Remedies Outline for the California
Bar Exam
Generally
1. GeneralApproach
1. Determine area of substantive law. (may be more
than one)
i.
Usually torts, property or contracts.
2. Make sure plaintiff has a case and a relief is
needed.
3. Determine appropriate remedies (based on
available remedies for that substantive area of law).
i.
ii.
Discuss legal remedies first
Discuss restitutionary remedies
1. Legal remedies
2. Equitable remedies
iii.
Discuss pure equitable remedies.
Discuss ALL potentially available remedies unless a specific
remedy is asked about
TORT Remedies
OVERALL TORT APPROACH:
1. Has P been/being injured?  compensatory damages
2. Has D derived an Unjust Enrichment?  restitutionary
damages
3. Does P want the property back?  Replevin, Ejectment,
SP
4. Does P need an Injunction?  Preliminary, TRO,
Permanent
1. LegalRemedies
1. Damages
i.
Compensatory– Puts injured party in
the same position as she would have been had
the injury not occurred. Payment must be
one lump sum, discounted to present value,
w/ inflation not taken into account. (MTinflation is considered)
1. Requires
1. Causation – Actual causation (but for
test)
2. Foreseeability – at the time of the act
(proximate cause)
3. Certainty – Damages cannot be too
speculative.
i.
Past losses must be established
w/ more certainty than future
losses
ii.
All or Nothing Rule: Future
damages require P to show
“more likely to happen than not”
to recover – if he can’t prove,
then he gets nothing for future
damages
1. Discuss probability of future
events occurrence
2. Lost Profits
1. Historical Records helps
– i.e. no new business
3. Medical Expenses
iii.
Non-economic damages (general
damages) – Certainty rules do
not apply
1. Pain and suffering etc (don’t
require certainty.
4. Unavoidability/Duty to
Mitigate – P must make reasonable
effort to mitigate; (damages limited
to those that could not reasonably
have been avoided)
ii.
Nominal – Awarded when no actual injury to
vindicate P’s rights.
iii.
Punitive – Awarded to punish the defendant
1. P must have first been
awardednominal, compensatory
OR restitutionary damages
1. On exam 1 st right about above
damages then discuss punitive
2. D’s fault must be greater than
negligence – i.e. intentional act by D
3. Due Process Limitations – cannot be
grossly excessive – D must have had fair
notice of the possible magnitude
1. Relatively proportional to actual
damages – as actual damages
increase, so do punitives.
2. Reprehensibility of D’s conduct,
disparity b/n harms suffered (single
digit ratio), awards in other cases
2. Restitutionary Damages – Theory is to prevent Unjust
Enrichment – 2 types:
1. LegalRestitutionary Damages
i.
Legal Restitutionary Money
Damages – Damages based upon the value of
the benefit conferred to the D.
1. May be by the amount it benefits
particular defendant
2. Punitive damages may be attached if
underlying COA is in tort.
3. Cannot get both compensatory and
restitutionary, P will sue on theory that
provides the greatest recovery
4. Examples:
1. D injures P in a car accident = Comp
only
2. D uses P’s road to cut 10 miles from
trip = nominal and rest
3. D steals your machine and uses it in
his biz = comp and rest, BUT cannot
get both comp and rest, P will sue for
damages that will give greatest
recovery
i.
ii.
Comp for rental cost to replace
Rest for benefit machine
conferred on the D
iii.
P could also sue for punitive for
the intentional tort
5. No Restitution for Encroachment or
Nuisance
ii.
Replevin – Action to recover possession of
specific personal property.
1. Requirements
1. The plaintiff has a right to
possession.
2. There is a wrongful withholding by
the defendant.
2. Timing – May recover before trial if
1. Preliminary judicial hearing and
P posts a bond.
i.
D gets the bond (for P’s wrongful
possession) if P loses
2. D may defeat P’s bond by posting
a redelivery bond(and D can keep
chattel until after trial).
3. Sheriff recovers property.
3. Almost always coupled with
damages for lost use OR benefit to
D during time of detention.
iii.
Ejectment – Action to recover possession
of real property
1. Requirements
1. The plaintiff has a right to
possession.
2. There is a wrongful withholding by
the defendant.
2. Only available against D who has
possession of prop.
1. Ex: adverse possessor/holdover
tenant, trespasser on prop
3. Sheriff ejects D
4. Almost always coupled w/
damages (restitutionary or compensatory)
for lost use OR benefit TO D during time
of wrongful withholding.
