CALIFORNIA REMEDIES
PROFESSOR LINDA PUERTAS
UNIVERSITY OF CALIFORNIA-IRVINE
CHAPTER 1:
INTRODUCTION; DAMAGES
Exam Tip 1: Remedies is a frequently tested topic on the California Bar Exam.
It may be tested independently or with other topics.
Example 1:
One of the questions on the July 2014 Exam involved two parties:
Mark and Carol. The prompt provided that Mark and Carol were liable in Tort
and Contract. The examiners then asked for the remedies the party might
obtain against Mike and Carol. You would not get credit for analyzing Torts or
Contracts. This is a pure Remedies question because that is what the examiners
asked for in the prompt.
Example 2:
One of the questions on the July 2013 exam was a crossover
question. It asked examiners to analyze both intentional torts and the remedies.
Exam Tip 2: The bar examiners want to determine whether you are qualified
to advise clients. Clients are seeking a “fix” to their legal problem.
Exam Tip 3: Demonstrate basic math when given dollar amounts in the
prompt.
A. Overview
1) Damages: the most commonly tested remedy
2) Injunctive relief and other equitable remedies
3) Restitution

The default goal in any remedy is to maintain the __________________________ position
standard.
o
Choose the remedy that puts the plaintiff back or keeps the plaintiff in the position he
would have been in but for the _____________________
B. Damages in General

Monetary relief intended to compensate the wronged party, for that wrong, based on what the
party lost
T --------------------------------------0------------------------------------ C
Status Quo Ante
1. Torts
o
o
o
The goal is _________________________________________
Restore the plaintiff to the position the plaintiff would have been in but for the defendant’s wrong (make the plaintiff whole)
Compensatory damages: past and present harm as well as future harms (medical expenses,
lost wages, loss of other income)
2. Contracts
o
o
The goal is __________________________________________
Put the plaintiff in the same position he would have been in if the contract was completed
C. Types of Damages
1. Compensatory Damages
o
Intended to compensate the plaintiff for a legally recognized ________________ or injury.
a. In Tort: Look for physical and emotional damages
1) Pain and Suffering
Example 3:
Anna is in a serious subway accident and loses both of her legs.
Her compensatory damages would cover pain and suffering including the loss of
her legs.
Note 1: Recovery for pain and suffering requires the plaintiff to experience the
pain and suffering.
Example 4:
If Anna was in a vegetative state and could not experience the
pain and suffering, a defendant might argue against recovery of pain and
suffering damages. However, if the plaintiff can experience pain in any
insignificant way, she can recover pain and suffering damages.
Note 2: A plaintiff cannot recover pain and suffering after his death because he
cannot experience pain and suffering. A wrongful death action might be the
appropriate compensation.
Example 5:
Anna is in a serious subway accident and loses both of her legs.
In addition to pain and suffering, she can also seek hedonic loss damages.

Hedonic: related to sensation or pleasure

Hedonic loss damages: Loss of the enjoyment of the value of life or loss of the
enjoyment of the value to feel something happy.
Note 3: In California, hedonic losses are part of pain and suffering damages.
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2) Emotional Distress Damages

Include: anxiety, emotional distress caused by fear, humiliation, or loss of freedom
Example 6:
Anna may be compensated for the emotional distress arising
from the anxiety she experienced during the accident, anxiety she experiences
now when she is near a subway, and any of the depression, fear, or anxiety she
feels now because of the loss of her legs.

Emotional damages are always available in tort if you have a
____________________________________ injury (parasitic, ancillary)

If there is no physical injury, the defendant’s conduct must have been outrageous or ____________________________________ (beyond the standard of negligence)
3) Medical Expenses

Past, present, and future medical expenses
Exam Tip 4: If there is any sort of physical harm, include a distinct section
about medical expenses even if there is no given dollar amount
4) Loss of Income

Includes both present and future:
o
o
Inability to work while hospitalized, and
Inability to work in the future (if the injury caused the inability)
Note 4: Remember, the goal in tort is retrospective.
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CHAPTER 2:
DAMAGES (CONT’D)
A. Types of Damages (Cont’d)
1. Compensatory Damages
a. In Contract: Expectancy Damages
Note 5: Remember, the goal in contract is prospective.


Put the plaintiff in the position she would have been in had the contract been
______________________________________
Formula: (MP - KP) + (C/I D) - ($ saved) = Expectancy Damages
1) Subtract the contract price (KP) from the market price (MP) of the goods
2) Add any additional consequential damages (C) and/or incidental damages (I)
3) Subtract money the plaintiff could have saved

