University of West Los Angeles School of Paralegal Studies Course 232 Remedies and Enforcement of Judgments Scott F. Pearce, Esq.

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1 University of West Los Angeles School of Paralegal Studies Course 232 Remedies and Enforcement of Judgments Scott F. Pearce, Esq. Session Three Materials

2 CONTRACTS APPROACH Minimalist Approach I. Formation II. III. IV. Defenses to Formation Breach Defenses to Breach V. Remedies A. Damages B. Restitution C. Equity (Specific Performance) VI. Defenses to Remedies Elaborate Approach A thoughtful applicant needs to make two decisions about any contracts question before doing the analysis: 1. Does the common law or the Uniform Commercial Code apply? 2. Which party is aggrieved? (Who is the "good guy" and who is "bad") Once you have decided these threshold issues, proceed to make a careful examination of the facts through the following intellectual framework: Remedies & Enforcement of Judgments - Session 3 - Contracts Damages

3 I. Formation: Is there a contract? A. Offer 1. Intent of the offeror to be bound 2. Content of the offer a. Parties b. Subject Matter c. Quantity d. Price 3. Communication of offer to offeree B. Acceptance C. Consideration: a bargained-for exchange II. Defenses to Formation A. Incapacity B. Infancy C. Fraud / Duress D. Statute of Frauds E. Mistake III. Terms of the Contract A. Express Terms B. Implied Terms 1. Prior Dealings 2. Custom and Usage C. Oral Contracts: Parol Evidence Rule IV. Rights of Non Contracting Parties A. Third Party Beneficiaries (vesting rules) B. Assignment of Rights may create third party beneficiaries. C. Delegation of Duties always creates third party beneficiaries. V. Conditions A. Satisfaction of Conditions B. Discharge of Conditions C. Excuse of Conditions Remedies & Enforcement of Judgments - Session 3 - Contracts Damages

4 VI. Breach A. Minor Breach 1. Substantial performance of the contract by the breaching party 2. Remedy: Contract price minus damages B. Material Breach 1. Some performance, but less than substantial performance 2. Remedy: Damages or the right to cure, but no right to terminate the agreement. C. Total Breach - Two Caveats: 1. Divisibility 2. Recission VII. Defenses to Breach - The most frequently tested are: A. Impossibility B. Impracticability C. Frustration of Purpose D. Modification / Novation VIII. Remedies A. Damages: contract price minus part performance B. Restitution: payment for the benefit conferred C. Reformation: fix the contract 1. Mistake - either mutual or unilateral 2. Misrepresentation - innocent or fraudulent 3. Defenses to Reformation a. Laches b. Sale to B.F.P. c. Parol Evidence Rule D. Recission: cancel the contract 1. Mistake that goes to the heart of the agreement 2. Fraud or misrepresentation E. Equity: Specific Performance 1. Valid contract 2. Satisfaction of conditions by plaintiff 3. Legal remedy inadequate 4. Feasibility 5. Mutuality (no longer required in many jurisdictions) 6. Defenses IX. Defenses to Remedies Remedies & Enforcement of Judgments - Session 3 - Contracts Damages

5 Remedies & Enforcement of Judgments SPS 232 Scott F. Pearce, Esq. Session 3 - Contracts Damages Compensatory Damages are designed to put the non-breaching party in the same position he or she would have been if the breaching party had performed. The two types of compensatory damages are the standard measure, and consequential damages Standard Measure Damages could be thought of as "replacement costs." U.C.C. Contracts for goods buyer breaches: Seller can resell undelivered goods and recover the difference between the resale price and the contract price, or can sue for the contract price of delivered goods. seller breaches: Buyer can reject nonconforming goods, cancel, cover and recover the difference between the contract and the cover prices. Land Sale Contracts damages are measured as the difference between the contract price and the fair market value, with specific performance being the preferred remedy. Construction Contracts owner breaches: builder gets expected profit plus costs expended, or, if the project is completed, builder gets the full contract price plus interest. builder breaches: owner gets reasonable delay damages plus the cost of completion, if the project is completed late, the damages are only those caused by the delay. Consequential Damages must be foreseeable by the breaching party at the time of the contract. Punitive Damages are not available in contract actions. Nominal Damages are recovered where there's been a breach but no actual loss has been shown. Duty to Mitigate Damages - A party that doesn't mitigate his or her damages will not be able to collect the damages that could have been mitigated. Liquidated Damages damages must be difficult to ascertain at the time the contract was formed the amount agreed upon must be a reasonable forecast of compensatory damages

