656 terms

California Bar Exam 10+%

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Relevance Standard (FRE)
Evidence is relevant if it has any tendency to prove or disprove a material fact.
Relevance Standard (CEC)
Evidence is relevant if it tends to be material to a disputed fact.
Legal Relevance Exclusion
Otherwise relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or wasting time. (Both FRE and CEC)
California Prop 8
In criminal trials, all relevant evidence is admissible, even if objectionable under CEC, subject to a few special exemptions.
Prop 8 Exemptions (Mnemonic and Items)
DR Mammal Counts SHEEP - Defendant must open the door, Rape shield laws, Member of media can't be held in contempt for not revealing source, Court still has power to exclude if excludable, Secondary evidence rule still applies, Hearsay may not be admitted,
Exclusionary rules (Miranda, Confrontation) still apply, Privileges that already existed in 1982 still apply.
Duty of Competence
A lawyer shall represent the client with the legal knowledge, skill, thoroughness and preparation reasonably necessary. Includes mental and physical. May associate with another attorney or study to become competent.
Conflict of Interest (Concurrent, General Rule)
The general rule is that the lawyer may not represent a client where there is a conflict of interest.
Conflict of Interest (Between Current Clients)
A concurrent conflict of interest exists if the representation of one client is directly adverse to another client.
Conflict of Interest (Between Current Client and Another)
A concurrent conflict of interest exists if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.
ABA Exceptions to Concurrent Conflicts
Lawyer reasonably believes he will be able to provide competent and diligent representation to each client, the representation is not limited by law, the clients are not asserting a claim against each other and each client gives informed written consent.
CA Exceptions to Concurrent Conflicts
May still represent where there is informed written consent.
Written Disclosure
Lawyer may still represent client with only written disclosure where the conflict results from the lawyer's relationship with a party or witness in the same matter. ABA requires written consent.
Aggregate Settlements
A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims or an aggregate plea unless each client gives informed written consent.
Insurance (California Rule)
Lawyers are permitted to represent both insurers and clients whereby the insurer has the contractual right to select counsel for the insured, resulting in no conflict of interest.
Community Property Definition
All property, real or personal, wherever situated, acquired by a married person during marriage while domiciled in California, which is not classified as separate property.
Separate Property
Property owned by either spouse before marriage, and/or property acquired by gift, bequest, devise, or descent, and the rents, issues, and profits obtained from any separate property.
Quasi-Community Property
Property, real or personal, wherever situated, acquired by either spouse while domiciled elsewhere, which would have been CP if acquired while domiciled in California.
Quasi-Marital Property
Property obtained during void or voidable marriage which would have been CP if the marriage was valid.
Hearsay Definition
An out of court statement offered for the truth of the matter asserted.
General Hearsay Rule
Hearsay is inadmissible unless an exception applies
Common Law vs. UCC
UCC covers all contracts for the sale of goods. Common law governs all other contracts.
UCC Trigger
Sale of goods, which are movable, tangible property.
UCC Merchant
A UCC merchant is someone who deals in goods of the kind or holding oneself out to have special knowledge or skills. Special rules apply for merchants.
Non-Hearsay - Admission by Party Opponent
A party admission is any statement made by a party, and it may be offered against him. Need not be against interest. This is an exception, not exclusion, under CEC.
Duty of Confidentiality (General Rule)
A lawyer shall not reveal information relating to the representation of a client, unless the client gives informed consent.
Duty of Confidentiality (ABA Only Exceptions)
Implied authorization, reasonably necessary to prevent death or substantial bodily harm, to prevent, mitigate or rectify crime or fraud resulting in substantial financial injury if client has used lawyer's services to do so, to secure legal advice about lawyer's compliance with rules, to establish claim or defense between lawyer and client and to comply with another law or court order.
Duty of Confidentiality (CA - Death or Bodily Injury)
Optional and only after making good faith effort to dissuade and informing client of lawyer's ability to report.
Transmutation Rules (Names of Three Stages and Dates)
Lucas (at death and prior to 1984), Anti-Lucas I (from 1984 to 1986), Anti-Lucas II (from 1987 to present)
Lucas
At death and at divorce prior to 1984 - All jointly held title presumed to be CP with no right to reimbursement without agreement to the contrary. Gift from SP to CP presumed.
Anti-Lucas I
At divorce from 1984 to 1986 - Property titled as joint tenants by husband and wife presumed to be CP, unless clear statement in deed or written agreement that is SP, with reimbursement.
Anti-Lucas II
At divorce after 1986 - Any jointly held title by husband and wife is presumed to be CP, unless clear statement in the deed or a written agreement that is SP, with reimbursement.
SP Reimbursements
SP reimbursements are only allowed for expenditures made for DIP (down payment, improvements, principal).
Elements of a Valid Contract
Mutual assent, which consists of an offer, acceptance and consideration.
Essential Terms of a Valid Contract
QTIPS - Quantity, Time of performance, Identity of the parties, Price and Subject matter
Statute of Frauds
Contracts that are unenforceable unless in writing - Marriage, Interest in real property over a year, Promise to pay debt of another, Contract incapable of being performed within one year of making, Sale of goods $500 or more.
Statute of Frauds Mnemonic
Mr. Dog - Marriage, Real Property, Debt of Another, One Year, Goods
Negligence Elements
Duty of Care, Breach of Duty, Cause-in-fact, Proximate Cause, Actual Damages
Types of Standing
Individual, third-party, organizational, taxpayer
Individual Standing
Must prove actual or imminent injury, caused by the conduct complained of, which would likely be redressed by favorable decision.
Third-Party Standing
Must prove individual standing, a special relationship between plaintiff and third party and that it is difficult for the third party to assert his own rights.
Organizational Standing
Must prove members have standing in their own right, interests are related to organizational purpose and the case does not require participation of individual members.
Taxpayer Standing
Federal taxpayer has standing to sue over federal tax or spending program which violates the Establishment Clause.
Contract Remedies (General types)
Legal damages, legal restitution, equitable remedies, injunction
Types of Legal Damages (Contract)
Expectation, consequential, incidental, reliance, liquidated, nominal, punitive (not in contract).
Potential Limitations on Contract Damages
Causation, forseeability, certainty, unavoidability, liquidated damages only remedy.
Types of Legal Restitution
Quasi contract (money restitution), replevin (chattel), ejectment (real property)
Equitable Remedies
Only available when the remedy at law is inadequate - rescission (undo bargain) and reformation (rewrite bargain)
Injunctions
TROs and Preliminary Injunctions same as in tort, Specific Performance sometimes available.
Specific Performance (Mnemonic and elements)
Chocolate Cheesecake is My Favorite Dessert - Contract, Conditions satisfied, Inadequate legal remedy, Mutuality of performance, Feasibility of enforcement, and no Defenses
Defenses to Specific Performance
Laches, Unclean Hands, Defenses to Underlying Contract
Omitted Child or Spouse
An omitted child or spouse will receive intestate share if born or married after the will was made, unless intentionally omitted, otherwise provided for outside of will or decedent had one or more children and devised substantially all of estate to the other parent of the omitted child.
Business Judgment Rule
Officers and directors must act in good faith and in the best interests of the corporation and its shareholders. Violated when conduct is unreasonable.
Duty of Care (Business)
Officers and directors owe the corporation a duty of care to act as a reasonably prudent person would act under similar circumstances.
Diversity Amount in Controversy
Exceeding $75,000
Diversity Citizenship of Natural Person
Determined by domicile
Diversity Citizenship of Corporation
Where incorporated and where principle place of business located (nerve center)
Diversity Citizenship of Unincorporated Association
Determined by citizenship of members
Diversity Citizenship of Minors, Decedents, Incompetents
By own citizenship, not that of representative.
When is Amount in Controversy Calculated
At time of filing
Aggregated Claims Allowed to Get to $75,000?
Yes, however, if plaintiff recovers less than $75,000, may have to pay defendant's litigation costs.
Fourth Amendment
Protects individuals against unreasonable searches and seizures of property and against unlawful arrests.
Arrest Warrant, When Needed?
When arresting someone in their home.
Automobile Stop Standard
Police may randomly stop automobiles if there is a reasonable suspicion.
When is a Search Warrant Required?
Required for government search and seizure of property that is located where one has a reasonable expectation of privacy because a person has a right to be free from unreasonable search or seizure.
Where Does a Person Have a Reasonable Right to Expectation of Privacy?
Home and curtilege
A Warrant Must
Based on probable cause, issued by a neutral magistrate, describe the premises to be searched and items to be seized.
Must Police Knock on Warrant
Yes, must knock and announce. If they don't get a response, may enter.
Extent of Search Incident to Lawful Arrest
May search within the arrestee's immediate control/wingspan, protective sweep of area if reasonable belief of other dangerous individuals, and vehicle if driver can access at time of search or might contain evidence of arrested offense.
Plain View Doctrine
Items in plain view don't require a warrant to search, as long as view is from place where gov't has a right to be.
Driver Arrested, Can Search Car?
Yes, may impound and search back at station house.
Auto Search for Contraband
If probable cause, may search vehicle and any containers.
Exigent Circumstances
Police may conduct search without warrant if they have probable cause and is necessary to prevent destruction of evidence, imminent injury or in hot pursuit.
Lay Witness Opinion Testimony
Admissible if based on witness's perceptions and helpful to trier of fact. Under FRE, not based on scientific or specialized knowledge.
Present Sense Impression (FRE)
Admissible as exception if describing or explaining an event or condition and made while declarant was perceiving the event of condition or immediately thereafter.
Present Sense Impression (CEC)
Applies to a statement explaining the conduct of the declarant and made while the declarant engaged in that conduct. Narrower than FRE.
