Foundations and the Remedies Attack Order

Elementos

When damages are inadequate

Any one of these is enough to write the adequacy sentence:

1. 1.Multiplicity: The wrong repeats or continues, so the plaintiff would need many suits (a recurring trespass, for example).
2. 2.Unique property: The subject is land, art, an heirloom or a one-of-a-kind good; money cannot buy a substitute.
3. 3.Speculative loss: The loss is real but cannot be measured with reasonable certainty (lost goodwill, a new business).
4. 4.Insolvent defendant: A money judgment would not be collectible.
5. 5.Cannot be undone: The injury cannot be repaired after the fact: a felled tree, a disclosed trade secret, lasting harm to health.

Qualquer um é suficiente.

Mnemônico

Any one reason makes the legal remedy inadequate. Name the reason that fits the facts; do not list all five.

EstatutoCA

Cal. Civ. Code § 3387

Civ. Code § 3387 (land presumed unique)

It is to be presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation. In the case of a single-family dwelling which the party seeking performance intends to occupy, this presumption is conclusive. In all other cases, this presumption is a presumption affecting the burden of proof.

Caso

Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959) (U.S. Supreme Court 1959)

Observação

California state court: order of trial

The Seventh Amendment does not apply in state court. The California Constitution (art. I, § 16) keeps the jury right as it existed at common law. The court looks at the “gist of the action” (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1). A legal gist goes to a jury; an equitable gist goes to the judge, who may try the equitable issues first. Write this only if a California-law call includes a jury demand.

Ponto-chave

The jury right follows the claim. Damages: jury. Injunction or specific performance: judge. Both in one case: legal issues first (federal), gist of the action (California).

Dica de exame

Write the adequacy sentence before every equitable remedy and tie it to one fact: unique land, insolvent defendant, repeated trespass. Specific performance appeared on 16 of the last 50 exams, and the adequacy point is where its marks begin.

Notas principais

1. 1.Legal remedies: money and return of property; jury; no discretion; enforced by execution.
2. 2.Equitable remedies: orders and property devices; judge; discretion; enforced by contempt.
3. 3.Gate to equity: the legal remedy is inadequate (MUSIC: multiplicity, unique, speculative, insolvent, cannot be undone).
4. 4.Land is presumed unique (Civ. Code § 3387); unique goods qualify under UCC § 2-716.
5. 5.Federal court: the jury decides shared issues first (Beacon Theatres); California: gist of the action.

EstatutoCA

Cal. Civ. Code § 3281

Civ. Code § 3281 (damages defined)

Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.

EstatutoCA

Cal. Civ. Code § 3358

Civ. Code § 3358 (no more than full performance)

Except as expressly provided by statute, no person can recover a greater amount in damages for the breach of an obligation, than he could have gained by the full performance thereof on both sides.

Ponto-chave

Compensatory looks at the plaintiff’s loss. Restitution looks at the defendant’s gain. Coercive relief looks forward and orders conduct. Declaratory relief only states rights.

Dica de exame

When the defendant profited more than the plaintiff lost, write a separate paragraph headed “Restitution (unjust enrichment).” State both numbers and choose the larger. Restitution was tested on 7 of the last 50 exams.

Notas principais

1. 1.Four families: compensatory (plaintiff’s loss), restitutionary (defendant’s gain), coercive (order), declaratory (statement of rights).
2. 2.Civ. Code § 3281: damages are money compensation for detriment caused by another’s unlawful act or omission.
3. 3.Civ. Code § 3358 caps contract damages at what full performance would have given the plaintiff.
4. 4.Civ. Code § 2224 makes a person an involuntary trustee of a thing gained by fraud, accident, mistake or other wrongful act.
5. 5.Compute loss and gain, then elect the larger; never recover twice for the same loss.

EstatutoCA

Cal. Civ. Code § 3300

Civ. Code § 3300 (contract damages)

For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.

Elementos

The limits on damages

Every damages claim must satisfy the first three; the fourth reduces the award:

1. 1.Causation: The wrong was the actual (but-for) and proximate cause of the loss.
2. 2.Foreseeability: In contract, the loss was foreseeable at the time of contracting (the Hadley rule).
3. 3.Certainty: The amount can be estimated with reasonable certainty; speculation is not enough.
4. 4.Mitigation: The plaintiff cannot recover losses that reasonable effort would have avoided.

Todos os elementos necessários.