5. Ejectment does not give rise to punitives
2. EquitableRestitutionary Damages: CT &
EL – only used when D has wrongfully acquired
title to P’s prop
i.
Constructive Trust – Imposed on improperly
acquired property to which defendant has
wrongfully acquired title
1. Result – D serves as trustee and must
return property to P
2. No deficiency judgment available
3. P must be able to trace his property to D’s
property
4. P becomes SECURED creditor and gets the
benefit of any enhanced value of the
property
ii.
Equitable Liens – lien imposed on improperly
acquired prop to which D has title to secu re
debt to P
1. Result – Court imposes forced sale w/
proceeds to go to P.
1. Deficiency judgment – If the sale
does not cover the value of the thing
taken.
2. Can be imposed on prop that D wrongfully
acquired title or that was improved w/ P’s
property or proceeds from P’s prop (unlike
CT)
3. Can be enforced only up to the amount of
P’s claim, enhanced value cannot be
recovered
4. Gives P priority over other creditors
iii.
Rules for imposition of CT and EL
remedies.
1. An inadequate legal remedy.
1. D insolvent, or for CT’s, the prop is
unique.
2. Tracing allowed
1. If equitable lien – If traced to bank
account, then balance limited to
lowest account balance between time
of wrongdoing and suit is all P can
recover
3. BFP prevails over P
4. P will prevail over unsecured creditors to
the extent of the trust or the lien.
For deficiency judgment, w/ EL, you stand
on same footing as other unsecured
creditors.
iv.
Deciding which to use.
1. If the value of the property goes up –
Use constructive trust.
2. If the value of the property goes down –
Use equitable lien (to force sale) + DJ
(recover loss in value)
3. If the property cannot be traced solely to
P’s property, only an equitable lien is
available.
1. Ex: D used P’s money to pay for ½ of
a house  D cannot get CT over entire
house but can get EL to force sale
and recover P’s money
3. Pure equitableremedies
1. Injunctive Relief – Defendant is ordered to do or
refrain from doing something.
i.
Temporary – issued pending a full trial on the
merits.
ii.
Permanent – issued after a full trial on the
merits.
2. Preliminary Injunction –
i.
Requirements
1. Irreparable injury –
1. P will suffer irreparable harmif have
to await trial. (time frame context)
2. Balancing of hardships – irreparable
injury is balanced against any
hardship D will suffer if a temp
injunction is granted.
3. Buzz Words – Preserve the status
quo until the trial.
2. Likelihood of success on the merits – P
must establish
3. Posting of bond – P has to post a bond
(to reimburse D if injunction injures D and
P not successful).
1. Damages are not usually limited to
the amount of bond.
4. Adversarial procedure and notice to
opposing party.
3. Temporary Restraining Order – Issued pending a
hearing to determine whether temporary injunction
should issue.
i.
Test (same as above)
1. Irreparable injury
2. Likelihood of success on the merits.
3. Notice and adversarial
proceeding not required
1. i.e. ex-parte relief is OK
2. Notice should be given if opportunity
to do so.
ii.
Limitation – usually limited to 10 days (14 in
fed crt)
4. Permanent Injunctive Relief
i.
PI = I Put Five Bucks Down
1. Inadequate legal remedy
2. Property right/Protectable interest
3. Feasibility or Enforcement
4. Balancing of Hardships
5. D’s Defenses
ii.
Always remember $ damages are given if PI
denied
iii.
5 Requirements:
1. Inadequatelegalremedy
1. Replevin – Sheriff will not/cannot
recover, or D’s redelivery bond (and
D will destroy personal prop out of
spite)
2. Ejectment – Sheriff will not eject
3. Money damages inadequate
i.
ii.
Too speculative
Tort only threatened.
iii.
Insolvent D
iv.
Irreparable injury (loss to unique
prop/bodily injury or damage)
v.
Multiplicity of actions (prior
history of lit.)
4. Land – is unique
2. Property Right/Protectable Interest
Requirements
1. Trad. – Must
have protectable property interest
2. MT – Any protectable interest will
suffice.
3. Feasibility of enforcement –
1. Types
i.
Negative Inj. – Stop doing
something.
1. No enforcement problem
ii.
