QUESTIONS
AND
ANSWERS: REMEDIES
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[last updated Dec. 2, 2009]
Q: In the 2005 practice final, the answer states that specific performance requires adequate consideration at the time of contracting. However, in my notes, adequate consideration is required at the time of breach. Has this rule changed since 2005?
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Q1) Do we need to know about SuperFund legislation?A: No.
Q2) One element of equitable estoppel is that the party claiming estoppel must be ignorant of the true facts. What does that mean?A: The test for estoppel is not perfect--just do the best you can with it. Often it involves someone taking a position ("the fence is on the property line") and the other relying on it. But if the other person knows the fence is NOT on the property line, she cannot claim estoppel against the party making the assertion.
Q3) I have in my notes that unconscionability is a defense to any type of breach of K whether it be for goods, services, employment, etc. I thought, however, that the UCC made it a defense for legal AND equitable claims ONLY arising from the sale of goods?A: These days it applies to all contracts.
Q4) In the ARIES case, why did the court rule that COVERING would not have prevented the loss of use damages?A: You need to cover only if it will reduce (mitigate) the profits you would have made by using the boat. Aries planned to use the boat for pleasure and was not seeking lost profits.
Q5) Is an increase in interest rates a function of incidental damages? I'm confused as to how the issue of deposits fits into a real estate contract breach analysis.A: Increased interest rates would be part of expectation damages. As to deposits, the issue is usually whether the deposit constitutes liquidated damages.
Q6) In the case of valuing trees, if the trees are ornamental or windbreaks, my notes state you get the reduction in value but is this the reduction in value of the land on which the trees sit or the trees themselves?A: the land.
Q7) Can you recover for grief following the loss of a loved one in a wrongful death action?A: no, not directly, although loss of consortium might cover something similar to grief, I suppose.
Q8) Was the injury in the Puerto Rico case a temporary injury to real property caused by the oil spill? Additionally, I dont understand the relationship between the CAP on damages and the fact that the State of Puerto Rico can't replace the damaged mangroves.A: It was permanent--a one-time event. I don't understand the second question.
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Q 1. Do you have to go through the traditional injunction test for TROs or just follow FRCP 65?A: You go through the test. FRCP 65 just relates to the procedure and timing.
Q2. Is a TRO and PI immediate relief and not a remedy? whereas a permanent injunction is a remedy?A: a TRO is a temporary remedy.
Q3. I know that the purpose of a TRO and PI is to preserve the status quo until the PI hearing and trial judgment, respectively. Is the purpose of a permanent injunction also to preserve the status quo?Q4. Does the alternative test apply only to PIs?
A: After trial, you no longer need to preserve the status quo. How you proceed depends on who won the case.
Q5. Can I incorporate the "adverse to public interest" prong into the balancing test or should I keep this as a separate prong?A: you need to consider it, and it makes sense to consider public interest when balancing.
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Q1. On an exam, if we are deciding whether specific performance is proper, what elements should we discusss? for the Henderson case, I have 7 elements downQ2. Is making a motion for summary judgment on a claim classify as electing a remedy?
should all 7 be evaluated on an exam? I have only seen the last 3 in one case that we have discussed
- 1. no adequate remedy at law,
- 2. valid k between the parties,
- 3. P has substantially performed,
- 4. D is able to perform ,
- 5. adequate consideration,
- 6. mutuality of remedies,
- 7. definite terms
A: yes, evaluate all 7.
A: if granted, yes. If denied, it could go either way.Q3. for election of remedies, who follows the Altom reliance factor? does CA follow that? I believe you said we follow strict election of remedies. for exam purposes, what are we using?
Q4. the most common definition for "presence" of the court (for direct contempt) is the judge seeing or hearing the disturbance. is this the definition we should use for the exam?**************************************************************
A: correct.
Q1: First, in the Carribean Marine case, we discussed
the "alternative test." I am not sure if I understand how to conduct
this test. Here's what I understood...
We would first go through the traditional 5 point test (1. moving party is substantially likely to prevail on merits, 2. inadequete remedy, 3. irreperable harm, 4. balancing and 5. public interest),
Then if we find that the moving party is unlikely to prevail on the merits, we go to the alternative test, and 1. we ask whether they have a serious question and 2. then re-assess the balancing (but not the other elements)
Then if they have a serious question and balancing tilts in their favor, the alternate test might be met.
Am I on the right track?
Q: My second question is for quasi- specific performance. For the Henderson case, we added 3 new elements to the specific performance test (1. adequete consideration, 2. mutuality of remedies, 3. definite terms). Are these 3 elements ONLY factored in when we are dealing with quasi-specific performance (i.e when someone is sueing an estate rather than a person)?
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QUESTIONS BELOW THIS LINE ARE FROM THE
2008 CLASS
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Q: i think i have one last
question. I have tried looking
in the book as well as online to get a better feel for assumpsit/common
counts/conversion issues ,(especially after I read your #3 of the
sample multiple choice questions) but I still do not have a good feel
for this concept. Can you shed some light on this matter?