State of Mind Exception
Statement of then-existing mental, emotional or physical condition - does not apply to statement of memory or belief
Duty of Candor to the Court
A lawyer shall not knowingly make a false statement of fact or law, fail to disclose adverse legal authority, offer evidence known to be false, allow client to engage in fraudulent or criminal activity.
Assumption of Risk
Plaintiff may be denied recovery if knew of the risk and voluntarily consented despite the risk. May be implied, reasonable person standard. Not for intentional torts.
Will Execution Requirements
In writing, signed and witnessed by two disinterested people who know it is a will and are present at the same time as signature.
Effect of Interested Witness
Presumption of duress, fraud, undue influence or menace unless two other disinterested witnesses.
Holographic Will or Codicil
A holographic will can qualify as a valid will if the signature and material provisions are all in the testator's handwriting.
Holographic Will vs. Inconsistent Will
Provisions of an inconsistent will govern unless evidence shows holographic will was executed later.
Duty of Loyalty (Generally)
Fiduciary duty, must put the interest of the corporation above his own.
Duty of Loyalty to Corporation (Conflict of Interests, Two Types)
Self dealing and usurpation of corporate opportunity
Duty of Loyalty (Self Dealing)
Presumed unfair and voidable, unless authorized by disinterested board members or shareholders after full disclosure and the transaction is fair.
Duty of Loyalty (Corporate Opportunity)
Make take opportunity only after good faith rejection and full disclosure. Remedy is turning over opportunity or disgorging profits.
Three Traditional Bases for PJ
Consent, domicile, present when served
Anticipatory Repudiation Definition
Unequivocal expression by a party, occurring before the time of performance, that she will not perform under the contract.
Options of Non-Repudiating Party
Sue immediately, suspend, urge performance
Authentication of Evidence
All evidence, other than testimony, must be authenticated to prove it is what the proponent claims it is.
Authentication of Real Evidence
By distinctive characteristics or chain of custody.
Demonstrative Evidence Standard
Must be a fair representation
Writings and Recordings Authentication
By admissions, eye witness testimony, handwriting verification (expert or non-expert with personal knowledge), circumstantial evidence.
Ancient Documents (FRE and CEC)
20 years FRE, 30 years CEC
What are Self Authenticating Documents?
Certified copies of public records, official publications, newspapers and periodicals. FRE business records and trade inscriptions, CEC signature of notary or domestic public employee.
Best Evidence Rule
To prove the contents of a writing, must produce original. Machine duplicates allowed unless authenticity in question. Called Secondary Evidence Rule under CEC.
Voluminous Writings
Summaries do not offend Best/Secondary Evidence Rule
Excited Utterance
Admissible if relating to a startling event or condition and made while the declarant was still under the stress of excitement based by the event or condition.
Expectation Damages (Contract)
Compensate for value of the benefit plaintiff expected to receive from the contract
Comparative Negligence
Plaintiff contributed to injuries, but not complete bar, just reduces recovery.
Partial vs Full
Comparative Negligence
Partial means if more than 50%, no recovery, full, can be up to 99%
Contributory Negligence
If Plaintiff even 1% negligent, complete bar to recovery
Three Defenses to Negligence
Comparative negligence, Contributory negligence, Assumption of risk
Permanent Separation for Community Property
Physical separation plus intent of one party that the separation be permanent. Afterwards, property treated as SP.
CP Liable for What Debts? And Exception?
All debts incurred before or during marriage, regardless of control or management. Exception: Earnings of nondebtor spouse not liable for premarital debts of other, if in separate account debtor has not right to withdraw from and not commingled.
SP Liable for What Debts?
Own debts, not for debts of other, unless incurred during marriage and for necessaries of life for the spouse/child.
Tort Liability of CP
If tort for benefit of community, CP first then tortfeasor SP, if not, then tortfeasor SP then CP
For CP, When is Tort Debt Incurred?
When tort occurs
For CP, When is Tort Contract Incurred?
When contract made
For CP, When is Spousal/Child Support Debt Incurred?
Considered to be pre-marriage regardless of reaility
Miranda Warnings Apply To...
Custodial interrogations - Must believe not free to leave and subject to questions trying to get incriminating response.
Do Miranda Warnings Apply to Undercover Agents?
No
Re-Mirandize?
Must be significant break in custody, 14 days
How to Waive Miranda?
Must be knowingly, voluntarily and intelligently made.
Use of Non-Mirandized Confessions?
To impeach, but not part of case-in-chief.
Statement Against Interest - Hearsay
Admissible if, at the time it was made, statement was against the defendant's financial or penal interest. FRE, if to exculpate, must be corroborating evidence. CEC includes statement against social interest. REQUIRES UNAVAILABILITY
Which Hearsay Exceptions Require Witness to be Unavailable?
Former testimony, dying declaration, statement against interest, forfeiture by wrongdoing (iced the witness)
Duty to Communicate Standard
The lawyer shall promptly inform the client of any updates in the case, consult with client.
If Lawyer Doesn't Communicate Settlement Offer, What Two Things Are Triggered?
Duty to Communicate and Scope of Representation
Trust Formation Elements
Intent to create a trust, an identifiable property, legal purpose, with ascertainable beneficiary.
What Happens if No Trustee Named?
One will be appointed by court
Modern Approach to Personal Jurisdiction
PJ allowed if there is a long arm statute and exercise of jurisdiction is in keeping with minimum contacts standard.
Modern Personal Jurisdiction Mnemonic
My Parents Frequently Read Science Fiction Children's Stories Out-loud
Modern Personal Jurisdiction Mnemonic Items
Minimum contacts, Purposeful availment of benefits and protections, Foreseeability of being haled into court, Relatedness between contact and claim, Systematic and continuous contacts, Fairness factors, Convenience, State's Interest, Other Interests
California Long Arm Statute
Allows jurisdiction up to SCOTUS limits
Definition of Minimum Contacts
If defendant has purposefully availed himself of the forum state, both specifically (related to claim) and generally, and must be fair, convenient and state's interest.
Fifth Amendment Takings Clause
Private property cannot be taken for public use within just compensation
Public Use Standard for 5th Amendment Takings
Rationally related to conceivable public purpose.
Parol Evidence Rule
Limits the extent to which evidence of discussions or writings made prior to or contemporaneously with a signed written contract can be admitted and considered part of the agreement.
What is Partial Integration?
If final expression of the agreement, but not intended to include all terms
Difference of PER in Partial vs. Full Integration?
If partial, can supplement term, if full, can't impact at all.
Exceptions to PER
Subsequent communications, evidence of contract formation defects, conditions precedent to contract's effectiveness, interpretation of ambiguous terms.
Order of Interpretation of Ambiguous Terms (UCC)
Course of performance, course of dealing, usage of trade
First Degree Murder Definition
When premeditated, deliberated or during the course of an enumerated inherently dangerous felony (felony murder rule).
Felony Murder Rule Felonies
Arson, robbery, burglary, rape, mayhem or kidnapping (Aaron Rodgers Buys Really Manly Kilts)
Second Degree Murder Definition
Murder which does not rise to 1st degree and is not lowered to manslaughter
Homicide Definition
The unlawful killing of another.
Murder Definition
The unlawful killing of another with malice aforethought..
Felony Murder Rule - Is Defendant Liable for Death of Co-Felon by Nonfelon?
Most courts say no.
Felony Murder Rule - Is Defendant Liable for Death of Victim by Third Party?
Courts are split
First Three Issues to Discuss in Evidence Analysis
Logical, legal relevance and personal knowledge
If CEC, Start Evidence Essay With
Prop 8, whether civil or criminal
QCP Remains Separate Property of Each Spouse Except
At death, dissolution or upon an action by creditors.
Is Sole Title Conclusive of SP?
No, can trace using either exhaustion or direct tracing method.
Lucas vs. Moore Hypos
Lucas - SP contribution to jointly titled property, Moore - CP funds used to pay off SP property
Valid Marriage, then Second Relationship While First Marriage Still Valid, What to Discuss if Joint Title Property Purchased by Second Relationship?
Gift of community property
If Something Acquired Over Time Before/During Marriage, How to Allocate?
Time rule
Spit Out Rules At Start for Community Property?
Yes
If One Spouse Screws Over Another, What to Add?
Discuss fiduciary duty
How to Organize PR Answer?
By larger group - Honesty, Integrity, Loyalty, Due Care
First Thing to Consider for Professional Responsibility Question?
Concurrent conflict of interest
What Con Law Concept is Triggered if a Entitlement or Right is Taken Away
Procedural Due Process
What Con Law Concept is Triggered if a Fundamental Right is Involved?
Substantive Due Process
Preliminary Issues to Address in Con Law Question
Standing, Ripeness, State Action
Dormant Commerce Clause - State Cannot Regulate Interstate Commerce If
It is discriminatory or unduly burdensome
Dormant Commerce Clause - If Regulation Is Facially Discriminatory, Then To Be Valid
It must be necessary to an important non-economic government interest.
Dormant Commerce Clause - Unduly Burdensome Standard
State's interest vs. burden on interstate commerce
Two Exceptions to Dormant Commerce Clause Limitations
Market participant and Congressional consent
Generally Speaking, The Equal Protection Clause Prohibits
Treating similarly situated people differently.
Three Levels of EPC Review
Strict scrutiny, intermediate scrutiny, rational basis
Strict Scrutiny Standard
Necessary to achieve compelling government interest
Intermediate Scrutiny Standard
Substantially related to an important government interest
Rational Basis Standard
Rationally related to a legitimate government interest
Who Gets What Level of Scrutiny?
Race, national origin, alienage get strict, gender and illegitimacy get intermediate
EPC Fundamental Rights
Voting, political candidacy, access to courts, state to state migration
Strict and Intermediate Scrutiny Require
Intent on the part of the government
Substantive Due Process Definition
Limits government's ability to regulate certain areas of human life, liberty and property.
