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  • © The Regents of the University of California, 2010-2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Preventive Justice

76800459Hit song of the summer, “Blurred Lines” by Robin Thicke, is drumming up controversy as it’s claimed to infringe on a couple of Marvin Gaye songs. Not waiting to be sued, Thicke’s attorneys proactively filed a declaratory relief action. This is a great strategy to keep in mind: in some situations it’s best to seek preventive justice.

Most cases redress only past wrongs, but declaratory relief is used to “set controversies at rest before they lead to repudiation of obligations, invasions of rights or commissions of wrongs.” Travers v Louden (1967) 254 CA2d 926, 931, 62 CR 654.

In a declaratory relief action, the plaintiff isn’t pursuing any affirmative action such as an injunction or damage award; rather, the plaintiff is only seeking a judgment that decides the parties’ rights.

When a dispute can be resolved by a declaratory relief action, there are certain advantages to bringing one, such as:

  • case generally gets trial-setting preference over all other civil actions (CCP §1062.3);
  • parties can resolve disputes before actual damage occurs or irreversible damage is caused by the repudiation of an agreement;
  • party can get the resolution of a contract dispute before being forced to act on an interpretation that would create a breach of that contract;
  • competing interests of several parties over property can be resolved in one action;
  • application or validity of a statute, ordinance, or regulation may be clarified or resolved;
  • certain disputes that would normally be determined in successive actions may be determined in one action, e.g., questions of indemnification; and
  • declaratory judgment under the California Declaratory Judgment Act doesn’t stop a party from obtaining other appropriate relief (CCP §1062).

Of course, the declaratory relief action may not go the way your client hopes, so negotiation may be a better step—or at least a first step—to take.

Want to know more about the uses and procedure for declaratory relief actions? All that and checklists for the moving and opposing party are in CEB’s California Civil Procedure Before Trial, chapter 35.

CEB blog posts you may find helpful:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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