A: Admittedly this is somewhat confusing. Basically, the common
counts are ways to recover on debts in specific fact situations (when
you deliver goods to someone and they don't pay, you can sue for the
common count of goods sold and delivered). Together, the common
counts are sometimes called assumpsit. Over the centuries, the
courts have started to allow plaintiffs to use common counts in ways
that are somewhat fictional. Most specifically, you can sometimes
sue for goods sold and delivered when the person stole the goods.
In other words, you waive the suit for conversion and sue in
assumpsit. Why bother? Because the statute of limitations
may be longer for assumpsit and sometimes (as the book explains) you
can get a higher recovery.
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Q Quasi-k: I am trying to get a
better understanding of restitution. Is it proper to think of quasi-k
as the claim (proving that D rec'd a benefit, is unjustly enriched, and
should in good conscience compensate P) and common counts, constructive
trust, and equitable lien as specific remedies?
A: that would work in most cases, except that common counts are also a
claim
Q: Common Counts: I am confused about this because when you
discussed it in class, it seemed like a shortcut to recover debts -
either from the loan of money or the sale of goods. However, in the
book, it discusses common counts as a way of fictitiously implying a k.
In a typical loan or sale of goods transaction, there is an enforceable
k, so I don't understand why this is necessary.
A: they are a shortcut to recover debts, but you can also use them
fictitiously sometimes because there can be procedural
advantages. FI someone breaches a contract and the injured party
is just trying to recover a fixed amount of money (i.e., a debt),
common counts may be the better way to proceed.
Q: Additionally, I am confused about how common counts waive
torts. Again in a debt collection scenario, there does not seem to be a
tort, but a breach of k.
A: correct, so there is no need to waive anything in that case.
But with some tort causes of action, especially conversion, you can sue
for assumpsit instead by waiving the tort. You might have a
longer statute of limitations and in some cases the recovery might be
greater.
Q: Temporary Injury to Land: I just want to clarify something
that I asked you in my first email. The damages that a P can recover
for a continuing and abatable injury to land are: (1) Lost use/profits,
which may be measured as reduced rental value or reduced productivity
of land (i.e. reduction in value of wheat crops v. corn corps); AND (2)
cost to repair or reduction in value, whichever is less. Correct?
A: yes
Q: cancelling k: I have in my notes that a buyer is only allowed
to cancel the k if the seller breaches the whole k, but the seller can
cancel k without limitation. This does not seem fair. Did I write this
down wrong? Also, the UCC seems to say that the buyer can cancel AND
receive ordinary/incidental/consequential damages, whereas the seller
can cancel or receive damages? Am I just reading this wrong?
A: your notes are wrong. A party can cancel if the other party
breaches or repudiates.
Q: Reliance v. Restitution
Damages: Why would the non-breachng party in an express k action ever
choose restitution damages over reliance damages? Aren't reliance
damages usually preferable (if expectation damages are not available)?
In what situations would this make sense?
A: if there were no out of pocket expenses
Q: Replevin: What do we need to know about replevin, besides its
relevance to the adequacy of legal remedy issue? NO
A: you only need to know what I told you in class.
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Q: Professor, is there a situation where
you can get restitution AND damages? I know with Ks you can't because
of election of remedies. But what about with torts?
A: We read a case with exactly this situation--Head and Seamann v.
Gregg, where the developers got back the house and the defendant also
had to pay for the use of the house. Technically, however, the
lost use or rental value would not be classified as compensatory
damages, because it is really an adjunct to restitution. There
are some more comments on this case below.
Q: Also, you mentioned the ways to get restitution are a few- 2
being, breach of K, and rescission and restitution- but isn't that the
same as under breach of K? When would you rescind something and
get restitution that doesn't involve a K?
These seem like the most basic questions, yet my
friends and I from LLS, Southwestern, and UCLA, no one can seem to
answer it haha. Thanks! MR
A: Well, it's a good thing you're not at Southwestern or UCLA, so I'll
answer your question! I know I went over this in class, but it's
complicated so I'll say it again. First, in the context of breach
of a contract, the injured party as 3 options: (1) ignore the breach
(waive it) and proceed with the contract as though nothing happened;
(2) seek rescission and restitution. This "undoes" the contract,
so we treat it as if it had never been made. (3) sue for
breach. This affirms the contract--we treat it as having been
made and then broken. The basic remedy in this situation is
expectation damages, but if they are uncertain or not available for
some other reason, the plaintiff can get reliance damages or
restitution of any benefit conferred. In this case, the
restitution does not include rescission. Practically speaking the
results are similar, but you reach them via different routes.
Outside of the contracts area you can also get
restitution, as in quasi-contract (there is not valid contract but the
court implies one), or constructive trust (which can be a remedy for
fraud, which is a tort).
Q With caps- I have notes on this that say one thing, and a student
saying another.
My notes say there are 2 caps: 1.) can't exceed FMV before the injury.
2.) CA CAP: cost to repair can't exceed reduction in value.
Now 1st question- the student says that the 1st cap is ALWAYS applied-
meaning that cost to repair can't exceed reduction in value, but if the
person really wanted to repair, they can get the cost to repair, but
that still can't exceed FMV. Basically he says you can NEVER
exceed FMV- regardless. SO does that mean BOTH caps are always at play-
or just one?