SDP Fundamental Rights
Relating to marriage, living with family, child rearing, child bearing
SDP Levels of Review
If fundamental right, strict scrutiny, if not, rational basis
Procedural Due Process Definition
Requires government to use fair process before depriving a person of life, liberty or property.
Process Due for PDP - Judicial Proceedings
Includes right to hearing, counsel, call witnesses, a fair trial and appeal
Process Due for PDP - Non-Judicial Proceedings
Balancing test - private interest impacted, risk of error, government's interest.
Exclusionary Rule
Judge made rule prohibiting prosecution from introducing evidence obtained in violation of 4th, 5th and 6th amendment rights.
Standing for Exclusionary Rule
Person alleging exclusion must have standing, violation must have been against them personally
Fruit of the Poisonous Tree Rule
Evidence found as a result of a constitutional violation is similarly inadmissible
Exceptions to Fruit of the Poisonous Tree Rule
Independent source, inevitable discovery, purged taint
Illegally Obtained Evidence May Still Be Used...
To impeach defendant or during civil/parole proceedings
Good Faith Warrant Exception
Where officer acts in reasonable reliance on a facially valid search warrant issued by a proper magistrate and the warrant is ultimately found to be unsupported by probable cause, evidence will not be barred.
Good Faith Warrant Exception Does Not Apply If
Affiant knew information in affidavit was false or so lacking in probable cause that the magistrate's reliance was unreasonable.
Sixth Amendment in Crim Pro Context
Right to effective counsel, right to confront adverse witnesses and right to a speedy jury trial
Right to Counsel Exceptions
Photographing, fingerprinting, handwriting samples
Standard of Ineffective Counsel in Crim Pro
Counsel's performance was not as a reasonable competent attorney and but for the deficiency, outcome would have been different.
Fifth Amendment Right To Counsel Attaches When
Accused unambiguously indicates that he wishes to speak to counsel, must cease all questioning and attorney must be present for future questioning.
Stop and Frisk
A police officer may stop and frisk a person if they have reasonable suspicion of criminal activity and involvement supposed by articulable facts.
Fifth Amendment Right Against Self-Incrimination Protects
A defendant from compulsion to give testimony or communications evidence that could expose him to criminal liability.
Definition of Affirmative Easement
Entitles the holder to do something on another's land
Definition of Negative Easement
Prevents the landowner from doing something on his land
Definition of Easement Appurtenant
Benefits particular parcel of land, creates dominant (benefited) and servient (burdened) estates.
Definition of Easement in Gross
Easement whose benefit is provided to an individual and is not tied to a particular parcel of land.
Elements of Express Easement
Writing in deed or will, SOF applies
Elements of Easement by Implication
Land originally owned by one, severed, use of property existed before severance, easement is reasonable necessary to the use of enjoyment of dominant land.
Elements of Easement by Necessity
Land originally owned by one, severed, strictly necessary to access dominant land, prior use not required.
Easement by Prescription
Actual use, open visible and notorious, hostile, continuous for the statutory period.
Easement by Estoppel
Occurs when the serivent parcel allows use of the easement such that it is reasonable that the user will rely upon non-revocation of the easement.
Excessive Use - Easement
An easement is only allowed to a reasonable extent within its original use, increased use may not be allowed.
Repair of Easements
The dominant owner has an implied right to repair and maintain the easement.
Mnemonic for Termination of Easements
END CRAMP - Estoppel, necessity, destruction, condemnation, release, abandonment, merger, prescription.
Only Difference Between Assignment and Sublease
In assignment, new tenant personally liable, but not with sublease, because sublease does not provide privity of estate.
What Are Real Covenants?
These are written promises between two parties that meet certain technical requirements, including that the promises run with the land.
Remedy for Breach of Real Covenants?
Money damages
Elements of "Burden to Run With the Land"
Writing, intent, must "touch and concern the land", vertical and horizontal privity, notice
Types of Notice for Real Property
Actual, constructive or inquiry
Elements of "Benefit to Run With the Land"
Writing, intent, must "touch and concern the land" and vertical privity
Termination of Real Covenants
Agreement, abandonment or changed conditions, which must be significant
Equitable Servitudes/Restrictive Covenants Elements
Must be in writing, intent to apply to successors, must touch and concern the land and notice
Can a Court Imply An Equitable Servitude?
Yes, common plan or scheme
Remedy for Breach of Equitable Servitudes/Restrictive Covenants Elements
Equitable, such as injunction
Do Counterclaims Court to Get to $75,000
No
Transferability of Easements
An appurtenant easement burden passes automatically with servient land, unless the new owner is BFP
Definition of BFP
Took for value with no notice of claim
What is the Merger Doctrine for the Sale of Land
The sale contract merges with the deed once the sale has closed, and the deed controls.
How Many Covenants in Warranty Deed?
Six
What Are the Present Covenants in a Warranty Deed?
Seisen (grantor owns what he purports to own), right to convey, against encumbrances
What Are the Future Covenants in a Warranty Deed?
Warranty of title, quiet enjoyment, future assurances
What Are the Covenants in A Warranty Deed
Seisen, right to convey, against encumbrances, warranty of title, quiet enjoyment, future assurances
Elements of Joint Tenancy
Unities of time, title, interest and right to possess, with express right to survivorship
Impact of Mortgage Theory on Joint Tenancy
If lien, then doesn't sever, if title, then it does sever.
Common Law vs. Modern View of Conditional of Rental Premises
Common law, take as-is, modern view is that LL must maintenance all common areas, latent conditions the LL knows of and if LL chooses to repair, must do non-negligently
Constructive Eviction - Just Residential?
No
Constructive Eviction Requirements
Premises are virtually uninhabitable because of substantial interference, notice is given by tenant to LL, LL fails to meaningfully respond, tenant actually moves out.
Who Does Recording Acts Protect?
BFPs, not those who take without value (donees)
Term for When a Co-Owner Has Been Denied Possession?
Ouster
Impact of Ouster
Either must pay rental value to ousted owner or ousted owner may commence action for possession
Implied Warranty of Habitability
Requires premises be fit for human habitation, ONLY RESIDENTIAL LEASES
Implied Covenant of Quiet Enjoyment
All leases, LL and anyone acting for him isn't able to interfere with Tenant's use
California Subject Matter Jx
Unlimited civil (over $25k) in Superior Court, Limited civil ($7.5k to $25k) in Superior Court, Small claims (less than $7.5k or $5k for business), in Small Claims Court
Removal to Federal Court
Only defendant can remove, but not if in diversity and citizen of forum state, venue is fed court for state court area and no later than 30 days after service of first removable pleading, but never later than 1 year.
Removal Standard
Defendant may remove to federal court if the case is brought in state court and could properly be brought in federal court.
Does Evidence Need to Be Admissible to Be Discoverable?
No, as long as reasonably calculated to lead to admissible evidence
Effect of Privilege on Discovery
Not discoverable, Cal requires privilege log
Effect of Attorney Work Product on Discovery
Generally not discoverable, unless substantial need and inability to obtain any other way
Effect of Attorney Work Product on Discovery - Absolute Privilege
Fed if by party, attorney or representative. Cal if by attorney or his agent.
Res Judicata - CA and Fed differences
1) California is primary right, Fed is same transaction and occurance and 2) final judgment in CA is after appeals, Fed is just when rendered
Elements of Collateral Estoppel
Final judgment on the merits, same issue actually litigated and necessarily determined and issue was essential to the judgment in the first case.
Who Can Rely on Prior Judgment for Collateral Estoppel?
Traditionally privity needed, but in California a stranger can use under certain circumstances. Rule of mutuality not applied.
California Elements for Stranger to Use Collateral Estoppel
Issues are identical, final judgment on the merits, party against whom offered had fair opportunity to be heard on the critical issue, would not be unfair. And in CA party against whom being asserted must be a party or in privity with party from earlier action.
Timing for Motion to Remand to State Court
Within 30 days of removal, but no time limit if court lacks SMJ
Elements of Res Judicata
Valid final judgment on the merits, claim actually or could have been litigated, same P and D or privity, same claim.
Summary Judgment Standard
Moving party must establish no genuine issue of material fact and entitled to judgment as a matter of law.
Final Judgment Rule
Only final judgments can be appealed.
Final Judgment Rule Exceptions
Injunctions and some interlocutory orders, trial court certifies an interlocutory order for appeal, collateral orders on procedural issues, multiple claims and parties and final to some, and extraordinary writ in extraordinary circumstances.
Supplemental Jurisdiction Allowed When
Additional claim does not reach SMJ but shares common nucleus of operative fact. Arises out of same transaction and occurrence.
Federal Venue
Where claim arose or all defendants reside (or any if multiple). If relating to land, then where land is.
California Venue
County where claim arose, where land in dispute is located or where any defendant resides.
Residence of a Corporation for Venue Purposes
Where subject to PJ for Fed.
County where PPB or where contract entered into or breached for CA.
Choice of Law - Erie Doctrine
Fed court sitting in diversity must apply state substantive and federal procedural law. Balance of interests to determine substantive vs procedural.
Examples of Non-Hearsay
Effect on listener/reader, declarant's state of mind, knowledge, legally operative fact
What To Address if Hearsay Not Being Offered for Truth of the Matter?
Prejudicial balancing test
Two Methods of Vicarious Admission
Statement made by authorized representative or by employee/agent within scope of employment and during employment.
CA Employee Vicarious Admission
Only where negligence conduct of that employee is the basis for employee's liability in a case of respondeat superior.
Ways a Witness May Be Unavailable?
