CALIFORNIA BAR EXAM
JULY 2016
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CALIFORNIA BAR EXAM
TABLE OF CONTENTS
Business Associations and Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Agency & Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Civil Procedure (Federal and CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Community Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Constitutional Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Constitutional Law Charts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Criminal Law and Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Evidence (Federal and CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Evidence Charts (Federal and CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Professional Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Real Property Estates Diagram . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Torts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Wills & Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Wills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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BUSINESS ASSOCIATIONS and AGENCY
C O R P O R AT I O N S
CORPORATE FORMATION
PRE-INCORPORATION
Par Value: min issuance price. No par value means any valid
consid BOD deems adequate.
PROMOTERS: persons acting on behalf of unformed corp. Corp
Liability for promoter’s Ks: when corp adopts by express
adoption by BOD resolution or implied adoption (knowledge &
accepts benefits).
Treasury stock: stock previously issued and reacquired re-sold
as no par.
Promoter Liability: until novation; solely liable if corp never
formed.
Consequences: if < par value, Ds liable for signing off on below
par issuance and Purchaser b/c SHs must pay full consid for
shares.
Duty: promoter is fiduciary, no secret profits. If prop acquired
before formation & sold to corp → profit recoverable if sold for
more than fair mkt value. If prop acquired after & sold to corp
→ any profit recoverable.
SUBSCRIBERS: written agmt to buy stock from unformed corp.
Limitation: subscription agmt irrevocable for six months.
FORMATION REQ’TS: DE JURE (A PAIN)
Authorized shares: (number, classes and series).
Purpose: gen purpose w/ perpetual duration valid and
presumed, unless specific stmt of purpose or ltd duration
expressed. If spec purpose, activities beyond scope are Ultra
Vires activities. Ultra vires Ks are valid. Shareholders (“SHs”)
can seek injunction. Corp can sue responsible D&O for losses
b/c of UV acts.
Agent & address of registered office.
Incorporators, names & addresses.
Name of corp, with some indicia of corp status, e.g. inc or corp.
DE FACTO CORP: business that doesn’t fulfill filing formalities
may nonetheless be treated as a corporation if organizers have
made a good faith, colorable attempt to comply with the
corporate formalities and have no knowledge of the lack of corp
status.
LEGAL SIGNIFICANCE: separate legal person; SHs not liable for
debts of corp b/c of limited liability. SH is liable only for price
of their stock.
PIERCING THE CORPORATE VEIL: avoid fraud or unfairness and
to render SHs liable to 3rd party victim.
Requires: SHs treat corp as their alter ego by failing to observe
sufficient corp formalities OR corp is undercapitalized (fail to
maintain sufficient funds for foreseeable liabilities).
Who Liable?: SH active in operation of corp. or D&O. Courts
more willing to pierce for tort victim than K claimant.
FOREIGN CORPS: corp incorporated outside of st engaging in
intrastate business must file certificate of authority, including all
“A PAIN” info.
ISSUANCE OF STOCK
Acquiring Prop w/ Par Value Stock: ok if BOD values prop in
good faith as at least par value.
PREEMPTIVE RTS: rt to maintain % of ownership each time new
issuance is released. Must be expressly granted in articles.
ACTION AND LIABILITY OF D&O
STAT REQ’TS: bod must have 1 member; SHs elect Ds; SHs can
remove d for any reason.
VALID MTG REQ’D FOR BOD ACTIONS: unless unanimous d
consent in writing to act w/o mtg. Notice can be set in bylaws.
No Proxies or voting agmts.
QUOROM: maj. Vote: maj of votes present. Each D presumed
to concur w/ BOD action unless dissent/abstention in writing.
LIABILITY OF Ds TO CORP AND SHS
Ds have duty to manage the corp, but are protected from
liability by the Bus Judgment Rule. But they are fiduciaries
who owe duty of care and loyalty.
BJR: presumption thatDsmanage corp in good faith and in best
interest of corp.
DUTY OF CARE: d must act with care a prudent person would
use w/r/t her own business, unless articles have ltd d liability for
breach.
DUTY OF LOYALTY: d may not receive an unfair benefit to
detriment of corp or SHs, unless there has been material
disclosure and independent ratification.
Self Dealing: D receives unfair benefit in transaction with corp.
Usurping Corp Opportunities: D receives unfair benefit by
usurping an opp corp would have pursued.
RATIFICATION: defend claim by a) maj vote of independent ds;
b) maj vote of committee of at least 2 ind ds; c) maj vote of
shares held by ind SHs. Interested D Doctrine: CL: transaction
(“tx”) with interested D voidable at corp’s option. Mod: K
invalid unless, BOD approves tx after disclosure and D doesn’t
vote; SH approve K after disclosure; or K is fair.
OFFICERS: duty of care and loyalty. Os are agents of corp and
bind corp by auth acts. Req’ts: Pres, Sec, and Treas. Selected
and removed by Ds.