Caso

Hadley v. Baxendale, (1854) 9 Exch. 341 (Court of Exchequer 1854)

Caso

Howell v. Hamilton Meats & Provisions, Inc., (2011) 52 Cal.4th 541 (California Supreme Court 2011)

Dica de exame

Mitigation: always one paragraph, even when nothing could be avoided. It was tested on 13 of the last 50 exams.

Ponto-chave

Three gates (causation, foreseeability, certainty), then subtract what the plaintiff could reasonably have avoided. Contract foreseeability is tested at contracting; tort foreseeability lives in proximate cause.

Notas principais

1. 1.Causation: actual and proximate cause of the loss (Civ. Code §§ 3300, 3333).
2. 2.Foreseeability: contract losses must have been foreseeable at contracting (Hadley; Rest. § 351); in tort, proximate cause does the work.
3. 3.Certainty: the amount must be provable with reasonable certainty; new-business profits need real evidence (Sargon).
4. 4.Mitigation: no recovery for avoidable loss; comparable substitutes only; the defendant bears the burden (Parker).
5. 5.Collateral sources are not deducted; in California, past medical expenses are capped at the amount paid (Howell).

Elementos

Prerequisites for permanent equitable relief

The plaintiff must show all of these:

1. 1.Inadequate legal remedy: Damages would not make the plaintiff whole (MUSIC, section 2).
2. 2.Feasibility of enforcement: The court can supervise the order without continuous oversight and has power over the defendant.
3. 3.Balance of hardships: The hardship to the defendant (and the public) is not greatly disproportionate to the benefit to the plaintiff.

Todos os elementos necessários.

Elementos

Plus, depending on the remedy

1. 1.For specific performance: A valid, definite contract; the plaintiff has performed or is ready to perform; conditions are satisfied.
2. 2.For an injunction: A tort or other wrong that is continuing or threatened and causes irreparable harm.

Qualquer um é suficiente.

EstatutoCA

Cal. Code Civ. Proc. § 525

CCP § 525 (injunction defined)

An injunction is a writ or order requiring a person to refrain from a particular act. It may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court.

Elementos

The five equitable defenses

Check each one against the facts, then say which apply:

1. 1.Laches: Unreasonable delay plus prejudice (lost evidence, changed position, money spent in reliance).
2. 2.Unclean hands: The plaintiff’s misconduct connected to the transaction: fraud, bad faith, illegality.
3. 3.Estoppel: The plaintiff’s words or conduct led the defendant to rely; the plaintiff may not now claim otherwise. It can also defeat damages.
4. 4.Unconscionability: The bargain was unfair or oppressive when made. Equity will not enforce it (Civ. Code § 3391); as a contract defense it also bars damages.
5. 5.Impossibility: The defendant cannot perform the order, for example because the land was sold to a bona fide purchaser.

Qualquer um é suficiente.

Ponto-chave

Equitable remedies are discretionary. Never write “the court will grant the injunction.” Write “the court is likely to grant the injunction because…” and then give the reason.

Dica de exame

Write a defenses paragraph after every equitable remedy, even to say that none applies. Laches appeared on 12 and unclean hands on 11 of the last 50 exams; examiners plant the delay or the bad act in the facts.

Notas principais

1. 1.Prerequisites: inadequate legal remedy, feasible enforcement, and hardship to the defendant not greatly disproportionate to the benefit.
2. 2.Interim relief adds likelihood of success and irreparable harm before trial (Winter; CCP § 527).
3. 3.No order for personal services or for work the court cannot supervise (Civ. Code § 3390).
4. 4.Five defenses; laches and unclean hands generally bar equitable relief only, while estoppel and unconscionability can also defeat damages.
5. 5.Laches is unreasonable delay plus prejudice; unclean hands is the plaintiff’s related misconduct.
6. 6.California exception: unclean hands can also defeat a damages claim (Kendall-Jackson).

Elementos

The six-step attack order

Work through every step for each plaintiff:

1. 1.Step 1: Identify the substantive wrong: breach of contract, tort, property injury or breach of fiduciary duty. The wrong fixes the measure.
2. 2.Step 2: Legal damages: state the measure, apply causation, foreseeability and certainty, then mitigation. Add nominal or punitive damages if the facts fit.
3. 3.Step 3: Restitution: legal first (quasi-contract, money for the benefit), then equitable (constructive trust, equitable lien, tracing into substitute property).
4. 4.Step 4: Coercive relief: specific performance (contract) or injunction (tort, property). Elements: inadequacy, feasibility, hardship; interim relief if urgent.
5. 5.Step 5: Equitable defenses: laches, unclean hands, estoppel, unconscionability, impossibility. Say which apply and which do not.
6. 6.Step 6: Declaratory relief: add it when the parties need a ruling on their rights and no order is yet needed.

