Remedies

SPECIAL ISSUES IN EQUITY

A statute may affect equitable discretion in several ways: 1. By enumerating some remedies but not others. 2. By prohibiting injunctions in certain types of disputes. 3. By requiring a court to enjoin certain types of conduct upon a showing that certain elements have been met.

Precedural Unconscionbaility

Applies to manner of contract formation • Relative sophistication and bargaining power of parties • Lack of knowledge of the weaker party • Use of sharp practices

California Wrongful Death Statutes

CCP sections 377.60 and 377.61 The decedent's spouse or domestic partner, children and issue of deceased children are the beneficiaries under the statute. Section 377.61 provides for damages that "may be just" but precludes recovery of any damages that overlap with damages available in a survival action.

Right to Jury Trial for Contemp

Civil contempt - no right to a jury trial. (remedy occurs in the underlying equitable proceeding such as specific performance; seeks compliance) Criminal contempt - right to jury trial for "serious" criminal contempts. Serious = Penalty exceeds 6 months or more; includes successive shorter sentences that aggregate to over 6 months; seeks punishment. Criminal contempt - requires intentional violation of court order

Determining Market Value

General rule - what a willing buyer would pay to a willing seller. Examples - Kelly blue book for vehicles - Stock indexes for value of a stock on any given day May need expert to testify on FMV - Owner may testify to value and purchase price. Dogs are property and therefore valued at FMV

Damages for Emotional Distress

General rules re emotional distress: No emotional distress damages for breach of contract. In tort, there is no claim for emotional distress without accompanying physical injury, - Except Bystander cases - Dillon v. Legg - Some courts allow emotional distress when it is foreseeable Molien v. Kaiser -Drs. direct negligence Potter v. Firestone - fear of cancer

Defective Performance

If the performance is defective as distinguished from incomplete, it may not be possible to prove the loss in value to the injured party with reasonable certainty. In that case he can usually recover damages based on the cost to remedy the defects. Even if this gives him a recovery somewhat in excess of the loss in value to him, it is better that he receive a small windfall than that he be undercompensated by being limited to the resulting diminution in the market price of his property.

Economic Loss Rule

In tort there is no recovery for negligently inflicted economic harm in the absence of physical harm to person or property. The majority of jurisdictions have not permitted the recovery of purely economic loss in a products liability action sounding in tort. In actions for negligence, a manufacturer's liability is limited to damages for physical injuries and there is no recovery for economic loss alone.

Harm to PERSONAL PROPERTY

Issues: - What losses are compensable and - How should the losses be measured? Distinguish between items that can be repaired vs. those that are destroyed. No emotional distress damages for loss of items with sentiments value. May be entitled to loss of use. Damages must be based on some objective evidence Usually occurs in a trespass to chattel or conversion situation

Public Interest

The public interest is a factor courts consider in the issuance of an injunction. When the relief sought will indirectly affect the community at large one of the parties might invoke this factor. Courts need to review government action when it seeks to enforce what is believes is in the public interest. The power of a court to determine the public interest is constrained by legislative determinations of that interest. Courts cannot override the specific expression of the legislative body when that expression is clear. Does relief effect the community at large. Gov't is the protector of public interest but it is not an automatic win

Special damages

They do not necessarily always result from the defendant's acts, although they are actually caused by those acts. They are made with reference to the special character, condition or circumstances of the plaintiff. They are not implied by law, but require that the defendant contemplate the harm at the time of entering into the contract. This represents the foreseeability limitation derived from Hadley v. Baxendale, 156 Eng. Rep. 145 (1854).

Thing v. La Chusa

Thing v. La Chusa slightly modified Dillon, indicating that the plaintiff - must be present at the scene when the injury-producing event occurs; - be aware accident is causing injury - be closely related and - plaintiff must suffer emotional distress different in kind than what would be anticipated in a disinterested witness.

UCC 2-302

Three forms of relief: (1) the court may refuse to enforce the entire contract, (2) or any part of it, or (3) the court may limit the application of a particular clause to prevent an unconscionable result.

Limits on Compensatory damages - certainty

need to prove damages by a reasonable certainty

Civil Code Section 1692

• A claim for damages is not inconsistent with a claim for relief based upon rescission. • The aggrieved party shall be awarded complete relief, including restitution of benefits, if any, conferred by him as a result of the transaction and any consequential damages to which he is entitled; but such relief shall not include duplicate or inconsistent items of recovery.