Examples:
On August 31, Bob contracts with Seller Sally to buy $1000 worth of apples from
her apple farm to be delivered on October 2. Sally will charge Bob a $200
delivery fee in addition to the cost of the apples.
a.
Seller Breaches: September 30, Sally tells Bob she cannot sell him any
apples because a pest destroyed most of her crops. The market price for
the same amount of apples on that day is $1,200. Bob sues Sally for breach
of contract. What are his compensatory damages?
i. MP = ________________________
Note 6: Market price is determined on the day the buyer learns of the breach.
ii. KP = _________________________
Assume Bob lost three days of sales as a result of Sally not delivering the apples.
Bob can determine with clarity that he lost $500 worth of profits. Bob also paid
$50 in overtime for a worker to move an apple display from the front of his
market.
Note 7: Consequential Damages: Any damages that naturally result from the
seller’s breach. Note 8: Incidental Damages: Costs leading up to the breach in reliance on the
contract.
Note 9: Buyer’s Damages: cost to inspect and receive the goods, the cost of alternative transportation, the cost of returning the apples, etc.
Note 10: Seller’s Damages: the cost of stopping delivery or production,
transporting goods to another buyer
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Exam Tip 5: For the bar exam, you can discuss consequential and/or incidental
damages together. Anything that naturally results from the breach or costs
incurred leading up to the transaction will be consequential/incidental
damages.
iii. C/I D = ________________________
iv. $ Saved = __________________________
v. TOTAL Compensatory Damages: _____________________
Exam Tip 6: Explain every step and show your work!
b.
Buyer Rightfully Rejects: Instead of Sally telling Bob that she would not
deliver the apples on September 30th, Sally delivers the apples to Bob’s store on October 2. Bob finds the apples are pest-infested. Does the
calculation for expectation damages change?
i. Answer: ________________________.
Note 11: When the buyer rightfully rejects the goods, or learns that there has
been a breach, or justifiably revokes acceptance, the buyer is entitled to the
same expectation damages.
c.
Assume the market price did not change from when Sally called Bob on
September 30th to tell him she could not deliver the apples to October 2
when she delivered the pest infested apples.
i. Bob is entitled to the same amount of compensatory damages: $550
Note 12: Under the UCC, Bob has the right to the above compensatory
damages. Plus, he has the right to sell the goods.
Note 13: After the seller breaches, the buyer has several options. First, he can
take no action and recover expectation damages. Second, the buyer can cover.
Third, he can accept the goods and sue for breach of warranty.
d.
Buyer Covers: On October 1, Bob finds another seller from which to buy the
same type and amount of apples for $1300. The new seller will charge Bob
$100 to deliver the apples because this seller’s farm is closer than Sally’s. This seller will also charge Bob a “rush fee” of $50. What are Bob’s compensatory damages?
i. Formula: (CP - KP) + (C/I D) - ($Saved) = Expectation Damages
ii. Cover price (CP) = ___________________________
Note 14: Cover Price = the cost to replace (cover) the goods.
Note 15: The cover price might be greater than the market place. The cover
price is still considered because we want to incentivize people to mitigate their
losses.
iii. KP = _________________________
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iv. C/I D = _______________________
v. $ Saved = ___________________________
vi. TOTAL Compensatory Damages = ______________________________
e.
Buyer accepts non-conforming goods: Bob accepts the apples Sally
delivered because he can sell half of them.
Note 16: If the buyer accepts nonconforming goods, the buyer can sue for
breach of warranty.
i. Formula: (Value as warranted – value as accepted) + (C/I D) - ($Saved)
= Expectation Damages
ii. Value accepted: ________________________
iii. Value as warranted: ___________________________
iv. Difference: ________________________
Note 17: Continue the formula with consequential/incidental damages and any
money saved to find the total expectation damages.
Exam Tip 7: Always start your analysis with compensatory damages.
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CHAPTER 3:
DAMAGES (CONT’D)
A. Types of Damages (Cont’d)
1. Reliance Damages
o
o
o
o
An alternative to expectation damages in contract
A plaintiff may be awarded money damages based on his ________________________
interest
Reliance interest damages include: expenses made in ___________________________ for
performing the contract and expenses in performing the contract.
Compensatory damages are preferred. Reliance damages may be preferred when:
1) Plaintiff cannot prove profit
2) Plaintiff (non-breaching party) has a problem with ________________________ part of
a contract claim
Example 7:
Lack of consideration, noncompliance with the Statute of Frauds
3) Compelling public policy reasons for limiting expectation damages
4) Plaintiff (non-breaching party) cannot prove reasonable expectation damages with
certainty
Exam Tip 8: Analyze expectation damages first. If these damages seem to be
unfair or do not make the plaintiff whole, consider reliance damages.
2. Restitutionary Damages
o
o
The plaintiff may be awarded money damages based on the benefit
____________________________________ on the defendant by their own conduct
Gains-Based Recovery: What the defendant gained by breaching the contract and how to
compensate the plaintiff
Note 18: Restitution can be its own cause of action and a type of damages.
Either way of thinking about restitution involves unjust enrichment.
Exam Tip 9: The historical difference between unjust enrichment as a cause of
action and unjust enrichment as a way of measuring damages is irrelevant on
the California bar exam.
o
Restitutionary damages are an _________________________________ to expectation
damages

Appropriate where there is a total breach of contract by the defendant that results in
the defendant being in a better position
3. Nominal Damages
o
Alternative to expectation damages in tort or in contract
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o
o
The plaintiff has established all other elements of a cause of action but cannot show great
harm or loss
Why are nominal damages ($1) available?

o
It can give the plaintiff a ___________________________________ judgment entitling
the plaintiff to litigation costs, if those costs are part of the cause of action.
Nominal damages are not available when the cause of action requires the plaintiff to
establish more than nominal damages.
Example 8:
The burden on the plaintiff in a negligence action or fraud case
requires the plaintiff to prove some amount of harm.
4. Punitive Damages
a. In Tort


You usually ____________________________ compensatory damages in tort to receive
punitive damages
Meant to _________________________ a defendant who engages in serious or wanton
misconduct with an improper state of mind
Example 9:


With malice or with fraudulent intent
These damages are not meant to restore the plaintiff, they are meant to punish and
deter
Punitive damages cannot deprive the defendant of the protection of the Fourteenth
Amendment Due Process Clause by imposing a ___________________ excessive
punishment.

The following facts are considered in determining whether punitive damages are
grossly excessive:
o
o
o

____________________ of reprehensibility of defendant's conduct;
Difference or _________________________ between the harm and potential
harm suffered by the plaintiff and the damages awarded; and
Difference between this award and the ____________________ penalties
awarded in other similar cases
Reprehensibility:
o
o
o
Look for facts that the harm was __________________________ rather than
purely economic
Look for facts where the tortious conduct demonstrated an indifference to or
________________________________ of the health and safety of others
Look for particularly ____________________________ defendants or victims
(financially or physically)
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o
o
Look for conduct happening multiple times suggesting we should punish the
defendant or deter others
Look for the _______________________ requirement rather than mere
negligence or accident

Proportionality: There must be a _____________________________ ratio between
the compensatory damages and the punitive damages

The defendant's ability to _____________________
Exam Tip 10: Punitive damages are an option in tort when the conduct has
been egregious. You can tell from the fact pattern that the defendant
intentionally acted in a way that deserves punishment.
b. In Contract