A: The basic cap for both personal injury and injury to real
property is that damages cannot exceed the reduction in value.
This is the California rule and we adopted it for class. Of
course, the other cap (damages cannot exceed FMV before the injury)
also applies in a sense, but I think that it is best to ignore it,
because it only leads to confusion. So keep it simple--cost to
repair cannot be more than the reduction in value. When can you
exceed it? See next question.
Q Second, the exception from the Roman Catholic case- that you
can get cost to repair even if it exceeds reduction in value, when you
really want to repair and the cost to repair is reasonable- is that cap
for PERMANENT AND TEMPORARY- REAL AND PERSONAL PROPERTY? We only
learned it in the context of temporary injury to real property.
A: In the Roman Catholic case, the court held that cost to repair could
exceed reduction in value and even the FMV before the injury.
This also seems to be the rule in California--see the last paragraph of
CACI 3903f on the course website. What is not clear from the
Roman Catholic case or CACI is whether the same rule applies to
personal property.
Q Also the caps I mentioned above- those are caps that are for
personal, real, temporary, or permanent, correct?
A: Yes. Technically, damages for total destruction of personal
property are the fair market value of the property before the injury,
but this also fits within the cap, because the reduction in value and
FMV before the injury are the same.
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Q1. To request a TRO or
preliminary injunction, must the plaintiff be seeking a permanent
injunction in the underlying case? I'm thinking of an example
where, in an action for damages, you would want to temporarily restrain
the other party from acting until your rights are adjudicated.
A: As far as I know, this is not normally required. On the other
hand, if you seek a TRO, you are expected to bring a motion for a
preliminary injunction, since this is the main purpose of a TRO.--to
preserve the status quo until you can bring such a motion
Q2. UCC Buyer's remedy: Is it correct to say the cost of
cover only comes into play if it cost more than the original contract
price? Since if cover cost less, there is no loss of bargain,
except maybe incidental and consequential damages...?
A: Actually, this would be true for both the cost to cover and the
market price (which are usually going to be similar amounts). If
the buyer can cover for less than the contract price, or if the market
price is less than the contract price, the buyer has suffered no loss
in value. It's very unlikely that the seller would breach in this
situation, unless perhaps it cannot obtain or manufacture the
goods.
Q3. UCC buyer's remedy for consequential damages--that the Seller
"had reason to know" of requirements/needs sounds pretty close to
actual knowledge, rather than inferring, for example, that the Seller
knew the Buyer needed the goods to make a car because the Buyer is a
car maker. Is this true?
A: if the buyer is a car maker and the seller provides parts needed for
assembly, the seller would have reason to know that the parts are
likely to be used to assemble the cars. But it might not know
that the parts are needed immediately, or the parts might be so widely
made that the car maker could quickly cover. On the other hand,
if the seller knows that the car maker routinely uses "just-in-time"
delivery and the goods are not widely and quickly available from other
vendors, the seller has reason to know that delayed shipping or a
breach will cause consequential damages.
Q4. In your 2004 essay example, the court awarded funeral and
medical costs in the survivorship action. Those amounts could
have been awarded in the husband's wrongful death action, if he was the
one that paid them, correct? DL
A: correct, but they cannot be recovered twice, once in the
survivorship action and once in the wrongful death action.
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Q1: I understand that you must obey a court order even if it
is later found to be invalid or unconstitutional (assuming Walker
doesn't apply). Does this apply to interlocutory AND permanent
injunctions? I'm having a problem distinguishing the effects of
disobeying a civil court order that is later found to be
unconstitutional/invalid.
A: A permanent injunction is granted after trial on the merits in a
civil case, as part of the judgment, so disobedience could only lead to
civil contempt. You cannot be held in civil contempt if the order
is later invalidated or held unconstitutional.
Q2: Substantial compliance and good faith efforts to comply are
defenses for contempt. Do they apply to both civil and criminal
contempt?
A: I think you could raise it as a defense to criminal contempt,
but this applies mainly to civil.
Q3: Under the UCC, a seller can recover for lost profits if he can
prove he is a lost volume seller or the market is too weak or
nonexistent. I understand the measure of damages for a lost
volume seller. What would the measure of damages be if the market
is too weak/nonexistent? Just the lost profits for the one lost
sale?
A: correct--profits that the seller would have made on the contract if
the buyer had not breached.
Q4: For personal injury/tort damages: Future medical expenses are
set at present value. I also understand that if the injured party
will be placed in a home/care facility you look at the cost per day x
life expectancy of the injured person plus fluctuating interest
rates. What about future medical expenses like future
surgeries. Is that also reduced to present value?
A: see my answer directly below.
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Q: I know that the present value rule applies to all economic damage awards in personal injury cases, but does it also apply to future medical expenses?
In my class notes I have that Future Medical Expenses are the exception to the Present Value Rule, but in my review notes I have the opposite...WA
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Q1) Constructive Trust: What are the
requirements for a constructive trust? My understanding is that a
constructive trust requires the following requirements to be met: (1)
Actual/constructive fraud OR breach of a confidential relationship; (2)
Inadequate legal rememdy. Is there also a separate requirement for
unjust enrichment or is that implied when (1) is met?
