The BAR Exam - Remedies Outline Cheat Sheet
The BAR Exam - Remedies Outline Cheat Sheet
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Date Created: 03/06/14
REMEDIES 0 U T LINE 1 Overview a A remedy is anything a court can do for a litigant who has been wronged or is about to be wronged b Five categories of remedies i Compensatory compensate P for harm already suffered ii Preventative prevent harm before it happens 1 Injunction 2 Declaratory judgment iii Restitutionary restore to the P something the D wrongfully took away and made money off of iv Punitive punish D for his wrong v Ancillary the means of enforcing a remedy 1 Costs attorneys fees II Rightful Position Principle P entitled to the amount of money that will restore him to the position he would have been in had the D not committed the wrongful conduct a US v Hatahley US considers Navajos trespassers and steals their horses i P entitled to 1 Market value of horses at time of loss and 2 Lost profits resulting from the loss between the time they were taken and a reasonable time that it would take to find replacements b US v Fifty Acres of Land Gov t condemns 225000 property but P has a duty to replace it with a 725000 property i Unless it s too difficult to ascertain compensation is measured by the fair market value at the time of the taking 1 Not the replacement value 2 No consequential damages in takings cases lost profits transportation costs etc c Trinity Church v John Hancock D construction caused church s damage to rise from 26 to 65 Takedown Theory takedown occurs at 100 i Court grants P 39 of the cost to eventually rebuild the church d General rule for property damage P entitled to diminution of market value i Special Use Exception where there is no market for the property e g a church or famous landmark the proper remedy is the cost of replacement III Reliance and Expectancy damages a Neri v Retail Marine buyer reneges on contract to buy boat from seller seller able to sell the boat anyway i Seller entitled to lost profits because he had an unlimited supply of boats 1 Expectancy damages lost profits 2 Reliance damages storage costs while waiting for buyer to purchase b Chatlos Systems v National Cash Register when CPU falters P gets difference between CPU as promised 207000 and CPU actually received 6000 i Excessive expectancy P gets damages in excess of the price paid c Pennzoil v Texaco D interrupts P s contract with Getty for 34 billion or 37 of Getty stock i P entitled to value of 37 of stock 75 billion 1 Expectancy value this is what P would have owned had D not interrupted the contract d Smith v Bolles P pays 150 a share for mine which would ve been worth 10 a share had there been gold in it i Court only reimburses P for amount paid not value expected ii Expectancy damages are only available in contract cases not fraud as here because only contract cases have expectancies IV Consequential Damages indirect damages resulting as a consequence of the breach a Buck V Morrow D leased land to P when land was sold P lost cattle and needed to hire an extra hand despite his efforts to mitigate i Consequential damages damages that were a natural and proximate result of the breach 1 Cannot be the result of lack of proper care or diligence by the P b Texaco V Pennzoil court grants consequential losses for D s tortious interference with the contract i Pennzoil put in the position it would have been in had the contract been performed not had it not entered the contract in the first place c For breach of contract to loan money allowed when the damages are sufficiently foreseeable causation is clear and the amount is certain i Meinrath V Singer D s failure to make timely payments to P caused P s other businesses to suffer 1 These damages are too remote and speculative a P s other business ventures are unrelated to the contract b Damages for withholding money due are already provided for in the allowance of interest 2 This rule has been eroded somewhat d Eviction cases when evicted you are entitled to the difference between the rent you were paying and the rent at a new property ie the additional expenses proximately resulting from the breach V Limits on Money Damages a Contractual limitations i Kearney amp Trecker v Master Engraving consequential damages can be excluded in the original contract 1 But only when the consequential damages would be inconsistent with the intent and reasonable commercial expectations of the parties a Here D seller promised to fix machine or grant full refund and there is evidence that he tried to do this judgment for D 2 The right to exclude consequential damages is a beneficial riskallocation device and both parties took it into consideration when they entered into the contract ii Liquidated damages clauses damages reduced to a specific predetermined amount or formula 1 if there s a breach x is the damages 2 Will be enforced so long as the amount is reasonable in light of the a Anticipated or actual loss and b Difficulties in proving loss Ashcraft 3 Liquidated damages must bear some relation to damages incurred