6 REMEDIES & ENFORCEMENT OF JUDGMENTS Session 3 - Contracts Damages - Hypothetical #1 Fidelity Development Company (Fidelity) recently opened a large fifteen-story office building. Since it opened, brick masonry on the building has developed cracks, and some bricks have fallen to the sidewalk below. The defective masonry poses a danger to pedestrians. The cause of the cracks was negligence by brick masons in preparing the mortar. The rest of the building is structurally sound, although it is very unsightly. Fidelity had contracted with Bildco to build the multimillion-dollar building. Bildco was the general contractor which, using due care in its selection process, contracted with Mason, an independent entity, to do the masonry work. The preparation of the mortar and the laying of the bricks was done by Mason's employees, who were using Mason's equipment. Mason also employed a head mason who told the other employees what to do. Bildco had a project supervisor who was constantly on the site and who monitored the masonry work. When Bildco's supervisor made suggestions concerning such things as bricklaying procedures to Mason's head mason, those suggestions were routinely followed. It will cost $300,000 to repair the masonry so that the bricks will not fall and another $200,000 to remedy the unsightliness. On what theory or theories, if any, may Fidelity sue Bildco and Mason and what damages should it recover from each? Discuss. Remedies & Enforcement of Judgments - Session 3 - Hypothetical #1

7 REMEDIES & ENFORCEMENT OF JUDGMENTS Session 3 - Contracts Damages - Hypothetical #1 Outline of Issues I. Fidelity v. Bildco A. Contract Theory 1. There are no formation problems. 2. Bildco breached the contract. 3. Damages a. $300,000 to repair the masonry b. $200,000 to remedy the unsightliness B. Tort Theory: Negligence 1. Duty a. Mason was an "independent entity." b. Bildco's supervisor "made suggestions." 2. Breach 3. Causation 4. Damages 5. Defenses C. Conclusion II. Fidelity v. Mason A. Tort Theory: Negligence B. Contract Theory: Third Party Beneficiary 1. Liability 2. Damages 3. Conclusion Remedies & Enforcement of Judgments - Session 3 - Hypothetical #1

8 REMEDIES & ENFORCEMENT OF JUDGMENTS Session 3 - Contracts Damages - Hypothetical #2 Neptune is an upscale seafood restaurant that opened in a convenient downtown location six months ago. It has become well known for the quality of its food and service. It has several dishes featuring salmon that are particularly popular with patrons. Neptune entered into a valid written contract with Seafood Uptown Providers (SUP) under which SUP agreed to supply Neptune with 250 pounds per week of fresh Pacific salmon at $4.00 per pound for the next year. Three months after the making of the contract, a large widely publicized oil spill occurred in Pacific coast waters. The spill greatly reduced the catch of salmon. Salmon began selling on the open market for at least $5.00 per pound. SUP then told Neptune that it would supply salmon only at a price of $6.00 per pound. Neptune refused to pay more than the contract price. In fact, SUP has found a new customer willing to pay $6.00 per pound, and it is selling its entire supply (about 450 pounds of salmon per week) to that customer. Neptune, faced with the prospect of having to obtain salmon for its daily restaurant menu and also for special events that it caters, found a supplier willing to meet about one-half of Neptune's weekly requirement for salmon at $5.00 per pound. With further effort, Neptune might have filled a portion of the remaining weekly requirement for salmon at $6.00 per pound, but it was uncertain to what extent salmon would continue to be obtainable and how high the price might go. Neptune decided instead to reduce its menu offerings of salmon and to cancel several catering contracts. Within a month after reducing its menu offerings of salmon, Neptune experienced a 25% decline in its restaurant business from the previous month. It also had a 75% decline in new bookings for catering jobs. Neptune still has the immediate and long-term problem of how to obtain a reliable source of salmon, and wants to sue SUP. What rights and remedies does Neptune have against SUP, what damages, if any, might Neptune recover, and what defenses, if any, should SUP assert? Discuss. Remedies & Enforcement of Judgments - Session 3 - Hypothetical #2