Punitive damages are not used as often in contract as in tort
Common situations:
1) If the defendant's conduct is both tortious and a breach of contract
2) Where there is a __________________________ or body parts involved
Example 10: You contract with a funeral home to handle your mother's
remains and the funeral home screws up. That may give rise to a punitive
damages award. This is a very rare situation.
o
Remember to "hook" punitive damages onto another type of damages
Note 19: Punitive damages can hook onto a nominal damage award.
5. Liquidated Damages
o
o
Additional form of damages in ____________________________
Damages _________________________ upon by the parties in the formation of the
contract

Damages the parties bargained for
Example 11: Revisit the apples example. When Bob contracted with Sally to
purchase $1000 worth of apples on Oct. 2. The parties recognized that there is
a high demand for apples in the fall and that there was a virulent pest coming
through California. It would be reasonable for them to include a liquidated
damages clause in their contract that set forth that Bob could lose a predictable
amount of profits if Sally was unable to deliver. The liquidated damages clause
could include this reasonable amount of lost profits.
o
The damages in the liquidated damages clause must be __________________________

Reasonable in the ____________________________ loss at the time of the contract or
the actual loss the parties had as a result of the breach
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o
o
Courts will not enforce an unreasonable liquidated damages clause
Courts will not enforce a liquidated damages clause that requires ______________________
enforcement
Example 12: The court will not enforce a clause that requires Sally to deliver
the apples to Bob.

Exception: ________________________ clauses are allowed in California because we
want to incentivize parties to go through arbitration
B. Review of Damages based on Cause of Action
1. Contract Damages Available:
o
Expectation Damages (as if the contract had been completed)

o
o
o
o
(MP - KP) + (C/I D) - ($ saved) = Expectation Damages
Reliance Damages (alternative to expectation damages)
Restitutionary Damages (alternative to expectation damages)
Nominal Damages (alternative to expectation damages)
Bargained-for Liquidated Damages
2. Torts Damages Available:
o
Compensatory Damages (as if the tort had never happened)




o
o
o
Pain and suffering (including loss of enjoyment or hedonic damages)
Medical expenses
Other expenses (loss of income)
Emotional damages (can always "hook" onto physical damages)
Nominal Damages (alternative to compensatory damages)
Punitive Damages
Restitutionary Damages
C. Practice from July 2013 California Bar Exam
Paul owns a 50-acre lot in the country. Doug owns a smaller unimproved lot to
the north. A stream runs through Paul’s lot near the boundary line with Doug’s lot. Paul has a house at the south end of his lot and uses it for summer
vacations.
Doug began to clear his land to build a house. To do so, he had to fell trees and
haul them to a nearby lumber mill. He asked Paul if he could take a short cut
across Paul’s lot to the mill, and Paul agreed. On his first trip, Doug dumped his
trees on Paul’s land near the stream, in a wooded area Paul was unlikely to see, much less use. Some of the trees rolled into the stream, blocking its natural
flow.
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Paul left for the winter. As a result of the winter’s normal rainfall, the stream
overflowed, causing water to rush down to Paul’s house at the other end of the lot, flooding his garage and damaging a 3-year-old motorcycle.
Paul returned in the summer and learned what had happened. It will cost
$30,000 to remove the trees. The trees’ presence on the lot has depressed its market value from $50,000 to $40,000. It will cost $5,000 to repair the
motorcycle, and $4,000 to buy a new one.
What torts did Doug commit? What remedies can Paul seek?
a.
Compensatory damages first:
i. Doug will argue he is only liable for the $10,000 reduction in the
market value of the property. Because Paul does not use or see the
wooded area, the damage is only $10,000.
ii. Paul will argue that the trees caused a host of other damages including
damages to the motorcycle and his garage. Because this was a natural
result of normal rainfall, the damage could occur again in the future.
So, Doug should pay the $30,000 for the tree removal to put Paul back
in the position he would have been in but-for Doug's tortious conduct.
b.
Restitutionary damages:
i. Doug received a benefit by not hauling the trees to the nearby lumber
mill. Doug was given a gift (or unjustly enriched) by not taking the
trees all the way to the mill.
c.
Punitive damages:
i. Paul graciously told Doug he could trespass across Paul's land to move
the trees to the mill. Doug intentionally dumps the trees on Paul's
land. Assuming you discussed the available torts, and established
compensatory damages, punitive damages could be awarded if
proportional to the actual damages (a single-digit ratio to either
$10,000 or $30,000).
d.
Nominal damages:
i. Not an issue because we are told the actual damages are either
$10,000 or $30,000.
ii. Might be appropriate if the fact pattern does not include damages or if
there is some reason compensatory damages fail. The purpose of
nominal damages in this case would be to "hook" punitive damages.
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CHAPTER 4:
LIMITATIONS ON DAMAGES

There are several types of limitations on damages

Use an acronym: Friendly Cows Create Cheese And Buttery Eats
1) Foreseeability in torts
2) Causation
3) Consequential damages naturally arising from
4) Certainty
5) ______________________________ Consequences
6) Benefits (the reduction for)
7) __________________________________
B. Foreseeability in Torts (“Friendly”)

A plaintiff is required to establish both proximate cause and actual cause

Discuss whether the harm to the plaintiff was reasonably __________________________ at the
time the defendant breached its duty

If the plaintiff’s harm comes from a risk that was not reasonably foreseeable, the defendant is
not liable for this harm
C. Causation (“Cows”)

The defendant must have caused the plaintiff’s injury

______________________ the defendant’s conduct, the plaintiff would not have suffered injury
D. Consequential Damages Naturally Arising From (“Create”)

Damages that ___________________________ arise from the breach are recoverable
Example 13: Bob and Sally apple example. The second seller’s rush fee and lost profits were consequential damages.

