Subject outline

Remedies

8 core rule statements and a 296-line detailed rule bank, organized the way the California Bar tests them.

• Compensatory Damages

  Compensatory damages restore the plaintiff to the position absent the wrong.

  Elements / Factors

  1. 1Actual legally cognizable loss.
  2. 2Causation.
  3. 3Foreseeability or scope-of-liability limitation.
  4. 4Reasonable certainty.
  5. 5Mitigation.

  Exceptions / Limitations

  • •Nominal damages may be available for violation without proven loss.
  • •Collateral-source and avoidable-consequences rules may affect recovery.

• Expectation Damages

  Expectation damages put a contract plaintiff in the position full performance would have produced.

  Elements / Factors

  1. 1Loss in value.
  2. 2Incidental loss.
  3. 3Consequential loss foreseeable at formation.
  4. 4Minus costs and losses avoided.
  5. 5Proof with reasonable certainty and mitigation.

  Exceptions / Limitations

  • •Reliance may substitute where expectation is uncertain. Restitution may prevent unjust enrichment.
  • •Liquidated damages are enforceable if valid and not an impermissible penalty.

  California distinction

  • California presumes a liquidated-damages provision valid in many nonconsumer contracts unless unreasonable when made; consumer and real-property transactions have additional statutory rules.

• Punitive Damages

  Punitive damages punish and deter egregious tortious conduct.

  Elements / Factors

  1. 1Independent tort.
  2. 2Reprehensible state of mind.
  3. 3Clear and convincing proof where required.
  4. 4Constitutionally permissible amount.

  Exceptions / Limitations

  • •Not ordinarily available for breach of contract.
  • •Employer/entity liability requires authorization, ratification, or qualifying managerial conduct.

  California distinction

  • California Civil Code section 3294 requires clear and convincing evidence of oppression, fraud, or malice and imposes special corporate-employer requirements.

• Restitution and Unjust Enrichment

  Restitution restores benefits unjustly retained at the plaintiff’s expense.

  Elements / Factors

  1. 1Defendant received a benefit.
  2. 2At plaintiff’s expense or through interference with plaintiff’s rights.
  3. 3Retention is unjust.
  4. 4No adequate defense or superior entitlement.

  Exceptions / Limitations

  • •A valid contract may govern the subject and limit quasi-contract recovery.
  • •Measure may be defendant’s gain rather than plaintiff’s loss.

• Specific Performance

  Specific performance compels performance of a contractual duty when damages are inadequate and equity favors relief.

  Elements / Factors

  1. 1Valid enforceable contract with definite and certain terms.
  2. 2Plaintiff performed, is ready and able, or is excused.
  3. 3Inadequate legal remedy.
  4. 4Mutuality or practical enforceability.
  5. 5Equitable defenses absent.
  6. 6Feasible decree.

  Exceptions / Limitations

  • •Personal-service contracts are not affirmatively enforced, though negative covenants may sometimes be enjoined.
  • •Equity may deny relief for hardship, unfairness, laches, unclean hands, or bona fide purchaser rights.

  California distinction

  • California presumes damages inadequate for breach of an agreement to transfer real property in specified circumstances.

• Permanent Injunction

  A permanent injunction requires success on the merits and equitable justification for ongoing relief.

  Elements / Factors

  1. 1Actual success on legal claim.
  2. 2Inadequate remedy at law.
  3. 3Threat of continuing or repeated irreparable injury.
  4. 4Balance of hardships favors relief.
  5. 5Public interest supports or does not defeat relief.
  6. 6Order is specific and feasible.

  Exceptions / Limitations

  • •Equitable defenses include laches, unclean hands, estoppel, and hardship.
  • •Courts ordinarily do not enjoin crimes absent independent equitable injury.

• Preliminary Injunction

  A preliminary injunction preserves the status quo pending final judgment.

  Elements / Factors

  1. 1Likelihood of success on merits.
  2. 2Likelihood of irreparable harm without relief.
  3. 3Balance of equities.
  4. 4Public interest.
  5. 5Security or bond where required.

  Exceptions / Limitations

  • •Mandatory injunctions receive closer scrutiny than prohibitory relief.
  • •Notice is ordinarily required; temporary restraining orders have special emergency procedures.

  California distinction

  • California uses an interrelated sliding-scale consideration of likelihood of success and comparative interim harm, while requiring some possibility of success.

• Constructive Trust

  A constructive trust is an equitable restitutionary remedy imposing trustee duties on a person wrongfully holding identifiable property.

  Elements / Factors

  1. 1Specific property or traceable proceeds.
  2. 2Plaintiff’s superior equitable right.
  3. 3Wrongful acquisition or detention, or unjust enrichment.
  4. 4No superior bona fide purchaser claim.

  Exceptions / Limitations

  • •Tracing may reach substitutes and increases, subject to commingling rules.

  California distinction

  • California Civil Code sections 2223 and 2224 recognize constructive-trust principles.