Chapter XIX EQUITY CONDENSED OUTLINE

Chapter XIX EQUITY CONDENSED OUTLINE I. NATURE AND SCOPE OF EQUITY B. Equitable Maxims and Other General Doctrines. C. Marshaling Assets. II. SPECIFIC PERFORMANCE OF CONTRACTS B. When Specific Performance May Be Granted. C. When Specific Performance Will Be Denied. D. Failure of Performance by Vendor or Purchaser. III. EQUITABLE RELIEF AGAINST TORTS: IN GENERAL A. Nature of Relief. B. Equity Jurisdiction Over Criminal Acts. C. Wrongful Invasion of Personal Rights. D. Trademark and Trade Name Infringement. 263

IV. EQUITABLE RELIEF AGAINST TORTS: MISAPPROPRIATION OF TRADE SECRETS B. Uniform Trade Secrets Act. C. Customers Lists and Requirements. V. EQUITABLE RELIEF AGAINST TORTS: UNFAIR COMPETITION A. Restatement 3d. B. Imitation of Appearance or Name. C. Unfair Competition Law. D. Right To Compete Act. VI. EQUITABLE RELIEF AGAINST TORTS: NUISANCES B. Types of Conduct or Activity. C. Remedies. D. Defenses. VII. EQUITABLE CONVERSION A. Equitable Conversion by Contract. B. Equitable Conversion by Will. VIII. EQUITABLE INDEMNITY, CONTRIBUTION, AND SUBROGATION A. Equitable Indemnity: Reimbursement From Principal. B. Equitable Contribution From Co-Obligor. 264

C. Equitable Subrogation: Surety s Recovery From Obligor. IX. EQUITABLE ESTOPPEL B. Estoppel Against Governmental Agency. DETAILED OUTLINE I. NATURE AND SCOPE OF EQUITY 1. [ 1] Classification of Topics. 2. [ 2] Distinctive Features of Equity. 3. [ 3] Adequacy of Legal Remedy. B. Equitable Maxims and Other General Doctrines. 1. [ 4] Substance Rather Than Form. 2. [ 5] Equity Regards That Which Ought To Be Done as Done. 3. [ 6] Party Must Do Equity. 4. [ 7] Taking Advantage of One s Own Wrong. 5. [ 8] Equal Equities. 6. Clean Hands. (a) [ 9] Nature of Defense. (b) [ 10] Factors Considered. (c) Illustrations: Defense Sustained. (1) [ 11] Where Raised as Affirmative Defense in Conversion or Malicious Prosecution Action. (2) [ 12] Other Illustrations. 265

(d) Exceptions. (1) [ 13] Misconduct Not Related to Transaction. (2) [ 14] Misconduct Not Prejudicial. (3) [ 15] Plaintiff s Conduct Less Culpable. (4) [ 16] Public Policy Favoring Relief. 7. Laches. (a) [ 17] Nature of Defense. (b) [ 18] Use Against Public Entity. (c) [ 19] Prejudice Not Shown. (d) [ 20] Prejudice Shown. 8. Relief Against Forfeiture. (a) [ 21] Equitable Doctrine Codified. (b) [ 22] Illustrations. (c) [ 23] Wilful Breach or Default. C. [ 24] Marshaling Assets. II. SPECIFIC PERFORMANCE OF CONTRACTS 1. [ 25] Adequacy of Legal Remedy. 2. [ 26] Negative Covenants. 3. [ 27] Damages in Lieu of Specific Performance. 4. [ 28] Damages Incidental to Specific Performance. 5. [ 29] Attorneys Fees Are Not Incidental to Specific Performance. B. When Specific Performance May Be Granted. 1. Contract Concerning Real Property. (a) [ 30] Action by Purchaser. (b) [ 31] Action by Vendor. 266

2. [ 32] Contract Concerning Personal Property. 3. Contract To Make Will or Deed. (a) [ 33] Quasi-Specific Performance by Constructive Trust. (b) [ 34] Imposition of Trust During Promisor s Lifetime. (c) [ 35] Defenses. 4. [ 36] Employee s Agreement Not To Compete. 5. [ 37] Collective Bargaining Agreement. 6. [ 38] Arbitration Agreement. 7. [ 39] Other Contracts. C. When Specific Performance Will Be Denied. 1. [ 40] Consideration Is Inadequate. 2. Contract Is Unjust or Unreasonable. (a) [ 41] In General. (b) [ 42] Unconscionable Contract. 3. [ 43] Fraud, Unfair Practices, or Mistake. 4. Contract Is Uncertain. EQUITY (a) [ 44] In General. (b) [ 45] Illustrations: Uncertainty Fatal. (c) [ 46] Illustrations: Contract Enforced. 5. [ 47] Continuous Acts Requiring Supervision. 6. [ 48] Statute of Frauds. 7. [ 49] Contract Is Illegal or Impossible. 8. Personal Service Contracts. (a) [ 50] General Rule Against Specific Performance. (b) When Specific Enforcement Is Proper. (1) [ 51] Personal Performance Is Not Required. 267