Consequential damages may be recovered only if they were within the parties’ ______________________________ or reasonably should have been at the time of the contract
Example 14: A travel company put an ad in the phonebook saying every
person listed in the phonebook was entered to win a free golf trip to Scotland.
Polly listed her name in the phone book and was informed that she had one the
free trip. Polly purchased a bottle of champagne, new luggage, and golf clubs.
She also quit her job after her boss declined to give her two weeks of unpaid
vacation. The travel company then told Polly that it could not send her on the
trip. All of the harms to Polly were consequential (resulting from the travel
company’s breach). 12 | © 2015 Themis Bar Review, LLC | California Remedies
a.
Purchasing the champagne, luggage, and golf clubs were foreseeable and
reasonably within the travel company’s contemplation at the time it ran the advertisement.
b.
Polly’s loss of income was not reasonably foreseeable. The travel company
did not expect that she would quit her job to go on a free two-week
vacation. So, Polly should not receive damages for her loss of income.
E. Certainty (“Cheese”)
Exam Tip 11: Certainty is one of the most frequently tested damages limitation.

To recover damages in tort or contract, the plaintiff must establish these damages with
_______________________________ certainty.

In tort: damages must be proven by a preponderance of the evidence (more likely than not)
o

Both parties will likely call experts to prove _____________________________ damages
(medical costs, lost wages, etc.)
In contract: damages must be proven with a greater degree of __________________________
than in torts cases
o
Business claiming ________________________________


Established business: plaintiff can more easily show lost profits using previous years
New business or new line of business: it may be difficult for the plaintiff to prove lost
profits damages with reasonable certainty
F. Avoidable Consequences (“And”)
Exam Tip 12: Avoidable consequences is also frequently tested.

The plaintiff can be denied recovery for any harm or loss she could have
___________________________ avoided.
Exam Tip 13: If all else fails, discuss whether each potential category of
damages in the fact pattern is reasonable.

The burden is on the _____________________________ to show that the plaintiff could have
reasonably avoided the harm or loss.

There is no affirmative duty for the plaintiff to avoid future harms or losses. However, the
defendant can raise it to reduce damages.
Example 15: A boy kicked another boy in the leg. The plaintiff was an eggshell
plaintiff and lost his entire leg. The defendant was liable for the loss because in
general, an injury was foreseeable, even though the specific type of harm
(losing a leg) was not foreseeable by the defendant.
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Example 16: Instead of being an eggshell plaintiff, the boy had a more normal
response to being kicked (bruises and cuts). If that injury became infected and
plaintiff did not seek medical attention, and as a result of not seeking
treatment, the plaintiff then lost his leg, the defendant might seek a reduction
in damages. The defendant can argue that the plaintiff could have reasonably
avoided losing his leg by seeking medical attention.
Example 17: A city contracted with a company to build a bridge. The company
spent $1,900 in labor and materials in anticipation of building the bridge. The
city breached the contract because the bridge was no longer needed. The city
repudiated the contract. What was the company entitled to?
a.
The company was entitled to recover the $1,900 in labor and materials.
b.
The company was also entitled to lost profits ($8,000 in anticipated profits).
Example 18: If the company continued to build the bridge despite the
repudiation and spent an additional $10,000, the avoidable consequences rule
would limit their damages. The company could have reasonably avoided these
additional costs.

If the plaintiff makes reasonable ____________________________ to avoid the harm or loss,
she can still be awarded damages even if her efforts are unsuccessful.
o

Her costs incurred in trying to avoid additional damages can also be recovered as damages
A plaintiff is not required to do everything in order to reduce damages.
Example 19: Shirley MaClaine had a contract with Twentieth Century Fox to
star in a musical filmed in California. Fox breached the contract and offered her
a part in a western filmed in Australia. She sued Fox for her expectation
damages. The court held that she was not required to film the western because
it was different and inferior.
G. Benefits (reduction for) (“Buttery”)

The plaintiff’s recovery is reduced by the benefits that result from the defendant’s _________________________. But not by the benefits obtained from collateral sources or
other sources.

If the defendant’s breach results in a savings to the plaintiff, this savings is subtracted from the overall damages recovery.
Example 20: Bob saved $100 on the delivery charges because the second seller
was closer to Bob’s store.

In tort: look for the benefit being a _____________________________ consequence of the
defendant’s tortious conduct
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o

Close nexus: The benefit must stem from the tort or relate to the same interest of the
plaintiff that was injured and the benefit the plaintiff wants.
Collateral source benefits: In a tort action in California, payments made by a
________________________________ as a result of the defendant’s conduct, __________________________________ reduce the plaintiff’s overall recovery.
Example 21: Insurance companies make payments for the plaintiff.
o
o
Policy: we want to incentive individuals to carry insurance
Rate differential: a plaintiff cannot recover more for medical expenses than what the
medical provider accepted as payment in full from an insurance company
Example 22: The medical office sends plaintiff a bill for $1000. If the medical
office would have accepted $800 from insurance as payment in full, this is a
collateral source from a third party so it will not reduce the plaintiff’s recovery.
However, the rate differential of $800 will limit the plaintiff’s recovery to $800.
o
Collateral source rule is not frequently applied in contract actions. It can arise in cases of
breached employment contracts where the plaintiff receives unemployment benefits or
insurance.
H. Emotional (“Eats”)

In general, emotional damages will not arise in a contract action unless:
o
o
There is a parallel tort claim in which emotional damages are recoverable, or
The breach of contract is particularly likely to cause emotional distress (mishandling of dead
body)
Example 23: Polly’s cancelled trip to Scotland. Polly cannot sue for her sadness or emotional distress because this was a contract action.
I. Interest

Post-judgment interest will almost always be awarded.

Pre-judgment interest is sometimes available in contract actions (liquidated damages clause) or
a specific number of goods at a set price.
J. Litigation Expenses

Expenses for litigating, including ___________________________ and attorney’s fees, are generally recoverable if contracted for or provided by statute.