otherwise they re simply a penalty a 50day charged by landlord to motorcycle owner for noise is a penalty it bore no relation to landlord s damage 4 Ashcraft amp Gerel v Coady affirmed liquidated damages clause in lawyer s employment contract b Doctrine of Avoidable Consequences where a choice has been required between two reasonable courses the person whose wrong forced the choice D cannot complain when one rather than the other was chosen SJ Groves C i Burden of proof is on D for the affirmative defense of avoidable consequences 1 Uncertainty is resolved against the wrongdoer ii SJ Groves v Warner D fails to perform subcontract to provide concrete P makes reasonable business decision not to seek concrete from competitor 1 Ask did P act unreasonably a Here P s choice not to mitigate was reasonable Collateral Source Rule CA if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor such payment should not be deducted from the damages which the P would otherwise collect from the tortfeasor i Rationale 1 If you invest in insurance you should receive its benefits 2 D should not garner the benefits of P s foresight 3 P has to pay his own attorney s fees so he rarely gets full compensation anyway ii Does not apply to medical malpractice cases iii Helfend v Southern CA Rapid Transit District D required to pay for P s hospital bill even though 80 was already covered by insurance Scope of Liability i Evra v Swiss Bank bank fails to make timely transfer of funds P loses millions as a result 1 But bank didn t know that P could have suffered catastrophic loss a Circumstances were too remote from D s practical range of knowledge 2 Consequences should be borne by the party that was able to avert them at least cost and failed to do so a P was best able to foresee the risk so he could have taken more precautions ii Southwestern Bell Telephone v Norwood P suffers damages when D telephone company fails to relay his call to the fire department in time 1 Judgment for D damages are out of proportion to the consideration agreed to be paid for the services rendered a Besides damages are too remote and speculative there s no guarantee that a timely relay would have prevented the fire b D in order to be liable must have had some knowledge of the special circumstances and must reasonably accept liability iii UCC sellers of goods are liable for consequential damages they had reason to know of at the time of contracting 27l52 iv Economic Loss Rule P who suffers no physical impact to his person or property cannot recover for indirect harm economic harm e g lost profits 1 Pruitt v Allied Chemical various P s all engaged in business related to marine life sue D for pollution of river claiming lost profits a Court in this case draws arbitrary line damages awarded to those most directly harmed i At a certain point additional liability loses meaning and thus has no additional deterrent effect The Certainty Requirement i Bigelow v RKO Radio Pictures P accuses D under Sherman of conspiring to prevent P from securing movies calculates damages by comparing earnings with competitor for four years prior to conspiracy and five years afterwards 1 Jury damages affirmed jury could conclude damages as a matter of inference even though damages could not be measured with exactness 2 Wrongdoer bears the risk of the uncertainty which his own wrong has created a Where the D has prevented a reasonable computation of damages a just and reasonable estimate is suf cient VI Personal Injury and Wrongful Death a Debus V Grand Union Stores per diem damage argument for personal injury affirmed i Nothing inherently improper about per diem arguments 1 If a lump sum is suggested to the jury the P must also be allowed to explain how that lump sum was calculated ii Dissent P should be allowed to describe per diem technique but not suggest exact gures b Etheridge V Medical Center Hospitals legislative cap on medical malpractice damages does not violate Constitution VII Taxes prejudgment interest and net present Value a Taxes i Norfolk amp Western Railway V Liepolt l D is entitled to jury instruction that pain and suffering damages are not taxed 2 Evidence of taxation of lost earnings is admissible b Prejudgment interest interest accrued from the time of injury until judgment i City of Milwaukee V National Gypsum P entitled to shitloads of prejudgment interest on lost boat more than the value of the boat itself ii No prejudgment interest on unliquidated not xed claims 1 Eg personal injury awards c Net present value of money use table on p 1142 i Jones amp Laughlin Steel V Pfeifer 1 Calculate future income stream a Salary bene ts cell phone raises Costofworking expenses taxes 2 Discount to present value a Present value ll 139 b 139 real interest rate rate of safe investments rate of in ation c N number of years VIII Preventative injunctions a Injunction a court order enforceable by sanctions for contempt of court directing the D to do or refrain from doing some particular thing i Goal to restore or maintain P s rightful position b Requirements for an injunction i