9 REMEDIES & ENFORCEMENT OF JUDGMENTS Session 3 - Contracts Damages - Hypothetical #2 Outline of Issues I. Neptune's Rights: Contract A. The contract was valid. B. The UCC applies to these merchants. C. SUP breached the contract. II. Neptune's Remedies A. Expectation Damages B. Consequential Damages 1. 25% decline in restaurant business 2. 75% decline in new bookings for catering jobs C. Neptune's Duty to Mitigate D. Specific Performance III. SUP's Defenses A. Defenses to Breach 1. Impossibility 2. Impracticability B. Defenses to Specific Performance Remedies & Enforcement of Judgments - Session 3 - Hypothetical #2

10 REMEDIES & ENFORCEMENT OF JUDGMENTS Session 3 - Contracts Damages - Hypothetical #3 On June 1, 1994, Owner signed a contract with Ace Painting to paint the exterior of Owner's house by September 1, 1994 for a contract price of $4,700. On July 1, Owner called Ace by telephone and told Ace that it was particularly important that the house be painted by September 1 because his employer had transferred him and he was putting the house up for sale. The weather was unusually rainy, and Ace fell behind on all of its painting jobs. Ace could have hired additional painters or subcontracted some of its jobs to stay on schedule, but Ace would have lost money on several jobs. Ace did not finish painting Owner's house until September 20. As a consequence, Owner did not list the house for sale until September 21. The house stood empty, and Owner made no effort to rent or otherwise make use of it, until it was finally sold in May Most realtors in the area agree, and would testify, that the "selling season" in the area runs from May 1 to October 1 and that Owner's house would have been more likely to be sold in 1994 if it had been painted and ready to show by September 1. Owner has refused to pay Ace for the work. Ace has sued Owner for $4,700. Owner denies liability and counterclaims against Ace for $6,000, asserting that the delay in Ace's completion was the cause of his missing the "selling season." The interest payments on the mortgage on Owner's house from October 1994 to May 1995 totaled $6,000. What claims and defenses may Owner and Ace reasonably assert against one another, and what is the likelihood of success of each? Discuss. Remedies & Enforcement of Judgments - Session 3 - Hypothetical #3

11 REMEDIES & ENFORCEMENT OF JUDGMENTS Session 3 - Contracts Damages - Hypothetical #3 Outline of Issues I. Owner v. Ace A. Owner's Claim: Contract Theory 1. Breach of Contract 2. Consequential Damages B. Ace's Defenses 1. Defenses to Formation 2. Defenses to the Modification 3. Defenses to Breach a. Impossibility b. Commercial Impracticability / Frustration of Purpose 4. Defenses to Remedies a. Foreseeability b. Failure to Mitigate II. Ace v. Owner A. Ace's Claims: Breach, Restitution B. Owner's Defenses C. Conclusion Remedies & Enforcement of Judgments - Session 3 - Hypothetical #3

12 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, state bar number, and address): FOR COURT USE ONLY 982.1(20) TELEPHONE NO: FAX NO. (Optional): E MAIL ADDRESS (Optional): ATTORNEY FOR (Name): SUPERIOR COURT OF CALIFORNIA, COUNTY OF STREET ADDRESS: MAILING ADDRESS: CITY AND ZIP CODE: BRANCH NAME: PLAINTIFF: DEFENDANT: DOES 1 TO CONTRACT COMPLAINT CROSS COMPLAINT AMENDED COMPLAINT (Number): AMENDED CROSS COMPLAINT (Number): 1. Jurisdiction (check all that apply): ACTION IS A LIMITED CIVIL CASE Amount demanded does not exceed $10,000 exceeds $10,000, but does not exceed $25,000 ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000) ACTION IS RECLASSIFIED by this amended complaint or cross-complaint from limited to unlimited from unlimited to limited PLAINTIFF* (names): CASE NUMBER: alleges causes of action against DEFENDANT* (names): This pleading, including attachments and exhibits, consists of the following number of pages: a. Each plaintiff named above is a competent adult except plaintiff (name): a corporation qualified to do business in California an unincorporated entity (describe): other (specify): b. Plaintiff (name): has complied with the fictitious business name laws and is doing business under the fictitious name of (specify): 4. has complied with all licensing requirements as a licensed (specify): c. Information about additional plaintiffs who are not competent adults is shown in Complaint Attachment 3c. a. Each defendant named above is a natural person except defendant (name): a business organization, form unknown a corporation an unincorporated entity (describe): except defendant (name): a business organization, form unknown a corporation an unincorporated entity (describe): a public entity (describe): other (specify): a public entity (describe): other (specify): Page 1 of 2 * If this form is used as a cross-complaint, plaintiff means cross-complainant and defendant means cross-defendant. Form Approved for Optional Use Judicial Council of California 982.1(20) [Rev. July 1, 2002] COMPLAINT Contract Code of Civ. Proc.,