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Q: Are Lost Profits considered consequential damages? And if so, how can a Seller recover lost profits per UCC 2-708(2) if Seller's are never allowed to recover consequential damages? WA
A: If the buyer breaches a contract for a sale under the UCC, the seller usually gets the contract/market or contract/resale differential. Recall that lost profits from the sale are available if the seller has lost volume or if there is a very weak market. These are ordinary damages that result directly from the breach, because they result from losses between the buyer and seller.
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Q1. I think we established that unconscionability is a defense to enforcement of contract, not a cause of action to seek a remedy. I was wondering about estoppel--we covered it in the context of equitable defenses, but did we also touch on it as a cause of action? i.e., is promissory estoppel a cause of action where you can seek a remedy?
A: Normally, estoppel is a defense (or sometimes a defense to a defense, as when it prevents a defendant from relying on the statute of limitations). But you are right about promissory estoppel--it is indeed a cause of action these days.**********************************
Q: Do we need to
memorize the UCC's? Or are you going to give us a copy of the relevent
UCC statutes?
A: You will not get a
copy. You need to
know the substance but not the exact language. Concentrate on
those parts that we discussed in class.
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Q: Did we "adopt" either the traditional or alternative test for TROs/preliminary injunctions as a class rule like we have with other jurisdictional splits?
A: you should always start by trying to apply the traditional test. If that fails, see if the alternative test would work.
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Q: In regards of suing for aesthetic value of the land i.e. Kroulie v. Knuppel, what do you have to show to receive damage? Is an expert opinion sufficient?RF
A: either an expert or lay opinion testimony would
probably be
acceptable. They should testify on the reduction of the FMV of
the land caused by the injury.
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Q: Firstly, several times throughout my outline I have it written where
it is the buyer's duty to mitigate any harm resulting from the seller's
breach. However I also have in another spot of my outline,
specifically in the "sale of goods contracts" section, that the buyer
does not have to cover and can still recover the normal damages.
I thought that the non-breaching party always has a duty to mitigate
which in this example covering would be considered mitigating??
Essentially, what is the policy on mitigating? Must the
non-breaching party always try to mitigate/cover or only in times when
it would limit his consequential damages? Does this mitigation
apply to both contracts and torts?
Q: Thirdly, in the Hawes case discussing Election of Remedies, the court discussed the third element that the defendant must have relied on the plaintiff's election of a remedy to use this doctrine to his defense...is this the case or was this just another added element by this court? Is it just that P chooses two inconsistent remedies and elects one of them?A: we follow Hawes, as I stated in class when discussing the case.
Q: Fourthly, when a Buyer breachers, i think it was the Sprague case that said there was a difference between the market price at time and place of tender and the price at the time the Buyer breaches? Which one should we use?A: I'd suggest reviewing the UCC handout.
Q: Fifthly, in the Yazoo case, is this the general ruling from the case and current applicable law...if the buyer accepts defective goods and does not return or object to these goods after reasonable time to inspect the goods, the buyer cannot rescind the K as to the goods accepted? This does not prevent the buyer from suing for breach however the buyer is still liable for the price of the goods? If the buyer further does not give the seller adequate notice that the goods are defective then the buyer loses his right to sue for breach?? Is this correct?A: good summary, although I might have added a few commas here and there.
Q: Sixthly(if thats a word), in tort damages to personal property, there is lost use for partial destruction of property...is there lost use for total destruction? Is this rule the same for real property?A: Yes (see McAlister case) and no.
Q: Seventhly, when suing for wrongful death, i have in my notes that in regards to injuries to the deceased the family of the deceased can recover medical bills, funeral costs, pain and suffering, lost enjoyment of future life, lost earnings...and for injuries to others the family can recover medical bills, funeral expenses, grief, mental distress, and loss of consortium. However from the Baptist Three Rivers Hospital case, the court said that you could not recover for lost enjoyment of future life and earnings, couldnt recover for grief but the main thing to recover was loss of consortium. There is a contradiction here.A: OK, "seventhly" is going too far. In any event, your notes are not entirely correct. See CACI 3921 on the course website.
Q: Lastly, i have in my notes that the principle of certainty is now held to mean that the "fact" of an injury must be proven with reasonable certainty in torts but the "amount" of injury does not have to be shown with as much certainty. I thought to recover damages certainty was "key". Can you explain? RFA: What is key is that there be evidence to support the amount of damages. The level of certainty varies depending on the situation, as your notes suggest.
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Q: I'm a little confused about the Head & Seeman case and the issue of election of remedies. How are rescission/restitution and damages for lost use consistent in this case? Why did the court allow both remedies to be granted (double recovery)? It seems like the restitution disaffirms the K, but on the other hand, granting lost use of the property affirms the K, making them inconsistent remedies and therefore subject to the election of remedies defense? Is there an exception here since the cause of action was for fraud and breach of K?I also have in my notes that if Plaintiff requested damages for lost use first, he wouldnt be able to get restitution after that? Is this correct?
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Q1. In my notes, under indirect criminal contempt, I have that the modern rule is for courts to require that the conduct occur in the presence of the court. Is this correct? And if so, wouldn't this be considered direct contempt, meaning no due process safegaurds?A: Your notes are wrong (or I said it wrong in class)--that is indeed the rule for direct criminal contempt.