California Civil Code § 3333.1

"(a) In the event the defendant so elects, in an action for personal injury against a health care provider based upon professional negligence, he may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury ... Where the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure his right to any insurance benefits concerning which the defendant has introduced evidence.

Kinds of Prejudice

"Defense prejudice" which may include loss of records, destruction of evidence, fading memories or unavailability of evidence such as death of witnesses. "Economic prejudice" centers on consequences primarily monetary, to the D should the claimant prevail. D has expended money to perfect their rights and it would be unfair to allow P to profit from D's efforts.

UNCLEAN HANDS

"One who comes into a court of equity must come with clean hands" • Party has acted improperly - serious misconduct - Misconduct must bear relationship to the subject of the lawsuit - Must occur before litigation begins • Promotes fairness in litigation • Promotes public policy • P should profit from own bad acts • Parties equally at fault - in pari delicto

Attorneys Fees

- No right to fees for prevailing party - American Rule - Statues may confer right to attorneys fees - Contracts can provide for fees to prevailing party - Private Attorney General - benefit to public (environmental and civil rights litigation) - Common Fund - attorneys fees paid from recovery/settlement (class actions) Fees can exceed amount of compensatory damages. - Lodestar = number of hours x "reasonable fee" = fee award - May be increased by court using additional "multiplier"

Punitive Damages

- Not truly "damages." - Designed to deter and punish rather than compensate for loss - D's wealth can be taken into account - Egregious or intentional conduct - spite, ill will, malice, fraud; some states - gross negligence or reckless disregard - Constitutional issues - due process - May require "clear and convincing" proof - Not available in some states absent compensatory damages - Are insurable in some states - most not - May be limited in amount by statute - Are never available for mere negligence - May necessitate a bifurcated trial Factors juries may consider in assessing punitive damages - Magnitude of risk created - Cost or reducing danger to public - Awareness of danger - Duration of failure to act - Compliance with regulations - Purposeful creation of danger - Need for deterrence - Wealth of defendant

STATUTORY INTERPRETATION

- With statutes you want to look to see of it limits or allows for expansion - Statutory Interpretation: look at other statutes that can give rise to other remedies - expanding the statutes (statutes are not in a vacuum) - Statutes do not always exclude all other remedies - Don't be bound by only what remedial statute says, look for something else to allow courts to expand relief. - Looking at legislative history in interpreting what the limitation mean - Atty's fees need to be indicated in the statute - Compensatory damage usually need to be indicated as well

TORT DAMAGES Approach

1 - Establish the Tort - ID, defibe, support with facts 2 - Remedies - only 3 types - Damages: General, Special, Punitive and Nominal - Restitution - Injunctions (TRO, Preliminary, Permanent)

Four Major Remedial Categories

1. Coercive Remedies- making somebody do something (ie injunction) 2. Damages Remedies - $$, monetary remedies designed to make a person whole - cannot be speculative. 3. Restitutionary Remedies - to restore pl back to were they were (ie unjust enrichment) 4. Declaratory Remedies - opportunity of court to make a declaration of rights, duties and obligations of party (common in insurance)

PRELIMINARY INJUNCTION - FACTORS

1. the likelihood that the moving party will succeed on the merits*; 2. the extent to which the moving party will suffer irreparable harm without injunctive relief*; 3. the extent to which the nonmoving party will suffer irreparable harm if the injunction is issued; and 4. the public interest. *factors the court views as most important - Parties can Appeal a preliminary injunction but not a TRO

Buyer Breaches

3 situations in which, on the buyer's failure to pay the contract price, the seller may recover that amount plus incidental damages. When the buyer has accepted the goods. (2-709)(1)(a); When conforming goods have been lost or damaged within a "commercially reasonable time after risk of their loss has passed to the buyer." (Id.) When goods have been identified to the contract and the seller is "unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will be unavailing." (2-709)(1)(b). 2-709 is intended to limit the situations in which an action for price will lie. A seller who has failed to establish a right to recovery of the contract price is entitled to damages for non-acceptance under 2-708. (2-709(3).)