Mandatory Inj. – To do
something/affirmatively perform
act
1. Possible enforcement
problem because of
1. Difficulty of supervision
2. Difficulty in ensuring
compliance
2. Applications
1. Great skill, taste or
judgment – denied
2. Series of acts over
time – deniedunlessP’s
harm is great
3. Out-of-state act req’d
by D – grant if D is
resident, deny if D is
non-resident.
4. Balancing of hardships – P’s benefit v.
D’s hardship.
1. Rules:
i.
There must be gross disparity
b/n detriment and benefit, in
favor of P
ii.
No balancing if D’s conduct
was willful.
iii.
If no willful conduct by
D and hardship substantially
outweighs benefit, then no
injunction. May award money
damages.
iv.
Then, consider hardship to the
public
1. Ex: loss of public jobs
2. Discuss: P’s interests, D’s hardships,
Public hardship, decide injunction
issue, if denied, then money
damages.
3. Tip: balancing of hardships should
always be discussed when tort
is nuisance or trespass to land.
i.
Encroachment: if intentional,
no balancing (P will always win);
if innocent (includes neg), ct will
balance, but lean in favor of P
seeking removal of encroach.
ii.
Nuisance: always balance.
5. Defenses Must be Overcome (see
below)
5. Defenses to EquitableRemedies
i.
Unclean Hands – The party suing must not be
guilty of unfair dealing with respect to
the transaction sued upon.
1. Address UCH defense, even if facts don’t
apply to transaction
ii.
Laches – Unreasonable delay by P in
initiating equitable claim which causes
prejudice to D.
1. Clock starts when P knows of injury.
2. Right to relief cut off – When delay has
been both unreasonable and prejudicial
to defendant.
3. If laches applies – award P money
damages.
iii.
Impossibility – Impossible for the defendant
to carry out terms of injunction.
iv.
Free Speech – If defamation/privacy
publication tort, best defense is freedom on
speech (injunction denied based on 1 st A).
4. Injunctive Relief Issues
1. Crimes – Equity will not enjoin crimes.
i.
ii.
Recharacterize as a tort.
Exception for nuisance/public nuisance and
partial exception for crime that is also a tort.
2. Who is bound – parties, agent/employees, and
others acting in concert w/notice
3. Erroneous Injunctions – Injunctions must be
complied with until modified or dissolved.
4. Contempt –
i.
Civil – to coerce
1. Fines (money) to coerce
2. Imprisonment (D holds keys to the
jailhouse door)
ii.
Criminal – to punish
1. Fines (money) to punish
2. Imprisonment – Remain in jail for set
amount of time.
1. Constitutional safeguards apply.
iii.
No contempt for failing to comply w/ $
judgment, unless child support or alimony.
5. Dispossession of loan – Injunction not allowed since
ejectment adequate.
6. Encroachment – Restitution is not allowed.
Injunctions allowed.
7. Nuisance – consider traditional damages,
permanent damages, and past damages. Restitution
– Not allowed.
8. Personal Injury –
i.
Special Damages – Economic losses (more
certainty)
ii.
General damages – Non economic losses (no
certainty required)
iii.
Look to mitigation of damages.
9. Fraud – Some jurisdictions use benefit of bargain,
some apply out of pocket loss. Punitive damages
allowed.
CONTRACT Remedies
OVERALL CONTRACT APPROACH:
1. Has P been/being injured?  Expectation Damages
2. Has D derived an Unjust Enrichment?  Restitution
3. Does P want the property back?  replevin, ejectment,
CT, EL
4. Does P want the K performed?  SP
5. Does P want the K ripped up? Rescission
6. Does P want the K re-written?  Reformation
1. Legal Remedies
1. 4 types of Ks: (1) Land Sale; (2) Personal Property;
(3) Construction; (4) Personal Services
2. Damages
i.
Expectation Damages – Compensatory
damages.
1. Requirements for comp damages
1. Causation
2. Foreseeability (at time of Kformation)
3. Certainty
4. Unavoidability/Duty to Mitigate
2. Consequential Damages – available
for related damages foreseeable at the
time of formation.
1. Can includereputation damage
3. Incidental Damages – hassle damages
ii.
iii.
Nominal Damages – Allowed
Punitive Damages – Not Allowed
1. Unless activity can be recharacterized as a
tort case (if willful)
iv.
Liquidated damages – Damages specified in
K. Law does not allow a penalty.
1. Test for validity of clause:
1. Damages must be difficult to
ascertain at the time of formation.