Potential irreparable injury to P ii No adequate remedy at law legal remedy is inadequate 1 These first two are essentially the same basically damages are insufficient iii Ripenessimminence requirement a real danger that the conduct to be enjoined will occur 1 Substantial or realistic threat of violation and 2 P will be personally harmed by it a Humble Oil Nicholson Dodge iv Balance of the equities weighs in favor of an injunction c Scope the scope of the past violation determines the scope of the remedy against future violations i FRCP 65d injunctions must be specific and reasonably detailed ii Marshall V Goodyear Tire amp Rubber Co nationwide injunction against future age discrimination violations is too broad l Nation or companywide injunctions are only appropriate where the facts indicate a company policy or practice in violation of statute a Here the discrimination was an isolated incident at a single branch d Mootness i US V WT Grant Co after gov t complains of interlocking corporate directorates D resigns from the three boards and argues the case is moot 1 Voluntary cessation of illegal conduct does not make a case moot a But it may be moot if there is no reasonable expectation that the wrong will be repeated i Consider l Sincerity of any assurances against a future violation 2 The effectiveness of the discontinuance 3 Characternature of past violation b D bears heavy burden of proving mootness e Uncertain consequences 1 Nicholson v Connecticut Halfway House no injunction for construction of halfway house 1 P s fears of potential criminal acts are too speculative and intangible ii Dodge Warren amp Peters v Riley injunction granted requiring D to preserve electronic evidence for discovery purposes 1 Injunction may be granted when the D may do some act the violates the rights of the other a In this case the right to discovery iii Humble Oil amp Refining Co v Harang no injunction to prevent D from destroying documents 1 Necessity must be demonstrated clearly can t just get an injunction to allay the fears or anxieties of a party a D testified that he wouldn t destroy anything IX Reparative injunctions a Bell v Southwell black P seeks injunctions to l enjoin the election winner from taking office and 2 overturn the election results and administer a fair election i Evidence of institutionalized discrimination is sufficient to justify an injunction l Regardless of whether the vote would have been different b Forster v Boss court gives P choice either money to remove dock or injunction forcing the D to remove it i P can t have both that would be double recovery c Trade Secrets and injunctions to eliminate commercial advantage i Trade secrets confidential information that l The owner takes reasonable steps to keep confidential and 2 Has independent economic value a Ie cannot be discovered or reverse engineered without considerable resources eg client lists ii Winston v Minnesota Mining P sued D for stealing trade secrets 1 Injunction granted ordering D not to use P s trade secrets for 2 years X Structural injunctions injunctions that run a system e g schools prisons a Brown II remedy to Brown v Board desegregate with all deliberate speed b Swann approved school busing as a remedy to desegregate c Scope is limited to the scope of the constitutional violation and no more i Milliken I violation is segregated schools in Detroit so remedy can t involve busing kids into Detroit from outside suburban areas ii Dayton I no citywide injunction for two isolated incidents of discrimination 1 Court must determine how much incremental segregative effect the Violations had on the school population a Remedy must be designed to redress that difference and no more iii Missouri V Jenkins injunction forcing state to create magnet school program is interdistrict because the money for the program comes from the state as a whole which everyone pays into 1 Therefore that aspect of the injunction is too broad iv Lewis V Casey statewide prison injunction is too broad complaints of inadequate law libraries were confined to a single prison 1 Also injunction went too far in what it mandated it included hours of operation programs to be offered etc d Prison Litigation Reform Act took power away from federal courts to issue structural injunctions XI Irreparable Injury a Pardee V Camden Lumber irreparable injury rule applies to trees because they can t easily be replaced i Otherwise an injunction is unnecessary when money can replace what is lost ii In order to enjoin trespass and cutting down of trees P must show 1 P owns title to the land and 2 D trespassed or threatened imminent trespass b Continental Airlines V Intra Brokers injunction issued to enjoin D from selling more of P s coupons i What was the irreparable injury 1 P s power to control its business 2 Money damages may be adequate in theory but not in practice c Campbell Soup V Wentz injunction issued to enjoin D from selling his rare Chantenay carrots to anyone other than P i Carrots were 1 scarce and 2 Vital to P s commercial reputation ii Scarcity creates the irreparable