Privileged, dead, reasonable means can't procure, witness refuses despite court order (CEC out of fear) and witness unable to remember (CEC total memory loss)
Business Records Hearsay
Admissible where a sponsoring witness establishes the record was kept in the course of regularly conducted business activity.
Business Records Hearsay Requirements
Must be regular practice to keep such a record, first hand knowledge and business duty to report.
Business Records California Distinction
FRE includes events, conditions, opinion or diagnosis. CEC does not allow opinions or diagnoses.
Multiple Levels of Hearsay
Must have exception/exemption for each level
Duty of Diligence
An attorney shall act with reasonable diligence and promptness in representing a client.
Reasonable Fee Mnemonic and Items
TENT FLAW - Time limitations, Experience, Nature and length of rep, Time and labor, Fee customarily charged, Likelihood will preclude other employment, Amount involved, Whether fixed or contingent
CA Reasonable Fee Distinction
Not really a distinction, just add "may not be illegal or unconscionable"
Contingent Fee Agreement Elements
In writing, signed by the client, states method of calculation, whether expenses taken before or after
CA Contingent Fee Element Distinctions
Both client and attorney must sign and each must have a copy and must say that fee is negotiable.
CA Rules on Expenses Deducted Before/After Calculation of Contingent Fee
Look at how disbursements and costs affect the contingency fee and client's recovery and if the client will have to pay any related matters covered by the agreement.
CA Contingent Fee Negotiable Exception
Case against health provider for negligence - first $50k @ 40%, next $50k @ 33.33%, next $500k @ 25%, 15% beyond that.
General Rule vs CA on Contingent Fee in Criminal/Domestic Cases
Not allowed under ABA, but in CA allowed in domestic based on circumstances and doesn't promote divorce.
Attorney Responsibility With Regard to Frivolous Claims
An attorney shall not bring or defend a proceeding unless there is a basis in law and fact for doing so that is not frivolous.
Mandatory Withdrawal - Shall Withdraw If
Rep would result in violation of law or rules of professional conduct, Mental or physical conditions materially impairs ability, lawyer is discharged (ABA only), if knows that client bringing action with out probable cause or just to harass/injure (CA only)
Permissive Withdrawal - May Withdraw If
Can do so without materially adverse effect (ABA only), client persists in action attorney believes is criminal/fraudulent, client has used serves to commit crime/fraud, client insists on taking action attorney finds repugnant, client substantially fails obligation to attorney and reasonable warning of withdrawal given, other good cause exists.
CA Withdrawal Permitted When
Client insists on presenting claims or defenses which cannot be supported by good faith, engages in conduct which makes it unreasonably difficult to represent, unable to work with co-counsel
Duty to Client Upon Permissive Withdrawal
To protect client's interests and provide reasonable notice, surrender papers and property (may keep a copy), refund any payments not yet earned.
Pro Rep - If Lawyer Has Violated Rule, Or Engaged in Activities Which Support Withdrawal...
Discuss withdrawal and whether permissive or mandatory.
Attorney May Enter Into Business Transaction With Client Only When...
Terms are fair and reasonable, fully disclosed, advised in writing to see independent counsel and informed written consent
Scope of Attorney Representation
May take actions to represent the client, but must abide by client's substantive decision to settle, plea or waive jury trial after consultation. Lawyer responsible for legal strategy.
Fee Sharing With Non-Lawyers
Not allowed
Organizational Client - Potential Harm - First Step
If officer, employee or other person intends to take action which may cause substantial harm to organization, must report up to highest authority.
Organizational Client - Potential Harm - Second Step
If highest authority doesn't listen, under ABA, may report outside organization if necessary to prevent injury. Under CA may not, only urge reconsideration and/or resign.
Organizational Client - Representation of Individuals
May represent organization and officers, directors, employees only if concurrent conflict of interest exceptions are met.
May a Lawyer Obtain a Proprietary Interest in the Cause of Action of Subject Matter?
No, except to secure lien for lawyer's fees or contingent fee agreement.
Sexual Relations With Client (ABA)
Not allowed unless sexual relations predate representation
Sexual Relations With Client (CA)
Allowed if lawyer does not: require or demand sex as condition of representation, coerce client, allow incompetence because of sex. These do not apply if sexual relations predate representation.
Compensation for Legal Services from Third Parties Only Allowed If
Client gives informed consent, there is no interference with representation, no breach of confidentiality
Communication With Represented Party
A lawyer shall not communicated with parties represented by counsel unless other lawyer has consented or authorized by law or court order.
Extrajudicial Statements Standard
A lawyer who is participating in an investigation or litigation shall not make an extrajudicial statement that the lawyer knows or reasonably knows will be publicly disseminated and will have a substantial likelihood of materially prejudicing the proceeding.
Extrajudicial Statement Except
A lawyer may state the claim, offense or defense, public record information, that investigation is in progress, requests for information, warnings of danger and the status of the accused in a criminal case.
Solicitation of Clients Generally
A lawyer may not conduct in-person, live telephone or real time electronic solicitation.
Solicitation of Clients - California Presumptions
Guarantees of results, testimonials without disclaimer, delivery of ad to client who is in a fragile mental, emotional or mental state, transmissions at scene of accident, dramatizations without disclaimer, "no fee without recovery" communications unless statement regarding responsibility for fees
Referral Fees (ABA and CA)
Not allowed under ABA unless qualified referral service, allowed under CA if not offered or given as a promise or agreement for future referrals.
Conflicts of Interest - Former Lawyer for Government
A lawyer who formerly served as a government employee shall not represent a client in connection with a matter in which lawyer substantially personally participated unless government agency gives informed written consent.
Imputed Disqualification and Exceptions
All attorneys in conflicted's attorney's firm are imputedly conflicted, unless (1) prohibition based on personal interest and does not present significant risk of material limitation, (2) based on former client at conflicted attorney's former firm with timely screening and written notice to former client, (3) client waives with informed written consent.
Loans to Clients (ABA and CA)
ABA not allowed except contingency cases (court costs and expenses) repayment dependent on outcome or court costs and expenses for indigent clients. CA may lend to client if written promise to repay.
Fee Splitting With Other Attorneys
Only allowed if proportionate to work, client consents in writing, total fee is reasonable. CA rules allow if client consents in writing after full disclosure and full fee is not unconscionable.
Special Rules for Prosecutors
Shall refrain from prosecuting charges not supported by probable cause, make timely disclosure of exculpatory evidence, refrain from making extrajudicial statements which have substantial likelihood of heightening public condemnation of the accused.
CA Difference Standard for Conflict of Interest Waiver
Only subjective good faith belief that attorney can represent, not reasonable belief
ABA/CA Difference on Attorney Limiting Liability to Client
ABA allowed if independent representation, CA expressly forbidden
ABA/CA Difference on Attorney Fee Disputes
Arbitration mandatory in CA, encouraged by ABA
Under What Subheading Do Conflicts of Interest Fall?
Duty of Loyalty
When Attorney's Fees Disputed, What to Do With Funds?
Keep disputed portion in client funds account
May a Lawyer Pay A Witness for His Testimony?
Only an expert witness, not a lay witness
Contract Acceptance
Words creating an express contract or conduct creating an implied-in-fact contract.
Two Methods of Acceptance
Bilateral - both parties promise to perform, Unilateral - exchange of promise for actual performance
Offer Can Only Be Accepted...
Within a reasonable time, by the offeror in response to an offer.
Termination of Power to Accept
Rejection, counter offer, revocation, lapse of time, death or incapacity
What Is an Illusory Promise?
A promise not supported by consideration and therefore unenforceable.
Requirement and Output Contracts Are Not What?
Illusory, despite appearances
Inadequate Consideration Examples
Gifts, sham consideration, past consideration, preexisting duty
What Is Promissory Estoppel
A promise that foreseeably induces reliance, and is actually relied upon, may be enforceable to prevent injustice, even without consideration.
Contractual Impossibility
Is when a supervening, unforeseeable event makes performance impossible and thus discharges performance. Must be an event neither party assumed risk of and must be literally impossible.
Examples of Contractual Impossibility
Destruction of subject matter, death or incapacity of person required, supervening illegality
Contractual Impracticability
When an event the parties assumed would not occur makes performance extremely and unreasonably difficult. Must concern basic assumption and parties must not have allocated the risk.
Oral Contract Modification
Normally allowed, but not if original contract under SOF
UCC vs. Common Law - Contract Modification
Mutual assent and consideration needed for common law, no consideration for UCC
If Oral Modification Unenforcable Because of SOF, Consider What?
Detrimental reliance
Material Breach Under Common Law Factors
Party did not receive benefit of bargain, extent of part performance, willfulness of breach, time is not of essence unless stated
Material Breach Under UCC Factors
Perfect tender rule applies for a single delivery, if goods fail to conform, may reject within reasonable time, accept the whole, accept any unit and reject the rest
Perfect Tender Rule and Installment Contracts
Rule does not apply
Seller's Right to Cure
Buyer's right to reject is subject to seller's right to cure. May cure up until performance is due, but seller must give notice to buyer and new tender.
If a Breach Is Not Material
It is minor and non-breaching party may recover damages but must still perform.
Frustration of Purpose
Occurs when a party's purpose for entering contract is destroyed by supervening events. Both parties must know purpose, event must not be foreseeable, frustration is total.
Three Non-Contract Defenses to Contract Enforcement
Impossibility, impracticability, frustration of purpose
Definition of Contract Offer
A manifestation of willingness to enter into a bargain. Needs definite and certain terms and a communication to the offeree.
Advertisements and Catalogs Are...
Invitations to deal, not offers, unless specific commitment and so specific as to be an offer
UCC Irrevocable Offers
Firm offer rule - made by merchant, in signed writing, giving assurance will be held open, three month limit
Firm Offer Over Three Months
Needs consideration to be irrevocable for more than 3 months, without consideration is revocable but not immediately revoked after 3 months.