Jury Trials

7th Amendment - preserves right to jury trial - Not applicable to states Most states have similar provisions Right to a jury trial attaches where legal remedy is sought - No jury trial for equitable claims Waived if not specifically requested Mixed issues of equity and damages, may have jury trial for legal issues, court decides equitable ones

PERMANENT INJUNCTIONS FACTORS - Significant and Must be applied

A plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) That is has suffered irreparable injury. (2) That remedies available at law are inadequate. (3) That, considering the balance of the hardships between plaintiff and defendant, a remedy in equity is warranted. (4) That the public interest would not be disserved by a permanent injunction.

PREVENTATIVE INJUNCTIONS

A preventative injunction is an order of the court designed to avoid future harm to a plaintiff by controlling a defendant's behavior. The injunction is preventative in the sense of avoiding harm. The wording may be either prohibitory or mandatory. Injunction may be granted where legal remedy (damages) is inadequate and to prevent irreparable harm.

Loss of Consortium

An action for loss of consortium is a derivative action. - spouse must be injured for other souse to have LOC claim Jury must first find that the husband/wife has sustained compensable injuries at the hands of another before the husband/wife's LOC action may be considered. Spouse must present competent testimony of the impact the accident had on the marital relationship and more specifically, evidence concerning loss of consortium, i.e. comfort, society, loss of companionship, sexual relations etc. LOC consists of - Tangible elements - such as support and services lost. Services which the spouse must perform or have performed due to injuries sustained by other spouse. - Intangible elements - which include love, companionship, affection, sexual relations etc.

Substantive Unconscionability

Applies to whether the terms are favorable to one party • Industry standards • Risk of default availability of alternatives • Commercial reasonableness of the contract • Public policy concerns

California Survival Statutes

CCP Sections 377.20, 377.30 and 377.34 Any personal cause of action, including a personal injury action, survives the injured person's death and passes to the decedent's successor in interest. The decedent's personal representative may bring the claim. Section 377.34 expressly limits recovery to damages for the loss that the decedent sustained before death and precludes recovery of damages for pain, suffering or disfigurement. It also allows the decedent's personal representative to recover any punitive damages to which the decedent would have been entitled.

Punitive Damages:Other Acts of the Defendant

Campbell v. State Farm Punitive damages cannot be based on: - Conduct that was lawful where it occurred - Conduct occurring outside the State - Other dissimilar acts - Hypothetical claims of third parties A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.

PERSONAL INJURY Damages

Compensation in money to cover physical and emotional harm. - General damages - bodily injury involves some degree of pain & suffering. - Special Damages - all other losses, including medical expenses, lost earnings, loss of future earnings and earning capacity, future medical expenses etc. - Punitive damages - punishment rather than for compensation. - Damages not based on speculation - need evidence to support special damages.

Coercive and Compensatory

Compensatory - Amount of damages must have some relation to amount of loss suffered; based on evidence, not speculation. o Payable to the P for losses suffered. Coercive - The goal is to protect the plaintiff's rights rather than to vindicate the state's interest in punishment. - May be payable to the court as a fine to pressure a D into compliance. Must show an inability to comply as soon as possible to avoid contempt Being a serious nature of the conduct moves it into a criminal contempt range - the significant monetary amount can make it a serious contempt.

Quantum Meruit - implied-in-law

Contracts implied-in-law have the following elements: Valuable services were rendered or materials furnished by the plaintiff; They were for the benefit of the defendant; The services or materials were accepted, used and enjoyed by the defendant; The circumstances justify the plaintiff to expect payment.

Definiteness of contract terms

Court needs to know: • what to enforce, so • contract terms must be reasonably definite or capable of interpreting the intent of the parties. • Courts strive to determine intent in order to effectuate the parties' contract rather than to find it uncertain

Enjoining Speech or Litigation

Courts are reluctant to: • Enjoin speech - In order for courts to enjoin speech there must be compelling state interest and - Injunction must be narrowly tailored to meet that interest • Or litigation - Litigants should have access to the courts unless they abuse that right - vexatious litigant).

Criminal Contempt vs. Civil Coercive Contempt

Criminal contempt - Fine for past disobedience - fixed after the acts are complete Coercive Civil Contempt - Fine predetermined as penalty for future non-compliance; this is done by court after initial reluctance to obey court's order.

