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REMEDIES – KELSO I.

II.

GENERAL PURPOSES OF LAW OF REMEDIES a. Purpose of Remedies i. Provide relief as justice requires to protect judicially enforceable rights 1. Courts should only use as much judicial power as necessary to protect the right. ii. Promote non-violent dispute resolution b. Types of Relief i. Equitable relief  goal is to put the parties back into the position they occupied before the fraudulent transaction took place. 1. Ex: Injunctions, specific performance, rescission, reformation, constructive trust ii. Legal Relief 1. Damages iii. Restitution iv. Punitive Damages v. Attorney’s Fees c. Rights i. Generally, where there is a right, there is a remedy, and courts shall remain open to all who come seeking justice. ii. Other fields of law determine what rights exist iii. Rights come from: 1. Torts a. Defines rights of injured persons to seek compensation 2. Contracts a. Sets out rules for rights that contracting parties have with respect to each other 3. Constitutional Law a. Sets rights we have as people and citizens iv. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics 1. 4th AM rights against unreasonable search and seizure was infringed on  court established principle that where a right has been infringed, the courts should stand ready to supply a remedy a. Established “open court” principle embodied in most state constitutions. EQUITABLE RELIEF AND INJUNCTIONS a. Background i. Only used when 1. P will suffer irreparable injury, and 2. Legal relief is inadequate a. When party has been deprived of special property or intangible rights that are unique i. Real property, family heirlooms, IP b. Legal Damages cannot be measured with certainty i. Loss of customers ii. Loss of goodwill iii. Possibility of bankruptcy iv. Loss of business reputation v. Loss of future economic opportunities c. Legal damages are not recoverable i. D is judgement proof d. P can secure complete relief at law only with multiple actions i. Want to avoid P having to come back to court for sequential damage awards.

e. Originally courts of equity and common law existed with separate remedies available in each. f. We have mostly retained the differences between legal damages and equitable relief. i. Example: rule still followed that there is generally no right to jury in an equitable proceeding, whereas there is a constitutional right to a jury trial in actions for damages at law g. Maxims of equity i. Equity regards as done what ought to be done ii. Equity will not suffer a wrong to be without a remedy iii. Equity delights in equality iv. One who seeks equity must do equity v. Equity delights to do justice and not by halves vi. Equity will not aid a volunteer 3. Two types of injunctive relief a. Permanent i. Entered into only after a full trial on the merits ii. Final resolution of dispute between the parties iii. Weinberger v. Romero-Barcelo: question was whether Federal Water Pollution Control Act requires district court to enjoin immediately all discharges of pollutants that do no comply with Act’s permit requirements or if there is discretion to require other relief. 1. Equitable remedies are a matter of discretion and should be issued only where essential. iv. Balboa Island Village v. Lemen: whether court may enjoin D from repeating statements that have been found defamatory following a full trial on the merits 1. With an injunction court itself is burdening free speech. 2. An injunction can be used to restrain free speech in this limited circumstances, but not if the statement hasn’t been already been determined to be defamatory. b. Provisional i. Governs conduct of parties for certain defined period of time 1. Issued only after notice and an adversary hearing ii. Two types of provisional injunctions 1. Temporary Restraining Order (TRO) a. Governs conduct for a very short period until a hearing can be held on the preliminary injunction. 2. Preliminary Injunction a. Governs conduct until the end of the trial iii. General Purposes 1. Prevent irreparable harm during pendency of litigation 2. Preserve the status quo during the pendency of litigation iv. Provisional injunctions generally should not grant the petitioner all of the relief to which the petitioner is ultimately entitled. If a TRO or preliminary injunction grants all the relief, that is the equivalent of a permanent injunction. 1. These are in personam orders directing D to act or refrain from acting in a specified way  need personal jurisdiction