A: Yes, although as a practical matter the judge is going to be a bit more skeptical at this stage, especially if the opposing party is not present.
Q2. When granting a TRO does the court look at the same factors they would look at when granting a preliminary injunction?
A: Interesting question. Because laches requires both unreasonable delay and prejudice, if the plaintiff proves that either one does not exist, the defense is not available.
Q3. Under Laches, if the statute of limitations period has run, then the burden shifts to the plaintiff. What does the plaintiff have to prove? Does the plaintiff have to show that the delay was reasonable AND that there was no prejudice to defendant? SE
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Q1.) With prohibitory injunctions, you mentioned if its appealed,
you don't get an automatic stay on appeal- what does "stay on appeal"
mean?
A: it means that the injunction cannot be carried out. A
mandatory injunction is stayed and therefore does not go into or remain
in effect
during the appeal. It's in abeyance until the
appeal is decided. A prohibitory injunction is not
automatically stayed on appeal (although the appellant can request a
stay--it simply is not automatic).
Q2.) With interlocutory injunctions, the party receiving the injunction
must post bond to cover their potential losses- is that for
interlocutory injunctions only, or for all injunctions?
A: it applies only to interlocutory injunctions.
Q3.) When discussing laches, you said they are not subject to
tolling. What does that mean?
A: It means that the principle of tolling (which stops the running of
the clock with the statute of limitations) does not apply to
laches. An example of tolling is that the limitations period does
not include time that the plaintiff was in military service. With
laches, on the other hand, the test is reasonableness, so if it was
reasonable for the plaintiff not to bring suit because of military
service, laches does not bar the suit.
Q4.) With unconscionability, you discussed UCC 2-302- but it seems the
UCC is same as the common law view- is that right? Should we know
2-302 separately? MR
A: UCC 2-302 is basically a codification of the common law, so the
standard of what is unconscionable is the same. What 2-302 did
was to extend the principle of unconscionability (which traditionally
was an equitable defense) to all cases falling under the UCC, which
includes cases in both law and equity.
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Q: Will we need to know case names for the exam? Just the ones
you specifically mentioned during the review? MB
[NOTE: questions and answers below this note are from an earlier
edition of the book, so there may be some minor differences in rules
and you may see references to cases that we did not read.]
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A: Incidental damages are a type of
ordinary
damages. With a breach of contract,
ordinary damages consist of the loss in value (for instance, difference
between
contract and market price), plus incidental damages (for instance, the
extra
cost of storing goods and insuring them because the buyer breached),
minus cost
avoided. Check Sprague v. Sumitomo for
some more discussion of incidental damages.
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Q1 You said that medical experts are not
allowed
to put a price on the pain and suffering of an individual, only talk
about
whether they are in pain, etc. You also said that economic experts are
not
allowed to come in and talk about, how much money a person would take
to go
through the same pain and suffering. But then you said that a lawyer
can state
in a per diem argument or make up a formula by saying:
I suggest to you that P&S for our client
can be $1,000 a day.Doesn't this circumvent the limits on all of the
above?
A: A lawyer's argument is a very
different matter
from expert testimony. Jurors supposedly
look to argument as just that, argument, whereas they supposedly pay a
lot of
attention to expert testimony. That's
the reason for the difference.
Q2In CA are hedonic and Pain and
Suffering
separate? And if so, are hedonic awards reduced to present value?
A: California does not allow for
separate
calculation of hedonic damages. To some
extent, they may be included in pain and suffering.
P&S is not reduced to present value.
Q3: Loss of
consortium, does that come in under a Wrongful Death claim, I think you
said
you would only ask for the intangibles, because the tangibles(support
and
services) are kind of brought separately, is that true?
A: In a wrongful death action, you can
claim both
tangible and intangible loss of consortium.
The only real difference with other types of personal injury is
that
support and services are often discussed separately.
The important thing is that they are recoverable
in a proper case.
Q: Is it true that parents can be bring
wrongful death
claims for children? I think you said maybe?
A: Our rule is that they can, but it is
unlikely
that they could recover for support and services, so mainly they would
recover
for intangible consortium..
Q: Also, which claims are brought first
in CA? Because
you said that if the Estate gets medical expenses, then WD claim does
not get
them, no double recovery. Do Estate survivorship suits come first
before WD? Or
did you mean that if the Estate is a person named by the deceased, and
then
that same person brings suit under a WD statute?
A: There is no particular priority.
Q: In CA you said no Pain &
Suffering under
Survivorship, but then I also wrote down can get P&S after injury
while in
hospital before his final days(death), is that true?
A: In a survivorship action in Calif,
you cannot recover for the decedent's P&S.
Q: Is it true that hedonic damages can
be
recovered in Survivorship actions? How would you measure that, I am a
little
confused, is that just in the realm of the jury to figure out, just has
to be
reasonable?
A: No, not in our jurisdiction.
Q4. Does the defendant
have to ask for
bifurcation when punies go to the jury or
is it
automatically done? Is it just a right that must be acted upon? Or is
it
automatic?
A: The trial is normally not bifurcated
unless the
defendant requests it.