Unconscionability
If a court finds a contract term so unfavorable it is unconscionable, the court may decline to enforce the contract or the unconscionable part. Assessed at time of formation.
Mutual Mistake
To avoid contract, must show that mistake is as to a basic assumption, had a material effect, risk was not imposed on a party
Unilateral Mistake
To avoid contract, must show that mistake is as to a basic assumption, had a material effect, risk was not imposed on a party, that the other party knew or should have known of the mistake and enforcement would be unconscionable.
SOF Exceptions to Each Item
Mutual promises to marry, where real estate part performed, to pay the debt of other when to promisor's benefit, full performance has occurred, sale of goods for more than $500 where specifically manufactured, admitted in testimony or goods are accepted/paid for
SOF More than One Writing?
Yes
Implied Warranty of Merchantability
Warrants goods are fit for the ordinary purpose for which such goods are used.
Types of Conditions Precedent for Contract
Express (strict), constructive (substantial)
Waiver Under Contract
Failure to insist on strict performance of an express condition can be a waiver, but waiver can be retracted unless detrimental reliance
Consequential Damages in Contracts
To compensate for damages that are a direct and foreseeable consequence of non-performance
Incidental Damages in Contracts
Includes those damages reasonably incurred by a buyer in rejecting non confirming goods or by seller in reselling goods.
To Whom is a Duty of Care Owed in Tort?
Foreseeable plaintiffs (Majority/Cardozo), Everyone (Minority/Andrews)
Trustee's Duties to Beneficiaries
To account and inform, not to delegate, to be impartial, to use duty care, segregate trust funds (don't commingle), duty of loyalty (self dealing, conflicts of interest, treat beneficiaries equally), invest prudently, defend actions which may result in loss
Difference in Revocation of Will and Codicil
Revocation of codicil revokes only the codicil, revocation of will revokes will and any codicils.
Codicils Require What Formalities?
Same as a will
Types of Revocation of Wills
By physical act, subsequent will (if express or implied revocation), by operation of law
Authority of Agent: Express vs Implied Actual Authority
Express is specifically granted, implied if agent reasonably believes principal gave him authority because of necessity, custom or prior dealings
Can Actual Express Authority Be Oral?
Yes, if SOF doesn't apply.
Apparent Authority Definition
An agent's actions will bind the principal when the principal has provided the agent with the appearance of authority, on which a third person reasonably relies.
Apparent Authority Notice Requirement
Third party must receive actual or constructive notice of the termination of actual authority.
Apparent Authority Written Authority
May be lingering written authority where third party relies
Agent Exceeds Actual Authority
If position would normally allow an action or principal has previously allowed a similar excess of authority.
ABCs of Agency
Agreement, Benefit, Control
Agency - Ratification Occurs When
An agent takes action without proper authority, and the principal subsequently engages in conduct that approves the agent's action.
Agency - Principal Will Be Bound Based on Ratification Where
He has capacity, knowledge of all material facts and accepts agent's transaction.
Principal's Liability for Agent's Torts
A principal is liable for an agent's torts that are committed within the scope of the principal-agent relationship.
Frolic vs Detour
Frolic is substantial deviation for own purposes (not liable), detour is minor deviation (liable)
Duty of Loyalty - Usurping a Corporate Opportunity
A director or officer may not personally act on a business opportunity where the corporation would expect to be presented the opportunity, unless good faith rejection after full disclosure of all material facts.
Remedy For Usurping a Corporate Opportunity
May compel director or officer to return opportunity or to disgorge profits.
Piercing the Corporate Veil
Generally shareholders not liable for debts of corp, but can be pierced if alter ego, undercapitalized, fraud or estoppel
Effect of Piercing the Corporate Veil
Personal liability for shareholders (joint and several) or equitable remedy generally only in tort.
Right to Confront Adverse Witness
Sixth Amendment - Includes subpoenas to compel and cross-examination.
Right to Confront Adverse Witness - Testimonial Statements
Prosecution may not admit testimonial statements by third party against defendant unless declarant is available for cross.
When Is a Statement Testimonial vs. Nontestimonial
Non testimonial when made in course of police interaction during ongoing emergency, testimonial once danger has passed and primary purpose to establish criminal liability.
Joint Co-Defendants and Confrontation
Where to defendants jointly tried and one confesses, right to confront prohibits use of that statement against the other defendant unless redactable or co-defendant takes stand.
Severance of Joint Criminal Trial
While courts prefer joint trials for judicial economy, will serve if substantial prejudice to one of the defendants.
Reliance Damages in Contracts
Put the plaintiff in the same position as if contract had never been made. Measure is cost to plaintiff of his performance.
Restitution Damages in Contract
Where defendant has derived benefit, been unjustly enriched and it would be unfair to allow them to keep the benefit. Quasi-contract, replevin, ejectment.
All Intentional Torts Require
Intent (may be transferred) and causation
Transferred Intent Does Not Apply to What Torts
IIED and Conversion
Tort Battery Elements
Intent to commit a harmful or offensive touching.
Tort Assault Elements
Intent to cause apprehension of an imminent harmful or offensive touching.
Intentional Infliction of Emotional Distress Elements
The intentional or reckless infliction of severe emotional or mental distress caused by defendant's extreme and outrageous conduct.
Intentional Infliction of Emotional Distress Third Party Liability
If physically present, known by defendant to be present and close relative to victim or suffers bodily harm as a result.
False Imprisonment Elements
Intentionally causing the plaintiff to be confined, restrained or detained to a bounded area with no reasonable means of escape, of which plaintiff is either aware of harmed by.
Trespass to Land Elements
Intent to physically invade the property of another
Trespass to Chattels Elements
Intentional interference with a person's use or possession of a chattel.
Conversion
Intentional interference with a person's use or ownership of property so substantial that it warrants requiring defendant to pay full value.
Standard of Care Generally
To act as a reasonable person under the circumstances. Circumstances include physical not mental characteristics.
Duty to Mitigate
A plaintiff has a duty to mitigate his damages, plays into unavoidability of consequences
Testamentary Capacity (Generally)
An individual must be at least 18 years old and of sound mind to make a valid will. Must understand the nature of the testamentary act, the situation of his property and the relations with his family members affected by the will.
Testamentary Capacity (Mental Disorder)
Does not have capacity if suffers from hallucinations/delusions causing devise in a way he would not have otherwise done.
Fraud (Wills)
Misrepresentation, deceit of concealment of material fact known to be false by the wrongdoer, with the intent to deprive a person of property or legal rights or cause injury, and does in fact deprive that person.
Three Times of Fraud in Wills
In the execution, in the inducement, preventing revocation
Undue Influence (Wills)
When testator leaves an unnatural disposition, beneficiaries had an opportunity toe influence, testator was susceptible to influence, active in procuring this disposition.
Fraud or Undue Influence Presumed Where
Donative transfer to person who drafted, fiduciary, care custodian, cohabitant or employee of any of the above, except where blood relative or cohabitant of transferor, $5k or less, independent attorney review. Rebuttable by clear and convincing evidence.
Incorporation By Reference
A writing outside the will may be incorporated by reference into the will if existed at time will executed and sufficiently described. Other writing does not need to be valid.
Incorporation By Reference Special Rule for Limited Tangible Personal Property
Writing may be admitted even if not incorporated by reference if referred to in the will, is dated and in testator handwriting or signed, describes items and beneficiaries, each item worth no more than $5 and $25k in total.
Incorporation By Reference Special Rule for Limited Tangible Personal Property Does Not Apply To
Real property, bank accounts, documents of title, securities, money, property used in trade or business.
Intestate Distribution of CP
Goes to surviving spouse, includes QCP
Intestate Distribution of SP
Surviving spouse takes all only if no surviving issue, parent, siblings or issue of siblings. One half if one child, parents or their issue. One third if more than one child or their issue.
Intestate Succession Order
Issue, parents, issue of parents, grandparents, issue of grandparents, issue of predeceased spouse, next of kin, parents of predeceased spouse, issue of parents of predeceased spouse, then escheat to state.
120 Hour Rule
For intestate succession to apply, heir must survive the decedent by 120 hours or deemed predeceased, unless this would result in escheat to the state.
Advancement
If a person dies intestate, property that decedent gave to an heir during life is only treated as a advancement if decedent declared and heir acknowledged such in a writing.
Acts of Independent Legal Significance
A will may dispose of property by reference to acts and events that have independent legal significance apart from their effect in the will.
Cy Pres Doctrine
When a charitable objective becomes impossible or impracticable, courts often apply the cy pres doctrine and substitute another similar charitable object to match settlor's intent.
Charitable Trust Definition
One that is for charitable purposes and benefits society.
Does a Trustee Have the Right to Terminate a Trust?
Not unless provided for by trust itself
Does a Beneficiary Have the Right to Terminate a Trust?
Yes, if all are competent, consent and termination does not frustrate purpose
Does a Settlor Have the Right to Terminate a Trust?
Yes, if he reserved the power to do so
Does a Court Have the Right to Terminate a Trust?
Yes, if frustrated, impossible, illegal or changed circumstances
Trustee Powers
All enumerated powers and implied powers necessary and appropriate to carry out the terms of the trust (sell/lease, incur expenses, borrow money, operate business)
Prudent Investor Rule
Trustee has the duty to prudently invest the trust property to make it productive for the beneficiaries, either common law statutory lists or UPIA (majority)
Remedies Against A Trustee
Damages, constructive trust, tracing and equitable lien, ratify and waive, sue for loss or removal.