CRIMINAL CONTEMPT

Criminal contempt is brought by the government. A defendant in criminal contempt is entitled to the constitutional safeguards that a defendant accused of a crime is entitled to. (jury trial, counsel, due process etc.) Criminal contempt is punishable as a crime. Criminal contempt falls into two categories, - direct (in presence of court, can be punished summarily) - indirect. (outside court's presence - fine, imprisonment, but gets constitutional protections) Inability to comply or pay dues can be considered and excuse

Potter v. Firestone

Damages for fear of cancer may be recovered if: - Plaintiff is exposed to a toxic substance which threatens cancer - Chemical is one that is likely to cause cancer - Plaintiff's fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic exposure P may be awarded medical monitoring costs based on: - Reliable medical expert testimony, that the need for future monitoring is a reasonably certain consequence of a plaintiff's toxic exposure and that the recommended monitoring is reasonable

Dillon v. Legg

Dillon v. Legg - the California Supreme court allowed a person who was not physically harmed, nor within the actual zone of danger created by defendant's conduct to recover for emotional distress. There were 3 elements necessary in order to recover. •The plaintiff must be located near the scene of the accident. •There must be a sensory and contemporaneous observance of the accident. •Close family relationship.

QUASI-SPECIFIC PERFORMANCE

Elements of quasi specific performance are: - Inadequate remedy at law - Contract is supported by adequate consideration - Mutuality of remedies - contract is subject to specific performance by both parties (not a bar - out of favor modernly) - Terms are definite enough for the court to know what to enforce - Performance asked of court is substantially identical to that promised in the contract. Definiteness of contract terms are important - court will not create all terms of a contract but the court will fashion to effect the reasonable intention of the parties

NEGATIVE INJUNCTION

Equity will not issue a mandatory injunction that an employee remain working for an original employer because it would violate the 13th Amendment and would be difficult to supervise. It is much easier to enforce the negative covenant by issuing a preliminary injunction that the employee cannot work for any other person. • Can refuse if unduly harsh or burdensome There are constitutional and policy issues Helps to force parties to settle CA has statute that state no SP for employment contracts

FMV vs. Actual value

Fair market value is the price the property would sell for between and willing buyer and seller in an arm's length transaction. Actual value could be based on original cost, the cost to replace or the cost to reproduce. Actual value usually excludes sentimental value.

MODERN INJUNCTION FORMS AND FUNCTIONS

Four types of injunctions. - (Courts may not use these exact word to describe them). • Preventative - Prevents a wrong from occurring - prevent a harm • Restorative - Corrects the present by undoing the effects of a past wrong. • Prophylactic - Directs the Ds behavior so as to minimize the chance that wrongs might occur in the future. Example - consent decree • Structural - Brown v. Board of Education II - Courts in certain cases have undertaken supervision over institutional policies and practices where Constitutional violations exist in those institutions

Types of Damages

General Damages: reasonably or naturally flow from the tort - must name specific measure of damages Special Damages: unique to Pl - lost profits in fraud case Punitive Damages: malicious and willful - punishment Nominal Damages: Declaration of P's rights Attorney's Fees: not recoverable unless provided in statute Avoidable Consequences Rule: Plaintiff must take reasonable steps to mitigate losses Collateral Source Rule: IF P is compensated for losses by a source independent of D, D's liability is not reduced

General damages (Expectancy)

General damages may be described as follows: They flow directly and immediately as a natural consequence of the kind of wrongful act by the defendant. They are without reference to the special character, condition or circumstances of the plaintiff. It is conclusively presumed by implication of law that these damages are foreseen or contemplated by the defendant.

Valuing Fluctuating Goods

General rule - fair market value at date of conversion. "New York" rule sets the measure of damages as the highest intermediate value of the stock between the time of conversion and a reasonable time after the owner receives notice of the conversion, but no later than the close of evidence at trial. The rule indemnifies a P for conversion of property without affording a windfall at the expense of the D.

SALE OF GOODS CONTRACTS

Governed by UCC - Art. 2 Seller Breaches When there is a repudiation of the contract by the seller the buyer may "cover" under §2-711 of the UCC. Under §2-712 he may recover as damages the difference between the cost of goods in substitution for those due from the seller & the contract price together with incidental or consequential damages or Under 2-713 he may have damages measured by the difference between the market price at the time of the breach & the contract price together with any incidental or consequential damages. The basic measure of damages for a seller's non-delivery or repudiation is the difference between the market price and the contract price. (UCC 2-713).

