CA Bar Exam Remedies Essay

CA Bar Exam Remedies Essay Remedy at law / Legal damages ️️Money damages to compensate a P for a loss / awarded to make a P whole Restitution ️️Prevent unjust enrichment of the D / can be legal (money or return of property) or equitable Compensatory Damages *T ️️Awarded to to make a P whole to compensate for injury or loss & measured by monetary value of the P's harm (Pain&suffering, medical expenses, lost wages) / ISSUES (causation, foreseeability of damages, calculated w/ certainty, P mitigated damages to avoid damages that could have reasonably been avoided) General damages *T ️️noneconomic losses directly attributable to the tort all Ps would have suffered as natural result of tort (pain and suffering) Specific Damages *T ️️economic losses that are unique to each specific plaintiff (medical bills, lost wages) Measure of damages in Tort ️️Past loses + future losses so long as calculated w/ reasonable certainty / compensate for value of P's harm (fair market value of lose item for conversion, loss of use of item for trespass to chattel OR P&S lost wages etc.) Pure Economic Loss vT ️️intentional interference w/ business relations allows & all others must have property loss or personal injury to recover Nominal Damages *T ️️awarded to vindicate P's rights when they have been violated but P suffered no loss Punitive Damages *T ️️D displayed willful, wanton, or malicious tortious conduct If actual damages are awarded AND culpability is greater than neg. AND relatively proportionate to actual damages 9:1 / "grossly excessive" Legal Restitution *T ️️D has derived a benefit and unfair to allow D to keep benefit w/out compensating P / prevent unjust enrichment / money restitution = monetary value of benefit received by D's gain Replevin *T *C ️️recovery of a specific chattel wrongfully taken that P has a right to possession Ejectment *T *C ️️Recover real property that P has a right to possession and wrongfully excluded Equitable Restitution *T ️️WHEN remedy at law is inadequate ($ too speculative, insolvent D, replevin unavailable, property is unique) & to prevent unjust enrichment Constructive Trust *T ️️legal fiction to compel D to convey title to unjustly retained specific property to the P AND D obligated to transfer property back to P AND requires (1) wrongful act led to retention of property (embezzlement, fraud, theft, conversion), (2) D has legal title to convey (thief has title to cash but not wrongfully obtained property) (3) property can be solely traced AND P receives benefit of increase or decrease Lowest intermediate balance rule (Constructive Trust/Equitable Lien) *T ️️If commingles funds w/ his own funds then assume D spends his own money first & once withdraw they are gone & D invests his own money first Equitable Lien *T ️️Security Interest / property acts as collateral for $ owed to P . can be commingle funds & deficiency judgment (get additional money if not enough) is permitted (1) wrongful act led to retention of property (2)legal title (3) property can be traced / forced sale of D's property Constructive Trust/Equitable Lien priority of P over 3rd parties *T ️️BFP w/ legal title prevails over P (like secured creditors) Constructive Trust / Equitable Lien Question ️️Analyze both / trust better when value goes up Lien better when value goes down or can't be solely traced to its current form Injunction *T ️️Court orders one to perform an act (affirmative) or stop performing (negative) / TRO, preliminary, permanent TRO *T *C ️️preserve the status quo for a short time pending litigation & does not require notice (1) immediate + irreparable harm during waiting period (2) likelihood of success on the merits of claim (3) inadequate legal remedy (4) balancing of hardships if TRO defined to P and to D if granted (willful misconduct, public interest, disparity in hardships) (5) no defenses (laches for unreasonable time delay + unclean hands unfair P) (6) feasible for court to enforce injunction Preliminary Injunction *T *C ️️preserve the status quo pending full trial / same as for TRO but can never be ex parte = need irreparable harm during the waiting time for the full time so longer time & harder to obtain & required to give notice Permanent injunction *T ️️Court order to perform an act or stop performing an act (1) inadequate legal remedy (2) feasibility of enforcement (negative are easier to enforce, service acts hard to enforce, act requiring taste, judgment or skill is difficult) (3) balancing of hardships (willful misconduct, public interest, disparity in hardships) (4) no defenses Legal Damages *C ️️parties have a contract and D is in breach and P has been injured by breach & wants money to compensate / recovery reduced by benefits that directly result from the D's breach Expectation Damages *C ️️compensate P for value of benefit P expected to receive from the contract / limited by causation, foreseeability, certainty, duty to "cover" loss, liquidated damages Consequential Damages *C ️️direct and foreseeable consequence of the contract not being performed & in addition to expectation damages & limitations Incidental Damages *C ️️costs reasonably incurred when other party is in breach (storage, transportation costs) Reliance Damages *C ️️put P in the same position if contract was never made / in pace of expectation damages / measured by losses incurred b/c of reasonable reliance on the contra