or Restitutionary-thing, want to get back what
you have given, and give back what you have taken.
2. Grounds for rescission: need a reason to rescind a K
1. Mutual consent (if executed): both parties let each other out of the
K.
2. Fraud (inducement): one of the main reasons for rescinding.
3. Mutual Mistake: since both made mistake we will rescind.
4. Mistake (of fact) by P, know by D who takes advantage: no
Unilateral mistake usually grounds unless they know you are making
a mistake and D takes advantage of that fact.
5. Failure of consideration: since the object isn't there, you want out.
6. Duress, menace, undue influence, impossibility.
3. Types of rescission:
1. Legal: statutory, done by party and then the ct enforces. Req's of
most statutes
a. You have a Reason to rescind (see above reasons)
b. Prompt notice to other side:
c. (tender) to return have to give the stuff back, or are able
to do so.
2. Equitable: Ct orders rescission. Orders each party to return to the
other what they have received and says no K in effect.
3. No notice but latches: unreasonable delay that prejudices D.
4. No tender but balance of hardships instead.
4. Election of Remedies:
1. Can't affirm the K (damages) and disaffirm the K (rescission). You
don't get both. They are mutually exclusive.
b. Reformation:
1. Characteristics:
1. Reform the CURRENT K to what it really should be.
2. Purpose: to give effect to our REAL (prior) K, i.e. affirms prior
agreement by disaffirming the CURRENT K.
3. Equitable (therefore discretionary):
2. Two Req's:
1. Need 1: Valid prior agreement: have to reform current one ot
something:
2. Need 2: Problem w/ integration of the prior agreement into the
current K (the "scrivener's mistake") (note that problems in
formation usually lead to rescission not reformation):
a. Mutual mistake of fact in drafting:
b. Mutual mistake of law for terms used
c. Unilateral mistake: only if other person knew of mistake and
took advantage of it.

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C. Contracts for Sale of Goods: Result Depends on two things: 1) Who has breached the K?
Who is P/D? Buyer/Seller? 2) Type of K.
1. Damages:
a. UCC Damages:
i. Buyer v. Seller: price of item has likely gone up..
1. General Damages:
a. FMV less the (-) K price + return of anything paid OR
i.
b. Or cover (-) less K price + return of what you paid..
2. Special Damages:
a. Incidental Expenses: commercially reasonable charges b/t
the buyer and the seller.
b. Consequential (if cover): those damages that occur b/t a
buyer and a 3rd party = the lost profits. Have to cover or
make reasonable efforts to cover.
ii. Seller v. Buyer: market has gone down, buyer can get a better deal.
1. General Damages:
a. The K price (-) less FMV at breach.
b. K price (-) less resale: this replaces cover. Resale price will
be FMV at breach.
2. Special Damages (have to be pleaded and proven specially (in any
situation), in K situation, have to be in contemplation of the parties
i.e. Hadley v. Baxendale).
a. Incidental expenses: ex. cost involved w/ resale etc.
b. Consequential?????????: seller as P does not get
consequential damages b/c there 1) is no 3rd party, 2)
consequential damages are usually considered lost profits
and the sellers profit is in the K price, the buyers profit is not
(profits are built in = double recovery and over
compensation).
i. See Sprague.
2. Restitution: can act as remedy when c/a is based on recession.
a. Restitution as a remedy when you rescind the K, rescission is restoring positions b/f
the K was entered into. Backward looking like a tort rather than forward-looking like a
K.
3. Specific Performance: (action by buyer)
a. Not a favored remedy in K: K's are econ, $ usually adequate, most good fungible.
b. UCC: can get SP when the goods are unique or in other circs.
D. Contracts for Realty (RP):
3. RP K Damages: [keep in mind in both cases Seller retains the property!!!]
a. Buyer is P (seller breaches)
i. Expectation = BOB =
a. FMV on breach less (-) K price + specials (assume breach when
you have a rising market) OR
ii. OOP (out of pocket expenses)
a. (return of deposit, title insurance etc) or BOB if breach was in
bad faith (market price has gone up).
b. Seller is P (buyer breaches)
i. BOB = K price less (-) FMV on breach (+) specials.
ii. Resale to 3rd Party later at higher price; offset or not?? NO, don't get the
benefit of their breach.
4. Restitution: see other outline.
5. Specific Performance:
a. SP is the preferred Remedy when it comes to real estate K's.

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b. IRAL: will usually be that the property is unique. BUT still need all the other things,
i.e. K is definite, you can perform, and whatever reason is causing seller to w/hold
property, the balance is more in your favor to purchase. Think of it from buyer's
standpoint.
c. Tougher to do from seller's standpoint b/c we are forcing buyer to buy.
d. Cal Civil Code 3387: Breach of agreement to transfer real estate; presumption of
inadequacy of damages:
i. If you are buying a single-family residence land is unique and you have an
inadequate remedy at law conclusively. All other property there is a
presumption in favor of buyer but can be rebutted.
6. Equitable Conversion: Intro: deals w/ SP but in a different context
a. Equitable Conversion Rule:
i. If we have an:
a. Executory not finished
b. Specifically performable
c. Land sale K it is a K for the sale of RP.
ii. Then
a. The EQUITY COURT has discretion to CONVERT:
a. The Sellers interest form RP to PP and
b. The buyer's interest from PP into RP.
1. Until recorded buyers interest is PP.
E. K's For Sale and Purchase of Services:
1. Types of Services: 1) Construction, 2) General Employment:
2. Damages: how we calculate damages depends on who you are, the buyer or seller.
a. Construction K's:
i. Buyer v. Seller (owner v. builder)
1. Builder abandons
a. Cost to complete (-) remainder of K price
2. Builder is sloppy two ways to calculate
a. Cost to repair: this is what owner wants, wants how that
they K'd for. OR
b. FMV if good (-) FMV as is: this is what contractor wants.
i. To decide which one to use cts will look at whether
this is your own place, and is it economically
wasteful to repair.
ii. Seller v. Buyer (Builder v. Owner)
1. Expectation/BOB: generally calculated as:
a. (If builder didn't start) K price (-) cost to complete (see
casebook pg. 928 and handout multiple choice question).
b. (Breach w/ some performance) K price (-) cost to complete
+ return of money paid.
3. Restitution: see other outline.
4. Specific Performance: hard to compel services. See other outline.
a. Same rules: IRAL, conditions precedent are met, balancing etc.
i. TI: how are you going to actually enforce this? How you going to force to do
job correctly.
b. Cal Civ Code 3390: obligations not specifically enforceable.
c. Exceptions:
i. K is very specific or
ii. The services are unique or
1. K has covenant not to compete that is limited to reasonable time,
place and manner.
iii. The parties are likely to act in good faith.

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