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University of California, Hastings School of Law
Zamperini, Michael A.

REMEDIES OUTLINE (Zamperini- Fall 2009)
Table of Contents

Introduction to injunctions
TRO’s –issuance
Preliminary injunctions –issuance
Appealing TRO’s and Preliminary injunctions
Permanent Injunctions


Equitable Defenses

Persons Bound
Collateral Attacks


Speculation and Certainty
Prejudgment Interest
Present Value
Collateral Source
Punitive Damages (tort)
Liquidated Damages (contract)
Attorney’s Fees


Law: Quasi-Contract

Constructive Trust
Equitable Lien


1. Personal Property
a. Damages
b. Replevin
c. Restitution
2. Real Property
a. Damages
b. Ejectment
c. Injunction (trespass)
d. Injunction (covenants)
e. Injunction (zoning)
f. Injunction (private nuisance)
g. Restitution
3. Crimes
4. Constitutional Wrongs
a. Damages
b. Injunctions
c. Abstention
5. Dignitary Interests
a. Damages
b. Injunction (defamation)
c. Injunction (privacy)
d. Injunction (relationships)
e. Restitution
6. Personal Injuries
a. Damages
b. Loss of Consortium
c. Wrongful Death
d. Injunctions/Restitution
1. Affirming the Contract
a. Damages
b. Specific Performance
2. Disaffirming the Contract
a. Rescission
b. Reformation
3. Contracts for Goods
a. Damages
b. Restitution
c. Specific Performance
4. Contracts for Realty
a. Damages
b. Restitution
c. Specific Performance
d. Equitable Conversion
5. Contracts for Services
a. Damages
b. Restitution
c. Specific Performance

1. Law and Equity began as separate jurisdiction (law courts dealt with money & commercial dealings; equity courts dealt with abnormal/non-monetary remedies).
2. Doctrine of Merger brought the two courts together (physically), but distinctions remain:
a. In rem/in personam (law operates on a thing/contract/property, equity operates on a person)
b. Jury Trial (available in law courts, not for equity)
c. “Inadequate” Remedy at Law (in order to get equity must show that legal remedy is inadequate)
d. Enforcement: legal remedies are not enforced by the court; equity courts enforce using contempt
e. Discretion: Unless there is statutory authorization, there is no right to an equitable remedy. To appeal judge’s decision it must satisfy abuse of discretion standard. Legal courts can’t exercise discretion if a person is entitled to a remedy.
3. Approach to cases:
a. Dispute arises between the parties
b. What does the plaintiff want? (what is the goal)
c. What do you need to show for the underlying cause of action? (what do we need to prove)
d. What is the range of remedies they can get?
e. Are there alternatives? What can π ask for?
f. What remedies can ∆ live with?
4. Course Overview:
a. Legal Remedies
i. Substitutionary = $
1. Compensatory
a. General damages
b. Special damages
2. Nominal
a. These kick in when it’s difficult to calculate the compensatory damages
b. Mean π wins à but doesn’t really get any damages ($1)
3. Punitive
a. Focus is on ∆s conduct à punish ∆
4. Measurement goal for Tort v. Contract remedies
a. Tort
i. Look backwards, make π whole
ii. Put π in position as if K had been performed
b. Contract
i. Look to the future
ii. Put π in position as if K was performed
ii. Specific
1. Statutory for torts
a. Involving personal and real property
b. Ex: replevin, ejectment
2. Liquidated damages for breach of K
b. Equitable Remedies
i. Tort à injunction
ii. Contracts
1. Specific performance (like injunction)
2. Reformation
a. Ask equity court to reform K
3. Rescission
4. Ask court to get out of K
c. Restitution (both a COA and a remedy; restore something to π that you have been unjustly enriched by; focus here is on ∆)
i. Legal à quasi-K
ii. Equitable à seeking the return of something
d. Declaratory Judgment
i. Doesn’t result in anything, just a declaration of rights by the court
1. Introduction to injunctions
a. Completely discretionary, so put as much into request as possible.
b. Elements:
a. Merits of underlying COA
b. Inadequate remedy at law
c. Irreparable harm
d. Balance interests of π, ∆ and public
e. Present/future harm
f. Tribunal integrity (can this be enforced by the courts?)
g. Property right
c. Forms/Classification:
a. Preventative/coercive
i. Mandatory: orders an affirmative act (court is reluctant to use mandatory injunctions b/c intrusive or difficult to supervise/enforce)
ii. Prohibitory: forbids an act
b. Specialized
i. Structural: remodels an existing social or political institution to bring it into conformity with constitutional demands (Brown v. Board of Education)
ii. Prophylactic
d. Types:
a. TRO (temporary restraining order)
b. Preliminary/Interlocutory
c. Permanent
e. NOTE: The longer of an injunction you are seeking, the higher the burden of showing all of these elements (Ex: irreparable harm, etc.)
a. So you will need to show more for a permanent injunction than a preliminary injunction, etc.
b. How the court rules on one type of injunction does not affect how the court will rule on a different type of injunction
c. TRO à Preliminary Injunction à Permanent Injunction
2. Temporary Restraining Orders (TRO) (preserving the status quo until hearing on Prelim. Injunction)
a. Request for extraordinary relief; comes at the beginning of the case.
b. Substantive Requirements:
i. Some sort of emergency
ii. Likelihood of success on the merits
iii. Inadequate/Inappropriate Remedy at Law (where you have multiple legal remedies, must show them ALL to be inadequate).
iv. Irreparable Harm (lesser standard than permanent injunction)
v. Balancing the harms (harm to defendant if TRO is granted v. harm to plaintiff is TRO isn’t granted). Based on actual, not speculative harm.
vi. Public interests
vii. Present/future
viii. Tribunal Integrity (can the court enforce such an order? Is it feasible to do so?)
ix. Preserving Status Quo (preserve status quo until more evidence is developed, “freezing” things)
c. Procedural Requirements:
a. Notice to ∆
i. Regular Notice and TRO Hearing (allows ∆ to show up and preset their case)
ii. No notice and Ex Parte Hearing (in limited circumstances we will allow a TRO to be issued when Defendant does not have notice)
1. Harm if ∆ notified
2. Can’t find ∆
3. TRO says why ex parte
4. ∆ needs notice of TRO after it is granted
5. This is hard for 1st amendment cases
6. If a TRO is granted at an ex parte hearing, must send defendant notice of the TRO, and the reason why it was granted ex parte.
b. Duration of the TRO
i. Until the hearing on the preliminary injunction OR
ii. 10 days (whichever comes first)
c. Bond
i. Plaintiff must post bond (to compensate defendant if the TRO was wrongfully issued)
d. Appeal
i. Generally TRO’s are not appealable.
e. Clinton v. Nagy
i. Facts: Brenda Clinton wants to be allowed to play football in an all-boys league. She requests a TRO and then a preliminary and permanent injunction preventing the league from denying her the ability to play based on her sex.
ii. Rule: Because Clinton showed likelihood of success (only denied because she is a female) and irreparable harm (loss of leadership-building opportunity, only two games left in the season), a TRO is granted requiring the league to allow her to be a member (but not necessarily to start or play in a game). The TRO was a prohibitive, reparative injuncti

