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


Fall 2014



Overview of Types of Remedies

1. LEGAL DAMAGES/Legal Remedies– Granted by law ct once P can show elements of some cause of action.

a. SUBSTITUTIONARY REMEDIES – Money substituted for the pain.

i. COMPENSATORY DAMAGES – Legal damages that compensate the plaintiff.

1. General Damages – damages that flow as natural from the harm. All Ps have this from harm. Pain and suffering

2. Special Damages – Economic damages. Some damages that P might have. You don’t need to have special damages.

ii. NOMINAL DAMAGES – This occurs when there is problem in proving compensatory damages or calculating. Nominal damages substitute for other damages

iii. PUNITIVE DAMAGES – Focuses on how to punish the D.


i. Statutory in torts – these are specific; there are no substitutions.

1. Replevin gives P back the personal property that the D possesses

2. Ejectment gives P back the real property that D won’t get out of.

ii. Liquidated damages in K – This also very specific. We know exactly what it is because this is what the parties agreed on.

2. EQUITABLE/EQUITY – these are discretionary remedies and not required!

a. TORT (any cause of action that is not a k) –

i. Injunction – Getting the D to do or not do something. With injunctions, there are many elements depending on where in litigation request comes from.


i. Specific performance (this is an injunction in a k) – making the D perform.

ii. Reformation – changing the k that is physically there; reforming k to what it should be.

iii. Rescission – Tossing the k out.

3. RESTITUTION – Restoring something to someone. A court orders restitution in addition or in place of equity or legal remedies. Both designed by law or equity courts as methods of remedies to prevent unjust enrichment.

a. Legal Restitution (Quasi-k)

b. Equitable Restitution (E.g. Constructive Trust, equitable lien, subrogation).

4. DECLARATORY JUDGMENT [like ADR in court] – Declaration of rights meant to stop the cause of action from becoming complete thus resulting in damages.

Law and Equity

1. In rem / In personam. On the person (equity) or on the thing (law)

o Law – acts in rem. Deals with subject matter of cause of action on the thing (e.g the k). Law courts deal with the k itself.

o Equity – acts in personam. Deals with cause of action “on the person.” Is D forced to perform the contract?

2. Jury trial

o Law – you only get jury trial if you have a law or legal matter.

o Equity – There is no jury trial in equitable courts.

3. Inadequate. i.e. legal first

o Equity – Generally, one element required for equitable remedy [that’s not in law court] is that your remedy at law is inadequate, meaning you need to know what your remedy at law is.

o This means you go to the law court first; if damages are adequate, then this is it. No need to go to equitable court.

4. Enforcement of orders

o Equity – equity court enforces its own orders. If the court says that you cannot trespass and you do, then that equity ct will enforce that against you.

o Law – If you have judgment from a law court (e.g. 500 for breaking your leg), this is it; the law court does not enforce its own orders.

5. Discretionary (equity is).

o Equity – equity is discretionary. The court, judge, chancellor can decide whether to hear the case, and if so, whether to give an equitable remedy. This means, that even though you really want an injunction, you have no right to an injunction.

o Law court – if you can prove the elements, then this is it. There is no discretion by the court to not give you remedy if you can prove the elements.


Injunction Definition: Court orders D to do something (e.g. return P’s property) OR not to do something (e.g. not cut across P’s yard). There is no jury involved. Injunction deals with a cause of action and deals with it in the PRESENT and the FUTURE. Injunctions do not focus on the PAST, which would result in damages (e.g. I break your leg, where your harm is in the past.

Forms or Classification of Injunctions

1) Preventive/Coercive Injunctions – they prevent harm happening now or in the future.

· Prohibitory injunction – Tells D not to do something (e.g. don’t cut across yard). This is easier to get than a mandatory injunction.

· Mandatory – Makes D do something (e.g. physically remove rocks you piled in P’s yard). Harder injunction to get than prohibitory.