(c) (2) [ 52] Indirect Enforcement by Negative Decree. Unique Personal Services. (1) [ 53] In General. (2) [ 54] Option To Pay Is Insufficient. 9. Counterperformance Is Not Secured. (a) [ 55] Former Defense of Lack of Mutuality. (b) [ 56] Requirement of Security. (c) [ 57] Offer of Performance by Nonsigner. D. Failure of Performance by Vendor or Purchaser. 1. Vendor s Default: Defect in Title. (a) Where Vendor Is Plaintiff. (1) [ 58] In General. (2) [ 59] Specific Performance With Compensation. (b) Where Vendor Is Defendant. (1) [ 60] In General. (2) [ 61] Time for Removing Defect. 2. Purchaser s Default: Failure To Pay. (a) Former Right of Forfeiture. (1) [ 62] In General. (2) [ 63] Waiver of Right. (b) Relief Against Forfeiture. (1) [ 64] Purchaser Free From Serious Fault. (2) Wilful Default: Restitution. (aa) [ 65] In General. (bb) [ 66] Extent of Relief. (cc) [ 67] No Recovery Where No Unjust Enrichment. (3) Wilful Default: Specific Performance. (aa) [ 68] Conditional Judgment. (bb) [ 69] Restitution Analogy. 268

(4) [ 70] Wilful Default: Redemption. (5) [ 71] Relief to Optionee. (6) [ 72] No Relief Where Contract Is Executed. III. EQUITABLE RELIEF AGAINST TORTS: IN GENERAL A. [ 73] Nature of Relief. B. Equity Jurisdiction Over Criminal Acts. 1. No Injunction Against Offender. (a) [ 74] In General. (b) [ 75] Exception: Public Nuisance. (c) [ 76] Exception: Statutory Authorization. 2. [ 77] No Injunction Against Prosecution. C. Wrongful Invasion of Personal Rights. 1. [ 78] In General. 2. [ 79] Illustrations. D. Trademark and Trade Name Infringement. 1. [ 80] Theory of Infringement. 2. [ 81] Statutory Protection. 3. [ 82] Remedies and Defenses. IV. EQUITABLE RELIEF AGAINST TORTS: MISAPPROPRIATION OF TRADE SECRETS 1. [ 83] Theory of Protection. 2. [ 84] What Constitutes Trade Secret. 3. [ 85] Remedies. 269

4. [ 86] Protection of Patentable Process. 5. [ 87] Inevitable Disclosure Doctrine Rejected. B. Uniform Trade Secrets Act. 1. [ 88] In General. 2. Definitions. (a) [ 89] In General. (b) [ 90] Trade Secret. 3. [ 91] When Claim Arises. 4. [ 92] Injunction. 5. [ 93] Damages. 6. [ 94] Costs and Attorneys Fees. 7. [ 95] Orders To Preserve Secrecy. 8. [ 96] Jury Instructions. C. Customers Lists and Requirements. 1. Trade Secret: Solicitation Enjoined. (a) [ 97] Confidential List of Customers. (b) [ 98] Special Requirements of Customers. 2. [ 99] No Trade Secret: Solicitation Allowed. 3. [ 100] Announcement of Change in Employment. V. EQUITABLE RELIEF AGAINST TORTS: UNFAIR COMPETITION A. [ 101] Restatement 3d. B. Imitation of Appearance or Name. 1. Nature of Protection. (a) [ 102] In General. 270

(b) [ 103] Likelihood of Deception. (c) [ 104] Secondary Meaning Test. 2. Illustrations. (a) [ 105] Likelihood of Deception Shown. (b) [ 106] Evidence of Confusion Insufficient. 3. [ 107] Noncompetitive Businesses. 4. [ 108] Employee Agreements. C. Unfair Competition Law. 1. [ 109] In General. 2. Broadened Scope of Unfair Competition Law. (a) [ 110] In General. (b) [ 111] Out-of-State Practices. (c) [ 112] Investment Securities Transactions. (d) Unfair Practices. (1) [ 113] In General. (2) [ 114] Consumer Cases. (3) [ 115] Causation Requirement. (e) [ 116] Unlawful Practices. 3. Illustrations: Prohibited Practices. (a) [ 117] False Advertising. (b) [ 118] Unfair Credit and Debt Collection Practices. (c) [ 119] Employment Practices. (d) [ 120] Insurance Practices. (e) [ 121] Health Care Practices. (f) [ 122] Telecommunications Practices. (g) [ 123] Vehicle Towing Practices. (h) [ 124] Rental Car Company Practices. (i) [ 125] Lending Practices. (j) [ 126] Other Practices. 271

