REMEDIES – Mogill – Spring 2007
CHAPTER 1 – BASIC REMEDIAL TOOLS
A. FOUR TYPES OF REMEDIES
1. Coercive Remedies
a. Available from a court of equity.
b. Commands D to do or refrain from doing something.
c. Subject to equitable defenses such as:
i. Unclean hands;
ii. Laches;
iii. Estoppel; and
iv. Unconscionability
d. Interlocutory Relief (TRO or preliminary injunction)
i. Designed to preserve the status quo and prevent irreparable harm.
ii. P must make a strong showing of the necessity for this type of relief.
e. Backed by contempt power
i. D can be jailed or fined, or required to compensate the P for willful disobedience.
f. 3 types of Injunctions in addition to Preventative injunctions:
i. Restorative injunction: corrects the present by undoing the effects of a past wrong.
ii. Prophylactic Injunction: safeguards P’s rights by making the D behave in a way that minimizes the chances of a wrong occurring in the future.
iii. Structural Injunction: i.e.→ school desegregation order → courts are involved in the institutional policies and practices of the D entities.
2. Damages
a. Compensates the P for losses sustained in violation of their rights.
b. Cannot be too remote, speculative, or uncertain.
c. Limited by collateral source rule and avoidable consequences rule.
d. Punitive Damages (Exemplary Damages):
i. Designed to punish and deter wrongdoers.
3. Restitution
a. Restores property to its rightful owner by returning the P to a position held before the wrong, or disgorging from a D any unjust enrichment from the wrong.
b. Measure is the D’s gains rather than the P’s losses.
c. Includes equitable liens, rescission, and suits in assumpsit for quasi-contract.
d. Substantive Restitution:
i. Concerns the entitlement to a restitutionary remedy.
(1) Courts evaluate whether the D has acquired or holds a benefit which, if retained, would constitute unjust enrichment.
e. Remedial Restitution:
i. Concerns the measurement of the substantive restitution.
4. Declaratory Remedies
a. Purpose is to obtain a declaration of the rights or legal relations between the parties.
b. Parties must demonstrate a justiciable controversy.
c. Supposed to be liberally administered according to state and federal statute.
d. Nominal Damages: awarded when a P establishes a substantive claim but cannot prove damages.
B. REMEDIES AT LAW AND IN EQUITY
1. Main distinction between legal and equitable remedies is that the 7th Amendment provides a right to jury trial for actions “at law,” but there is no similar right for equity actions.
a. Equity actions may go to a bench trial, but legal actions must have jury trial.
b. 7th Amendment has not been held applicable to the states though.
i. State systems usually rely on precedent.
Ask 4 questions for each case [exam]:
1. What are the possible remedies that are available?
2. Which is the most appropriate remedy?
3. Based on that remedy what type of procedural or tactical advantages can a party gain (what is the effect of the remedy)?
-i.e. the appropriate trier of fact can change, for equitable remedies the judge is the trier of fact. In addition the defenses available will change with the different remedies sought.
4. What is the means/scope of the relief? How to measure the amount of relief given?
-i.e. for legal: punitive damages, how to measure actual damages…
-i.e. for equity: how to make the party perform, what to do if they fail…
CHAPTER 2 – SCOPE OF LEGAL AND EQUITABLE REMEDIES
A. LIMITATIONS ON REMEDIES
– A P cannot get a double recovery of damages simply because there are two sources of remedies.
1. Orloff v. Los Angeles Turf Club
a. Facts: Action for injunctive relief. P was ejected from horse track after purchasing ticket twice without cause. P alleges humiliation and embarrassment, sustaining mental anguish.
b. By statute, P is entitled to recover actual damages and $100 in addition thereto.
c. Argument is that the statutory rule should not be applied when is it wholly inadequate.
i. Compensatory damages and $100 are inadequate in this case.
d. RULE: California state law and its provisions are to be liberally construed to promote justice.
e. Holding: Injunctive relief was granted to P.
i. Declaration of the personal right and the importance of its preservation together with the inadequacy of the remedy by way of damages and $100 are sufficient for injunctive relief.
f. Notes
i. P complains that the remedy provided by the statute is inadequate and will not solve the problem of getting him back into the club.
ii. Purpose of the statute
(1) Promoting justice → re-entry to the club → preservation of P’s personal right.
iii. Court disregarded what the legislature decided when the statute was written.
iv. Factors to get outside or beyond statute: Achieve Purpose of Statute; Promote Justice; Inadequacy of Damages; Tough to Prove Damages; Public Policy à Personal Right
2. Cowin Equipment Co. v. General Motors Corp.
a. Facts: P sued D for damages. GMC refused to permit cancellation of an order leaving P with excess inventory.
b. RULE: Court UCC § 2-302 not intended to create a cause of action and thus cannot be used as a basis for damages. §2-302: no mention of damages as an available remedy for an unconscionable contract.
c. Notes:
i. P claims the contract was unconscionable and wants damages.
ii. Purpose of this statute under UCC?
(1) Prevent unfair or unconscionable bargaining terms.
