Select Page

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

Remedies

Fall 2014, Prof Zamperini

INJUNCTIONS: equitable remedy, no right to it, discretionary, mandatory v. prohibitory

1. TRO, extraordinary relief b/c before full trial

a. Substantive Requirements: Emergency, Likely success on the merits (articulate your right, but no show that you’ll win for sure), Inadequate remedy at law ($ not appropriate), Irreparable Harm (will cause harm now), Balance of harm & Discretion (harm to P if TRO denied v. harm to D if TRO granted), Tribunal Integrity (feasible? Effective? Supervised?), Preserve Status Quo (stop—as it is now, temp)

b. Procedural Requirements

i. Notice to D: since it’s extraordinary relief, D should be able to oppose.

1. OR Ex Parte hearing: w/o notice to D, P presents. Due process potential violation so, additional protections:

a. Harm if give notice OR can’t find

b. TRO must detail why ex parte

c. Hard if 1st Am. Involved

d. D still needs notice of issued TRO itself in order to follow it.

ii. Duration of TRO is the shorter of (1) hearing of prelim or (2) 14 days.

iii. Bond posted by P: helps protect tribunal integrity, removes D’s sting if they win, protects P from filing for frivolous TROs.

1. UNLESS: (1) P wealthy, indigent, or government, (2) constitutional rights, (3) no economic harm to D.

2. Amount: discretionary by court, to compensate D for a wrongful injunction.

3. Collection of bond by D: D must prevail or injunction wrongfully issues, D must prove damages, D can’t recover beyond the amount of bond.

iv. Appeals: Usually no because of the short duration. Unless:

1. TRO acts as a prelim if (1) full notice, adversarial, and evidence, (2) no more interlock available, no prelim later, (3) beyond TRO duration & ripened into prelim.

2. Acts as permanent injunction b/c grants or denies all relief

2. Preliminary (interlocutory) Injunction

a. Substantive Requirements (sliding scale, the more you have of one, the less you need on the other): Strongly likely success on the merits (some showing of merits because asking for more than TRO (longer duration)), Inadequate remedy at law, Irreparable Harm (until trial on merits suffered by P if prelim denied), Balance of harm & discretion (public interest too), Tribunal Integrity, Preserve status quo until final adjudication

b. Procedural Requirements

i. D must give notice: no ex parte hearings.

ii. Bond posted by P (same as TRO)

iii. Appeals: usually okay because finding of fact + conclusions of law. More detailed evidence at prelim, so appeals have it to go off of. (std= abuse of discretion)

1. Can separately apply for a stay during appeal (no automatic right), but burden shifts to D to prove substantive req. Automatic stay only of mandatory injunction if appeal.

iv. Prohibitory easier to grant than mandatory

3. Permanent Injunction

a. Substantive Requirements

i. Success on the merits: demonstrate cause of action

ii. Inadequate remedy at law: $ won’t be sufficient at all

1. Multiple suits (continuing, ongoing wrong)

2. Future/Continuing Harm: can’t estimate how bad

3. Intangible Harm (const. right): no $ value for freedoms

4. $$ won’t compensate: (a) speculative/too hard to calculate, (b) unique items, (c) practical b/c D doesn’t have collectable $$$.

5. Injunction superior b/c quicker and/or more efficient because of continuing jurisdiction to enforce.

iii. Irreparable harm into indefinite future

iv. Balance of harm & discretion

v. Tribunal integrity

b. Procedural Requirements

i. Appeal: burden shifts to D, abuse of discretion std

ii. Modification of Perm.: okay when there is a change in law, facts, or circumstances since court has continuing jxn & ambulatory.

Equitable Defenses

1. Conscience Defenses

a. Unclean Hands: (1) Serious (unethical/immoral) conduct by P (P must know), (2) Prior Conduct by P, (3) Related to P’s claim now (P not deserving litigant)

b. Unconscionability (Unclean Hands in Ks), legal defense & equitable defense

i. Shocks conscience of court

ii. At time K made

iii. Can apply to whole K or just term(s)

iv. Can be substantive (term of K itself shocks) or procedural (formation of K shocks)

2. Activity Defenses

a. Laches (non-action)

i. Unreasonable/inexcusable/knowing

ii. Delay by P in bringing COA seeking equitable remedy

1. No relation to SOL, SOL throws case out, laches bars request for equitable relief.

iii. Unduly prejudices D: defense prejudiced b/c witness moved OR unreasonable economic prejudice. Balancing by court.

b. Equitable Estoppel: (1) Inconsistent or false acts, conduct, or statements by P, (2) Intending D to rely on falsity, (3) D reasonably relied on, (4) D hurt/disadvantaged

Contempt: tool for equity court to enforce injunctions, criminal and civil

1. Order must be explicit: (1) state reasons why it was issues, (2) state terms specifically, and (3) describe in reasonable detail the act or acts restrained/reqd

2. D must have ability to obey: can’t be impossible for D to achieve

3. Civil/Criminal Distinction: contempt for order or contempt for disrespect

a. Criminal contempt requires criminal procedural protections, but not when it’s summary contempt where it happens in front of the judge.

