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

Zamperini / Remedies / Fall 2016
 
 
 
King used to be the law
Rebellion to rein in King's power à 1150 King Henry II set up nat’l system of courts (no law / equity distinction – judge used discretion)
LCs only originally
Rigid (pleading)
Shortcoming à When $$ couldn’t compensate person
Solution à Court of Chancery (King’s Chancellor – Chief Admin Officer)
Extraordinary relief appeal and Chancellor would decide in good conscience (discretion b/c lack of precedence unlike law courts) and equity (what was “fair” or balanced b/t P and D)
NOW à Physical merger (CA) into 1 court but not necessarily substantive
Other jdxns still have LCs and ECs
Equitable vs. Legal Relief
 
 
Law
Equity
In rem v. In personam
In rem à Concerned w/ subject matter of COA
Eg: Breach of K
In personam (on the person)
Ex: SP
Jury Trial
Yes, entitled to it
 
Decided by judge who has discretion
IRAL (inadequate remedy at law)
 
Must be “inadequate” (i.e. inappropriate)
Enforcement of Orders
Court doesn’t enforce its own order
P can only levy execution on judgment
EC enforces own orders
If D disobeys, held in contempt
Discretionary
If you can prove COA, no discretion w/r/t damages
Discretionary – Court can decide whether to even hear case and if so, whether to give equitable remedy
No right to injunction EXCEPT if legislation gives you right
Overview of Remedies
Legal Remedies
-> $$ damages (substitutes for harm or loss to P)
(“actual” damages)
Two types:
(tort = “noneconomic”)
Damages ALL Ps have from this harm
How to make P whole (torts) / enforce K
 
(tort = “economic”)
Damages SOME Ps may have
 
Having problem proving compensatory damages
Small amount, symbolic of P’s win (vindicate P’s right)
Something to fall back on
Focus on D’s conduct, not how P’s harmed
Stands for conduct society doesn’t like
Only get this when D’s conduct intentional, willful, wanton
Does NOT apply to Ks 
Measurement Goal
Differs when dealing w/ damages in torts vs. Ks
Goal -> Put P in position before tort occurred [Retroactive focus] Goal -> Put non-breaching party in position as if K was performed [Future focus] Specific Remedies (in addition to Substitutionary)
Statutory in torts -> Deals w/ particular COA and says what D must do
Legal replevin – must give back property
Ejectment – must give back real property
Liquidated damages – parties agreed in advance on the remedy
Equitable Remedies
 
Equitable replevin (although it’s really an inj) 
K
 
Equitable conversion
 
 
Restoring someone to their previous position to avoid unjust enrichment.
Can have parallel to or separate from $$ or equitable remedy
Sometimes you have them b/c you can’t get any other type of damages
Two types:
 
Constructive trust
Equitable lien
 
Declaratory Judgment
Tells people what their rights are, but orders no other remedy
Issued by equity court or at least in CA, a court sitting in equity
NO right to injunction -> more facts, the better
Each state court / federal circuit has own requirements BUT there are basics for each jdxn:
(1) Meritorious COA
(2) IRAL (inadequate remedy at law)
Must know what remedy at law is and be able to articulate why $$ in this case is inadequate
If you don’t get injunction, you can get fallback remedy of $$
(3) Irreparable harm
Cannot be adequately remedied by damages.
(4) Balance of harm favors P – P, D, Public
Harm to P, D, public interest
(5) Focus on COA in present / future
(6) Tribunal integrity (feasible, effective, supervisable, popular)
Used to be a requirement that underlying COA have property right attached
Easier to get inj if this present b/c easier to deal w/ vs. human rights 
Classifications of Injunctions
Preventative / Coercive
Prohibitive (negative order)
Tribunal integrity -> courts more comfortable having a D do as little as possible (ie. nothing)
Morgan Stanley (former employees used rolodex)
-> Ds prohibited from violating K they signed
-> Ds must repair P’s client database and send out letters to any clients they’ve contacted saying matter’s in court
Mandatory (affirmative order)
Courts reluctant to award this b/c intrusive / harder to supervise
On appeal, it’s stayed while a prohibitory inj isn’t 
Public inj that seeks to remodel existing social/political institution to bring into conformity w/ constitutional demands
Complex and invasive, involves judge in non-judicial role (mgmt.) 
 
Preventing potential harm from happening
 
Litigation Timeline
:  Event occurs that creates some violation of a right.  Something sets off a COA.
:  If no resolution, P initiates a COA/files a complaint.  During this stage of the litigation, several injunctions can occur:
– requires D to do or not do something for short period of time.  I

/c they had adversarial hearing on TRO
PROCEDURAL TRO CASES 
Marquette v. Marquette (1984) [Ex parte TRO granted to ex-wife against abusive ex-husband.  EH claims it denied procedural due process right.  Court disagrees.] Ex parte TRO
Ex-wife proved harm if she had to give notice
Legislature decided these types of orders may be obtained ex parte (codified in statute) so ex-wife doesn’t have to show IRAL, etc.
Safeguards built in
P must show good cause
Order narrowly tailored
Tribunal Integrity
No problem, sheriff’s dep’t will keep him away
In Re Vuitton Et Fils S.A. (1979) [Vuitton granted ex parte TRO b/c counterfeiters creating confusion = irreparable harm and if notice req’d then counterfeits would be removed] Procedural due process case like (Marquette)
Ex parte TRO
(1) Emergency -> Counterfeiters
(2) COA -> TM infringement
(3) Likely success on merits -> P must aver it owns TM (doesn’t have to prove now)
(4) Irrep harm -> Counterfeiters flood market and cheapen LV brand
(5) IRAL -> Ties into irreparable harm bc how do you put a $$ value on your brand cheapening
(6) Balance -> Pretty slam dunk for TM infringement cases since public doesn’t have right to buy knock-off products
Reno Air Racing v. McCord (2006) [P’s ex parte TRO order reversed for lack of specificity] Ex parte TRO
(1) Emergency -> Problem b/c this has been going on for 3 years
(2) COA -> TM infringement
(3) Likely success on the merits -> Same as In re Vuitton
(4) Irreparable harm -> Cheapen brand
(5) IRAL -> See above
(6) Balance -> Same as In re Vuitton 
(7) Tribunal integrity -> Easy to prohibit
(8) Future -> Want to stop TM infringement from now on 
Problems getting it ex parte:
P knows identity and location of counterfeiter so notice CAN be given
Want to preserve ex-parte function of TROs for emergencies where harm could happen during THAT short period of time if notice req’d
While P may get an injunction, won’t get TRO bc no emergency