injury d Van Wagner AdVertising V S amp M no injunction to enjoin the tearing down of a building where P owns unique billboard on the side i Mere uniqueness does not entitle P to specific performance must also consider the difficulty of proVing damages with reasonable certainty 1 Here Value of the billboard can be easily ascertained 2 And speci c performance would disproportionately harm D by halting its real estate deVelopment XII Balancing the hardships in injunction cases a An injunction will not issue where it will cause undue hardship to the D disproportionate to the potential benefit to the P i Unless the D was a deliberate wrongdoer b CooperatiVe Insurance V Argyll consider the benefit to the P proportionate to the burden on the court i Court refuses to issue injunction forcing the D to keep his store open 1 Difficult to enforce and waste D has already moVed out 2 Plus damages were ascertainable c Willing V Mazzocone injunction barring D from demonstrating in front of P s building is an unlawful restriction on free speech i Constitutional rights trump all else d American Broadcasting V Wolf court refuses to enforce injunction forcing D sportscaster to continue to work for P i EVen though D breached contract the courts will not enforce inVoluntary serVitude XIII Preliminary Injunctions a Overview i Preliminary injunctions preserve the status quo pending a determination at trial on the merits ii Issued prediscovery iii Judge is generally ignorant so he must protect against making a mistake b Factors i Strong showing of success on the merits ii Potential irreparable injury to P during the life of the lawsuit if there is no preliminary injunction iii Balance of the hardships favors P iv Injunction advances a public interest where it is at issue c Two different tests for preliminary injunctions i Test One use this if you have probable success on the merits l Probable success on the merits and 2 Possibility of irreparable injury to the F ii Test Two use this if the balance of hardships tips sharply in your favor 1 Serious questions are raised and 2 The balance of hardships tips sharply in favor of the P d Temporary restraining order i Preserve the status quo to prevent harm that will occur immediately ii Lasts for 10 days only iii May be granted without notice if there is a threat of immediate injury see Carroll 1 But it stills lasts for only 10 days e LA Memorial Coliseum v NFL D blocked Raiders move to LA P sued i Test One used but no irreparable injury so no preliminary injunction 1 NFL had not yet voted affirmatively to block the move a No ripenessimminence 2 Loss of property value and delay of renovations are not irreparable and can be dealt with through money damages f Southwest Voter Registration v Shelley no injunction to delay a special recall election even though there is a threat of some voters being disenfranchised i Test Two used 1 Statewide cost of delaying election imposes a significant hardship on CA citizens at the cost of disenfranchised minority voters g Injunction bonds wrongfullyenjoined party gets to recover the amount of the bond from the P i CoyneDelany v Capital Development D wants 56000 bond but court only grants 5000 bond P s case ultimately fails because of a change in the law 1 The prevailing D is entitled to damages on the injunction bond a Unless there is a good reason for not requiring the P to pay i Change in law is not a good reason ii Good reasons P is indigent D failed to mitigate etc 2 But the bond amount is the limit even if 56000 was the actual cost of the injunction D can only get up to 5000 h Carroll v President of Princess Anne district court grants TRO stopping a white supremacist rally the next day without giving notice to D i TRO vacated notice must be given especially in free speech cases ii Ex parte no notice TROS are sometimes appropriate when 1 There is a risk that the D will ee if he has notice 2 Domestic violence cases don t notify the abuser XIV XV XVI i FRCP 65a restricts nonnotice preliminary orders to 10 days j Sampson V Murray court refuses to grant TRO to temporarily enjoin P s dismissal i No irreparable injury from losing job money damages are sufficient no significant damage to reputation Declaratory judgments a Declaratory judgments don t compel anything but lawsuits are likely to follow b Party must show i Imminent harm ripeness ii Essentials of an adversarial proceeding iii P need not show irreparable injury 1 DJ s are a way around that requirement the disadvantage is that they lack teeth c Nashville Chatanooga amp St Louis v Wallace P challenges constitutionality of tax on gasoline wants it declared invalid i P can seek a declaratory judgment so long as the case retains the essentials of a real adversary proceeding 1 Ie the case is capable of real adjudication d Cardinal Chemical v Morton Int l court grants D s counterclaims for declaratory judgment that P s patents are invalid Quiet Title and Reformation a Quiet title removes the cloud on title the court can declare either P or D is the owner i Newman Machine v Newman claim for quiet