Expenses from previous lawsuits are recoverable as damages if the defendant’s tortious conduct caused the litigation.
Example 24: Malicious prosecution
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CHAPTER 5:
INJUNCTIONS; EQUITABLE DEFENSES

Goal: maintain the _______________________________

Injunction: __________________________ directing a person to do something or to
___________________________ from doing something

It can serve as a final remedy for the plaintiff (permanent injunction) or as a stop gap to
______________________________ the status quo through litigation
A. Prejudgment Injunctions

Often sought to prevent irreparable harm or maintain the status quo until the action is resolved
1. Temporary Restraining Orders (TROs)
o
o
o
o
o
An injunction for a very short amount of time; typically no more than __________________
May be applied for ex parte so the defendant might not have notice
Primary purpose: ___________________ the status quo until a preliminary injunction can
be decided
A TRO cannot be appealed
A TRO is not effective until the defendant has notice
2. Preliminary Injunctions
o
o
o
An injunction issued before or during a trial that is generally effective until there is a
_______________________ judgment by the court
The preliminary injunction is also known as a temporary or interlocutory injunction
Cannot be issued unless the defendant has been given _____________________ of the
hearing and an opportunity to be heard.
3. Five factors in determining whether to grant a prejudgment injunction:
o
Use an acronym: I Put Five Bucks Down.
1) ______________________________ harm;
2) Feasibility of enforcement;
3) Probability of __________________________ on the merits;
4) Balancing of _______________________________;
5) Defenses
o
o
The burden is on the plaintiff seeking the injunction.
Equitable Remedy: the court has discretion in issuing the injunction and the extent of the
injunction
b. Irreparable harm (I)

Why is there not an adequate remedy at law?
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
Damages are preferable, partially because damages require less court oversight

Look for items that have special value that cannot be replaced easily
Example 25: Family heirlooms, 1989 Porsche Targa in mint condition, Real
property, voting rights cases
c. Probability of success on the merits (Put)

Analyze the underlying claim and determine whether there is a likelihood that P will win.
Exam Tip 14: If you already addressed the underlying claim in your essay, say,
“see above.” Or look for language in the prompt that the plaintiff “is likely to succeed.” d. Feasibility of enforcement (Five)

Request can be denied if the it is not feasible for the court to enforce the injunction.

Courts do not want to be involved with the parties outside of court.

Look out for fact patterns that require affirmative action rather than prohibiting action
Example 26: An injunction requiring a construction company to continue
constructing (as opposed to prohibiting construction).


If the court requires action it will necessarily have to monitor compliance continually

If the court prohibits action, the court is not required to intervene unless the
defendant violates the injunction
When the underlying rights are sufficiently important, the court is more likely to issue
injunctions requiring affirmative action
Example 27: Voting rights, discrimination
e. Balancing of hardships (Bucks)

f.
The plaintiff’s hardship must be ________________________ greater than the
defendant’s hardship if the injunction is issued.
Defenses (Down)
1) Violation of fundamental rights
Example 28: Freedom of Speech
2) Other equitable remedy defenses (Laches, Unclean Hands)
B. Equitable Defenses

The court can refuse to apply these if there are countervailing equitable considerations

These defenses are not related to the plaintiff’s substantive legal claim
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
These defenses do not prevent a plaintiff from bringing an action for damages
1. Laches
o
o
The plaintiff unreasonably _________________________ in pursuing an equitable remedy
As a result, the defendant has experienced ________________________________
2. Unclean Hands
o
The plaintiff is not entitled to an equitable remedy because he has acted in bad faith with
respect to the subject of the complaint

Misconduct (unethical or immoral)

The conduct must relate to the claim
C. Permanent Injunction

Issued to prevent the violation of the plaintiff’s rights or to ______________________ the
plaintiff’s rights that have been violated

Permanent injunctions are awarded after the plaintiff has won on the merits

The factors are the same excluding the probability of success on the merits:
o
o
o
o
Irreparable harm
Feasibility of enforcement
Balancing of hardships
Defenses
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CHAPTER 6:
CONTRACT SPECIFIC EQUITABLE REMEDIES
A. Specific Performance

A party to a contract is compelled by court order to render the promised
____________________________ or to substitute performance

Generally not available unless a defendant has breached a contract through nonperformance or
repudiation.

Six requirements to grant specific performance

Acronym: Valid Contract Can’t Force Defendant (to) Do
1) Valid Contract (Valid)

Offer, acceptance, consideration
2) Certainty of Terms (Contract)

Sufficiently certain for the court to make an order
3) Conditions Precedent (Can’t)

All conditions required to compel the defendant’s performance must be satisfied or excused

Plaintiff must have completed performance if defendant’s performance is conditioned on that performance or provided sufficient security that the plaintiff
would complete her contract obligation
4) Feasibility of Enforcement (Force)

Consider whether the specific enforcement would impose burdens on the court that
are disproportionate to the advantages gained by its enforcement

Look for facts that require the court to be involved for a long time or intrusively
involved.
Example 29: Construction contract, employment contract for personal services
5) Damages Inadequate (Do)



Damages must be inadequate to impose an equitable remedy

Look for unique items, land, work of art, rare manuscripts
Liquidated damages provision:

If the contract allows for liquidated damages instead of specific performance, then
the court will award the liquidated damages

If the liquidated damages provision does not preclude specific performance, analyze
both
Other remedies available
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
The availability of other equitable remedies does not bar performance, although
courts generally disfavor specific performance.
6) Defenses

Equitable defenses: of estoppel, laches, and unclean hands

Additional contract defenses:
o
o
o
o
Unfairness from sharp practices (unconscionable)
Misrepresentation
Duress or Undue Influence
Mistake, hardship, inadequate consideration, impossibility
B. Rescission

Rescission is the ______________________________ or unmaking of a contract

Usually rescission is followed by restitution

Rescission is an equitable remedy and a legal remedy

Rescission at law: plaintiff must, prior to filing the suit, and promptly upon the discovery of
grounds for rescission (mistake or fraud), give ________________________ of rescission to the
defendant and ___________________________ or tender the benefits
o
o
A plaintiff that fails to act promptly may nevertheless rescind the contract if the defendant
has not been prejudiced by the delay.
In addition, the plaintiff may be excused from retuning the benefit if:



The benefit has been disposed of prior to discovery of grounds for rescission;
The benefit is presently worthless; or
The benefit was money and in proportion to the amount owed by the defendant to the
plaintiff

