Remedies Outline Attack Sheet for the California Bar Exam


Tort Remedies

    1. DAMAGES

  1. Compensatory Damages: Plaintiff is entitled to compensatory damages to put her in the position she would have been had the wrong not occurred. Must show:

    1. Causation: “But for…”

    2. Foreseeability: The injury must been foreseeable at the time of the tortuous act

    3. Certainty: The damages cannot be too speculative.

      1. Applies to economic losses (special damages), but not non-economic damages (general pain and suffering, disfigurement)

      2. All or Nothing Rule: For future damages, plaintiff must show that they are more likely to happen than not.

    4. Unavoidability: The plaintiff must take reasonable steps to mitigate the damage

    5. Calculation: single lump sum payment, discounted to present value. Forget inflation.

  2. Nominal Damages: Where the plaintiff has no actual injury, the court may award nominal damages to serve to establish or to vindicate the plaintiff’s rights.

  3. Punitive Damages: Where the plaintiff’s injury results from “willful, wanton, or malicious conduct” on the part of the defendant, the court may award punitive damages to punish the defendant.

    1. Plaintiff must first have been awarded compensatory, nominal, or restitutionary damages.

    2. Calculation: Must be relatively proportional to actual damages. USSC: single-digit multiple of actual damages unless the defendant’s conduct is extreme.

II. Restituionary Remedies

  1. Restitutionary Damages: Where the defendant has been unjustly enriched, the court may award damages based on the benefit to the defendant.

  1. The amount is calculated based on the value of the benefit.

  2. However, where both compensatory and restituionary damages are available, plaintiff cannot get both. Instead, she must make an election of the two. Generally, the plaintiff should be awarded the larger sum of the two.

  1. Replevin: In an action for replevin, the plaintiff may recover possession of specific personal property.

    1. Must show: (1) that P has a right to possession, and (2) there is wrongful withholding by D.

    2. Timing: As long as D is still in possession, P can recover the chattel before trial.

    1. But, to do so, plaintiff will have to post a bond.

    2. And, defendant may defeat an immediate recovery by posting a re-delivery bond. Through which, the defendant can keep the chattel until after the trial.

  1. Generally coupled with damages for lost use of the benefit during the wrongful withholding.

  2. No recovery is sale to a Bona Fide Purchaser

  1. Ejectment: In an action for ejectment, the plaintiff may recover possession of specific real property.

    1. Must show: (1) P has a right to possession, and (2) there is a wrongful withhold by D.

    2. Only available against defendant who has possession of the property.

    3. Usually coupled with damages for lost use of the benefit during the wrongful withholding.

  2. Constructive Trust: Equitable remedy imposed by the courts when the retention of property by D-wrongdoer would result in unjust enrichment. D serves a “trustee” and must return the property to P.

    1. Legal remedies muse be inadequate (e.g the defendant is insolvent or the property is unique).

    2. Tracing: P can follow the property to whatever form it takes, as long as the trust re can be id-ed

    3. Bona fide purchasers prevail over plaintiff

    4. Plaintiff prevails over unsecured creditors.

  3. Equitable Lien: where the defendant has improperly acquired title to a property, an equitable lien allows the court to order an immediate sale of the property, and the monies received will go to the plaintiff.

    1. Must show (1) D misappropriated P’s property creating a debt or obligation to pay, (2) P’s property can be traced to property held by D, (4) retention would → unjust enrichment.

    2. If the proceeds from the sale are less than the fair mkt value of the property when it was taken, a deficiency judgment will issue for the difference and can be used against D’s other assets.

    3. Where misappropriated money is used to improve property, only an equitable lien is available. (e.g house remodel)

    4. Samerules as constructive trusts: tracing allowed; BFP’s prevail.


  1. Temporary Injunctive Relief: To recover to recover temporary inj. relief, P must meet a two-part test:

  1. Irreparable Injury: P must show that without the injunction, she will incur irreparable injury while waiting for a full trial on the merits.

    1. Balancing Test: harm to P if injunction is denied v. harm to the D if injunction is granted

    2. Where D created the hardship – even if substantial – balance likely to weigh in P’s favor

  2. Likelihood of success: P must show that he/she has a strong likelihood of success on the merits. The court will look to the probability of this success.

    1. This is not an inquiry on success of obtaining a permanent injunction.

    2. The court should also impose a bond requirement on the plaintiff to reimburse the defendant if the injunction injured him/her and the plaintiff does not succeed.

  1. Permanent Injunctive Relief: P must meet a five-part test [I Put Five Bucks Down]

    1. Inadequate Legal Remedy: Money damages may be too speculative; D may be insolvent; the sheriff may be unable or unwilling to enforce a replevin or ejectment action.

    2. Property Interest/Protectable Interest:

      1. Traditional View: equity will grant relief only were there is a protectable property right involved.

      2. Modern View: Any protectable interest will suffice.

    3. Feasibility of Enforcement: only an issue with mandatory injunction. Enforcement problems may stem from (1) the difficulty of supervision or (2) concern with effectively ensuring compliance.

    4. Balancing of Hardships: Plaintiff’s benefit v. Defendant’s hardship + the public’s hardship [But, if the defendant’s conduct was willful, no balancing]

    5. Defenses, lack thereof:

      1. Laches: Where there has been an unreasonable lapse of time between when the P learned of the injury and when the P filed the lawsuit, and that lapse of time is prejudicial to the D, laches will cut off the right to injunctive relief (but not $ damages).

      2. Unclean hands: The persons seeking equitable relief must not be guilty of any improper conduct that is related to the lawsuit.

