Select Page

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

Remedies Outline


Structure of Course

i. What you can get for a client or keep your client from having to give
ii. Injunction, Damages, Restitution, Declaratory judgment, remedies in action (torts, Ks.)

Legal History

i. Law courts only originally. All had as a remedy was money judgment. Equity court created because problem that money not always enough as a remedy. Equity is what is fair under the circumstances
1. In equity courts, discretion to hear the matter, how to decide it, and what remedy is. Law courts did not have as much discretion in decision or remedy
ii. Merger Doctrine – law and equity courts together – one court to hear both equitable and legal matters. Go to same court no matter what remedy want
1. Distinctions between law and equity cases
a. In rem/in personam jx
i. Law courts acted in rem (on the thing)
ii. Equity courts acted in personam (on the person)
b. Jury – Entitled to jury in legal action but not in equitable action. Equitable action decided by judge who has discretion
c. Procedure – “Inadequate Remedy at law”
i. Must first go to law courts and if remedy at law not adequate, can go to equity court
ii. Inadequate – have remedy at law but for some reason you don’t want money as your remedy, want something else
d. Enforcement
i. Law order (for money judgment) is enforced by the parties
ii. Equitable order is enforced by the court (thru contempt if necessary), court has continuing jx and inherent power to enforce own orders
e. Discretion
i. Equity court has lots of discretion as to what will have in way or remedy
ii. Law court is not discretionary – if elements proven, get money judgment

Types of Remedies

i. Legal Remedies
1. Substitutionary Remedies – money damages. Damages get substitute for harm or loss to you
a. Compensatory Damages – damages to compensate the P
i. General – damages that every P with this cause of action will suffer (ex. pain and suffering). Flow as natural from the harm
1. Need general damages to get remedies
ii. Special – those damages which some, but not al

ing out of the K without being liable
c. Reformation – getting us the K we really wanted instead of what paper says
iii. Restitution – focus on D and how D unjustly benefited and enriched. Can be granted by both law and equity courts just different phrasing used
1. In Legal Court – usually consists of financial money damages and takes form of quasi-contract.
2. In Equity Court – constructive trust and equitable lien and replevin
iv. Declaratory Judgment (DJ) – court declaring who is right and who would be entitled to something if certain things happened BUT no relief

Equitable Remedies

Equity Injunctions

i. Characteristics of injunctions
1. Rights/Merits – need underlying cause of action (merits)
2. Inadequate remedy at law – must show money is not adequate, money will not help, will not compensate P or not what P wants