Equitable Rescission: plaintiff is required to return any ____________________________
received from the defendant and the legal remedy must be inadequate

Once a contract has been rescinded, the plaintiff may pursue a subsequent action at law
o
o
Replevin – return of specific property
Restitution – monetary compensation for unjust enrichment
C. Reformation

The judicial rewriting of an agreement (contract) or another document (deed) to generally
reflect the parties’ true ____________________________

Usually reformation is a stepping stone to other remedies such as damages or restitution

Requirements for reformation:
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1) The parties must have entered into an __________________________________

The agreement must not be voidable for other reasons (such as misrepresentation or
fraud)
2) There must be ___________________________ with respect to the terms of the agreement

Sufficiently certain for the court to know how the writing should be reformed in
accordance with the parties’ intended agreement
3) There must be a _____________________________

Mutual mistake: the writing does not match the agreement and both parties are
unaware of the discrepancy

Look for content mistakes:
o
o
o


Effect mistakes: a mistake by both parties about what the effect is of the writing

Where there is a mutual mistake, any party to the contract can seek reformation,
including an intended beneficiary or successor-in-interest

The party does not have to show that the mistake resulted in an inequity adversely
impacting him (unlike when a contract is avoided entirely)

Misrepresentation: a party’s nonfraudulent or innocent misrepresentation regarding the content or effect of a writing does not prevent reformation if both
parties were mistaken as to the content or effect of the writing
Unilateral mistake: only one of the parties is mistaken as to the content or effect of a
writing

Reformation turns on whether the other party was aware of the mistake;
o
o

Omission of an agreed upon term;
Inclusion of a term not agreed upon; or
Alteration of agreed terms
If he was aware of the mistake (whether the party fraudulently induced the
mistaken party or does nothing to correct the mistaken party’s erroneous belief)
the mistaken party may be able to reform the contract
If the other party was not aware of the mistake, reformation is not allowed
Defenses
o
o
Laches, unclean hands
Look for when a reformation will affect the rights of an innocent third party such as a good
faith purchaser

Innocent third parties can prevent the court from reforming the contract if doing so
would adversely affect the party’s rights
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
Not defenses to reformation:
o
o
The parol evidence rule does not prevent a party from presenting evidence of a prior
agreement to establish fraud or mistake
The Statute of Frauds does not prevent the reformation of a contract
Example 30: Reformation is not foreclosed by the Statute of Frauds when the
parties mistakenly omitted or incorrectly stated an essential term required by
the Statute of Frauds
o
Negligence of the party seeking reformation

A party who, due to negligence, failed to avoid a mistake, can still seek reformation of a
writing
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CHAPTER 7:
DECLARATORY JUDGMENT; RESTITUTION
A. Declaratory Judgment

A declaration of the plaintiff’s ____________________, status, or other legal relations

These arise out of deeds, wills, ______________________, statute, or ordinance

In contract, the action may be brought before or after breach

Declaratory judgment can be combined with other forms of relief (such as injunctive relief)
B. Restitution (Unjust Enrichment)

In either case (whether a cause of action or as part of damages) restitution is available when the
defendant has been unjustly enriched at the plaintiff’s expense

Benefit: a measurable increase in the defendant’s income or defendant’s wealth
o

The defendant has received money, real or personal property, services, a debt satisfied,
savings that would otherwise have been spent
Unjust: it is not necessarily unjust that the defendant has possession of the benefit, it is whether
it would be unjust for the defendant to keep the benefit
o
Look for facts where the defendant has wrongfully acquired the benefit or done something
wrong

o
Theft, fraud, duress, undue influence
Even if the defendant acquired the benefit without any fault, it can still be unjust
enrichment
Example 31: An unconscious accident victim receives free medical care. She
would be unjustly enriched from this medical care even though she did not do
anything wrong.
1. Remedies
a. Monetary judgment



Brought under a variety of actions including quasi-contract, quantum meruit, money
paid for defendant’s use, money had and received, and goods sold and delivered
Elements:

Plaintiff has conferred a benefit on the defendant, and

The defendant has been unjustly enriched by such benefit
Look at recovery based on the extent to which defendant has been unjustly enriched at
the plaintiff’s expense

For payment of money: the increase in defendant’s net assets

For nonmonetary benefit (good or service):
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o
o
o
o

Conscious Wrongdoer: generally a person who acts with knowledge of or reason to
know of the underlying wrong (such as a defendant who defrauds the plaintiff)

Can also be a fiduciary who does not fulfill obligations

The enrichment of the conscious wrongdoer is measured by the
__________________________________ of:
o
o



Value of benefit;
Cost to the plaintiff of conferring the plaintiff;
The market value of that benefit; and
The price fixed in the agreement in a contract action
The net profit obtained by the wrongdoing, or
The market value of the benefits wrongfully obtained
Typically called disgorgement, accounting, or accounting for profits
The plaintiff has the burden of producing a reasonable approximation of the amount of
gain that the defendant received
Wrongdoer Without Fault: a defendant who commits a tort but does not do so
purposefully
Example 32: Innocent conversion, unconscious trespassers, unwitting donees
of embezzled funds.


Unjust enrichment of wrongdoer without fault is the
________________________________ of the benefits obtained
Not a Wrongdoer but responsible for the transaction (for example a responsible
recipient) may be subject to greater liable than the innocent recipient

Might arise out of lack of care, breach or repudiation of contract, bad faith or other
reprehensible conduct
b. Constructive Trust




Imposes a duty to convey property to the plaintiff if the defendant would be unjustly
enriched by keeping it
It gives the plaintiff back the specific property, not money
“As is, As if Trust”

As if the defendant was keeping the property _____________________________
for the plaintiff

Returned to the plaintiff as is, regardless of increase or decrease in value property
Requirements:

If the defendant retained the property he would be unjustly enriched, and
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
The plaintiff can trace the unjust enrichment to the property the plaintiff wants a
constructive trust over

The defendant must hold ____________________________ over the property
Example 33: The plaintiff cannot obtain a constructive trust over property
someone stole but does not have title for.
o

The plaintiff can obtain a constructive trust against a third party transferee who
has title to the property unless that party was a bona fide purchaser
Damages are inadequate
Example 34: The defendant is bankrupt. The plaintiff must compete with the
defendant’s other creditors and might not recover. But, if the plaintiff can trace his property to an identifiable asset, the plaintiff might gain priority over it.
Example 35: The defendant has purchased an identifiable asset with the
plaintiff’s money and now that asset has increased in value.
Example 36: The defendant has transferred the defendant’s property to a third person and the plaintiff wants to pursue a claim against the third person to
return the item.