      3. Impossibility: it would be impossible for the D to carry out the terms of the injunction.

      4. Free Speech: Injunction may be denied on free speech grounds.

Contract Remedies

I. Damages

  1. Compensatory Damages: based on injury to the P

  1. Requires: (1) causation; (2) foreseeability (tested at the time of formation; (3) certainty; (4) unavoidability (mitigation)

  2. Consequential damages: available for related damages foreseeable at the time of formation

  3. Seller breaches a land sale K: CD = out-of-pocket loss OR benefit-of-the-bargain

  1. Nominal damages are also allowed. But, punitive damages are NOT allowed (if D’s conduct is willful, characterize as a tort, so you can get PDs)

  2. Liquidated damage clauses are permissible, if they are valid

    1. Damages are very difficult to ascertain at the time of K formation

    2. This was a reasonable forecast of what they would be.

Result: if valid → only liquidated damage amount; if invalid → actual damages available.

    1. Restitutionary Remedies

  1. If K is unenforceable AFTER the P has performed (e.g. mistake, capacity, SoF, illegality)

    1. P can get restitutionary damages for property/money give to, or services rendered for D for the VALUE of the BENEFIT.

      1. Not necessary to find that the D actually benefited, only that D received a benefit

      2. If the value of the services is greater than the K rate, P can still recover it.

    2. P can get the property back if it is unique or D is insolvent.

    3. Quasi-K: P awarded the reasonable value of D’s ill-gotten gain or the difference between the present value of the good less the value before the benefit conferred by P.

  2. If K is breached

    1. Where P is the non-breaching party:

      1. P may recover restitutionary damages for property/money given to, or services rendered for D for the VALUE of the BENEFIT.

      2. P can get the property back if it is unique or D is insolvent.

    2. Where P is the breaching party:

      1. Traditional View: P may recover NOTHING

      2. Modern View: P may recover restitutionary interest, but it CANNOT be greater than the K rate and is reduced by any damages suffered by D as a result of the breach.

III. Specific Performance

  1. 5 part check-list – [I’m Doing Fine Mom and Dad] P must show that [I Didn’T Fuck My Dad]:

    1. Inadequacy of legal remedies. Damages may be inadequate b/c (1) they’re speculative, (2) defendant is insolvent; (3) multiple suits are necessary; (3) the thing bargained for is unique (tested at the time of litigation, not K formation). Liquidated damage clause ≠ $ is inadequate

    2. Definite and Certain Terms: Terms of the K must be sufficient certain to constitute a valid K

    3. Feasibility of enforcement. Jx. over the parties? Too much court supervision needed?

    4. Mutuality of remedy: must show the other side can also secure performance. Only an issue where P lacks capacity: ct will reject mutuality if it feels secure that P can and will perform.

    5. Lack of Defenses: Unclean hands; laches; unconscionability; mistake; misrepresentation; equitable conversion (sale to BFP); SoF (satisfied if (i) part performance (ii) in reliance on K).

  2. Special problems:

    1. Deficiencies fact pattern

      1. Seller as P: CAN enforce K if the defect is minor. CANNOT enforce K if the defect is major unless the seller can cure the K before closing.

      2. Buyer as P: CAN enforce the K even if the defect is major (abatement – court will lower the purchase price to take into account this defect). CANNOT enforce the K if the defect is very major.

    2. Time of the Essence Clause – w/ forfeiture provision. Equity abhors forfeiture.

      1. Avoid forfeiture (and award SP), where: (1) loss to the seller is small; (2) tardiness is de minims; (3) waiver – seller has accepted late payments in the past; (4) buyer would suffer undue hardship

      2. Modern trend: cts would give P restitutionary relief if SP were not granted. But, if buyer has not made even an initial payment – the forfeiture clause will be strictly enforced.

    3. Equitable conversion: real property interest of the buyer and seller are switched upon execution of the land K.

      1. Thus, the buyer will be regarded as having the real property interest (the specifically enforceable right to the land).

      2. Seller will be regarded as having the personal property interest (the specifically enforceable right to the money).

    4. Personal Services Ks: Covenants Not to Compete

      1. The covenant must protect a legitimate interest

      2. The covenant must be reasonable in both is geographical and durational scope.

IV. Rescission: equitable remedy whereby one who is fraudulently induced into entering a K may rescind K. 2-Step Analysis:

  1. Determine if there are grounds for the rescission:

  1. Formation grounds: (1) mistake; (2) misrepresentation (3) coercion; (4) undue influence; (5) lack of capacity; (6) failure of consideration; (7) illegality.

  2. Mutual mistake of material fact = grounds

  3. Mutual mistake of collateral fact ≠ grounds

  4. Unilateral mistake ≠ grounds UNLESS the non-mistaken party knows or should have known of the mistake.

  1. Determine if there are valid defenses: Unclean hands; laches (negligence is NOT a good defense).

  2. Special Problems:

    1. Election of remedies:

      1. P sues for damages first: rescission is NOT allowed

      2. P sues for rescission first: damages ARE allowed

    2. Availability of Restitution: if a P who is entitled to rescission has previously rendered performance on the K, he/she can get compensated for it or get the property back via restitution.

    3. Legal Rescission: P accomplishes this by her own actions.

      1. P gives notice and tenders back any consideration received

      2. P then sues for restitution for anything given to D.

V. Reformation: ct. modifies a written agreement to conform w/ the parties’ original understanding. 3-Steps

  1. Determine if there is a valid contract

  2. Determine if there are grounds for reformation

  1. Mutual mistake

  2. Unilateral mistake IF non-mistaken party KNOWS of mistake

  3. Misrepresentation

  1. Determine if there are valid defenses: unclean hands, laches

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