2) Specialized Injunctions

· Structural Injunction – a public injunction that seeks to change structure of D. E.g. Brown v. Board – change structure of segregated schools and not simply let Brown go to this school.

· Prophylactic Injunction – you are trying to prevent an alleged harm from even happening in the first place. E.g. have company put in place a sexual harassment policy before harassment actually happens

Litigation Timeline

· 1) Injury: Event occurs that creates some violation of a right. Something sets off a cause of action.

· 2) Complaint: If no resolution, P initiates a cause of action/files a complaint. During this stage of the litigation, several injunctions can occur:

o A) TRO – requires D to do or not do something for short period of time. It may be requested same time the complaint is filed. Denial or granting of TRO doesn’t mean a preliminary or permanent injunction will or will not be granted. They are separate.

o B) Preliminary injunction (between complaint and judgment) – this allows some injunction until you can get a permanent injunction at judgment

· 3) Judgment: judgment by the court

o C) Permanent injunction occurs after judgment.

1. TEMPORARY RESTRAINING ORDERS / Restraining Order / Emergency Injunction


1) *“EMERGENCY” – P needs to show an emergency situation that is occurring NOW, where P needs to the court to stop some action by the D now; it is not something we can deal with later. It must be an emergency related to some cause of action.

2) *PRESERVE STATUS QUO – temporarily stopping now [to preserve status quo] until we get more evidence, but preserve the status quo

3) LIKELY SUCCESS ON THE MERITS. The allegation by plaintiff is likely to succeed on the merits now. “Likely success” does not mean definite success, but likely success.

4) INADEQUATE REMEDY AT LAW – P must be able to show that $ is not going to take care of the situation and that a TRO is ne

a. Definition of Stay: A stay is enjoining an injunction to keep it from going into effect (e.g. suspend the injunction). Because it is an injunction (e.g. asking for a stay), you need the normal showings, but now there are complete factual findings

b. Federal court: under FRCP 62(a) there is no automatic stay [with an injunction]. Must show that the injunction has to be enjoined. Go through the elements of TRO/Prelim in D’s favor

i. Success of merits of appeal

ii. No adequate remedy of law if stayed

iii. Etc.

c. California:

i. Mandatory TRO/preliminary injunction has automatic stay during the appeal.

ii. Prohibitory TRO/preliminary – D must request and convince the court to stay. Go through the elements of TRO/Prelim in D’s favor. See above

2. PRELIMINARY INJUNCTION – TRO does not mean you automatically get a prelim. Also, if you fail to get a TRO, it does not entail that you will not get a prelim. Preliminary injunctions may only be granted after the trial court has conducted an adversary proceeding


1) DURATION: Status quo until final adjudication. PI are usually in place until there is a full trial.

2) NOTICE to D is a must (FRCP 65). You must give the other party notice. There is no ex parte.

3) BOND – Bond needed because it’s extraordinary relief.

4) APPEAL usually okay because of written documents of the finding of the facts (FF) and conclusions of law (CL) by the court. Must go through Procedure first before substance.


i. By giving notice, which is required, there will be an adversarial hearing. D will show up and actively fight you.

ii. Also, it’s usually requirements that the court issue findings of facts (FF) and conclusions of law (CL) as to why it’s ruling the way that it is. This gives record for appellate court to look at.


i. Abuse of Standard [by trial ct]: You either have to show that:

1. The trial ct did not consider an element under injunction, or

2. Trial ct used and applied wrong facts, or

3. Trial ct used the wrong test.

5) STAY DURING APPEAL- See above; it’s the same!

B. PRELIM SUBSTANTIVE REQUIREMENT – P has the burden of showing the following:

1) PROBABLE SUCCESS ON THE MERITS (higher than likely). Probable is higher than “likely”

2) IRREPARABLE HARM (until trial) – the harm to P must last until trial and not just a short time!


4) BALANCE OF HARM (until trial)

5) TRIBUNAL INTEGRITY – You are asking for more, therefore, will it require more court supervision?