How many demurrers did I bring as a young lawyer reminding courts that an injunction is a remedy and not a cause of action under California law?

Awww, memories.

But interestingly matters are different under the TCPA.

We’ll get there.

First, what is a cause of action? It is a right to bring suit. Pure and simple.

What is a remedy? It is something you can get out of a suit. Again, pretty simple.

But the difference between the two can be a little tricky to see at times. And, truthfully, most folks don’t spend the time to clean up these differences in a case.

In Culbertson v. Pro Custom Solar, 2024 WL 3771606 (M.D. Fl. Aug. 13, 2024) the defendant went the extra mile and moved to dismiss two asserted “causes of action” in a complaint that the defense asserted were actually remedies.

First, the defense argued the plaintiff’s request for treble damages (pleaded as a separate cause of action) was a remedy and not a claim. The Court agreed and concluded an enhancement for treble damages should not have been pleaded as a separate claim and dismissed it. (For the super nerds the court also overlooked Rule 12(g)(2) and allowed a serial motion to dismiss finding such relief was warranted under Rue 12(h)(2) and i love it!)

Second, the defense argued Plaintiff’s request for an injunction also sought a remedy and was not a right of action. Here the Court disagreed concluding the TCPA’s specific language authorizing a Plaintiff to “bring an action” for an “injunction” modified a statutory TCPA injunction into a right of action and not a mere remedy–which is interesting and probably true.

So there you go. Injunction–right of action. Treble damages– remedy.

Make use of this information as you see fit.

Speaking of information to make use of, here’s my quick take on the death of Chevron and the impact of the Hobbs Act on TCPAWorld. A five minute video you probably want to watch if you’re in any way impacted by the TCPA (and you are).