California Rules - re collateral source and public entity

Government Code section 985(b) Any collateral source payment paid or owed to or on behalf of a plaintiff shall be inadmissible in any action for personal injuries or wrongful death where a public entity is a defendant." Government Code section 985(j) court shall instruct the jury with the following language: 'You shall award damages in an amount that fully compensates plaintiff for damages in accordance with instructions from the court. You shall not speculate or consider any other possible sources of benefit the plaintiff may have received. After you have returned your verdict the court will make whatever adjustments are necessary in this regard.' "

Irreparable Harm

In order to be entitled to an injunction, the threatened harm must be "irreparable." This requirement is usually just an alternative phrasing of the inadequacy rule; the harm is irreparable because the damage remedy is inadequate. However, in some jurisdictions irreparable harm is considered a separate requirement and the plaintiff much show not only that the remedy at law is inadequate but that the harm threatened is great. In practice, the irreparable harm rule overlaps significantly with the inadequacy of the remedy at law requirement.

Incidental & Consequential Damages

Incidental damages are expenses incurred in transporting, storing, or reselling the goods. Consequential damages are incurred by the non-breaching party in its dealings with third parties which were reasonably foreseeable by the breaching party at the time of contracting.

Rules for construction contracts

Incomplete Performance If the contract is one for construction, including repair or similar performance affecting the condition of property, and the work is not finished, the injured party will usually find it easier to prove what it would cost to have the work completed by another contractor than to prove the difference between the values to him of the finished and the unfinished performance. Since the cost to complete is usually less than the loss in value to him, he is limited by the rule on avoidability to damages based on cost to complete. If he has actually had the work completed, damages will be based on his expenditures

Enjoining Crimes

Injunction can be granted when: - criminal remedy is inadequate, and - property rights are interfered with. Equity will not enjoin criminal conduct for several reasons: - An adequate remedy at law exists in the penal sanctions; - The complainant in equity would have a lesser standard of proof than in criminal proceedings; and - The right to jury trial is unavailable in equity.

Balancing of Hardships

Injunctions are discretionary, not a matter of right. A judge may weigh (balance) the relative hardships of the parties in the matter and may consider if there are any problems of practicality in enforcing the order. Balance benefit to P vs. burden or hardship to the D.

INJUNCTIONS

Injunctions are orders of the court telling a defendant to do or not to do a certain thing. Injunctions are classified as: 1) mandatory-prohibitory, 2) preventative-reparative-structural, and 3) permanent-temporary (preliminary?) -TRO. Prohibitive injunctions command a party to refrain from doing something. Mandatory injunctions command a party to affirmatively do something. An injunction is a remedy in the form of an in personam order. It directs the defendant to act, or to refrain from acting in a specified way, and is enforceable by the contempt power. Any in personam order that is enforceable by contempt is an injunctive order. An injunction may form the only remedy in a case, or it may be a single part of more complex remedies. Injunctions that forbid future misconduct are also frequently coupled with an award of damages for harms already done. The traditional rule denied injunctions if the remedy at law was regarded as adequate. In other words, the traditional rule denied injunctive relief unless, without it, the plaintiff would suffer irreparable harm. Injunctions are denied if the total estimated balance of benefits from the injunction outweighs its estimated total costs or disadvantages.

LACHES - Unreasonable delay and prejudice to defendant

Laches - Plaintiff has not acted timely in pursuing the claim (slept on his rights). This is different than a statute of limitations, which requires P to act within a certain time period. With laches the P must diligently pursue their claim so as not to prejudice the rights of the D. Laches must be raised in answer or it will be waived No laches are allowed against the government "The law helps the vigilant, before those who sleep on their rights." (Civ. Code §3527.) • Party with the knowledge of facts giving rise to its right unreasonably delays asserting them for an excessive period of time and the other party suffers legal detriment therefrom. • In determining whether the doctrine applies an examination is made of the length of delay, the reasons, how the delay affected the other party, and the overall fairness in permitting the assertion of the claim. • Laches asks whether the P in asserting her rights was guilty of unreasonable delay that prejudiced the defendants. • Laches is an affirmative defense. It must be raised in D's answer or it is waived. • P must have some notice of a potential claim.