2. Must be a reasonable forecast (if
too high it’s a penalty)
2. Note: Can’t recover both compensatory
and liquidated damages.
3. If Valid:only liquidated damages amount
available, and no actual
1. But can get other remedies outside of
actual damages (SP etc.)
4. If Invalid:only actual damages available
1. Dismiss clause, and analyze actual
damages amount)
2. Restitutionary Remedies – To prevent unjust
enrichment.
1. LegalRestitutionaryRemedies
i.
RestitutionaryDamages = Unjust Enrichment
1. Basic fact pattern: K fails after P has
rendered performance b/c:
1. K is unenforceable
2. K is breached.
2. Unenforceablecontracts (mistake, lack of
capacity, SOF, illegality)
1. P can get Restitutionary damages (for
prop/money given or services
rendered for D). Measured by
the value of the benefit conferred
to D.
i.
May be more than the contract
rate.
2. May recover property if: unique or D
insolvent.
3. Breachedcontract.
1. Non-breachingP
i.
P can get Restitutionary
damages (for prop/money given
or services rendered for D).
Measured by the value of the
benefit conferred to D.
1. May be more than the
contract rate.
ii.
May recover
property if: unique or D
insolvent.
2. BreachingPlaintiff
i.
Restitutionary damages –
1. Traditional – No
recovery allowed.
2. Modern – Recovery
allowed, but limited to K
priceand must be offset to
reflect D’s damages.
1. Cannot be greater than
K rate.
ii.
iii.
Replevin – Above
Ejectment – Above
2. EquitableRestitutionaryRemedies
i.
ii.
Constructive Trust – Above
Equitable Lien – Above
3. Equitable Remedies
1. SpecificPerformance
i.
ii.
Memorizer – Cha Cha Is My Favorite Dance
Requirements
1. Contract is Valid/Certain & Definite.
1. Contract terms must be shown
with more certainty and
definiteness than for money
damages.
2. Contract Conditions of P Must be
Satisfied
1. P must be able to show his K
conditions have been fulfilled
(already performed, ready and able
to perform, or excused from
performing).
2. Land sale contracts – Deficiency
fact pattern
i.
Seller as Plaintiff:
1. May enforce if defect
minor
2. Cannot enforce if defect is
major, unless seller
can cure b/4 closing
ii.
Buyer as Plaintiff:
1. May enforce if defect is
major.
2. Cannot enforce if defect
very major.
iii.
Note: If SP granted, must note
that ct will lower purchase
price to take defect into
consideration(“ABATEMENT” in
purchase price)
3. “Time is of the Essence” w/
forfeiture provision – fact pattern:
LSC contains time is of the essence
clause with forfeiture provision, there
is some partial performance, the
buyer makes a late payment, thus
triggering the time and forfeiture
clause and seller wants to keep both
the land and any payment
performance rendered by buyer.
i.
Rule:Equity abhors
forfeiture  give buyer the
land
1. Factors:
1. Loss to seller is small.
2. Tardiness is de
minimus.
3. Waiver
4. Undue hardship.
2. If no SP, then grant
restitutionary relief (MT)
3. If K wholly executory, time
of essence K will be strictly
enforced.
3. Inadequate Legal Remedy –
1. Alternative money damages must be
inadequate.
i.
ii.
iii.
Speculative
D’s insolvent
If multiple suits would be
necessary.
iv.
The thing bargained for is unique
1. LAND IS ALWAYS
UNIQUE.
1. Special “seller’s”
rule: S of land can get
SP even though all they
have coming is $ (i.e.
purchase price)
2. Personal property not
uniqueunless
1. One of kind or very
rare.
2. Personal significance to
Buyer.
3. Circs. make chattel
uniqueat time of
litigation.
v.
Liquidated damages clause is not
adequate  Can still get
SP. Unless clause makes it clear
that it is the sole remedy.
4. Mutuality of Remedy – Ct must be
satisfied that it can secure P’s
counterperformance under K.
1. Fact pattern
i.
D claims that since I cannot
enforce against P, he should not
be able to get SP against me.
ii.
Court will reject mutuality
agreement if it is secure that P
can and will perform (this is
evidenced by P
(minor/incapacitated) bringing
the subject suit
iii.
Ct will grant SP and arrange
for simultaneous
performance.
5. Feasibility of Performance
1. SP cannot enforce Personal
Service K b/c:
i.