a. In personam (“against the person”), while the common law courts acted only in rem (“against the D’s property”) c. Three types of objective injunctions i. Reparative  existing right has been violated but can be repaired or restored ii. Preventative  not used unless D is threatening to commit a wrong in the future iii. Structural  attempts to remodel an existing social or political institution to bring in conformity with constitutional demands d. Standards for preliminary injunctions i. Four factors 1. Substantial (strong) likelihood of success on the merits a. Merits depend on the cause of action, so look for different causes of action to pursue. 2. Possibility of irreparable harm if relief not granted (two components of injury): a. P must prove inadequacy of legal remedy b. P must prove the urgency of the P’s need for injunctive relief 3. Whether the balance of hardships tips in the P’s favor 4. Whether the issuance of injunctive relief would be harmful to the public interest. 5. There may be an additional factor if evidence of harm to innocent 3rd persons ii. The Sliding Scale (Alternative Standard) 1. Tolerates a less certain but still serious question on the merits and balance of the hardships tips sharply in P’s favor 2. Factors: a. Serious questions on the merits; b. Likely to suffer irreparable harm in the absence of the requested relief; c. Balance of hardships tips sharply in the movant’s favor; and, d. Injunction is in the public interest e. Temporary Restraining Orders (TROs) i. Standard is the same test as for preliminary injunction 1. Only difference is that the court examines the issues of irreparable injury and hardships of the parties with respect to the brief period of time between the TRO and the preliminary injunction. 2. If the movant is not likely to suffer irreparable injury within the next 20 or so days the court should deny the request, even if the movant would suffer irreparable injury over the course of the next year or two during the pendency of the litigation ii. Typically ten days, but may be extended for another 10 days by a showing for good cause or on the stipulation of the parties (Rule 56 (b)) 1. “Good Cause” exists upon: a. A showing that the grounds for originally granting the TRO continue to exist and

b. That the parties have exercised reasonable due diligence to prepare for the preliminary injunction hearing, and either the parties or the court are unable to prepare in time for the hearing. 2. Ex parte: without notice – only used in limited circumstances a. Issued when: i. Opposing counsel impossible to contact ii. Notifying the other party will trigger additional irreparable harm. iii. Example: dispute over unique personal property  giving notice to the D may give him time to spirit the property out of the jurisdiction b. Rule 65(b): A TRO may be granted without written or oral notice to the adverse party or his attorney only if: i. It clearly appears from specific facts shown by affidavit or by verified complaint that immediate or irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition and ii. The applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting his claims that notice should not be required. c. Courts are cautious to grant because they are getting only one side of the story and the party telling that story does not even have all the facts because there has been no discovery i. Party seeking order may requested an order too broadly construed than necessary and court would not know. d. Domestic Violence Restraining Orders i. The infringement must be balanced against the government interest in issuing the order (risk of immediate/irreparable harm) and the risk of erroneous deprivation under existing procedures ii. Nature of the burden iii. The interests it affects iv. Procedural safeguards to decrease the risk of an erroneous deprivation (participation by judicial officer) e. United Farm Workers of America v. Superior Court – Court would not grant TRO affecting substantial free speech interests without a showing that the party seeking the injunction made a reasonable, good faith effort to afford the opposing party or counsel notice and opportunity to be heard.

3. Not appealable a. Typical length of a TRO – 20 or 30 days – is shorter than the time it would take to process an appeal f. Injunction Bonds i. A promise to turn over something of value if a special event occurs ii. Required by FRCP 65(c) and State RCP 529(a) 1. The court may issue a TRO or PI only if the movant gives security or posts an injunction bond in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained a. Government entities are not required to post a bond or give security i. Assumed to be pursuing the public interest, so not liable if court incorrectly grants an injunction b. It is an abuse of discretion for the court to fail to hold a hearing on the amount of a bond if raised by the D c. D must raise the issue or risk having the requirement be deemed waived iii. Purpose 1. Provides basis for compensating party who has been wrongfully enjoined for the harm 2. Puts risk of error on the party seeking the relief 3. Helps weed out unmeritous claim a. It is one thing to pay an attorney to file a motion for an injunction but makes it harder if a bond is required 4. To protect D from a suffering harm if the court improperly issues an injunction iv. Exceptions to bond requirement 1. D can waive if not raised by D 2. Courts can use own discretion to waive or set at nominal amount a. Issuing the injunction would further a noncommercial public interest (i.e. statutes that protect a person’s constitutional, civil, and environmental rights) b. Indigents (particularly when they are asserting public rights) c. Waived when D will not be injured by the absence of the bond 3. If P has substantial assets and makes an independent promise to pay all of the D’s damages in the event that the injunction is wrongfully issued, the court may dispense with the bond requirement. v. Injunction Bond Rule: 1. A party injured by the issuance of an injunction later determined to be erroneous has no action for damages in the absence of a bond