13 SHORT TITLE: CASE NUMBER: COMPLAINT Contract 4. (Continued) b. The true names and capacities of defendants sued as Does are unknown to plaintiff. c. Information about additional defendants who are not natural persons is contained in Complaint Attachment 4c. d. Defendants who are joined pursuant to Code of Civil Procedure section 382 are (names): 5. Plaintiff is required to comply with a claims statute, and a. b. plaintiff has complied with applicable claims statutes, or plaintiff is excused from complying because (specify): 6. This action is subject to Civil Code section Civil Code section This court is the proper court because a. a defendant entered into the contract here. b. a defendant lived here when the contract was entered into. c. a defendant lives here now. d. the contract was to be performed here. e. f. g. a defendant is a corporation or unincorporated association and its principal place of business is here. real property that is the subject of this action is located here. other (specify): 8. The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached): Breach of Contract Common Counts Other (specify): 9. Other: 10. PLAINTIFF PRAYS for judgment for costs of suit; for such relief as is fair, just, and equitable; and for a. b. damages of: $ interest on the damages (1) according to proof (2) at the rate of percent per year from (date): c. attorney's fees (1) of: $ (2) according to proof. d. other (specify): 11. The following paragraphs of this pleading are alleged on information and belief (specify paragraph numbers): Date: (TYPE OR PRINT NAME) (SIGNATURE OF PLAINTIFF OR ATTORNEY) (If you wish to verify this pleading, affix a verification.) COMPLAINT Contract 982.1(20) [Rev. July 1, 2002] Page 2 of 2

14 SHORT TITLE: CASE NUMBER: (number) ATTACHMENT TO Complaint CAUSE OF ACTION Breach of Contract Cross-Complaint Page (Use a separate cause of action form for each cause of action.) BC-1. Plaintiff (name): alleges that on or about (date): a written oral other (specify): agreement was made between (name parties to agreement): A copy of the agreement is attached as Exhibit A, or The essential terms of the agreement are stated in Attachment BC-1 are as follows (specify): BC-2. On or about (dates): defendant breached the agreement by (specify): the acts specified in Attachment BC-2 the following acts BC-3. Plaintiff has performed all obligations to defendant except those obligations plaintiff was prevented or excused from performing. BC-4. Plaintiff suffered damages legally (proximately) caused by defendant's breach of the agreement as stated in Attachment BC-4 as follows (specify): BC-5. Plaintiff is entitled to attorney fees by an agreement or a statute of $ according to proof. BC-6. Other: Form Approved by the Judicial Council of California Effective January 1, 1982 Rule 982.1(21) CAUSE OF ACTION Breach of Contract CCP

15 SHORT TITLE: CASE NUMBER: (number) CAUSE OF ACTION Common Counts Page ATTACHMENT TO Complaint Cross-Complaint (Use a separate cause of action form for each cause of action.) CC-1. Plaintiff (name): alleges that defendant (name): became indebted to plaintiff other (name): a. b. within the last four years (1) on an open book account for money due. (2) because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff. within the last two years four years (1) for money had and received by defendant for the use and benefit of plaintiff. (2) for work, labor, services and materials rendered at the special instance and request of defendant and for which defendant promised to pay plaintiff the sum of $ the reasonable value. (3) for goods, wares, and merchandise sold and delivered to defendant and for which defendant promised to pay plaintiff the sum of $ the reasonable value. (4) for money lent by plaintiff to defendant at defendant's request. (5) for money paid, laid out, and expended to or for defendant at defendant's special instance and request. (6) other (specify): CC-2. $, which is the reasonable value, is due and unpaid despite plaintiff's demand, plus prejudgment interest from (date): according to proof at the rate of percent per year CC-3. CC.4. Plaintiff is entitled to attorney fees by an agreement or a statute of $ according to proof. Other: Form Approved by the Judicial Council of California Effective January 1, 1982 Rule 982.1(22) CAUSE OF ACTION Common Counts CCP