INDEMNIFICATION: for costs, atty fees, fines, judgment or
settlement in the course of corp business.
CONSIDERATION:
Never indem when D&O loses suit.
Types: money, binding oblig to perform future svcs w/an agreed
value, tangible/intangible prop; svcs already performed.
Always indem if D&O wins suit.
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California Bar Exam - Page 1 of 46
BUSINESS ASSOCIATIONS and AGENCY
May indem if: liability to 3rd parties or settlement w/ corp;
D&O shows action in good faith and conduct in corp’s best
interest.
REPURCHASED AND REDEMPTIONS: Decision lies solely with
BOD. SH can’t force corp to repurchase. CL: only from earned
surplus/retained earnings. Mod: not allowed if corp is insolvent.
Who decides? Maj ind Ds; Maj of committee of ind Ds; Maj
shares of ind SHs; Board pursuant to ind Legal Counsel’s
recommendation.
CLOSELY HELD CORPS: agmt amongst SHs to eliminate
corporate formalities. Req’ts: unanimous SH agmt in Articles,
By-Laws or filed, written agmt. Must be reasonable share
transfer restriction. Result: no piercing. May be S-Corp: P tax
treatment if < 100 SHs who are indiv, U.S. residents and only
one class of stock.
RIGHTS OF SHAREHOLDERS
DIRECT ACTION: Ds breached fiduciary duty owed to individual
as SH
DERIVATIVE SUITS: SH suing to enforce the corp’s own cause of
action. Req’ts: contemporaneous stock ownership when claim
arose and throughout litigation and demand on BOD that they
cause corp to bring suit. Demand must be rejected or lapse 90
days.
VOTING
Any owner on record date as determined by BOD, up to 70 days
before mtg date.
PROXY VOTING: i) a writing; ii) signed by record SH; iii)
directed to corp. secretary; iv) authorize another to vote their
shares; v) valid for 11 months. Revocable unless proxy says
irrevocable and SH passed some interest.
SH MTG: Annual mtg, 1 D slot must be elected OR specially
noticed special mtg called by BOD, President, or 10% of voting
shares re: fundamental corp change or proposal. Special mtg ltd
to stated purpose.
QUORUM: maj of outstanding shares at mtg’s start. Vote: votes
in favor > votes against.
PROFESSIONAL CORPS: Licensed pro’s. Req’ts: Organizers file
w/ name as PC; SHs must be licensed pros; only practice one
designated profession; Pro liable personally for own
malpractice, but not for other malpractice or obligations.
DUTY TO OTHER SHS: Generally none. Controlling SHs: duty
not to unfairly prejudice minority. If selling to looter, corp will
be liable for damages unless reasonable measures taken to
investigate buyer. Liability also for selling shares at premium
in exchange for corporate office.
FUNDAMENTAL CORPORATE CHANGES
TYPES: Merger; consolidation; dissolution. Fundamental
Amendments to Articles; sale of substantially all corp assets.
STEPS: BOD resolution; notice of special mtg of SHs; approval
by maj of all shares entitled to vote and by a maj of any voting
group adversely effected; file notice with State, e.g. Art of
Merger. EXCEPT: no SH approval for short form merger
(parent corp owns 90% of sub).
POOLED OR BLOCK VOTING TRUST: formal delegation of voting
power to voting trustee enforceable for 10 yrs. Req’s written
trust agmt; filed with corp; transfers shares to voting trustee; SH
gets trust certs; SH retains all rts but voting.
APPRAISAL RTS: Dissenting SH can force corp to buy shares at
fair value. Req’ts: before vote, file written notice of objection
and intent to demand payment; vote objecting to change;
prompt written demand to be bought out. Ct - appoint expert
appraiser to value.
SH VOTING AGMT: written agmt to vote shares as req’d in
agmt. Binding and enforceable; no time limit or filing.
SALE OF ASSETS: may be considered de facto merger and trigger
recission and appraisal rts. Procedural steps must be followed.
CUMULATIVE VOTING: must be expressly granted in Articles.
Only available when voting for Ds.
DISSOLUTION/LIQUIDATION: approval by maj of Ds and shares
entitled to vote
FEDERAL SECURITIES LAWS
OTHER SH RIGHTS/ISSUES
SH ACTION FOR INVOLUNTARY DISSOLUTION: ask ct for
liquidation if Ds are deadlocked & corp is threatened w/
irreparable injury, or oppression, or waste is occurring.
RECORD BOOKS: demand upon notice / proper time.
DIVIDENDS: declared solely at BOD discretion, ltd only if corp
is insolvent. BOD personally liable for unlawful distributions,
unless good faith reliance on financial officer’s report re:
solvency.
Priority: Preferred share ($ dividend preference payable at $
amt stated; participating preferred paid as preferred and
common share; cumulative preferred paid at rate of preferred
each year). Common paid last and equally.
Paid out of earned surplus, not stated capital.