III.

a. If there is a bond the action has a ceiling of the amount of the bond b. P knows what potential liability is c. EQUITABLE DEFENSES, APPEALS, AND CONTEMPT a. Defenses to equitable relief: i. All include a sense of fundamental unfairness 1. Apply to both equitable and legal relief a. Acquiescence b. Misuse c. Duress d. Frustration e. Impossibility f. Unconscionability g. Undue Influence h. Waiver 2. Only applicable in equitable relief a. Laches – mirrored by statutes of limitations in legal actions b. Unclean hands – mirrored by contributory negligence and comparative fault c. Equitable estoppel ii. Party is basically asking for the court to excuse an unlawful or improper act because the party bringing the action has also done something inequitable or unfair iii. Court of equity has discretion to recognize the defense if unfairness is: 1. Substantial enough 2. Has a reasonable nexus to claims before the court 3. And has caused some prejudice iv. Three main types exclusive to equitable relief 1. Laches a. Prevents someone from securing equitable relief if he has unreasonably delayed in bringing the action and the delay has prejudiced the other party i. Equity aids the vigilant, not those who slumber on their rights b. Two parts: i. Unreasonable delay in pursuing claim 1. When did the party first know of the claim 2. When should the P have discovered the claim 3. Why did P delay in pursing the claim 4. Did D do anything to dissuade P from pursuing the claim 5. Court will look at analogous statutes of limitation for a sense of how much time is reasonable to bring this type of claim 6. Time begins to run from the time the P learns that a right has been infringed on ii. Which results in prejudice to the other party 1. Claim becomes stale when witnesses die or forget 2. D changes position based on reliance on absence of claim being brought 2. Unclean Hands a. Applies when someone engages in inequitable conduct in relation to the matter at hand i. One ho comes into equity must come with clean hands ii. May bar either a portion of the claim or the claim entirely

b. Bars relief to a party who has i. Violated conscience, good faith, or other equitable principles in his prior conduct 1. Fraudulent, unconscionable, deceitful, inequitable, or any willful act or bad faith that transgresses equitable standards of conduct and/or causes some substantial harm ii. That prior conduct relates directly to the transaction or subject matter concerning which the complaint is made c. Example: Associates have non-competition clause in their contract and want to leave the firm and take clients, but firm wants an injunction to stop them from taking clients  unclean hands wont prevent the injunction if the law firm has recruited associates from other firms to do the same thing. 3. Equitable Estoppel a. Prevents someone from taking a position contrary to what he or she has previously represented if the other party has reasonably and detrimentally relied upon the prior representation. b. A party is equitably estopped from making a representation that is inconsistent with a prior misrepresentation when: i. Party to be estopped made a prior misrepresentation of fact to the other party; ii. Party had reason to believe the other party would rely upon the misrepresentation iii. Other party does reasonably rely upon the misrepresentation; and, iv. As a result, the other party suffers a detriment b. Appellate Jurisdiction i. Three primary ways appeals courts have jurisdiction 1. Generally, jurisdiction only exists after a final judgment 2. Writ of mandate a. A type of original action filed with the appellate court asking court to correct trial court’s error b. Discretionary for appellate court to accept case, unlike appeal on final judgment which is required c. High burden for court to accept because clear error is required 3. Interlocutory Appeals a. Orders affecting the rights and duties of parties outside the court b. Appeals from orders granting, continuing, modifying, refusing, or dissolving injunctions or refusing to dissolve or modify them ii. An order granting, modifying or denying a motion for an injunction is appealable by filing a notice of appeal 1. Temporary restraining order is not appealable a. TRO could be reviewed by filing a writ of mandate b. Almost all writs are denied by the appellate courts 2. Stays pending appeal a. An injunction may be stayed pending appeal on the order of the trial or appellate court i. In deciding whether to grant a stay, some courts employ the same factors used to decide whether to issue an injunction 1. Likelihood of success on appeal, irreparable injury, balance of hardship, and public interest