Pre-Incorporation Actions by Promoter
Promoter is generally personally liable
Pre-Incorporation Actions by Promoter - Right of Reimbursement
Promoter may have a right to reimbursement based on quasi contract theory or implied adoption
Pre-Incorporation Actions by Promoter - Corporate Liability
Corporation generally not liable except where expressly adopts the contract or accepts the benefits of the contract
Creation of a General Partnership
No formalities required, just intent to the parties
Intent of the Parties for a General Partnership May Be Shown By
Contribution in exchange for profit, common ownership, but not sharing of gross revenue.
California Partnership Law
Governed by RUPA, some provisions cannot be waived by partnership agreement, like duty of loyalty.
Contract Liability of General Partners
Liable for all contracts entered into by a partner within scope of partnership
Tort Liability of General Partners
Liable for all torts committed by any partner or partnership employee within the scope of partnership
Civil Liability of General Partners is Generally
Joint and several, but may seek contribution or indemnity
Limited Liability Partnership Formation
File a statement of qualification with secretary of state signed by at least two partners, identify name and address, have a name ending in LLP or RLLP
Limited Liability Partnership - Partner Liability
No personal liability for partnership, but personal liability for own wrongful acts
Duties of Partners to Each Other
Duty of loyalty, care, to disclose, to account
Transferability of Partnership Assets
A partner is not a co-owner and has no transferable interest in partnership assets, except share of profits and surplus
Priority of Distribution of Trust Assets Upon Dissolution
Creditors, partners who have loaned money, capital contributions, profits and surplus shared equally
Management and Control of Community Personal Property
Belongs to either spouse, except may not make a gift of CP without written consent of other and may not sell CP used in family dwelling, furnishings, clothing of children or spouse without written consent of other.
Van Camp vs Pereira - When to Use
Van Camp when character of business is primary reason for growth, Pereira when spouse's management skills caused growth
Van Camp Calculation
CP First - Value of Manager Spouse's Services times years married, minus actual compensation, minus family expenses paid times years married minus CP interest. SP is remainder of business value.
Pereira Calculation
SP First - Initial capital contribution to SP business plus initial capital contribution times reasonable rate of return plus years married with business. CP is remainder of business value
Prohibition Against Suing States
11th Amendment provides immunity to states from federal suit against them by citizens of another state or a foreign state
Prohibition Against Suing States - Examples
Actions for damages by citizens of state have been barred, but not suits between states or by fed gov't, against subdivisions, seeking injunctions against state officials, and suits against states in state court
What Are the First Amendment Rights
Religion, Speech, Association
Two Classes of Speech Prohibitions
Content-based and content-neutral
Content-Based Speech Regulations
Strict scrutiny (narrowly tailored) unless unprotected category
Unprotected Categories of Speech
Obscenity, fraud/misrepresentation, advocacy of imminent lawless action and fighting words.
Unprotected Categories of Speech Standard
Must only regulate in a content-neutral way
Obscenity Definition
Appeals to the prurient interest, is patently offensive and lacks serious literary, artistic, political or scientific value under a reasonable person standard.
Content-Neutral Speech Regulations
Intermediate review - serves a significant government interest, is narrowly tailored and leaves open alternative channels of communication.
Time, Place and Manner Restrictions, What Level of Scrutiny
Depends on forum - public, limited public (when open) and designated public (when open) are all intermediate review.
Time, Place and Manner Restrictions - Nonpublic Forum
Regulations must be content neutral, serve a legitimate government interest, be a reasonably related interest and leave open alternative channels of communication.
Commercial Speech Standard
May regulate only if regulation serves a substantial government interest, directly advances that interest, and is reasonably tailored to serve that interest.
Symbolic Speech
Government may restrict if within constitutional power of government, furthers an important government interest unrelated to the suppression of speech and prohibits no more speech that necessary.
General Limitations on Free Speech Regulations
Vagueness, overbreadth, unfettered discretion
Prior Restraints...
Prevent speech from being heard before it even occurs. Rarely allowed, only if irreparable or serious harm to the public.
Collateral Bar Rule
If prior restraint is issued, cannot violate and then challenge was unconstitutional
Freedom of Association
Cannot be limited without compelling government interest that cannot be achieved by less restrictive means.
Attempt (Criminal Law)
Attempt is an act done with intent to commit a crime and an affirmative act, or substantial step, beyond mere preparation.
Does Solicitation Merge Into the Crime?
Yes
Does Attempt Merge Into the Crime?
Yes
Does Conspiracy Merge Into the Crime?
No
Voluntary Manslaughter - Two Types
Heat of passion or imperfect self-defense
Heat of Passion Voluntary Manslaughter
If killed after reasonable provocation, in the heat of passion, with no cooling off time and defendant did not cool off.
Imperfect Self-Defense
May reduce murder to voluntary manslaughter - defendant kills victim under unreasonably mistake about need for self-defense.
Definition of Conspiracy
An agreement between two or more persons who intent to commit an unlawful act or a lawful act by unlawful means.
Is Knowledge Sufficient for Conspiracy?
No
When Is a Conspiracy Complete?
At common law, when agreement made, but now majority of jurisdictions require an overt act
Unilateral Conspiracy?
Yes, modernly
Are Conspirators Liable for Crimes of Co-Conspirators
If in furtherance of objective and reasonably foreseeable
Defenses to Conspiracy
Withdrawal, needs affirmative action. Impossibility is not a defense.
Solicitation
Occurs when one requests or encourages another to commit a crime with the intent that the person solicited does the crime, regardless of their agreement to do so.
Receipt of Stolen Goods
When one knowingly receives, conceals or disposes of stolen property
Three Types of Larceny
Larceny, Larceny by False Pretenses, Larceny by Trick
Larceny
Trespassory taking and carrying away of personal property of another with the intent to steal
Factual Impossibility of Crime
Not a defense, defendant makes a mistake concerning an issue of fact. I.e. shooting where you think someone is, but they're not
Legal Impossibility of Crime
Is a defense. Even if defendant did what he intended to do, it would not have been a crime.
Four Types of Malice for Murder
Intent to Kill, Intent to Cause Grievous Bodily Injury, Reckless Indifference, Felony Murder Rule
Defense of Others - Majority vs Minority Rule
Majority rule is can use reasonable force, minority force is can only use force original victim entitled to.
Burglary Definition
Breaking and entering of the dwelling place of another at night with the intent to commit a felony therein.
Robbery Definition
Larceny by force or threat of force
Embezzlement Definition
Fraudulent conversion of personal property of another by one who is already in lawful possession of that property.
Battery (Criminal)
Intentional or reckless causing of a bodily injury or offensive touching.
Kidnapping
Unlawful confinement of another, involving movement or concealment in a secret place
Assault (Criminal)
Attempt to commit battery or intent to place another in fear of imminent injury
Mayhem
Permanent dismemberment or disablement of a bodily part
Larceny By Trick
When defendant is tricked into giving up possession
Larceny by False Pretenses
False representation made in order to create conveyance of title.
What is An Accomplice?
One who aids, abets, assists or encourages a crime, but does not commit.
What is An Accomplice Liable For?
Liable for crime assisted or encouraged or for other crimes that were natural and probable consequence, mere knowledge is insufficient
Modern Approach to Accessory After the Fact
Obstruction of justice
Involuntary Manslaughter - Two Ways
Gross negligence and misdemeanor manslaughter
Extortion
Threat of future harm to deprive an owner of his property
Mistake of Fact
May negate specific intent crime or malice, or general intent if reasonable mistake
Mistake of Law
Generally not a defense
Four Insanity Defense Tests
M'Naghten, Irresistable impulse, Durham test, MPC
M'Naghten Test
Mental disease causing defect in reasoning powers resulting in not understanding nature and quality of act or wrongness
Irresistible Impulse Test
Unable to control conduct due to mental illness
Durham Test
Conduct was product of mental illness
MPC Insanity Test
Lacked substantial capacity to appreciate criminality or to conform conduct to requirements of law.
Voluntary vs Involuntary Intoxication As A Defense
Voluntary only a defense to specific intent crimes, involuntary is a defense to all.
Can You Withdraw From a Conspiracy?
No, conspiracy is complete once it is created. But can withdraw from liability for future crimes in furtherance.
How To Handle If Attorney Knows Client Is Going To Lie In Court?
Cannot reveal and may not assist. Must allow client to testify but cannot as him questions. Mention attempt to withdraw.
Fleeing Felon Standard
Can use deadly force against fleeing felon if necessary to prevent escape, felon has threatened officer with weapon or has probable cause to believe felon has committed a crime involving serious bodily harm and officer gives felon some warning of the imminent use of deadly force if feasible.
What are Reformation and Rescission Generally?
Equitable Remedies
Rescission
Undoes a bargain and restores parties, must have been a defect with contract formation. Laches and unclean hands apply.
Reformation
Rewrites contract to reflect true agreement. In cases of fraud, misrepresentation, mistake. Laches and unclean hands apply.
Difference Between Application of Rescission and Reformation
Rescission when defect to contract formation, reformation when contract does not reflect true agreement.
What Is A Constructive Trust?
A court made trust which has the sole purpose of restoring to the plaintiff property which was wrongfully taken by the defendant.
Legal Title and Constructive Trust
Defendant must have obtained legal title because constructive trust requires that the defendant convey title.
When Is a Constructive Trust Used?
When money damages are inadequate and property can be traced. Must be solely traceable to current form.
Negligence Per Se Doctrine
A defendant is negligent per se if violates a statute without excuse, plaintiff is within class of people to be protected and statute designed to prevent this kind of harm.
Excuses for Violation of Statute for Negligence Per Se
Compliance would create greater risk of harm, defendant incapacitated, unaware of factual circumstances
What Does Negligence Per Se Establish?
Duty and breach
Compliance With A Statute At Tort
Does not establish non-negligence.