Q5.
What is the deal with the 1st bite approach to punies:
do we have to follow that or just know that sometimes it occurs?
A: You should know that it is a partial
possible
solution to the problem of punitive damages in the mass tort or product
liability cases, but that most courts have not adopted it.
Q6. Do we need to know the
specific UCC
numbers?
A: No.
Q7.
In
a lost volume seller situation, they are getting lost profits for that
one sale
that didn't happened, and that's it, plus perhaps incidentals? Is that
correct?
A: In the lost volume situation, the
seller can
resell the goods without claiming damages for the difference between
the
contract and resale price. Instead, the
damages are measure by the profit that the seller would have made on
the
original sale (ie, the one that was
breached).
Q8.
In
regards to Contempt, which rule are we following, the one in Daniels or
Greenburg? Does the Judge have to see & hear the conduct, or is it
enough
just for it to happen near the courtroom and ask witnesses of the court
to
verify? Im a little confused on what rule we follow? RH
A: Greenberg.
****************************************************
Q How do we reconcile UCC 2-706 and 2-708(2). Both
factor in the resale as part of the calculation of
damages. Specifically 2-706 gives the seller the
difference between the resell price and the K price
(plus incidentals) where as 2-708(2) gives profit
(with overhead), incidentals, cost incurred LESS and
proceeds from a resale. I can't see any situation
where a seller would want to use 2-706 and not
2-708(2).
Are they just two different options for a seller? If
that is the case, then do all the notice requirements
of 2-706 also apply to 2-708(2)? SH
A: UCC 2-703 states that one of the seller's remedies is to recover the difference between contract price and resale price. Section 2-706 states how you should engage in a resale, if you wish to proceed with that option.
Section 2-708(2) states some exceptional circumstances where you can recover your lost profits. As we discussed in class, this includes: (1) there is no market price; (2) there is a weak market price, but the seller is not obligated to enter the market, usually because it will depress the market price even further, and (3) in the case of a lost volume seller. Thus, if you resell, you can only use 2-708(2) if you meet the criteria for being a lost volume seller.
***************************************************
Q1 ) What is the proper measure of damages to real property? I have
that it is the difference in the FMV before and after the injury for
permanent damage and that it is the cost to repair plus lost use (with
the cap) for temporary damage. However, the CA jury instructions say
that the measure of damages is the lesser of the cost to repair and
the difference in the FMV.
Are the jury instructions supposed to apply to both temporary and
permanent damages?
A: Your statement is correct, and it seems to me that the result in California is going to be similar to that in the Salt Co. case, even though Calif does not focus so much on the temporary/permanent distinction. California essentially gives the cost to repair, capped by the reduction in value.
Q: What happens when there is permanent damage to land and the cost to
repair is less than the difference in FMV, which rule should we follow?
A:
Under the Calif rule, you'd get cost to repair, since it's less than
RIV.
I think the same result would obtain in other jurisdictions, since the
duty to
mitigate would say that if the reduction in value is $20,000 and cost
to repair
is $10,000, you need to mitigate by repairing the property. In
reality,
this scenario does not happen much.
Q2) Also, I was reading some of the other questions and answers and it
seemed that you said that a lawyer can suggest a lump sum, but not a
per diem argument. I thought that our rule was that the lawyer can do
both. Am I misunderstanding the context of the other question, or is
the lawyer really not allowed to make a per diem argument? KM
A: Good catch! I switched rules this year since it looks like most jurisdictions are headed in that direction (California currently allows such argument, although some other types of argument on pain and suffering are still off limits). We did decide for this year that per diem arguments on pain and suffering are allowed.
******************************
Q1- As
far
as TROs & PI, are the
a. Alternative Tests the same? [strong showing of first 4 factors & serious question of the merits INSTEAD of a substantial question on the merits]?
b. Irreparable Harm = Great Harm, or is it Great harm for TRO and for PI it is 1) serious 2) immediate 3) real 4) not speculative?
A:
the legal standard for granting TROs and PIs are exactly the same. The
only
differences are procedural (timing, for instance, and the fact that the
TRO can
be given ex parte). In practice, however, a judge is likely to
have a
higher standard for a TRO, especially if the other side is not present
to
present its side of the issue.
Q2- For Direct Criminal Contempt- I understand that it needs to physically occur in the court room, but doe sthe judge have to see it with his own eyes? Hearing enough?
A:
The judge has to see or hear the contemptuos conduct. If the
judge hears
the defendant yelling obcenities in the hallway and knows that it was
the
defendant (recognizing his voice), that should suffice.
Q3- Is standard for coercive civil contempt same as compensatory, beyond a reasonable doubt?
A:
No, you would use the preponderance standard because it is a civil
proceeding.
Q4- Enjoining law suits- as I understand from the Mazzocone case, a court cannot completely bar a person from bringing future law suits, but can have their law suits be approved by a court first, correct?
A:
I would never say never, but for the most part that is true.
Q5- Limitations of Remedies- in CA can add a remedy, even if exclusive list to 1) carry out goals OR is it when 2) fails of its essential purpose?
A: That is the message of the Orloff case.