Todos os elementos necessários.

Hipotético

Worked outline: the fraud-induced transfer (in the pattern of the July 2026 Remedies essay)

Ana owned a baseball signed by a famous player, worth $50,000, and had $100,000 in savings. Ben, a collector she trusted, told her the signature was a forgery and that the ball was worth $500. That statement was false, and Ben knew it. Ana sold the ball to Ben for $500. Ben then told Ana that he could invest her savings in a start-up company. No such company existed. Ana transferred $60,000 to Ben. Ben added $180,000 of his own savings to the $60,000 and bought a condominium for $240,000. The condominium is now worth $400,000. Ben gave the baseball to his nephew Dan as a birthday gift. Dan knew nothing about how Ben obtained it. Ana learned all of these facts two years ago. She did nothing until last month, while Ben spent $30,000 of his own money renovating the condominium. Ben has since spent his other savings and has no other significant assets. Ana now sues Ben and Dan.

What remedies can Ana obtain against Ben and Dan? Work through the six steps.

IRAC

Emitir

The issue is whether [plaintiff] can obtain [remedy] against [defendant] for [the wrong].

Regra

State the remedy’s elements in one to three sentences. For damages: the measure, then causation, foreseeability, certainty and mitigation. For restitution: unjust enrichment and the defendant’s gain, with a constructive trust or equitable lien if the defendant holds identifiable property. For coercive relief: inadequate legal remedy, feasibility and balance of hardships; for interim relief add likelihood of success and irreparable harm. Name the source when it helps: “Under Civil Code section 3387, land is presumed unique.”

Aplicativo

Here, [fact] shows [element 1]. [Fact] shows [element 2]. Then the other side: “[Defendant] will argue that [defense or missing element]. However, [fact] shows [answer].” Compute every number the facts allow and show the arithmetic.

Conclusão

Therefore, the court is likely to [grant / deny] [remedy], and [plaintiff] should elect [remedy] because [reason].

Dica de exame

Use the six steps as your headings: Wrong, Damages, Restitution, Specific performance or Injunction, Defenses, Declaratory relief. Under each heading, write IRAC. A step that does not apply gets one sentence saying so.

Notas principais

1. 1.Step 1 names the wrong; the wrong fixes the measure and the available orders.
2. 2.Steps 2 and 3 are alternatives for money: the plaintiff’s loss or the defendant’s gain, never twice for the same loss.
3. 3.Step 4 orders conduct only after the adequacy, feasibility and hardship points.
4. 4.Step 5 tests every equitable remedy against the five defenses; step 6 adds a declaration when useful.
5. 5.A constructive trust follows property into a donee’s hands but stops at a bona fide purchaser.

Praticar · MBE

Praticar · MBE

Praticar · MBE

Praticar · MBE

Hipotético

Mini-essay drill (15 minutes): the abandoned house

A homeowner hired a contractor to build a house for $150,000, payable in stages. The contractor knew that the homeowner planned to live in the house when it was finished. After the homeowner had paid $100,000, the contractor walked off the job with the house half built and refused to return. The homeowner obtained bids from three other builders. The lowest bid to finish the house according to the original plans is $90,000. A neutral appraiser valued the work the contractor had completed at $60,000. Because of the delay, the homeowner has rented an apartment for three extra months at $2,000 per month.

What remedies can the homeowner obtain against the contractor? Discuss.

Notas principais

Chapter summary

1. 1.Essay-only (76 percent of exams) and always built on a Contracts, Torts, Property or Business Associations wrong; general law applies unless California is called.
2. 2.Legal remedies (money, jury, no discretion) versus equitable remedies (orders, judge, discretion, contempt); equity needs an inadequate legal remedy.
3. 3.Four families: compensatory (plaintiff’s loss), restitutionary (defendant’s gain), coercive (order), declaratory (rights).
4. 4.Damages pass three gates (causation, foreseeability, certainty) and are reduced by avoidable loss (mitigation).
5. 5.Equitable relief needs inadequacy, feasibility and a favorable hardship balance; laches and unclean hands are the leading defenses.
6. 6.Six steps every time: wrong, damages, restitution, coercive relief, defenses, declaratory relief.