UNCONSCIONABILITY

Limited to contract remedies Terms are one-sided Determined at time of contract formation - Remedies - Entire contract is unenforceable - Court can remove objectionable terms and enforce the rest - Limit its effect Poor bargaining is not enough for unconscionability Need pretty bad conduct - see language used by other courts (p. 185) Unconscionability is a question of law. There does not have to be fraud in order to have unconscionability

Loss of use

Loss of use is measured typically by the cost to rent a substitute item during the period of repair. Loss of use damages are warranted whether the vehicle is destroyed or cannot be repaired Rental value claims are allowed even in cases of complete destruction of the property. Market value is the ceiling on recovery whether the vehicle can be repaired or replaced. Plaintiff need not obtain a substitute in order to get loss of use - reasonable rental value.

Limits on Compensatory damages - foreseeability

Losses must be foreseeable. General damages - flow directly and as a natural consequence from the breach. Special - must be foreseen- did the breaching party "have reason to know" of the special requirements - contracts - Generally requires that breaching party have notice of facts giving rise to special damages. Contract law- foreseeability equates to consequential damages. (Hadley v. Baxendale - damages must fairly and reasonably arise from the breach and were within the contemplation of the parties.) Tort law - P gets all damages proximately caused by Ds conduct. Both contract and tort limit damages that are too remote. P must show causation - that the damages were caused by D's acts.

Key Elements of Personal Injury Damages

Lost earnings and earning capacity (past and future) - Diminished earning capacity - reduction in value of power to earn. - Lost future earnings - loss of earnings from the time of trial until some point in the future when P can return to work. Medical expenses - includes future medical care, special care, life-time etc. Pain & suffering - per diem calculation - used as a guide No loss of enjoyment of life without cognitive awareness

Rule re compensatory damages

Measure of recovery Cost of repair vs. diminution in value. - If destroyed - value before destruction less scrap value. - If damaged, repair costs if economically feasible - If not repaired (not economically feasible - diminution of value. Generally repair, if economically feasible and costs does not exceed pre-tort value.

Nuisances

Nuisance per se - activity is dangerous and imminently threatens the public health and safety. (focus is on activity) Nuisance in fact - lower levels of harm, non-injurious, but inconvenient. (focus is on location where nuisance is occurring) Permanent Injunction will issue where : Serious threat to public safety Substantial non-health injuries Nuisance differs from trespass- any entry without consent is unlawful, but minor trespasses need not always be enjoined.

Fashioning Relief

Once the court determines that its intervention is necessary, it must also decide how to fashion appropriate relief. A variety of factors are considered, including: - fairness to the parties (balancing), - public policy considerations and - how much court involvement will be necessary. Courts are becoming more willing to decree SP even when supervision by the court is an integral factor.

Lost Profits

P entitled to lost profits where: - They are natural consequence of the breach, - They were within the contemplation of the parties and - Profits were not uncertain and - They were proximately caused by Ds acts. Lost profits must be shown with reasonable certainty UCC says damages may be determined by any manner which is reasonable

Enjoining Crimes and Nuisances

P must establish that Ds conduct creates a substantial and unreasonable interference with the use and enjoyment of property. This is done by weighing the utility of the conduct vs. the gravity of the harm. P must show 4 factors - threatened harm is immediate, - irreparable injury - no adequate remedy at law exists and - equitable considerations balance in its favor.

EQUITABLE ESTOPPEL

Party claiming estoppel must demonstrate that: 1. the other person misrepresented or concealed material facts; 2. that the other person knew at the time he made the representations that they were untrue; - In the 1st and 2nd elements it is sufficient that a fraudulent or unjust effect results from allowing another person to raise a claim inconsistent with his or her former declarations 3. the party claiming estoppel did not know that the representations were untrue when they were made and when they were acted upon; 4. the other person intended or reasonably expected that the party claiming estoppel would act upon the representations; 5. the party claiming estoppel reasonably relied upon the representations in good faith to his detriment; and 6. the party claiming estoppel would be prejudiced by his reliance on the representations if the other person is permitted to deny the truth thereof.

Private vs. Public nuisance

Private nuisance - affects a single individual or a small number of persons in the enjoyment and use of their property, but nuisance is not common to the public Public nuisance - affects the rights of a considerable number of citizens as part of the public as a whole; usually enforced through DA, City Attorney, County Counsel or AG. P must show suffering or harm of a different line from members of the general public. CA. Civil code 3493 - activity must be "specially injurious to himself..."