Causation in Fact
But for defendant's conduct, injury would not have occured
Proximate Cause
A defendant is liable for all harmful results that were reasonably foreseeable.
Eggshell Skull Plaintiff
Take the plaintiff as you find him.
Intervening Causes - Foreseeable
Defendant liable for foreseeable intervening causes.
Intervening Causes - Unforeseeable
Defendant generally not liable, breaks the chain of causation
Strict Liability for UltraHaz/Abnormally Dangerous Activities
If activity creates a high degree of risk of serious harm which cannot be eliminated, which is not common and not appropriate for the location, and the danger outweighs the value to the community.
Defenses to Strict Liability
Assumption of the risk is, but contributory fault is not.
Five Theories of Recovery To Establish Products Liability
Intent, Strict Liability, Negligence, Warranty, Misrepresentation of Fact
Strict Product Liability Definition
A seller of a product is liable without fault for personal injuries caused by a defective product if all elements are met.
Strict Product Liability Elements
Commercial supplier, breach of duty (proving product was defective), actual cause, proximate cause, damages.
Types of Product Defects
Manufacturing, design and warning
Manufacturing Defects
When a particular instance of a product is more dangerous.
Design Defects
When all products are alike and either does not meet minimum safety expectations or risk outweighs benefits of the product.
Warning Defect
When manufacturer fails to give adequate warnings as to a known danger which is nonobvious.
Compliance With Industry Standards for Products Liability
Not conclusive that is not defective, but lack of compliance can establish defectiveness
Negligence in Products Liability
Rarely applies for sellers, but for manufacturers
Intentional Misrepresentation Elements
Misrepresentation, Scienter, Intent to Induce Reliance, Causation, Justifiable Reliance, Pecuniary Damages
Negligent Misrepresentation Elements
Misrepresentation, Scienter, No Reasonable Grounds to Believe Truth, Causation, Justifiable Reliance, Pecuniary Damages
Defamation Generally
Occurs when a false and defamatory statement is published to a person other than plaintiff causing damage to reputation.
Types of Non-Defamatory Statements
Pure opinion or true statements
Can Publication of Defamatory Statements Be Made Negligently?
Yes
Difference Between Libel and Slander Damages
Libel general damages are presumed, slander special damages must be proven unless slander per se.
Examples of Slander Per Se
Reflecting on business or profession, loathsome disease, criminal behavior or serious sexual misconduct.
Negligent Infliction of Emotional Distress Elements
Actual impact or threat which causes emotional distress, If no physical impact, then jurisdiction split - majority says plaintiff must be in zone of danger, minority (CA) says even if not within zone, some require family connection
Respondeat Superior Tort Liability
If employee commits a tort during course and scope of employment, employer is jointly liable. Must be with intent to further the employer's business purpose.
Tort Liability for Independent Contract
Generally not liable unless negligent in hiring or duty is non delegable (public place or abnormal risk)
Professional Standard of Care (Tort)
Required to possess the knowledge and skill of a member of their profession or occupation in good standing.
Corporation By Estoppel
A person who deals with a business entity believing it is a corporation, or one who incorrectly holds out the business as a corporation, may be estopped from denying corporate status.
What Are the Fiduciary Duties of Spouses?
Full disclosure, good faith and fair dealing
SP of Non-Debtor Spouse May Be Liable For
Necessaries of life for the spouse or child.
Reimbursement for Child Support and Alimony Payments
Yes, to SP of non-debtor spouse if paid from CP
Reverse Van Camp
Assigns fair salary to the separate estate and deducts any salary actually taken by the spouse after marriage and family expenses, remainder belongs to community.
Reverse Pereira
Gives community a fair rate of return after separation, remainder of increase to SP of manager spouse
Is Education/Training CP Asset/Debt?
Not unless written agreement to the contrary
Reimbursement of Community for CP Contributions to Education
Yes when it substantially enhanced the earning capacity of the party, with interest, accruing from the end of the calendar year in which the contributions were made.
Reimbursement of Community for CP Contributions to Education May Be Reduced If
Community already substantially benefited, offset by education received by other spouse, or reduced need for spousal support
Elements of Valid Prenuptial Agreement
Must be in writing and signed by both parties, party against whom it is going to be enforced must have been represented by independent counsel or waived in separate writing, given 7 days to consider, fully informed in writing of the terms and rights, not under duress, not unconscionable and full property and financial disclosure.
Free Exercise Clause
Bars any law that prohibits or seriously burdens the free exercise of religion, except a law of general applicability which does not intentionally burden religious beliefs and advances important public interests.
Establishment Clause
Prohibits government from endorsing or favoring a specific religious group. Lemon test.
Lemon Test
Law must have a secular purpose, have a primary secular effect and not foster excessive government entanglement with religion
Two Religion Clauses Constitution
Free exercise and establishment
Offers to Pay Medical Bills Admissible?
Generally no, not to prove liability. Under FRE collateral omissions of fact are admissible, but not under CEC
Expert Witness Testimony Requirements
Specialized knowledge will assist trier of fact, must be qualified as an expert, must be based on sufficient facts, must be product of reliable principles and must have applied the principles reliably
Expert's Testimony May Be Based On
Firsthand knowledge, observation of prior witnesses, hypothetical question
FRE Reliable Principles and Methods for Expert
Daubert/Kumho - Peer reviewed, tested, with low error rate and reasonable level of acceptance
CEC Reliable Principles and Methods for Expert
Kelly/Frye - Must prove underlying scientific theory, be generally accepted as valid and reliable, but does not apply to medical and nonscientific testimony.
Attorney-Client Privilege
A client has a right to not disclose any confidential communication between the attorney and the client relating to the professional relationship.
Attorney-Client Privilege - Corporation
Federal common law - Applies to employees/agents if authorized, CEC applies to employees/agents if natural person to speak with corporation
Attorney-Client Privilege - Confidential Communication
Must be intended to be confidential, third party may destroy, does not apply to physical evidence turned over. CEC allows you to stop eavesdroppers from destroying.
Is a Fee Necessary for Attorney-Client Privilege
No, just professional relationship
Objections to the Form of the Question
NUCALF - Narrative, Unresponsive, Compound, Argumentative, Leading, Assumes facts not in evidence
Leading Questions
Not allowed on direct
Three Forms of Character Evidence
Reputation, Opinion and Specific Acts
Character Evidence Admissibility Generally in Civil Case
Not admissible to prove conduct in conformity with that character trait on a particular occasion, but is admissible when character is at issue.
Examples of When Character At Issue In Civil Case
Wrongful death, negligent entrustment, defamation (matters because of reputation)
Types of Character Evidence in Civil Cases
All three, reputation, opinion, prior acts
Character Evidence Admissibility Generally in Criminal Case (Defendant's Character)
Defendant must "open the door" first
Character Evidence Admissibility Generally in Criminal Case (Defendant's Character) Exceptions
If D offers evidence of victim's character, P can offer same regarding D (FRE), If D offers evidence of victim's violent character, P can offer same regarding D (CEC), in prosecution for domestic violence or elder abuse, other acts admissible (CEC), sexual assault/molestation propensity (Both)
Character Evidence Admissibility Generally in Criminal Case (Victim's Character)
Only defendant can "open the door", but once opened, prosecution can rebut
Character Evidence Admissibility Generally in Criminal Case (Victim's Character) Exception
If D claims or offers evidence victim was first aggressor, prosecution may offer evidence of peacefulness (FRE)
BFP Shelter Rule
One who takes from a BFP stands in the shoes of the BFP
Three Ways Quasi-Contract Arises
No attempt to contract, unenforceable contract, breached contract
In Breached Contract, Can Breaching Party Recover?
Modern view is yes, traditional view was no
Compensation Damages (Tort)
Awarded to compensate the plaintiff for injury or loss
Limitations on Compensatory Damages (Tort)
Causation, foreseeability, certainty, unavoidability (duty to mitigate)
Two Types of Compensatory Damages (Tort)
General (noneconomic) and Special (economic) Damages
Restitution Damages (Tort)
To prevent unjust enrichment - Money restitution, replevin, ejectment
Injunction (General Definition, Three Types)
When a court orders someone to perform an act or stop performing - TRO, preliminary injunction, permanent injunction
TRO Standard
Until preliminary injunction hearing - Irreparable harm if not granted, likely success on the merits, inadequate legal remedy, balancing of hardships
Preliminary Injunction Standard
Until trial - Irreparable harm if not granted, likely success on the merits, inadequate legal remedy, balancing of hardships
Permanent Injunction Standard
Inadequate legal remedy, property interest (not in CA), feasibility of enforcement, balancing of hardships, no defenses
Common Elements to All Injunctions
Inadequate legal remedy, balancing of hardships
Revival of a Will
When revoked by physical act or subsequent will, then the subsequent will is revoked as well, then the first will is revived if the testator intends for it to be revised.
Republication by Codicil
A validly executed codicil operates as a republication of the will on the date on the codicil
Definition of Ademption
Applies when the property has changed form from that identified in the will
Specific Gift Adeems by Extinction
If specific gift doesn't exist anymore, purported devisee takes nothing
Specific Gift Adeems by Extinction Exceptions
Entitled to general pecuniary gift where specific gift involved securities which changed form, a conservator that sold the property, or eminent domain
Lapse of Gift
Traditionally and in some jurisdictions, when beneficiary predeceases, gift lapsed and fell into residue or by intestate.
Anti-Lapse Statute
Modernly and in CA, issue of beneficiary take in their place, unless contrary intent in will.
Anti-Lapse Statute Notes
Kindred only, issue take per capita, includes class gifts, issue includes all lineal descendants, not just children
Parents Generally Not Vicariously Liable for the Torts of Their Children, But May Be...
