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University of California, Hastings School of Law
Schwartz, Lois W.



Fall 2011

Remedies for Tort (e.g., fraud)

· Negligence

o Damages

§ Compensatory

· Damage: lesser of

o Diminution in FMV, or

o Cost of Repair or replacement.

· Destruction: lesser of

o FMV at time of destruction, or

o Cost of Replacement.

· Or:

o Out of Pocket Expenses.

o Loss of Use

o Lost Profits (cannot be speculative)

§ Punitive:

· Only available if D acted w/ willful, gross negligence, or recklessness.

· Sometimes treble compensatory, but determined by jury.

§ Consequential

· Policy Considerations.

§ Noneconomic Damages:

· Difficult to measure.

§ Incidental Damages:

· Court/Attys fees if statutory basis for them.

§ *π must mitigate damages in order to keep them reasonable. Any offset in P’s saved expenditures factored in.

o Restitution

§ Legal:

· Replevin & Detinue (return of chattel)

· Ejectment (return of land)

· Quasi-K

§ Equitable:

· Constructive Trust

· Equitable Lien.

o Coercive.

§ TRO. Elements: Emergent, plus PI elements.

§ Preliminary Injunction.

· (1) Potentially Irreparable Harm if no injunction issued, (2) Likeliness of success on the merits, (3) Balancing of Hardships b/w parties, (4) Feasibility of Judicial Oversight, (5) Maintenance of Status Quo.

§ Permanent Injunction

· (1) Inadequate Remedy at Law, (2) Property Interest, (3) Feasbility of Judicial Oversight, (4) Balancing hardships, but balancing waived if D’s conduct is willful, (5) Defenses.

§ Court Order.

· Tort COAS & Selected Remedies:

1. Conversion

§ Legal Remedies

· Damages: value when taken; loss of use, or cost of replacement.

§ Equitable Remedies:

· Constructive Trust if transfer has occurred or title has shifted.

2. Theft of Cash

§ Legal Remedies:

· Common Counts (Quasi-K).

§ Equitable Remedies:

· Restitution of exact bills of cash (unusual).

· Constructive Trust.

· Equitable Lien.

3. Taking of Real Property.

§ Legal Remedies:

· Damages based on rental value;

· Restitution by ejectment.

§ Equitable Remedies.

· Injunction ordering removal.

4. Trespass to Chattels

§ Legal Remedies:

· Seeks Return: Damages for Loss of Use; Restitution by replevin (self-help first)

· Seeks Repair: Damages based on dimin in value/replacement/repair.

§ Equitable Remedies:

· Injunction

5. Trespass to Land.

§ Legal Remedies:

· Nominal Damages if no actual arm;

· Punitive.

· Compensatory Damages

o for diminution in value, if any.

o For Emotional Distress

o For Stumpage value when appropriate.

· Replevin.

§ Equitable Remedies:

· Injunction (watch out for defense of easement or other privelege).

6. Innocent Trespass to Land Causing Severance.

§ Legal Remedies:

· Compensatory:

o dimin in value of land.

o If conversion also, value of ppty taken (e.g. stumpage)

· Replevin.

§ Equitable Remedies.

· Injunction.

7. Trespass to Land Causing Injury to Property Rights, including Ouster of Rightful Possessor.

§ Legal Remedies:

· Damages:

o Rental Value of land

o Cost of Repair.

§ Equitable Remedies:

· Injunction.

8. Unlawful Detainer

§ Legal Remdies:

· Damages based on rental value of land.

· Eviction.

9. Inadvertant Encroachment.

§ Legal Remedies:

· Damages based on diminution of value or rental value of area.

§ Equitable Remedies:

· Injunction; Balancing of hardships.

10. Advertant Encorachment:

§ Legal Remedies:

· Damages based on diminution of value or rental value.

§ Equitable Remdies:

· Injunction: no balancing of hardships.

11. Destruction of Easement:

§ Legal Remedies: damages based on dimin of value of land w/ easement.

12. Interference w/ Easement:

§ Legal Remedies: Cost of restoration.

§ Equitable Remedies: Injunction.

13. Voluntary Waste:

§ Legal Remedies: Damages based on dimin of value of land or cost of repair.

14. Nuisance

§ Legal Remdies:

· Damages based on loss of use and enjoyment of ppty; cost of abatement; emotional distress.

§ Equitable Remedies: Injunction.

15. Personal Injury

§ Legal Remedies:

· Damages for economic loss

o past, present, and future medical expenses

o loss of earnings or earning capacity.


· Damages for non economic loss

o pain & suffering

o mental or emotional distress

o loss of enjoyment of life.

16. Wrongful Death

§ Legal Remedies:

· Damages based on economic loss to estate


· Damages for evonomic and noneconomic loss to survivors.

17. Defamation

§ Legal Remedies:

· General Damages, Punitive Damages for actual malice.

§ Equitable Remedies:

· Injunction.

18. Invasion of Privacy

§ Legal Remedies:

· Damages for mental anguish.

· Punitive Damages for malice.

§ Equitable Remedies:

· Injunction.

19. Inducement of Breach of K.

§ Legal Remedies:

· General Damages, Punitive damages for actual

impracticab, or frustrat of purpose)

11. Fraud or Mistrepresentation in Inducement of Performance or in Execution.

a. Legal Relief:

i. Tort Damages.

b. Equitable Relief:

i. Rescission & Mutual Restitution.

12. Construction K—Breach by Builder

a. Legal Remedies:

i. Damages

1. If incomplete: actual cost of completion – K price.

2. If insufficient: expected value – value as built.

b. Equitable Remedies:

i. Restitution of cost of undelivered goods for which he has paid.

ii. Specific Performance.

13. Construction K—Breach by Owner

a. Legal Remedies:

i. Damages: expected profit + expended costs.

ii. Must cease work to mitigate loss.

b. Equitable Remedies:

i. Rescission and sue in Quantum Meruit.

ii. Specific Performance.

14. Personal Service K—Breach by Employee or Service Provider

a. Legal Remedies:

i. Damages: FMV of services – K price; and other damages.

b. Equitable Remedies:

i. No Restitution.

ii. No SP.

15. Personal Service K—Breach by Employer or Recipient of Services.

a. Legal Remedies:

i. Damages:

1. Expected Profit plus costs expended,

2. Lost wages less wages he could have earned from substitue employment.

3. For tort, full tort damages.

b. Equitable Remedies:

i. Quantum Meruit.

ii. Specific Performance.

iii. Injunction in event of discrimination, otherwise unlikely.

DRI Analysis (Damages Restitution Injunctive)

· Damages Relief

o Consequential

o Interest

· Restitution Relief

o Unjust Enrichment

· Injunctive Relief/Coercive Relief

o Specific Performance

Limitations on endless claims for recovery.

· Public policy limitations, judicial limitations, and practical limitations.

· The legislature can also expand remedies, even if not mentioned in the K. To a lesser degree the court would expand remedies beyond what would also be available to. So not just limiting, but also expanding.

· In CA, for non-economic harms, use several liability.