ou don’t need to show a strong success on the merits at the beginning (Ex: marital TROs)
iii. If the court uses one of these, unlikely it will overturned on appeal
b. Posner’s formula:
i. Factors:
1. G = grant the preliminary relief
2. P = probability that denial of the injunction is error because π will win on substance
3. Hπ = harm to plaintiff if injunction is denied
4. H∆ = harm to defendant if injunction is granted
ii. G = P x Hπ > (1-P) x H∆
5. Injunctive Bonds
a. Purposes:
i. Protects the integrity/public perception of court
ii. Protects ∆ (this bond will compensate the ∆)
iii. Protects the overzealous π (makes them stop and double think getting an injunction)
b. If statute says π must post à MANDATORY according to FRCP and most states
i. Exceptions:
1. If π has a lot of money (so they can well afford to pay damages if they are wrong)
2. If π is the government they don’t have to post a bond
3. If π is indigent
4. If constitutional rights issues are involved
5. If there is no economic harm to ∆, then no need (Ex: Comcast)
c. AMOUNT of the bond:
i. Sole discretion of Court
ii. Look at: How much to compensate ∆ if this injunction is granted and it turns out to be a mistake?
i. ∆ recovers if:
1. FED: ∆ ultimately wins (no permanent injunction granted)
2. STATES: injunction was wrongfully granted (abuse of discretion)
ii. must PROVE damages
iii. The majority of jurisdictions say that even if defendant can prove damages, the bond is the ceiling (even if defendant can show that there were more damages than allocated for in the bond, it is the max).
1. This is why there is usually a fight over bond amount
e. Borough of Palmyra Board of Education v. F.C.
i. Facts: Plaintiff claims that due to his disabilities, the school must accommodate him. Court orders a TRO, but requires π to pay bond. π cannot afford bond.
ii. Rule: When you have a non-commercial, public interest case, and ∆ will not be harmed if the decision is reversed, bond can be waived.
6. Appealing grant/denial of injunction (TRO or Preliminary)
a. Can you appeal?
i. TRO’s:
1. GR: can’t be appealed because it is such a short duration that by the time the appeal went through, the TRO order would be over.
2. Exception: when a TRO acts like a preliminary injunction, you can appeal:
a. If there is notice and an adversarial hearing (court comes up with findings of facts and conclusions of law—something for appellate court to evaluate/look into),
b. If there is no more interlocutory preliminary relief available
c. If the TRO lasts longer than 20 days (has ripened into a preliminary injunction)
3. Most common grounds for appeal of a TRO: duration longer than 20 days, and a lack of full presentation by both sides.
ii. Preliminary Injunctions
1. GR: Can be appealed
2. Because this is an adversary hearing (with notice) and there are findings of fact and conclusions of law in hearing, this creates a record for appeal.
b. Procedural Requirements:
i. Stay/Modify/Enact
1. If the injunction is granted against you, you can request a stay or modification of the injunction pending appeal.