REMEDIES:

Cases, Practical Problems, and Exercises

Weaver, Partlett, Lively, Kelly

Outline by Brian Pedigo

Spring 2006, Whittier Law School

Notes: Spoken by Professor Rose

1. Overview

a. Introduction: remedies are mostly about civil actions in equity. We will not be talking about criminal remedies or administrative remedies.

b. Damages at law: monetary, general, special, punitive, statutory, liquidated, and nominal. Law also deals with real trusts, real statutory liens, real statutory subrogation, ejectment, replevin and detinue (getting personal property back), quasi contract, assumpsit, and legal title.

i. Note: Mississippi, Maryland, and Delaware still have separate courts for issues of law and of equity.

c. Equitable Remedies: injunctions (temporary restraining order, preliminary, permanent), specific performance, constructive trusts, equitable lien, equitable subrogation, accounting for profits, rescission/reformation, and equitable title.

i. Note: CA will not issue a mandatory specific performance order on a contract (in contrast to only a prohibitory injunction). CA will never have a jury trial in equity, while other courts may. Courts prefer prohibitory injunctions over mandatory injunctions because of the ease of supervision issues.

2. Equity and Equitable Remedies

a. A Historical Perspective: we no longer have trial by combat, trial by ordeal (tied to rock & thrown in water), or trial by oath (testing memory for mistakes). Lawsuits were started by writs, which where “set in stone.” You get a jury trial when you sue at law, but not when you sue in equity because of the history of the courts of equity. If it can be handled at common law, you cannot get equity. You always first allege in equity that there is no adequate remedy at law.

i. Maxims of Courts in Equity (part of the CA Civil Code § 3509 - 3548):

1. He who comes into equity must come with clean hands.

2. He who seeks equity must do equity.

3. Equity is a court of conscience.

4. Equity does not suffer a wrong to go without a remedy

5. Equity abhors a forfeiture

6. Equity regards as done that which ought to have been done

7. Equity delights to do justice and not by halves

8. Equitable relief is not available to one who has an adequate remedy at law

9. Equitable relief is discretionary

10. Equity aids the vigilant, not those who slumber on their rights (laches)

11. Equity regards substance rather than form.

12. Equity acts in personam

13. Equity is equality

14. Equity follows the law.

15. Equity will not aid a volunteer

16. Where the equities are equal, the law will prevail

17. Equity imputes an intent to fulfill an obligation

18. Where the equities are equal, the first in time will prevail.

a. Note: when maxims don’t help, balance the hardships. You can also balance the equities (the effects on the public).

b. Equity in the United States: was transplanted to U.S. from England. Has merged with most courts of law. FRCP 2 – there shall be one form of action known as the civil action.

c. Equitable Remedies Today: still retain some distinctions from legal remedies.

i. Conscience and Equity: equitable remedies are only available 3when equity and conscience demand them. Maxims (above) are used to determine morality or justice.

ii. Equitable Remedies are granted in personam: this means that ∆ is ordered to do or not do something, subject to penalties of contempt.

iii. Inadequacy of Legal remedy / irreparable harm: equitable relief not available unless π’s legal remedy is inadequate. This is the primary hurdle.

1. Note: in order to get the judge to give you relief, it helps a lot to say that there is irreparable harm. Rose wants inadequate legal remedy and irreparable harm to be separate and distinct – rather than synonymous. If damages are too hard to calculate, then there may be an inadequate remedy at law. Must show irreparable harm before the granting of equitable relief. Catch-phrase is “money won’t make me whole.”

2. Examples:

a. Unique property

b. Damages impossible / difficult to calculate

c. Defendant is insolvent

d. Multiple Proceedings Required

iv. Equitable relief is discretionary: a court may deny equitable relief even though π’s legal remedy is inadequate. E.g. a dog-barking nuisance may be limited to damages only, not an injunction, based on the court’s discretion. Courts will not grant equitable relief if it would require judicial supervision over a long period of time.

d. Equitable Defenses: the major ones are unclean hands, unconscionability, laches, and estoppel.

i. Unclean Hands: he who comes to equity must come with clean hands. The court will leave you as they found you if you come to court with unclean hands. The maxim must be applied only where the π has dealt unjustly in the very same transaction of which he complains; equity is not an avenger at large. If the parties are found in pari delicto (in equal fault), then the court will leave them as it found them.

1. Note: in a real-world case, if the π is found to have unclean hands and the parties are not in pari delicto, then π loses in a court of equity. Π must pursue the claim in a court of law. The court doesn’t want to get its hands dirty. Irreparable harm is not the same as inadequate remedy at law.

ii. Unconscionability: equity does not enforce unconscionable bargains. The purpose is to prevent oppression and unfair surprise, but not to disturb allocation of risks because of superior bargaining power.

1. Note: liquidated are frowned upon by the courts because the court is more concerned about actual damages.

iii. Laches: equity aids the vigilant. Laches is any unreasonable delay by the π in institution or prosecuting an action under circumstances where the delay causes prejudice to the ∆.

1. Note: latches is a fuzzy line where the court will look to the SoL to get guidance, but it is not bound by it. There is no duty to bring suit when you’re a minor. Always be thinking of prejudice when dealing with laches issues. Also look to see if the delay is excusable.

iv. Estoppel:

1. Promissory Estoppel: a substantive CoA which permits foreseeable reliance to substitute for consideration and thereby supplies the basis for a breach of K action. It can also be used to estop an assertion of statute of frauds defenses. Binding if injustice can be avoided only by enforcement of a promise.

2. Equitable Estoppel: a purely remedial device which precludes equitable relief but still allows π to seek legal remedies. Equitable estoppel looks to the following factors:

a. Π knows the relevant facts

b. ∆ acts in reasonable reliance

c. ∆ ignorant of true facts

d. ∆ suffers detrimental reliance