Financially responsible
Miranda Exceptions
Public safety
Right to Self-Representation
Must be knowingly and intelligently made
Evidence of Liability Insurance
Generally not admissible to prove culpability, but can show ownership/control, impeach or as part of an admission
Offers to Settle
Inadmissible if disputed claim, CEC mediation discussions inadmissible
Authentication of Voice Recordings
By admissions, eye witness testimony, personal knowledge
Non-Hearsay: Adoptive Admission
Statement made by another where the party knows of its content and voluntarily manifests belief in the truth. Silence can be if reasonable person would have spoken up.
Hearsay Exception: Dying Declaration
Statement made by declarant while believing death was imminent and concerning the cause or circumstances of his impending death.
Hearsay Exception: Dying Declaration CEC/FRE Differences
FRE - Only allowed in civil and criminal homicide cases, and declarant need only be unavailable. CEC Applies to all cases and must actually be dead.
OJ Exception
CEC - Statement describing physical abuse in writing, recorded or made to police or medical professional under trustworthy circumstances.
Hearsay Exception: Government/Public Records
If agency's record of own activities, matters observed in line of duty, investigative reports with factual findings, FRE can't use matters observed by police or police investigations against criminal defendant.
Hearsay Exception: Past Recollection Recorded
If witness can't testify from memory, party may introduce a written record of an event if firsthand knowledge of witness, fresh in the memory when made, now impaired memory, accurate when written. Writing itself not admissible but may be read to jury.
Hearsay Exception: Present Recollection Refreshed
Item may be presented to witness to refresh memory, not entered into evidence, other side has right to inspect, CEC writing must be produced or testimony stricken.
Hearsay Exception: Statements During Medical Treatment
Statements made for purpose of diagnosis admissible, may include cause but not statements of fault. CEC statement of past condition only admissible if by child abuse victim.
Spousal Privileges: Confidential Marital Communications
One spouse may not disclose the confidential communications of the other made during marriage. Survives the marriage, both hold it.
Spousal Privileges: Spousal Immunity
One spouse cannot be compelled to testify against the other, only during marriage, only witness holds. FRE only criminal, CEC both and no witness stand.
De Jure Corporation Elements
A PAIN - Authorized number of shares, Purpose, Agent's name/addy, Incorporator's name/addy, Name
De Facto Corporation
Exists where actual use of corporate power and good faith but unsuccessful attempt to incorporate.
Director and Officer Compensation
Entitled to fair compensation
Removal of Directors and Officers
Director, by shareholder vote, officer by board of directors
Attorney Advertising
Must be labeled as such, have name and address of attorney. CA keep for two years label as advertisement on first page in 12 point font.
Fee Simple Subject to Condition Subsequent
Potential of later termination, but not automatic, right of reentry
Restraints on Alienation
Absolute restraints on alienation invalid, but conditions that property may not be used for a purpose are acceptable
Deed Requirements
Identification of the parties, signature of the grantor, adequate description of the property, no consideration needed
Delivery of Deed Requirement
Physical transfer of deed, intent in words or conduct and acceptance of the deed.
Contracts - Damages in Contracts for the Sale of Land
Market price minus contract price
Torts - Available Legal Remedies
Legal damages, legal restitution, equitable restitution, injunction
Torts - Nominal Damages
Where rights are violated but no loss
Torts - Punitive Damages
Where willful and wanton tortious misconduct - must be actual damages, culpability greater than negligence and proportionality to actual damages
Private Nuisance
Substantial, unreasonable interference with a private individual's use or enjoyment of his land.
Public Nuisance
Substantial, unreasonable interference with the health, morals, welfare, safety or property rights of the community.
Private Recovery For Public Nuisance
Only if damages were different in kind and not merely in degree
Torts - Trespass to Chattels - Actual Damages
Loss of use
Shareholder Voting - Fundamental Changes to a Corporation
Need majority shareholder vote
Shareholder Voting - Shareholder Voting Agreements
Voting trusts and agreements, usually seen in closely held corporations
Shareholder Derivative Suit Elements
Own stock at time claim arose and throughout litigation, make demand for redress first.
Section 16(b)
Any short-swing profits in a six month period by a corporate inside must be disgorged to the corporation. Corp must be on national exchange, have $10mil and 500 shareholders
Section 10b5 Generally
Disallows insider trading and provides liability for anyone who employs fraud or deception in connection with the sale of any security.
Section 10b5 Prima Facie Case
Intent to defraud, material misrepresentation or omission, reliance, purchase/sale of securities, interstate commerce, damages.
Section 10b5 Four Types of Triggers
Direct insider trading, tippers (for personal gain), tippees (must have scienter), misappropriators
Compelled Physical and Mental Examinations
Must apply to court for order, show good cause. Get one physical exam in CA, but lawyer present.
Right to A Jury Trial
Protected by 7th A, but not on equitable matters. Factual first, then equitable, backwards in CA.
Proper Demand for a Jury Trial
Within 14 days after service of last pleading raising jury triable issue.
Married Woman's Special Presumption
Property acquired by a married woman in a writing prior to 1975 is presumed to be her SP.
Community Property If Not Married?
No, use only contract theories
Private Actors As State Action
If performing traditionally public function or where state is heavily involved.
UCC Mirror Image Rule Exception - Both Parties Merchants
Additional terms are part of the contract if not expressly limited, material alternation or objected in reasonable time
UCC Mirror Image Rule Exception - One or More Parties Not Merchants
Additional terms are a proposal
Equitable Remedies - Equitable Lien
Legal fiction creating security interest in property held by defendant. Acts as collateral for money owed.
Constructive Trust vs. Equitable Lien
Property can be traced to commingled funds with equitable lien
Elements of Equitable Lien
Wrongful act, defendant holds legal title, inadequate legal remedy, property can be traced
Malicious Prosecution
Institution of criminal proceedings, termination in plaintiff's favor, absence of probable cause, improper purpose and damages.
Wills - Revocation By Divorce
All devises to spouse terminate at divorce
Dependent Relevant Revocation
Testator revokes first will thinking that substantially similar second will or codicil will be effective, but it is not. Disregard the revocation.
General Gifts
From general assets, does not include specific property
Specific Gifts
Specific, identifiable property
Residual Gifts
What remains of the estate after all other gifts
Abatement
Occurs when gifts are reduced to enable the estate to pay all debts and legacies
Order of Abatement
Property not disposed off by will, residuary, general to nonrelatives, general to relatives, specific to nonrelatives, specific to relatives
Testamentary Trust
A trust created by a will
Revocation of a Trust
Majority rule, only if reserved in trust, Minority rule (CA), unless stated otherwise
Resulting Trust
Implied-in-fact when presumed intent of the parties and will transfer property back to settlor or estate when: purpose ends, express trust fails, charitable trust ends and cy pres inapplicable, illegal, excess corpus, purchase money resulting trust, semi-secret trust
Purchase Money Resulting Trust
When one party pays for a piece of property but titles it in another's name
Discretionary Trust
Gives trustee discretion to distribute or withhold payment, principal or income to beneficiary
Spendthrift Clause
When beneficiary cannot voluntarily alienate his interest, such that interests are protected from creditors
Can A Court Modify A Trust?
Yes, cy pres or changed circumstances
Fraud and Undue Influence in Trusts
Apply constructive trust
Continuing Trespass Doctrine
When original trespass to chattels, but intent to permanently deprive develops later
Entrapment
Occurs where law enforcement or someone cooperating with them induces the defendant to commit crime not otherwise predisposed to
General Fee Agreement
California requires all fee agreements over $1k to be in writing unless client corporation, emergency, waiver in writing or for previous client with similar services
Attorney Duty to Keep Records
For five years
Abuse of Process
Intentional misuse of legal procedure for an ulterior purpose and defendant committed willful act in a wrongful man
Privacy Torts: False Light
Public attribution to plaintiff views he does not hold or actions he does not take, objectionable to a reasonable person. Public matter needs malice, public figure needs actual malice.
Privacy Torts: Intrusion of Privacy
Intrusion into a private aspect of the plaintiff's life in a private place that is highly objectionable to a reasonable person
Privacy Torts: Public Disclosure of Private Facts
If objectionable to a reasonable person and not a matter of public concern, where communicated to the public at large
Privacy Torts: Appropriation of Picture or Name
Unauthorized use of plaintiff's picture or name for commercial advantage
Community Property - Term Life Insurance
Term does not accumulate value - estate paying premium last controls
Community Property - Whole Life Insurance
CP and SP interest is amount of each contributed divided by total amount contributed
Devise of CP Life Insurance
If life insurance is CP, decedent cannot devise more than 1/2 to someone other than spouse without other spouse's written consent
If Purpose of Corporation Identified or Limited, Address...
Ultra vires acts, even if not a good defense
May Shareholders Vote By Proxy?
Yes, revocable or irrevocable
Deep Rock Doctrine
If corporation is insolvent, third party creditors may be paid off before shareholder creditors, subordinating shareholder claims.
Watered Stock
Issued stock far exceeds value of the company
Service in California
Personal always good, substituted if personal cannot be achieved with reasonable diligence. Must be left at usual abode with a competent member of household at least 18 years old and informed of contents. Must also be mailed. Constructive service only if all else fails.
Federal Service
Same as CA, but also by methods allowed by state law
California Term For All Third Party Claims
Cross complaint, includes counterclaims, crossclaims, impleader, etc.
If Indispensable Party Can't Be Joined
Must dismiss
If Necessary Party Can't Be Joined
Dismiss or proceed without
Deposition Limits
Fed - 10 depos, 7 hours each, CA no limited except 1 in limited cases
Privileges and Immunities Clause
Prevents a state from discriminating against noncitizens regarding rights fundamental to national unity
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