************************************************
Q1) With regards to personal property, when the item cannot be placed
in as good a condition by repair, long v. mcallister states that you
get the reduction in value plus loss of use (pg465), but CA statute
3903J states that you get the reduction in value plus the reasonable
cost of making the repairs? Which is the right rule to use?
A:
I would follow the California rule in that case.
Q2) Is equitable restitution, aka constructive trusts and equitable
liens,never a possible remedy with contract cases? If not, I assume it
is because there is an aqeduate legal remedy, is that correct?
A:
the only possible equitable remedy with breach of contract is specific
performance, not a constructive trust or equitable lien.
Q3) When there is a disobedience of an injunctive order, how do we
know if they should be held in criminal or civil contempt? How does
the court decide which one to impose?
A: It's not always easy to distinguish. But if, in a civil lawsuit, a judge says to defendant, produce those documents or I will have you thrown in jail until you do, or fine you this much per day, it is civil.
Q4) With contract damages with regards to expectation damages in
construction cases, is the loss in value measured by cost of
completement or cost of replacement or does completion essentially
mean replacement to the correct product (such as completion means
installing the correct cabinets)?
A: the loss in value is the cost to complete construction, unless grossly disproprtionate to the reduction in value.
Q5) With buyer's remedies in damages for sale of goods, does the
buyer have a duty to cover or can they just get the difference between
the K and market price and not cover even if covering is reasonable? I
know one of the limitations on the damages is the duty to cover, but
does that apply here, cause it does not seem like the statute imposes
a duty to cover other than with consequential damages?
A: a buyer does not have to cover and will get contract/market damages. The cover "requirement" applies to consequential damages.
Q5) With breach of warranty, the statue mentions "incidental and
consequential damages" but not "less any expenses saved" so do we not
deduct any expenses saved?
A: If you saved any expenses, I suppose that mitigation would require their deduction, even if not expressly encompassed by the statute.
Q6) Similar to question 5, but 2-708 does not mention "less any
expenses saved" so do we not deduct any expenses saved?
A; same answer.
Q7) With personal injury damages, the lawyer can make per diem
calculation for pain and suffering, but can they not make lump sum
calculations? I have that only vermont can?
A: the lawyer can suggest a lump sum, as well as make a per diem argument.
Q8) Where courts are allowed to add more remedies then the statute
states in order to effectuate the purpose of the statue and promote
justice, does this mean they can add equitable or legal remedies, or
just equitable remedies? DS
A: That rule is limited to California--and we follow it for class. I suppose any remedy could be added under the proper circumstances.
***********************************************
Q1)With regards to harm to personal property, if there is total
destruction, are we using the rule that they get FMV plus loss of use,
or just FMV, because I know that Long v. McAllister said you can
recover for loss of use?
A: we follow the Long case, which allows lost use on top of FMV.
Q2)
Also, With regards to personal property, when it can be placed in
as good a condition by repair, do you get the reduction in value plus
loss of use (long v. mcallister), just the
reduction
in value, or
reduction in value plus value of making repair (CA statute)?
A: we follow the Calif. rule--reduction in value or cost to repair,
whichever
is less. Another way to put it is that you get cost to repair,
capped by the
reduction in value. In a proper case you can also get lost use
during the
time needed to repair.
Q3)
With regards to permanent injury to real property, do you get the
reduction in value plus loss of use or not? As I understand, with
temporary damage, you get the cost to repair the property plus loss of
use which may be rental value or difference between crops? Is that
correct? RG
A:
As to temporary damages, correct. For permanent injury to real
property,
we have no authority for granting lost use.
Q:
Does the exception that if the plaintiff has a genuine desire to
repair personal property they may do so as long as it is reasonable,
even if it exceeds the property loss in value, apply to personal
property as well or just real propery?
A: It probably applies to personal property also.
Q: It also applies to construction contracts as well, correct?
A:
No. Here you need to use contract law principles, not tort remedies
(see the
Hess v. Eastlake Construction case).
******************************************************************************
Q:
I was reviewing the class notes and was confused about the difference
between consequential and incidental damages.
of use, whereas Incidental Damages are less direct such as renting a
replacement. JM
A:
Actually, incidental damages are more direct, such as when you get the
difference between contract and market price, which assumes you will
buy a
replacement--incidental damages might be the additional costs of
engaging in
getting a replacement, such as paying a finder's fee or commission to a
broker. If the seller is the injured party, it might be the cost
of
storage until the merchandise can be resold.
**************************************************
(Q1)
Taliferro, is the court applying the actual
value
test for non-commercial personal property?
A: I don't know. The case mainly stands for the proposition that
damage
awards must be supported by some evidence.
Q2.
In Long v. McAllister, we say that the cap for
repairs on personal property is the reduction in value
(and then on top the lost use). However, this seems
to directly contradict the rule in Hewlett (where we
said the cap was set by the FMV). Are these cases
distinguishable, or do we just disregard the rule in
Hewlett?
A: The cases are not consistent. We apply reduction in value as a
cap.
(Q3)
For purposes of this class, are we adopting the
three tests delineated in Long (calculating damage
where there is total destruction, where the car cannot
be repaired, and where it can be repaired)?