Enforcement problems; &
equivalent to involuntary
servitude
6. Defenses –
1. Equitable
i.
ii.
iii.
Unclean hands
Laches
Unconscionability – time of
contract formation
iv.
v.
vi.
Waiver
Estoppel
Equitable Conversion
2. Contract defenses
i.
Mistake
ii.
Misrepresentation
iii.
Statute of Frauds
1. Part performance doctrine –
Contract must
involve land or
testamentary disposition
and must be oral.
2. Rule: D will bypass SOF and
get SP if:
1. Rendered valuable
part performance
2. In reliance on the
contract
3. Any 2 of 3 will work:
1. Payment (whole or
part)
2. Possession
3. Valuable improvements
(MT – valuable
services).
iii.
Specific Performance Issues
1. Equitable Conversion (involves land sale
K) – when K is entered into, buyer
becomes the equitable owner and seller
becomes the owner of personal property.
1. If K specifically enforceable – EC
has occurred upon execution.
2. Occurs b/n K execution and closing:
i.
Death
1. If seller dies, title goes to
person entitled to seller’s
real prop (heir or devise),
while right to price goes to
person entitled to seller’s
personal prop (right to
payment of purchase price).
2. If buyer dies, his interest in
land goes to person entitled
to his real prop.
ii.
Damage/Destruction
1. Risk of loss assuming EC
1. Maj – risk is on buyer,
unless loss is due to
seller’s negligence
2. MT – risk on seller
unless at time of loss,
buyer has either legal
title or possession.
2. Right to insurance proceeds
1. Whoever has risk of
loss should get
insurance
2. Employment K – NOT specifically
enforceable
1. Poses enforcement problems
2. Involuntary servitude
3. Negative covenant enforceability (cov
not to compete)
1. 2 part test
i.
Cov must protect a legitimate
interest of the person in whose
favor it runs (t/4, service must
be unique)
ii.
Cov must be reasonable in
both its geographical and
duration scope.
2. Damages inadequate where
employee’s services are ordinary, but
not where services are unique or
where trade secrets/goodwill are
involved.
2. Rescission– (Good Dog); original K considered
voidable and rescinded/cancelled
i.
Grounds for Rescission– Problem with contract
formation.
1. Mutual Mistake
2. Misrepresentation
3. Coercion
4. Undue influence
5. Lack of capacity
6. Failure of consideration (material breach)
7. Illegality
ii.
Mistake
1. Mutual Mistake –
1. If Material (affects basis of bargain)
– Grant rescission.
2. If Collateral (quality, desirability,
fitness of property) –
Rescission denied
2. UnilateralMistake
1. General Rule – Rescission denied.
2. Exception if non-mistaken
party knows or should know of the
mistake.
3. MT – grant rescission if party would suffer
an undue hardship if there is no
rescission.
iii.
Misrepresentation – P can seek rescission on
showing of actual reliance on a material
misrep of fact.
1. Reliancetest
1. Innocent misrepresentation –
Reasonable reliance.
2. Intentional Misrepresentation – Actual
reliance.
iv.
Defenses –
1. Unclean hands.
2. Laches
3. Negligence is not a good defense
v.
Rescission Issues
1. Election of remedies –
1. P Sues for damages first – No
rescission.
2. P Sues for rescission first – damages
allowed.
3. P can sue for both at the same time,
but must elect preferred remedy b/4
judgment
2. LegalRescission
1. P may accomplish on own by
i.
Giving notice and tendering back
consideration.
ii.
Plaintiff sues for restitution for
anything given to defendant
(under quasi-K or replevin)
3. Reformation – (Very Good Dog); Changes
agreement to conform with the party’s original
understanding.
i.
3 requirements
1. Valid contract– Must have mutual assent.
2. Grounds for reformation.
1. Mutual Mistake – grant reformation
2. Unilateral mistake –
Reformation deniedunless nonmistaken party knows of
mistake (regarded as
fraud/inequitable conduct)
3. Misrepresentation – granted for both
innocent and intntl misrep
4. Fraud – an instrument fraudulently
represented as incorporating the prior
agreement
3. Defenses – look for defenses
1. Unclean hands.
2. Laches
3. Non-defenses
i.
ii.
iii.
Negligence of plaintiff
SOF
The Parol Evidence Rule.
4. Sale to BFP – reformation not allowed
if would adversely affect rights of
subsequent BFP.
ii.
Effect: parties bound to K, but terms are the
ones parties intended.