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




I. Restitution Generally

a. P must be able to trace the wrongfully acquired property into some property currently in D’s possession. (Tracing)

b. Constructive Trusts

i. When a person retains or acquires property by violating his fiduciary duty, said person will be found by the courts to hold said property in a constructive trust for the person to whom the fiduciary duty is owed.

ii. This has been used to capture profits earned by employees who unjustly enrich themselves at their employers expense by violating confidences and/or covenants not to compete

c. Equitable Lien

i. When a third party innocently comes into possession of P’s property and uses it to acquire property that is more valuable, a constructive trust is not available. Instead, P can get an equitable lien over the property which gives P the right to sell the acquired property to cover his loss with all profits remaining with the third party

d. Subrogation

i. Allows one person to substitute for the other to assert restitution to prevent unjust enrichment

1. Loss to the obligor

2. Benefit to the creditor

3. To allow creditor to retain all would be unjust enrichment so we want creditor to disgorge that

e. Defenses

i. Bona Fide Purchaser

1. Someone who gives value without notice to P’s claim can cut off P’s claim for title of particular property

ii. Tracing

1. Commingling

a. First In/First Out Rule

b. P can choose which rule

2. Re-depositing

a. Use lowest intermediate balance because we know at least that much was D’s

iii. P was a volunteer

1. Intent measured at the time of the act

iv. Officious Intermeddler

1. P intends to be paid BUT D has no choice to reject P

II. Torts

a. Personal Property

i. Damages

1. General Damages

a. FMV of the object at the time of loss

b. May be the replacement cost, less depreciation

c. Or the value to the owner (though not usually)

2. Special Damages

a. Loss of use to P

3. Pre-Judgment Interest

4. Punitive Damages

5. If Property is Destroyed/Lost

a. General Damages

i. FMV at the time of loss

ii. Value to P

iii. Sentimental

iv. NOT replacement value—its not brand new

b. Special Damages

i. Loss of use (unless replaced)

c. Prejudgment Interest

6. If Property is Damaged

a. General Damages

i. FMV diminution

ii. Cost to repair, limited to FMV diminution

b. Special Damages

i. Time to repair

7. Conversion = Trover

a. Where D has unlawfully exercised dominion over P’s property

b. Damages

i. General Damages

1. FMV at the time of conversion OR

2. Replacement cost

ii. Special Damages

1. Loss of use

iii. Prejudgment Interest

iv. Punitive Damages

1. Have to show intention to harm P

ii. Replevin

1. Return of property

2. Money for detention of property by D

3. Pre-trial relief to get the property back

4. Bond/Counter bond

a. Usually 2x the interest in the property

b. Sheriff finds and delivery (problems with this)

iii. Equitable Replevin

1. An injunction where P seeks the return of his property

iv. Restitution

1. Loss to P

2. Benefit to D

3. Allowing D to keep would be unjust enrichment

b. Real Property

i. Causes of Action

1. Trespass: Interference with P’s ownership of property

2. Encroachment: Trespass by a structure or building

3. Nuisance: Unreasonable interference with use or enjoyment of land

ii. Damages

1. In general, repair cost or the FMV diminution

2. With real property, when repair cost exceeds FMV diminution, what do they do?

a. Look at various things as to whether there is a way to allow for the larger cost

b. Is it legally permanent? i.e. would an equity court order removal after balancing harms to P, D and public?

i. If permanent: FMV diminution

ii. If temporary: Repair or remove

c. Is it practical to remove or would it be a big hassle?

d. Who claims characterization and why?

e. Willful or negligent?

i. Willful: Repair or remove

ii. Negligent: FMV diminution

3. Special Damages

a. Objective: Loss of use, depending on character of the land

b. Subjective: Annoyance to the owner

iii. Ejectment

1. Plaintiff proves:

a. P’s right to possession

b. D’s wrongful withholding

i. Property described by distances (metes and bounds)

2. Plaintiff gets:

a. Recovery of property (ejectment by sheriff)

b. Mesne profits

3. Used in situations where D is on prop thinking its their own, its not, and when P says get off, D says no, its mine. Battle over title

4. Unlawful detainer: landlord gets rid of a tenant (less convoluted) no problem about title

iv. Injunction (Trespass)

1. Routine injunction analysis

a. Tribunal integrity is a big thing here

b. Have to show that remedy at law AND ejectment is inadequate


1. Because the criminal system can take care of this that is usually an adequate way of dealing with the activity

iii. Constitutional problems

1. Civil courts doing something about criminal equity

2. Balance/Separation of Powers: Legislature is supposed to decide what a crime is and how is it to be punished.

3. Criminal Procedure safeguards

a. Don’t get them in a civil court

b. We are not trying to punish you for a crime, we are trying to enjoin the underlying activity, that makes the activity a crime.

4. First Amendment

a. Obscenity: different protections in civil or criminal

b. Conduct: speech that we normally wouldn’t be able to jail you for we might be able to enjoin you—especially if the speech is accompanied by conduct

d. Constitutional Wrongs

i. Damages

1. Actual: Proven

2. Presumed: Nominal

ii. Injunctions

1. Routine analysis

2. Structural Injunctions

iii. Abstention

1. P claims that criminalization is unconstitutional

2. Generally a civil court will not enjoin a criminal court UNLESS

a. The criminal action is brought in bad faith, if property rights are involved or if something is urgent or far reaching

e. Dignitary Interests

i. Damages

1. General

a. Mental anguish, emotional distress, etc.

b. Non empirical—hard to calculate

2. Special (Economic)

a. Lost job, medical attention

3. Punitive

a. If malice


ii. Injunction (Defamation)

1. Generally cannot enjoin speech (First Amendment issues) UNLESS

a. Speech infringes on a substantial property right

i. Ex: Trade Libel

2. Must do traditional analysis

a. Tribunal Integrity problem because hard to supervise

b. Damages usually adequate

3. Generally opposed to prior restraints

a. Minority of jxs allow for a second publication

b. May be allowed due to public policy (violating health concerns or greater harm)

iii. Injunction (Privacy)

iv. Injunction (Relationships)

v. Restitution