Effect: the plaintiff gets the property back as is

If the property has increased in value, the plaintiff is not required to account to the
defendant for the increase in the value of the property

The defendant _________________ liable to the plaintiff for any decrease in value
during the defendant’s possession
Example 37: George steals Ruth’s diamond ring and sells it to a pawnshop for $3,000. With that money, George take a trip to Vegas and while gambling, hits
a $20,000 jackpot. He takes this $20,000 to buy a new car. George has used
Ruth’s $3,000 to earn another $20,000. Ruth could seek monetary damages for the market value of the ring. The market value of the ring is $6,000. If George
cannot pay the $6,000, a monetary judgment is inadequate.
a.
Ruth can seek a constructive trust over the new car even if the car is worth
more than Ruth’s ring.
b.
Ruth could not get a constructive trust over something George owned
before he stole from Ruth.

Look out for intermingling of funds, the plaintiff must trace the property
Example 38: George puts the $3,000 from the sale of Ruth’s ring into a bank account. The account already had $2,000. Then, George withdrew $3,000 from
the bank account to go to Vegas. George would try to argue that Ruth should
25 | © 2015 Themis Bar Review, LLC | California Remedies
not recover the entire $20,000 in gambling winnings because the first $2,000 in
the bank account was his and he only used $1,000 of Ruth’s. 
When a defendant comingles funds, the plaintiff is allowed to
_______________________ those funds in the bank account to her, as long as there
is no break in the chain.
Example 39: In the above example, Ruth would argue that the first $3,000 out
of the bank account was the same $3,000 form selling Ruth’s diamond ring.
c. Equitable Lien


Recognizes the plaintiff’s claim against the defendant and imposes a lien on the defendant’s property as security for that claim
A lien is a monetary judgment secured by defendant’s property




Like a car loan or a mortgage on a house
An equitable lien is issued by the court (as opposed to negotiated by the parties)
Typically, arises in _______________________ disputes
Requirements:

Legal remedy is inadequate;

The defendant has title to the property;

The defendant would be unjustly enriched by keeping it; and

The unjust enrichment relates to the property
Example 40: George steals Ruth’s diamond ring and sells it to a pawnshop for
$3,000. With that money, George take a trip to Vegas and while gambling, hits
a $20,000 jackpot. He takes this $20,000 to buy a new car. Ruth can ask the
court for an equitable lien on George’s car if he does not pay her the $6,000 market value for her ring.

Decline in Value:
Example 41: George crashes his new car and now it’s worth $1,000. If Ruth obtained a constructive trust over the car, she would only recoup $1,000.

Use an equitable lien (money judgment secured by property) when the property has
_________________________ in value

The plaintiff can seek satisfaction of the remaining portion of the claim from the
defendant _______________________________ after the property has been sold
and the proceeds given to the plaintiff
Example 42: Same facts as above except Ruth gets an equitable lien on the
$1,000 car. She can also seek satisfaction of the remaining damages from
George personally.
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C. Practice from the February 2013 California Bar Exam
In 2004, Mary and Frank orally agreed to jointly purchase a small storefront
space for $80,000. Mary contributed $40,000 of her own money. Frank
contributed $40,000 he embezzled from his employer, Tanner. Mary and Frank
put the property in Frank’s name alone because Mary had creditors seeking to enforce debts against her. They further agreed that Frank would occupy the
property and when he vacated the property, he would sell it and give her one
half of the proceeds. He then occupied the property.
In 2005, Tanner discovered Frank’s embezzlement and fired him. In 2012, Frank sold the property, obtaining $300,000 in net proceeds. Frank
offered to pay Mary her initial 40,000 contribution, but Mary demanded
$150,000.
Mary and Tanner both sue Frank for conversion and the court found him liable
to both. Remedies and defenses?
a.
Tanner’s remedies:
i. Note that Frank stole $40,000 from Tanner, commingled it with Mary’s money, and purchased property over which he has
____________________.
ii. When he sold the property, it had increased in value from $40,000 to
$300,000. Since Tanner can trace his property ($40,000), to something
worth more in value, Tanner should seek a
________________________________ over half the value of the
$300,000.
iii. Tanner would not want to seek an equitable lien because he wants to
take advantage of the increase in value.
iv. Frank’s defense of unclean hands will not work against Tanner because there is no evidence that Tanner has unclean hands.
v. Frank might assert the defense of laches. Tanner discovered the
embezzlement in 2005 but did not seek an action until 2012.
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CHAPTER 8:
RESTITUTION (CONT’D); REPLEVIN; EJECTMENT
A. Restitution (Unjust Enrichment)
1. Remedies
a. Monetary Judgment
b. Constructive Trust
c. Equitable Lien
d. Subrogation



Permits the plaintiff to stand in the shoes of a creditor or lien holder if the plaintiff’s property was used to discharge an obligation or lien on the property of the defendant
The defendant must be unjustly enriched
The enrichment takes the form of a ______________________ of an obligation or lien
Example 43: George takes Ruth’s ring. He sells the ring to a pawnshop for
$3,000. He uses that $3,000 to discharge (or pay off) his car loan. Ruth can
stand in the shoes of the car lender.


Commonly occurs as payment by a surety of the debt of another or the defendant
fraudulently obtains money to satisfy a debt
Effect: The plaintiff enjoys any rights and remedies possessed by the creditor or
lienholder against the defendant.