Punitive Damages:Constitutional Due Process

Respondeat superior liability is permissible. May be grossly excessive depending on - The reprehensibility of the conduct; - The ratio between compensatory and punitive damages; and - The difference between the award and civil or criminal penalties for similar conduct. (Gore v. BMW)

Three Types of Injunction (Broader categories)

Restorative - corrects what is going on in the present in order to correct or undo past wrongs. (looks at future and past actions) Prophylactic - safeguards the Ps rights by telling a D what to do to prevent future harms. Structural - generally ones which involve the courts in institutional practices - a desegregation order is an example. (Broader social issues - ie desegregation)

Seller's Remedies

Sellers facing buyers who wrongfully reject goods, wrongfully revoke acceptance, or fail to pay for the goods can: - cancel the contract, - stop delivery of the goods, and then either resell and recover damages (2-706), - recover damages for non-acceptance (2-708) or - bring an action for the price (2-709).

Punitive Damages - Statutory Language

Some states limit punitive damages awards to intentional acts of malice CA. Civil Code sec. 3294. (a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (1) "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. Other states require only willful indifference, wanton or reckless conduct or gross negligence.

EQUITABLE DEFENSES -Laches and Estoppel

Sometimes parties come to the court having done some act or omission that results in tainting their potential claims. These claims are: - laches, (tainted claim - unclean hands- prejudice) - estoppel, - unclean hands, - unconscionability, - undue delay and prejudice. - They all have in common some improper act on the part of the plaintiff.

Destruction of Trees

Special purpose (ornamental, shade or windbreaks) - the measure is usually the difference in value of the realty, before and after the destruction of the trees. Where trees have no such special use the measure is the commercial market value of the trees at the time of the taking. Where the trees can be replaced it is the reasonable cost of replacement. Severable property with commercial value - the proper measure of damages is that separate value, without regard to the diminution in value of the land.

SPECIFIC PERFORMANCE

Specific performance is a remedy by which the defendant is ordered to perform a contractual obligation and the specific performance order is a form of injunction compelling enforcement. Factors to consider in whether SP is an available remedy • Inadequacy of legal remedy • Can non-breaching party perform in the future • Can breaching party perform • Balancing of interests vs. hardships • Will the court have any problems enforcing performance Usually used in the following types of cases: real property, heirlooms, specialty goods Does not apply to personal services contract - pay prohibit performance to anyone else - negative injunction Damage Remedy is the normal and court tend to try to award damages Entitlement to SP - SP generally will be an appropriate remedy where unique or non-fungible items are involved, like heirlooms or land. - Generally not available for breach of personal service contracts, particularly in employment setting, such as with athletes or artistic performers. Economic consideration • Uncertainty in valuation • Availability of a substitute • Price

INTERLOCUTORY INJUNCTIONS (TRO & preliminary injunctions)

Substantive Requirements: 1. Courts generally like to take time to deliberate on matters. TRO's and preliminary injunctions are in the nature of extraordinary relief 2. TRO - P needs some immediate relief, stop gap measure to keep the status quo, court usually grants this ex parte. 3. Preliminary injunction - similar in effect to TRO, however P must usually make a greater showing, like irreparable harm, and probability of success on the merits.

CIVIL CONTEMPT AND COERCIVE CIVIL CONTEMPT

The beneficiary of civil contempt is the plaintiff who received the original equitable order in their favor. Civil contempt compensates plaintiff for losses it suffered and sometimes to coerce the defendant into complying with the equitable order. - Remedial purpose = coercion or compensation Civil contempt falls into two categories, compensatory and coercive.

CONTEMPT

The contempt power is how courts enforce equitable orders. Because equity acts "in personam" against the person, it can back up its power by finding those who orders in contempt. Contempt orders fall into two categories, criminal or civil. - Civil contempt orders will fail if the underlying order is vacated. - Criminal contempt will stand even if the underlying order was erroneously issued.

Restoration Costs

The cost of restoration that has been or will be reasonably incurred, or at his election, the difference between the value of the property before and after the harm. If the cost of restoring the property is disproportionate to the value of the property or economically wasteful, damages are measured only by the difference between the value of the property before and after the harm. Reason personal" rule. Owner may elect to recover the restoration costs rather than diminution in value in appropriate cases and to the extent that restoration costs are reasonable.

Measure of Damages

The injured party is entitled: To recovery of all damages that accrue naturally from the breach, and To be put into as good a pecuniary position as he would have had if the contract had been performed.