4. Illustrations: Permissible Practices. (a) [ 127] Employment Practices. (b) [ 128] Insurance Practices. (c) [ 129] Health Care Practices. (d) [ 130] Telecommunications Practices. (e) [ 131] Rental Car Company Practices. (f) [ 132] Lending Practices. (g) [ 133] Contractual Releases. (h) [ 134] Other Practices. 5. Procedure. (a) Parties. (1) [ 135] In General. (2) [ 136] Effect of Proposition 64. (3) [ 137] Retroactive Application of Proposition 64. (4) [ 138] Standing Established Under Proposition 64. (5) [ 139] Standing Not Established Under Proposition 64. (b) [ 140] Compliance With Prefiling Requirements of Other Statutes. (c) Remedies. (1) [ 141] In General. (2) [ 142] Civil Penalties. (3) [ 143] Damages Are Limited To Restitution. (4) [ 144] Disgorgement of Unlawful Profits into Fluid Recovery Fund. (5) [ 145] Remedies Are Cumulative. (d) Defenses. EQUITY (1) [ 146] In General. (2) [ 147] Statute of Limitations. (e) [ 148] Appellate Procedure. 272

D. Right To Compete Act. 1. [ 149] Nature and Purpose of Act. 2. [ 150] Unlawful Advertising Practices. 3. [ 151] Permissible Practices. VI. EQUITABLE RELIEF AGAINST TORTS: NUISANCES 1. [ 152] Statutory Framework. 2. [ 153] Restatement 2d. 3. [ 154] Public and Private Nuisances. 4. [ 155] Trespass Distinguished. 5. [ 156] Subsurface Encroachment Distinguished. B. Types of Conduct or Activity. 1. [ 157] Physical Interference With Land. 2. Interference With Present Enjoyment of Land. (a) [ 158] Air Pollution and Noise. (b) [ 159] Other Conditions or Activities. (c) [ 160] Failure To Act. 3. [ 161] Danger of Future Injury. 4. [ 162] Mental and Emotional Disturbance. 5. [ 163] Exhibition of Obscene Matter. 6. Nuisances Per Se. (a) [ 164] In General. (b) Red Light Abatement Law. (1) [ 165] In General. (2) [ 166] Live Commercial Adult Entertainment. 273

(3) [ 167] Action and Temporary Relief. (4) [ 168] Decision and Order. (c) [ 169] Weapons. (d) [ 170] Interference With Solar Collector. (e) [ 171] Other Statutes. (f) [ 172] Municipal Ordinances. (g) [ 173] Distinction: Lawful Business. C. Remedies. 1. [ 174] Against Private Nuisance. 2. Against Public Nuisance. (a) [ 175] Abatement and Injunction. (b) [ 176] Action by State for Damages. (c) [ 177] Demolition or Destruction. (d) [ 178] Criminal Proceedings. (e) [ 179] No Private Remedy. 3. [ 180] Scope of Injunction. D. Defenses. 1. Statutory Authority or Permission. (a) [ 181] In General. (b) [ 182] Illustrations: No Express Authority. (c) [ 183] Authorized Shooting Range. (d) [ 184] Authorized Agricultural Enterprise. 2. [ 185] Permit. 3. [ 186] Zoning Regulations. 4. [ 187] Due Care and Consent Are Not Defenses. 5. Comparative Negligence. (a) [ 188] In General. (b) [ 189] Negligence Causing Injury to Property. 274

6. Balancing Conveniences (Relative Hardship). (a) [ 190] In General. (b) [ 191] Doctrine Is Not Applicable to Wilful Conduct. (c) [ 192] Hardship Must Be Shown. (d) [ 193] Encroachments. (e) [ 194] Other Situations. VII. EQUITABLE CONVERSION A. Equitable Conversion by Contract. 1. [ 195] In General. 2. [ 196] Risk of Loss. 3. [ 197] Effect of Insurance. B. [ 198] Equitable Conversion by Will. VIII. EQUITABLE INDEMNITY, CONTRIBUTION, AND SUBROGATION A. [ 199] Equitable Indemnity: Reimbursement From Principal. B. Equitable Contribution From Co-Obligor. 1. [ 200] Nature of Doctrine. 2. [ 201] Equitable Subrogation Distinguished. 3. [ 202] Partnership Cases. 4. [ 203] Insurance Cases. C. Equitable Subrogation: Surety s Recovery From Obligor. 1. [ 204] Nature of Doctrine. 2. [ 205] Elements of Claim. 3. [ 206] Illustrations: Insurance Cases. 275

4. [ 207] Illustrations: Other Cases. 5. Limitations on Doctrine. (a) [ 208] No Recovery by Volunteer. (b) [ 209] No Recovery Against Innocent Third Party. (c) [ 210] Nonassignable Claim. (d) [ 211] Party Fully Compensated. IX. EQUITABLE ESTOPPEL 1. [ 212] Nature of Doctrine. 2. [ 213] Elements of Claim. 3. [ 214] Fraudulent Intent Is Unnecessary. 4. [ 215] Distinctions. 5. [ 216] Illustrations. B. Estoppel Against Governmental Agency. 1. Estoppel Denied. (a) [ 217] Early Strict Approach. (b) [ 218] Public Protection. (c) [ 219] Zoning Cases. (d) [ 220] Other Grounds for Denial. 2. Estoppel Upheld. (a) [ 221] In General. (b) [ 222] Illustrations. (c) [ 223] Estoppel Applied in Administrative Hearing. 276