title applies to personal property as well as real property b Hand v DaytonHudson P purposely signs altered contract that resembles original without D s knowledge D wants contract reformed i Reformation usually requires a mutual mistake of fact 1 Exception when mistake is unilateral fraud or inequitable conduct on the part of one side warrants reformation ii Reform contract to what the parties agree on Restitution and Unjust Enrichment a There must be some wrongful conduct in order to succeed on an unjust enrichment claim b When to sue for unjust enrichment i There is no contract or the contract is unenforceable so lawsuit for breach is not an option ii D s gain is greater than P s loss iii D is insolvent c Common unjust enrichment claims i Mistake one who receives property or money by mistake ii Actualsupposed contracts where a contract is believed to have existed but actually doesn t iii Judgments subsequently reversed iv Emergencies v Joint obligations when one party pays more than his share vi Wrongful acts when D acquires a benefit from the P through an unlawful act d Generally you are more likely to get disgorgement of profits for intentional conduct Edwards and damages rental value for unintentional conduct e Olwell v Nye amp Nissen D uses P s eggwashing machine without P s knowledge wrongful conduct theft P sues for money saved by using the washer i P has a valid claim for unjust enrichment because D s conduct was consciously tortious f Edwards v Lee s Administrator P collects restitution for profits earned by D who charged i j tourists to see his cave 13 of which ran under P s property i Restitution for profits earned even though P suffered no damages Maier Brewing V Fleischman Distilling P collects profits D gained from infringing P s product even though there was no diversion of sales i To recover lost pro ts from infringement you do not need to show direct competition ii Damages Reasonable rental royalty like in Olwell P lost the ability to rent out his company label Constructive trust device imposed by law to restore unjust gains i Court imposes a duty to turn over pro ts rather than calculating actual money damages ii D becomes the constructive trustee iii Constructive trusts survive bankruptcy beneficiaries get priority over creditors for remaining funds iv Elements 1 D has titleownership of the asset 2 Allowing D to keep title would be unjust 3 No adequate remedy at law v Snepp v US constructive trust is the proper remedy when P writes book about his time in the CIA breach of employment contract Damages for copyright infringement are determined by federal statute i P entitled to actual damages profits attributable to the infringement 1 Actual damages value of the license that D would have had to get ii Sheldon v MGM D s movie infringes on P s play 1 P is only entitled to profits attributable to the infringement 2 In the rare case where it is impossible to detach the infringement from the original P is entitled to 100 of profits a Here the movie had profitmaking elements totally separate from P s play star power for example contributed to profits iii Three Boys v Bolton D infringes P s musical composition 1 Evidence of substantial similarity title hookphrase shifted cadence iv Mackie v Rieser D infringes on P s artwork in symphony brochure P wants all profits from the symphony 1 Summary judgment for D 2 Mackie Standard P must establish a causal link between the infringement and the profits generated from that infringement a This evidence must be specific v Andreas v Volkswagon D infringes P s poem for an Audi advertisement 1 P able to meet difficult Mackie standard gets 10 of Audi s profits and 50 of ad agency s profits a Line from poem was the centerpiece of the commercial b Ad was the centerpiece of Audi s campaign c Sales increased while the ad was being shown d Audi was so pleased with the ad it paid the ad agency a bonus 2 P doesn t have to bring in Audi owners to claim they bought the car based on the ad it s sufficient to show that the ad was central to Audi s sales Rescission i Common grounds for rescission 1 Fraud 2 Substantial breach of contract 3 Mutual or unilateral mistake of fact k 4 Duress ii Some courts give P choice between damages and rescission others require P to accept damages when they would be sufficient iii Mutual Benefit Life Insurance V JMR Electronics D lies about smoking on his life insurance policy a material omission 1 Insurance policy rescinded D s premium payments returned 2 D wanted what P would have paid but for the omission but this is an inappropriate remedy a Don t want to reward the practice of misrepresenting facts iv Cherry V Crispin D lies about termites in house sold to P material omission l P entitled to rescission a P gets money back cost of improvements made to the house minus rent for the time P lived there 2 P could have asked for damages but he simply wanted out of the K v Farash v Sykes Datatronics P leases building to D who promises to renovate when no renovation occurs P seeks restitution for work performed in reliance on D s promise