This frequently results in the plaintiff having priority over the defendant’s other creditors

However, the plaintiff is also subject to any _______________________ that the
defendant has against the creditor or lienholder.
2. Defenses and limitations
o
Defendant’s changed position

It may be inequitable to award restitution to the plaintiff when an
___________________________ defendant has changed position relying on the benefit
received

The defense is not available when the defendant is a conscious wrongdoer
Example 44: The defendant is an agent or trustee who receives property on
behalf of a beneficiary. Then in good faith passes that property on to the
beneficiary.
Example 45: The defendant mistakenly receives a benefit which the defendant
expends or consumes and the expenditure or consumption would not have been
undertaken if there had not been a mistake.
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Example 46: The benefit has been lost, stolen, or destroyed and cannot be
returned. If the benefit is merely damaged or diminished, the restitution may
be reduced under the diminished value rule. The plaintiff can generally seek
additional damages.
o
Bona fide purchaser

o
Equitable restitution is not available against a bona fide purchaser who takes the
property without notice of all prior equities.
Discharge for value

When the plaintiff’s mistaken payment to the defendant is used by the defendant to discharge a debt owed or to otherwise satisfy a valid claim against a third party, the
plaintiff ________________________ seek restitution from the defendant unless:

o
The defendant had notice of the mistake or made a representation that lead to that
mistaken payment
Unsolicited benefit



A plaintiff who unconditionally confers a benefit on the defendant is not entitled to
restitution if the benefit was conferred without mistake, coercion, or request
Exceptions all require:

Some necessity;

The plaintiff _________________________ to charge for the goods or services; and

The plaintiff had no reason to know the defendant would not want that intervention
Exceptions:

Emergency
Example 47: An unconscious accident victim receives free medical care. A
plaintiff who supplies medical treatment without the victim’s knowledge or consent is entitled to restitution if: necessary, the plaintiff intended to charge for
services, the plaintiff had no reason to know the defendant would not want
medical services, or consent by the defendant was impossible.

Provision of Necessities

Public Health and Safety
Example 48: Burying a dead person, removing obstruction from a public road

Preserve Personal Property
o
o
A plaintiff who preserves goods belonging to the defendant from damage or
destruction is entitled to restitution for services and expenses if:
The plaintiff was in _________________________ possession of the goods;
29 | © 2015 Themis Bar Review, LLC | California Remedies
o
o
o
o
o
Preservation was not made necessary by the plaintiff;
Preservation was reasonably _____________________ before the defendant
could be contacted;
The plaintiff did not have reason to believe the defendant did not want such
preservation;
The plaintiff intended to charge for the services; and
The goods have been accepted by the defendant in their preserved state.
B. Replevin

When a plaintiff's ____________________________ property is taken by a defendant

Plaintiff can regain possession of the property and recover ___________________ for loss of
use of that property (detention damages)
Example 49: My daughter stole my son's Ironman character. My son says,
"Give it back!" If they were to go to court, my son would simply want the
Ironman character back. My daughter would be required to return the
property. My son could also seek damages for the loss of the use of the
property.
C. Ejectment

When someone possesses the _________________________ of another

Plaintiff must generally establish:
o
o

__________________________ to the land, and
The right to __________________________ possession
In addition to an ejectment, the plaintiff can also seek damages
o
o
The general measure of these damages is the _____________________ value of the
property (as if the defendant was renting the property)
These damages may include profits related to defendant's use of the land
Example 50: If the defendant collected rent from tenants, the plaintiff might
be entitled to those as well.
o
Plaintiff is also entitled to damages for any ____________________ caused to the land
during defendant's possession
Example 51: Reduction in market value because the defendant mistreated the
home

Improvements to the land: In general, the defendant ________________________ recover for
the improvements he made to the land before the ejection action
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o
Exception: A defendant who acted in _____________________________ in possessing the
property may be entitled to set off the value for such improvements when the plaintiff seeks
damages in addition to ejectment
D. Election of Remedies

A plaintiff cannot pursue a remedy that is inconsistent with another remedy already chosen by
the plaintiff

Typically implied when a contract was procured by fraud
o

Prevents the plaintiff from affirming the contract and then subsequently seeking to rescind
the contract
Damages are typically inconsistent with:
o
o
Specific performance, and
Restitution
Exam Tip 15: Discuss possible remedies "in the alternative" unless the facts
indicate that the remedies are not inconsistent with each other.
Example 52: When the plaintiff seeks specific performance and then damages
result from the defendant's delay or inadequacy of performance.

The election of remedies rule is generally applied only when the defendant has materially
changed position in _________________________ on the plaintiff's affirmation of the contract.

The rule does not apply to the following situations (despite defendant's reliance):
o
Ignorance of a fact:


o
Subsequent breach:


the plaintiff may obtain another remedy if the plaintiff made his initial choice being
ignorant of the facts or ignorant of the availability of an alternate remedy
Might be due to mistake or misrepresentation
the plaintiff may obtain another remedy based on the defendant's breach of contract if
the breach occurs _____________________ the plaintiff's initial choice of remedy
Plaintiffs may plead inconsistent remedies in the ____________________________ within the
same complaint
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E. Overall Summary
Contracts
Torts
Property
1.
_________________________
1. Damages
2. Specific Performance
2. Injunction
2.
__________________________
3.
__________________________
3. _________________________
judgment
3. Declaratory
judgment/Injunctions
1. Damages
4. Rescission
4. Restitution
4. Replevin
a. Monetary Judgment
b. Constructive Trust
5.
__________________________

c. Equitable Liens
d. Subrogation
5.
__________________________
Refer to the Remedies Outline for other remedies within common causes of action including:
o
o
o
Harm to reputation and privacy in tort
Financial harms resulting from fraud or misrepresentation
Employment contract
Exam Tip 16: The overall goal of the bar exam is to measure whether you are
ready to advise clients. Focus on showing the examiners that you can
adequately advise a client on all of her options.
Exam Tip 17: Use the numbers given to you and show your work.
VERY BEST OF LUCK!
[END OF HANDOUT]
32 | © 2015 Themis Bar Review, LLC | California Remedies