A: We are following the California rule that I projected in class, but
it is
quite similar to the rule in Long on p. 465.
(Q4)
Also, do we apply this these rules (the cap and
damage messurements) for all personal
property, or
just cars? SH
A: all personal property.
********************************************************************
> Q(1) If someone is
insolvent, does that mean there is
no adequate legal remedy?
A: Courts are divided on
this issue. I would
think that it is a factor to consider, but you need to be concerned
that people
with little money will too easily be subject to injunctions.
> (Q2) When a plaintiff asserts estoppel
against a
gov
> agency (like, the school district in John R.), do they
> have to meet the affirmative misconduct standard?
A: Interesting
observation, because the court in that
case did not seem to apply the higher standard. Generally,
though, the
answer is yes (but you don't need to know the details).
> (Q3) On pg 158 court talks about a case (Carpenter v.
> Mason) where K was rescinded, so the plaintiff
> couldn’t recover damages for the moving cost under the
> doctrine of election of remedies. However are those
> remedies really inconsistent? Are you really
> affirming the K by trying to recover moving cost?
A: it seems to me that
you can justify giving moving
costs as ancilary to rescission.
> (Q4) In a note case on pg 165 (Roam v. Koop) the
> court says that the remedies sought were inconsistent.
> This was the case where the P homeowner filed a suit
> against the contractor alleging a variety of claims
> (tort and contract), and was found to have elected a
> remedy by levying against his property. Why?? Are K
> remedies and tort remedies always inconsistent, or are
> the specific causes of action here inconsistent
> (specifically the tort claim and the claim for money
> had and received?)
A: it is hard to know without
more information. I
wouldn't focus too much on this case.
> (Q5) Are the defenses of Good Faith and Substantial
> Compliance defenses for both coercive and compensatory
> civil contempt?
A: I would think so.
*****************************
Q: Question regarding Estoppel:
The first element of Estoppel is that the part to be estopped knew the
facts. What "facts" must that party know?
In Vanhorn, the rural doctor case, the government agent took a position
and allowed Vanhorn to practice outside of a designated area. The
government subsequently took a position that she could not practice
outside of the area. What facts must the gov know and at what point?
A: the govt must have known that she needs
the
approval of the secretary to change her plans about where she plans to
practice
medicine.
The same
applies to John R. There the gov
agent told the boy not to
sue. What facts must that agent, or the subsequent litigant
(Oakland
Unified) know? JJK
A: This is a strange estoppel case.
The theory,
I suppose, is that the district must have known that there was a 6
month
statute for bringing the lawsuit, and that it took a contrary position
via the
teacher ("don't hurry to file...")
*****************
Q:. When determining
expectation damages, the cost to
complete is first considered. Then, if the cost to complete is too
much, it is
substituted by the Loss in Value?
A: You get the cost to complete unless it is clearly or grossly
disproportionate to the reduction in value.
Q: In order to be lost volume seller- does the seller have to 1.
have the
capacity to make the additional goods 2. and actually make the
additionally
sale, OR does the seller merely need to have the capacity to make the
additional sale?
A: You simply have to have the capacity.
*****************
(1) In terms of specific performance, does the court have
discretion to not grant specific performance even if all the elements
are met,
if the court would have difficulty in supervising? AV
A: yes.
(2) Is it true that for specific performance under the
common law
the P has to have substantially performed or be willing to perform and
under
the UCC the P must have performed?
No. The only thing that the UCC does is require uniqueness or
other
proper circumstances, which relates to the inadequate remedy at
law. The
rest of the analysis is the same as for any other case of specific
performance
(at least for purposes of our class--in reality, the UCC tends to be
more
liberal and favors granting specific performance, while under the
common law it
is somewhat disfavored).
(3) In Gruca, the court held
that it
would be prejudicial to the D to give P seniority 9 years after the
fact. Is
that an example of non-monetary reliance based prejudice?
A: Yes
(4) On the exam, should we raise estoppel
or unconscionability if applicable and the
remedy
sought is legal?
A: You can raise estoppel if it seems
appropriate,
and unconscionability nowadays can be raised with just about any suit
for
breach of contract.
(5) For election of remedies, do we need to discuss the
jurisdictions that look at double recovery rather than theoretical
inconsistency? If not, then what did we get from the Head and Seaman
case as
far as the analysis for election of remedies on the exam?
A: Concentrate on inconsistency. Head and Seaman basically
abolished
election of remedies for that state.
(6) How can a particular type of discovery lead to an
election of a
remedy?
A: A few cases have held this, but in my opinion that is too weak a
signal that
you are electing a remedy.
(7) If the party to be enjoined did not comply with
an
injunction that is later found to be frivolous or invalid by the court
will not
be held in criminal contempt but will be held in civil contempt? What
does it
mean when you state that Walker only applies to criminal contempt? If
someone behaves
inappropriately in the court room and they are held in contempt how
would
walker come in?
A: I think you've turned things around a bit. If a party disobeys
a valid
court order and is held in criminal contempt, the contempt citation
stands even
if a higher court later reverses the order. If the party had been
held in
civil contempt, the contempt citation is reversed.
QUESTIONS
BELOW THIS LINE ARE FROM 2005 AND EARLIER