I Since P acted in reliance on a promise he is entitled to recover Tracing assets i Two requirements for constructive trust 1 Asset was taken from you by wrongful means fraud or theft 2 The asset is identifiable ii Hicks v Clayton D obtains P s house through fraud then declares bankruptcy l P entitled to constructive trust iii In re North American Coin amp Currency various victims of fraud try to get constructive trusts when D goes bankrupt 1 Not granted because the company never acted in bad faith iv In re Erie Trust bank steals money from orphans and places it in a commingled account 1 Where a constructive trustee D has commingled funds the bene ciary is entitled to the lowest intermediate balance of the commingled account a Assumes that the D dissipated its own funds first so the orphans get whatever s left 2 Deposits from other banks can be traced Subrogation person who pays money on another s behalf subrogee files a claim in subrogation to recover from that person subroger i Typical subrogation claim insurer subrogee pays out claim to injured driver then files a claim in subrogation against the atfault driver subroger 1 Steps into the shoes of the injured driver and files the claim on his behalf ii Statute of limitations starts to run at the underlying incident iii American National Bank v Weyerhauser P attempts to fix a problem caused by First Jersey subroger and loses 70000 in the process 1 Equitable subrogation P asserts the rights of another party a Essentially steps into the shoes of another party in order to recover 2 Four requirements that the subrogee must meet a The debt must be paid in full not partially b The subrogee must have paid for a claim for which a third party is liable c The subroger must possess a right which he could enforce against a third party and the subrogee seeks to enforce this right d The subrogee must not have acted as a volunteer in paying the claim 10 m ContributionIndemnity i Joint and several liability one D pays the full damages then sues the other D for his share 1 Either a claim for contribution part of the full amount or indemnity full amount n Replevin recovery for real property rather than money i Unlawful detainer in CA ii Brook V Cullimore P sues for tractor rather than money damages even though D offered to pay money damages iii Welsh V Kosasky P sues for stolen silverware which was purchased by D who knew or should have known was stolen XVII Punitive Damages a State Farm v Campbell 145 million in punitive damages on a 26 million verdict violates the Due Process Clause of the 14th Amendment i Due Process prohibits grossly excessive or arbitrary punishments ii Weigh the reasonableness of the punitive award against the reprehensibilily of the conduct 1 Five factors test of reprehensibility consider whether a The harm was physical rather than economic b The tortious conduct evinced an indifference to or a reckless disregard for the health or safety of others c The conduct involved repeated actions or was an isolated incident d The harm resulted from intentional malice trickery or deceit or mere accident 2 Assume that the P was made whole by compensatory damages so punitive damages should only be awarded if the D s conduct was so reprehensible that further sanctions are needed as punishment or for deterrence iii Consider the ratio between the harm or potential harm and the award iv Consider the disparity between the punitive damages and the penalties imposed in similar cases XVIII Enforcement Ancillary Remedies a Contempt and the Collateral Bar Rule i Contempt is the enforcement mechanism for injunctions ii Types of contempt 1 Criminal contempt violation of a judicial order a Jail or fine paid to statecourt b Jury trial required 2 Civil contempt coercive purpose is to coerce a party to do something a No jury trial b D can be imprisoned so long as D is released when he agrees to comply c Normally daily fines 3 Civil contempt compensatory purpose is to compensate P for losses incurred because of a violation of a court order a Not in CA iii Defenses to contempt 1 Conduct did not occur 2 Unable to comply with the order 3 Order is vague 4 Order is unconstitutional or invalid iv International Union United Mine Workers v Bagwell union members rack up 64 11 million in contempt nes 52 million of which is supposed to be paid to state of VA when litigation settles and fines to company are agreed vacated does union still have to pay the state 1 Supreme Court not without a jury trial a Because the fines are enormous and paid to the state they are essentially criminal sanctions not civil V Collateral Bar Rule 1 Walker V City of Birmingham injunction against demonstrators issued Wednesday they march anyway on the weekend contempt conviction affirmed a Constitutional issues must be raised when the injunction is issued not collaterally during the ensuing contempt trial b An injunction properly and duly issued must be obeyed even if you think it is unconstitutional i Exceptions 1 Court lacks jurisdiction to issue the order a Or no proper service 2 Injunction is transparently