4. D must be person “bound” by injunction:

a. Party/agents—D or his authorized agents

b. In active concert: if 3rd party interferes w/ P’s right to do something & D’s duty to provide it/obey it, then acting in active concert against court

i. Aider, abettor: no affiliation w/ D, but helping to breach injxn

ii. Successor in interest: can’t get out of injxn by changing business

c. Must have notice/knowledge of injxn to be held in contempt

5. Defenses & Attacks on contempt

a. Did D actually violate injxn (look at #1 & #2)?

b. Is it criminal or civil? Criminal if unclear to be safe.

c. Generally, no collateral attack (at contempt hearing, you can’t attack underlying injxn as faulty for not obeying it) UNLESS

i. Transparent invalidity (court made a clear mistake w/ injxn)

ii. No jxn (wrong court issued injxn)

iii. State allows collateral attack (CA)

Legal Damages

1. Types of Damages

a. Compensatory: damages that compensate P for the past and future harm

i. General (non-economic): damages that all Ps have for this COA; flow as natural so foreseeable; can’t be mitigated; must have general to have liability

ii. Special (economic (tort)/consequential or incidental (UCC)): damages that some Ps might have for COA; plead and prove to reasonable certainty; proximate cause (tort) or in contemplation of the parties (K); subject to mitigation

b. Statutory: provides for either a set, fixed number or particular amount

possession of. Court can imply K, trust, or lien; legal fiction.

1. Constructive (fictional) Trust: If D defrauds P into giving D P’s property, D agrees to hold it as trustee and anything D did to maximize value would be assets in the trust for P. P wants title to specific property in order to compel trustee to terminate trust and return property; Usually used when value of property increases.

2. Equitable Lien: P wants security interest for particular property in amount that has been taken. Usually used when value of property decreased or funds co-mingled and can’t be separated.

a. Secured creditors have an interest in specific property and general creditors just want money. Secured creditor’s best option is going for a constructive trust.

ii. Accounting/Subrogation: asking/determining what happened to $

1. Subrogation= substituting the person who wants to be a P into shoes of someone who can be a P in order to prevent unjust enrichment.

a. Types: creditor-debtor transaction (creditor loans $ to debtor); security/collateral (debtor gives creditors collateral like money for house mortgage); surety (creditor wants security and guarantor, but guarantor wants to be put in debtor’s shoes if debtor doesn’t pay)

3. Elements

a. (1) Benefit to D, (2) Loss to P, (3) D retaining benefit without compensation by D is unjust

i. If unjust, order restitution and have legal (D pays for benefit) or equitable (D returns the benefit/specific property)

ii. If just, then verdict for D and nothing restores to P.

b. Situations to apply: (a) D in breach of K where performance is left by P and D benefited; (b) P in breach of K but D has benefited; (c) Benefit to D by agreement, but K unenforceable; (d) Benefit to D by mistake; (e) Benefit to D by fraud; (f) Waiving tort and suing in assumpsit; (g) Constructive trust/equitable lien where something happens to property that D got from P.

4. Defenses: different variations of “just enrichment” for D to retain without compensating P

a. Equitable Defenses

i. Bona Fide Purchaser (BFP pays value + no notice of problem to BFP): cuts off P’s ability to get back specific property from BFP. P can go after wrongdoer.

ii. Tracing (P traces to prove P entitled to specific property)

1. Comingling: Ex: D takes $10 from P and mixes it w/ D’s $10. D withdraws $10 and loses at lotto. D declares bankruptcy, creditors want $10, P wants $10.

a. Presumptions: (a) first in/first out (when D uses funds, he uses preexisting funds first), (b) D’s $ withdrawn first, (c) P can choose either $ out or $ remaining (depending on what D has done with withdrawls)

2. Redepositing: Ex: D takes $5 from P and opens account. D withdraws $2, D withdraws $1, D deposits $3 of own money. D declares bankruptcy and creditors want $5.