(2) Taking delivery of the goods and then asking for damages is beyond the purpose of the statute.
iii. Distinguished from Orloff- these were arms length business people. Not racial discrimination
iv. Where the legislature has created a statute that gives a specific remedy, the statute may be interpreted liberally or narrowly (interpreting liberally means that the court can give injunctive relief)
3. Jurisdictional Remedy Limitations: The Norris-LaGuardia Act (Labor)
a. Limits remedies available to a court by imposing jurisdictional limitations.
b. Prohibition against federal injunctions, but not an absolute one.
4. Treister v. American Academy of Orthopedic Surgeons
a. Facts: P sued D for denying his application for membership. P was told there was adverse information in his file but was not allowed to examine it and the interviewer refused to further specify the charges.
b. P wants:
i. A declaration that he is entitled to be informed of any charges against him;
ii. To be informed of the identity of his accusers;
iii. To have a fair hearing before an impartial adjudicator; and
iv. To have conclusions of fact fairly supported by evidence of record.
v. Declaration that the rejection of his application was void.
c. Holding/RULE: Courts can review the application procedures of a private association when membership in the organization is an economic necessity.
i. However, P has not alleged that membership is an economic necessity.
d. Notes: Doctor was doing too well. Have to balance org interests against individual’s.
e. Next step: file an antitrust action
f. Dissent: Consider Public Interest- this org holds itself out as the end-all; also there may become a sphere of silence where docs will no longer testify against each other.
CHAPTER 3 – PREVENTATIVE INJUNCTIONS
1. Preventative injunction is designed to avoid FUTURE harm to P’s by controlling the D’s action; may be prohibitory (“Do not trespass”) or mandatory (“Remove the obstruction”).
2. Four Elements for Consideration in Determining Use of Equitable Remedies:
a. Inadequacy of remedy at law
b. Irreparable harm
c. Balancing the hardships
d. Public interest
3. Courts are very reluctant to consider equitable relief when there are past acts or damages that can be calculated (i.e. an adequate remedy at law)
A. INADEQUACY OF REMEDY AT LAW
– Courts traditionally will not grant equitable relief when the remedy, or damages, at law are adequate.
– Inadequacy = damages would be too speculative, multiple damag
ours of 8pm and 7am until a further hearing could be had on the permanent injunction.
b. Muehlmans appeal the grant of the injunction.
c. Holding: Sufficient that the actions clearly interfered with their comfortable enjoyment of their property to constitute great damage.
d. “Irreparable injury” = great harm + no ARL
e. RULE: If P can show great injury and lack of adequate remedy at law, then P is entitled to injunctive relief.
f. Notes:
i. How is this irreparable harm? How does it go from trivial to severe harm?
(1) The fact that it is constant and frequent makes it irreparable.
ii. Comfortable enjoyment of property and repeating nature of nuisance take it from trivial to severe. [Key: Dist between Trivial and Severe].
iii. You can ask for both damages (past harm) and equitable relief (future harm) in the same case.
iv. Note: the testimony by other neighbors of the annoyance suggests that an award of damages would result in more suits by others. Judge seeks to end the dispute here with equity. Also shown by this testimony is the great extent of the harm (and threat of multiplicity of suits).
C. BALANCING INTERESTS AND PRACTICALITY CONSIDERATIONS
– Injunctions are discretionary, not a matter of right.
– Practicality and Hardship can affect a case in two ways:
o Judge may consider them both in deciding whether to issue an injunction at all, as well as…
o In choosing the scope of the order.
1. Triplett v. Beuckman
a. Facts: P sought a mandatory injunction requiring D to remove a causeway access to an island and replace it with a bridge.
i. P claimed that the new causeway constituted a severe restriction on the recreational use of their lake.
ii. P claimed the value of the property surrounding the lake would decrease as a result of the causeway.
iii. D claimed that at the time the bridge was removed, the water underneath it was dried up.
b. Holding: Trial court erred in refusing to issue a mandatory injunction requiring the removal of the causeway and reconstruction of the bridge. Lake is used for recreation and therefore the access to the island by bridge cannot be ignored.
c. RULE: Duty to maintain and repair the bridge lies with the Ds (owner of dominant estate) and they cannot make material alterations in the character of the easement if it places a greater burden on the servient estate.
2. Notes:
a. Balance of Hardships: P is not entitled to an injunction simply by proving that an interest has been invaded and that the harm is great and irreparable.
i. Equitable relief is always in the court’s discretion.
ii. Court looks at relative hardships on both parties.
b. Speech: Non-economic burden and injunction must be narrowly tailored to withstand constitutional scrutiny.
i. Buffer-zones on private property often too burdensome.
ii. Floating buffer zones are unconstitutional.
c. Nuisance: P must establish more than an intentional nuisance to obtain an injunction.
i. Look also to unreasonableness of activity.
3. Galella v. Onassis
a. Facts: P wants damages and an injunction ordering the Ds to stop interfering with his business of photographing the D.
b. Holding: No adequate remedy at law? No.
i. P’s actions are recurrent.