16 SHORT TITLE: CASE NUMBER: (number) CAUSE OF ACTION Fraud Page ATTACHMENT TO Complaint Cross-Complaint (Use a separate cause of action form for each cause of action.) FR-1. Plaintiff (name): alleges that defendant (name): on or about (date): defrauded plaintiff as follows: FR-2. Intentional or Negligent Misrepresentation a. Defendant made representations of material fact as stated in Attachment FR-2.a as follows: b. These representations were in fact false. The truth was as stated in Attachment FR-2.b as follows: c. When defendant made the representations, defendant knew they were false, or defendant had no reasonable ground for believing the representations were true. d. Defendant made the representations with the intent to defraud and induce plaintiff to act as described in item FR-5. At the time plaintiff acted, plaintiff did not know the representations were false and believed they were true. Plaintiff acted in justifiable reliance upon the truth of the representations. FR-3. Concealment a. Defendant concealed or suppressed material facts as stated in Attachment FR-3.a as follows: b. Defendant concealed or suppressed material facts defendant was bound to disclose. by telling plaintiff other facts to mislead plaintiff and prevent plaintiff from discovering the concealed or suppressed facts. c. Defendant concealed or suppressed these facts with the intent to defraud and induce plaintiff to act as described in item FR-5. At the time plaintiff acted, plaintiff was unaware of the concealed or suppressed facts and would not have taken the action if plaintiff had known the facts. (Continued) Form Approved by the Judicial Council of California Effective January 1, 1982 Rule 982.1(23) CAUSE OF ACTION Fraud CCP

17 SHORT TITLE: CASE NUMBER: FR-4. (number) CAUSE OF ACTION Fraud (Continued) Promise Without Intent to Perform a. Defendant made a promise about a material matter without any intention of performing it in Attachment FR-4.a as follows: Page as stated b. Defendant's promise without any intention of performance was made with the intent to defraud and induce plaintiff to rely upon it and to act as described in item FR-5. At the time plaintiff acted, plaintiff was unaware of defendant's intention not to perform the promise. Plaintiff acted in justifiable reliance upon the promise. FR-5. In justifiable reliance upon defendant's conduct, plaintiff was induced to act as follows: as stated in Attachment FR-5 FR-6. Because of plaintiff's reliance upon defendant's conduct, plaintiff has been damaged Attachment FR-6 as follows: as stated in FR-7. Other: [982.1(23)]

18 ATTORNEY OR PARTY WITHOUT ATTORNEY (NAME AND ADDRESS) TELEPHONE: FOR COURT USE ONLY ATTORNEY FOR (NAME): Insert name of court, judicial district or branch court, if any, and post office and street address: PLAINTIFF: DEFENDANT: TO COMPLAINT OF (name): TO CROSS-COMPLAINT OF (name): ANSWER Contract CASE NUMBER: This pleading, including attachments and exhibits, consists of the following number of pages: DEFENDANT (name): 3. answers the complaint or cross-complaint as follows: Check ONLY ONE of the next two boxes: a. Defendant generally denies each statement of the complaint or cross-complaint. (Do not check this box if the verified complaint or cross-complaint demands more than $1,000.) b. Defendant admits that all of the statements of the complaint or cross-complaint are true EXCEPT: (1 ) Defendant claims the following statements are false (use paragraph numbers or explain): Continued on Attachment 3.b.(1). (2) Defendant has no information or belief that the following statements are true, so defendant denies them (use paragraph numbers or explain): Continued on Attachment 3.b.(2) (Continued) If this form is used to answer a cross-complaint, plaintiff means cross-complainant and defendant means cross-defendant. Form Approved by the Judicial Council of California Effective January 1, 1982 Rule 982.1(35) ANSWER Contract CCP

19 SHORT TITLE: CASE NUMBER: ANSWER Contract Page two 4. AFFIRMATIVE DEFENSES Defendant alleges the following additional reasons that plaintiff is not entitled to recover anything: Continued on Attachment Other: 6. DEFENDANT PRAYS a. that plaintiff take nothing. b. for costs of suit. c. other (specify):... [982.1(35)] (Type or print name) (Signature of party or attorney) Page two

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