CONTRACT DAMAGES

The law of damages for breach of contract recognizes three protected interests: expectancy, reliance, and restitution. - Expectancy damage- the amount necessary to place the injured party in the position they would have been in had the contract been fully performed. - The plaintiff may seek reliance damages or restitution as an alternative to expectancy damages. Contract law requires the breaching party to pay as though they had kept their promise.

Damage to Real Property

The measure of damages for permanent injury to real property is the difference in the fair market value of the land before and after the injury. Temporary damages represent the reasonable cost of repairing the property "which may include the value of the use during the period covered by the suit, or it may be the diminution in the rental value of the property.

Sources of Remedial Rights

There are three sources of remedial rights: statutes, constitutions and the common law. The source of a remedy desired by the plaintiff is important because (1) the plaintiff must establish that a particular remedy is permissible, and (2) the source may place some limitations upon the remedy. A right is only as great as the remedy that accompanies it.

COLLATERAL SOURCE RULE

Two Rules: Compensation or other benefits which an injured party receives from a source unaffiliated or independent of the responsible party are not deducted from the defendant's liability. A defendant may not introduce evidence that the plaintiff has insurance coverage or has received gifts or benefits from some other source.

New Businesses

Two methods for showing lost profits: Before and After Test - How business did before and after the breach - Not good approach if business not in operation for appreciable period of time Yardstick test - P brings in evidence of how comparable business did.

Contracts for the Sale of Goods

UCC expands circumstances where Specific Performance may be granted adding "in other proper circumstances" to the traditional basis of "uniqueness." Specific performance may be decreed if the goods are unique or in other proper circumstances. Contract for the sale of goods. UCC 2-716 provides that specific performance may be available where the goods are unique. Inability to cover may indicate uniqueness of the goods. Issues such as quality and functionality are also considered. Where goods are not "fungible" they may be unique.

Damages for Destroyed Personalty

When there is a market value, is the market value at the time and place of the loss. - at the time of the incident. Household furnishings and wearing apparel- the actual or intrinsic value of the property to the owner, excluding sentimental or fanciful value. Clothing and furniture may be valued at replacement costs, with depreciation, age, condition etc. being factors to consider..

DAMAGES FOR INJURY RESULTING IN DEATH

Wrongful death = action by dependents or relatives. - Damages are after death - Statute name specific beneficiaries with some relationship to the decedent who may sue and limits the type of recoverable damages - Damages go to individual beneficiaries, not estate Survival = Action by the decedent's estate which survives the death of the decedent. - Victim's personal injury claims survive death - Recover decedent's losses prior to death - Estate recovers the damages and distribution is by will or intestacy.

Buyer's expectancy interest

compensated with three principal elements of damages: - contract-market differential damages; - incidental losses incurred in reasonable efforts to avoid losses occasioned by the breach; and - consequential losses reasonably foreseeable by the breaching party, including items such as lost profits.

Appealing

• A preliminary injunction is Appealable at the time it is made • Criminal contempt are immediately appealable • Civil contempt must be appeal at the time of order not after the violation

FRCP 65(b)(2)

• Every temporary restraining order issued without notice must state the date and hour it was issued; • describe the injury and state why it is irreparable; • state why the order was issued without notice; and • be promptly filed in the clerk's office and entered in the record. • The order expires at the time after entry — not to exceed 10 days — that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension.

Injunction bonds and appeals

• Since preliminary relief can be granted before a full hearing on the merits, the Federal Rules require defendant to post security. FRCP 65(c) • The bond requirement attempts to deal with the risk of reparable error - damages that may result to the defendant who has been erroneously enjoined before trial. • The bond's purpose is to compensate defendants for harm suffered due to the preliminary relief. • Must include a hearing regarding the bond and the decision on the bond can be appealed.

Sliding Scale/Alternative test

• The greater the potential irreparability of harm and the clearer the balance of hardships without the order, the lesser the required showing of strength on the merits of the case. (Notes, p. 216) • Merits will be further tested at time of permanent injunction. • Public Interest is a factor

Procedural Requirements

• Time limits exist with respect to the issuing of TRO's and preliminary injunctions. F.R.C.P. 65. • TRO's can issue ex parte, without a hearing, good for only for 10 days and may be extended by the court for good cause. • Preliminary injunction is an expedited hearing and if granted, lasts until trial. • The grant of a preliminary injunction is appealable, but a TRO is not. • Notice must be attempted