invalid or has a frivolous pretence to validity a Eg not issued by a real judge b Collecting Money Judgments C i Steps 1 2 6 Send demand letter Find judgment debtor s assets a To do this conduct a judgment debtor examination deposition Put a lien on real property a Ties up the property until it is sold Get money in bank accounts E a Writ of execution orders the bank to give money to the judgment creditor Get personal property cars boats etc Moninger a Writ of execution b Seized and sold by sheriff Garnish wages a Serve notice of garnishment on employer ii Writ of attachment preserves a judgment by freezing assets prior to judgment 1 2 3 Attorneys fees Temporary protective order that orders D to keep the money in the account Limited to contract claims Requirements Koninjilke a Probable success on the merits b Contract claim not tort c Amount asked for must be a fixed amount or readily ascertainable d If D is an individual rather than a company or business then the amount attached must be a trade or business debt i Generally each party bears its own fees with some exceptions l 2 Prevailing party provision provision in contract that allows for the prevailing party to recover its attorneys fees Statute certain laws allow parties to collect attorneys fees in certain types of cases e g 1983 claims hate crime cases Claims brought in bad faith 12 ii Different methods of calculating attorneys fees 1 ContingencyPercentage of recovery 2 Lodestar 3 Auction 4 Substantial Benefit Doctrine Ms Gooch s 5 Private attorney general iii City of Riverside v Rivera attorneys fees that exceed judgment in 1983 claim are not per se unreasonable 1 No requirement of proportionality of fees to judgment iv Lodestar Calculation Rivera 1 Multiply Reasonable Hours Worked by Reasonable Hourly Rate 2 Then adjust up or down using the Lodestar factor which takes into account the skill of the lawyer difficulty of trial and loss of other work v Auctions usually occur in common funds cases where awards are given in lump sums and attorneys fees are not separate usually in class actions 1 In re Synthroid Marketing Litigation attorneys fees should be the market price for attorneys fees had the two parties negotiated prior to trial vi Substantial Bene t Doctrine 1 Consumer Cause v Mrs Gooch s P class member objects to bad settlement offer release of all future claims court agrees and denies approval of the settlement now P wants attorneys fees a Elements of Substantial Benefit Doctrine i No common fund ii P confers on the class a concrete and significant benefit b P loses i He could have just opted out of the class ii No evidence of significant benefit to the class future claims are speculative and may never occur vii Private attorney general 1 Must be a successful party in an action brought to enforce an important right that affects the public interest 2 Must confer a significant benefit 3 Action must transcend the P s personal interest ie he must be doing it for the public not himself personally XIX Equitable Defenses a Purpose is to dismiss the case without getting to the merits b Unclean Hands and In Pari Delicto i In part delicto equal in fault a P s recovery may be barred by his own wrongful conduct ii Bateman Eichler test in part delicto only available where 1 As a direct result of his own action the P bears at least a substantially equal responsibility for the violations he seeks to redress and 2 Preclusion of suit would not significantly interfere with the effective enforcement of the laws iii Pinter v Dahl P invested in D s bunk oil wells then sued because D never registered with the SEC 1 D claims in part delicto P was equally at fault a P was more of a promoter than a mere innocent investor 2 Insufficient findings so case remanded iv Homami v Iranzadi P sues D over contract dispute both parties admit that purpose of no interest clause was to avoid reporting the income to the IRS 13 C 1 A contract which has as its object an illegal purpose is contrary to public policy and void a Object thing which it is agreed to do or not to do V Blain V Doctor s Company P doctor insured by D claims D attorneys advised him to lie under oath 1 Claim for severe emotional distress barred by in part delicto a The injury is attributable to the P s own misbehavior Unconscionability i Requirements 1 Is contract adhesive a Ie does the weaker party have no choice but to sign 2 If yes is contract unconscionable a Procedural unconscionability and b Substantive unconscionability ii Armendariz v Foundation Health P claims arbitration clause in employment contract is unconscionable and thus unenforceable court agrees 1 Procedural unconscionability it s a standardized contract and employer has superior bargaining power when it is entered into 2 Substantive unconscionability arbitration provision surprises or oppresses the weaker party a Oneway contract clause only applies when employee sues employer not viceversa d Estoppel 6 1 Geddes v Mill Creek Country Club where a person by his statements or conduct leads a party to do something that person will not be