ii. In CA a mandatory injunction, an injunction ordering a party to take action which changes the status quo, is automatically stayed pending appeal. c. Appellate Standards i. Three main types of standards depending on the tribunal, type of proceeding, type of issue, comparative ability of appellate tribunal 1. De Novo a. No special deference to lower court b. Most commonly used for resolution of legal issues because it ensures uniform, correct interpretations of constitutions and statutes 2. Substantial Evidence a. Not satisfied by just any evidence in the record b. Evidence of ponderable, legally significant, reasonable in nature, credible, and of solid value c. Even if there is substantial evidence to support a reversal, appellate court must affirm as long as there is substantial evidence to support lower court’s finding d. Used mostly in review of factual determinations and mixed questions where facts predominate e. Finding not clearly erroneous f. Serves two purposes i. Minimizes the risk of judicial error by assigning responsibility to court in best position to evaluate and weight the evidence ii. Conserves appellate resources for legal issues appellate courts are best suited to resolve 3. Abuse of Discretion a. Used for injunctions ii. The appellate court reviews a trial court decision granting, modifying or denying a motion for an injunction or restraining order for an abuse of discretion. A trial court abuses its discretion when 1. It acts contrary to law 2. There is no substantial evidence to support its factual findings 3. It exercised its discretion in an arbitrary, capricious, or 4. Patently absurd manner d. Modifications of Injunctions i. General rule is that a court of equity should modify or terminate an injunction if changed circumstances render continued enforcement of the injunction inequitable ii. FRCP 60(b) allows court to modify or terminate an injunction for the following reasons 1. Mistake, inadvertence, surprise, or excusable neglect 2. Newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under 59(b) 3. Fraud (whether previously called intrinsic or extrinsic), representation, or misconduct by an opposing party 4. The judgment is void such as a lack of jurisdiction 5. The judgment has been satisfied, released or discharged, it is based on an earlier judgment that has been reversed or vacated, or applying it prospectively is no longer equitable 6. Any other reason that justifies relief e. Contempt i. Purpose 1. Respect for the court and its orders 2. Secure obedience to or compliance with court orders

3. Punishment and retribution to make an example for the future with respect to compliance with the court order 4. To coerce to secure compliance with a court order ii. Limitations 1. Sanction that goes far beyond what is necessary to coerce compliance or to vindicate the court’s integrity will be overturned as an abuse of discretion 2. Criminal contempt sanction cannot be imposed after civil contempt proceedings 3. Criminal contempt proceeding must include: a. Right to trial by jury in the case of serious contempt involving more than six months in jail b. Right to assistance of counsel c. Privilege against self-incrimination d. Safeguards of the Double Jeopardy Clause e. Violations of court order must be proven beyond a reasonable doubt 4. Court should fashion contempt sanction so that it employs the least possible power adequate to the end proposed. Two concerns: a. Scope of power given to trial judges to fashion sanctions; and, b. Likelihood that trial judge may be personally invested in court orders 5. Two types of contempt: a. Direct contempt i. Someone disrupts judicial proceedings in the presence of a judge; and, b. Indirect contempt i. Person subject to a court order violates the terms of that order 6. Elements of a civil contempt a. There was an order that was clear and definite in its terms b. The contemnor had knowledge of the order and c. There is proof of non-compliance by clear and convincing evidence 7. Three types of contempt sanctions a. Compensatory civil contempt sanctions i. Purpose is to compensate the other party for damages suffered when the contemnor violated a court order ii. This is the power of the court to award damages to the P for D’s failure to comply with the order iii. Example: Judge orders D to deliver on a contract by a certain date, D does five days late, P proves amount suffered during those five days and court orders D to pay that amount b. Coercive civil contempt sanctions i. Purpose is to coerce the contemnor into conforming his conduct to a court order ii. This is the power of the court to impose fines payable to the state or...