allowed will be estopped to assert a claim against the relying party ii Party claiming estoppel D must demonstrate that 1 P misrepresented or concealed material facts P knew that the misrepresentations were untrue D did not know that the misrepresentations were untrue P intended or reasonably expected that D would act upon the representations D reasonably relied upon the representations in good faith to his detriment D would be prejudiced by his reliance on the representations if the P is permitted to deny the truth thereof Waiver an intentional relinquishment of a known right or intentional conduct that is inconsistent with claiming that right i No requirement of reliance ii US Fidelity v Bimco Iron Bimco sues to recover insurance money 1 But claim is filed too late so it is waived 2 But claims adjuster already offered to pay anyways so the waiver is waived Laches bars relief to those who delay the assertion of their claims for an unreasonable time i Equity aids the vigilant not those who slumber on their rights ii Three elements 1 Substantial delay by P prior to filing suit 2 P was aware of the dispute 3 Reliance by the D on P s delay a Mere delay by P is insufficient absent some sort of reliance on the delay by the D iii Factors that may negate the laches defense 1 Ongoing negotiations 2 Conscious fraud or bad faith by the D V3939gtP 14 iv NAACP V NAACP Legal Defense amp Educational Fund two parties compete for use of name NAACP from 19391982 at one point 13 years pass when case was ripe but no action was taken 1 D successfully asserts doctrine of laches g Statutes of limitations i ii iii iv Statute of limitations begins to run either when 1 You actually know you have a claim or a Actual notice 2 You reasonably should have known that you had a claim a Constructive notice Continuing violations 1 Klehr v AO Smith Corp P files claim for fraudulent misrepresentations made by D about silo purchased 20 years earlier a Statute of limitations had expired but P claims justification that D covered up his fraud and that prevented P from discovering the malfunction i In other words it was a continuing not onetime violation b Judgment for D P should have been suspicious enough to conduct further investigation 20 years earlier rather than just ignore the problem Discovery Rule the statute of limitations does not begin until you discover you have an injury 1 O Brien v Eli Lilly amp Co P got cancer from mother s ingestion of DES during pregnancy noticed symptoms in 1971 read article in 1976 mother denied DES use in 1976 and P finally discovered truth in 1979 actual notice a 2year statute of limitations started running in 1976 when P had constructive notice so no claim Estoppel applicable where the conduct of one side has induced the other to take such a position that it would be injured if the first should be permitted to repudiate its acts 1 Four elements must be proved CA a The party to be estopped must know the facts b He must intend that his conduct shall be acted upon or must so act that the party asserting the estoppel had the right to believe that it was so intended c The party asserting the estoppel must be ignorant of the true state of facts d He must rely upon the conduct to his injury 2 Knayshi v AH Robins P sued for abortion caused by D s product abortion was in 1972 P read about problems with product in 1976 and P learned that D s product was used on her in 1977 a No discovery rule in NY i Instead statute of limitations runs from when the injury actually occurred no matter what the P knew at the time b But estoppel can be used to preclude the statute of limitations defense in two ways i D makes representations that induce P not to sue or ii D fraudulently conceals its wrongdoing 1 Here D made representations that the product was safe so judgment for P 15 XX SLAPP suits and AntiSLAPP special motions to strike a SLAPP Strategic Lawsuit Against Public Participation i CA Code of Civil Procedure Section 42516 ii Example suit by employer against union which seeks an injunction preventing some union activity 1 Or suit by department store prohibiting protestors from demonstrating outside b AntiSLAPP motion or special motion to strike can be brought if i The lawsuit arises from any act in furtherance of free speech or free petition right and 1 Four categories a Written or oral statement made before a legislative body or other lawful proceeding b Written or oral statement made in connection to an issue under consideration by a legislative body or other lawful proceeding c Written or oral statement in a public place so long as it s in connection to a public interest d Any conduct in furtherance of free speech in connection with a public issue ii P does not have a reasonable probability of success on the merits c If court grants the antiSLAPP motion the case is over i No discovery and P must pay attorneys fees d Echelon the D does not have to show that the SLAPP suit was brought with the intent to chill rights i He must simply show the two steps listed above 16
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