ANTI-FRAUD (RULE 10(B)(5)): Elements: Interstate Com/Use of
Nat’l Exchange; Scienter – intent to deceive; Deception –
material misrep or misapprop of material non-public info; In
connection w/ actual purchase or sale of securities.
INSIDER TRADING: Tipper: improper purpose + benefit. Tippee:
tipper breach and tipee knew. Misapprop: gov’t prosecution for
trading on mkt info in breach of duty of trust/confidence owed
to source of info.
SECTION 16(B): short swing trading profits.
Req’ts: reporting corp – listed on nat’l exchange or >500 SHs
and $10 mil in assets . Defendant must be D&O or >10% SHs.
They may not buy then sell stock within a single 6 month
period. In 6 months, look at highest sell and lowest buy price.
Effect: profits recoverable.
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BUSINESS ASSOCIATIONS and AGENCY
SARBANES OXLEY: CEO/CFO of reporting corps must certify
that filing doesn’t contain material misrepresentations or
omissions & fairly presents financial position. Willfully cert a
false report - $5 mil fine and 20 yrs. If false report restated,
corp may recover CEO/CFO profits from trading w/in 12
months after filing + incentive based comp. Recovery also from
trades during “black out” of at least 3 days when 50% of
employees are prohibited from trading in retirement plans.
AGE NC Y & PART NE RS H IP
LIABILITY OF PRINCIPAL FOR TORT OF AGENT
RULE: Principal will be liable for torts committed by agent if i)
principal-agent relationship exists and ii) tort was committed by
agent within the scope of the relationship.
PRIN/AGENT RELATIONSHIP: (ABC)
ASSENT – voluntary, informal agmt, prin must have capacity;
BENEFIT – agent’s conduct must be for prin’s benefit;
CONTROL – prin has rt to control agent by having supervisory
power. Sub-agents: no vic liab unless ABC. Borrowed Agent:
No vic liab unless ABC. Ind Contractor: No vic liab b/c no
power to supervise performance, except great ultra-hazardous
activity and estoppel – hold out ind contractor as agent.
SCOPE: Was conduct of the kind agent was hired to perform?
Did tort occur on the job? Did agent intend to benefit principal?
Frolic v. Detour: whether tort occurred on job. Frolic: new and
ind journey → outside scope. Detour - mere departure from
assigned task → within scope.
INTENTIONAL TORT: Generally outside scope of vic liab,
except: i) specifically authorized by principal; ii) natural from
type of employment; iii) motivated by desire to serve principal.
LIABILITY OF PRINCIPAL FOR CONTRACTS ENTERED BY
AGENT
RULE: Prin liable for Ks entered into by agent if prin authorized
agent to enter into K.
AUTHORITY
ACTUAL EXPRESS: prin used words (incl oral or private) to
express authority to agent. Equal Dignity Doc: if K must be in
writing, then express author must be in writing. Revoked by
unilateral act OR death or incapacity of prin, unless prin gives
agent a durable power of atty, a written expression of authority
w/ conspicuous survival language.
ACTUAL IMPLIED: auth which agent reasonably believes prin
has given b/c of necessity in order to accomplish assigned task;
custom; or prior dealings.
APPARENT: prin “cloaked” agent w/ appearance of auth AND
3rd party reasonably relies on appearance of auth.
Secret limiting instruction: agent has actual authority, but prin
secretly limited auth, and agent goes beyond scope. Prin still
liable.
Lingering auth: actual auth terminated, but agent continues to
act on prin’s behalf. Prin still liable until customer receives
notice of termination.
RATIFICATION: auth granted after K entered if: prin has
knowledge of all material facts re: K and prin has accepted
benefits. Rat must be complete as is, no alterations to terms.
EXTENT OF LIAB: No auth → prin not liable, agent liable. Auth
→ prin liable, agent not. BUT, if prin is partially disclosed OR
undisclosed, the auth agent may be liable at election of 3rd
party.
DUTIES AGENT OWES TO PRINCIPAL
DUTIES: Reasonable care; obey reasonable instructions, loyalty.
Loyalty: no self dealing (benefit to detriment of prin); no
usurpation of prin’s opp; no secret profits. Remedy: losses
caused by breach & disgorge profits.
GENERAL PARTNERSHIP FORMATION
NO FORMALITIES: can arise from conduct. Def: GP is an assoc
of two or more ppl carrying on as co-owners of business for
profit. Sharing profit creates presumption of GP. But not
lending agmts, wages, commission.
LIABILITIES OF PARTNERS TO THIRD PARTIES
GEN PARTNERSHIP: Agency: principles apply with regard to
torts and Ks.
Personal liability for debts of P. Incoming P not liable for preexisting debt. But, funds from incoming payments can be used
to satisfy prior debt. Dissociating P does retain liab for future
debts until actual notice given to creditors OR 90 days after
filing notice of disassoc to state.
Liab by Estoppel: person who represents to 3rd party that a Gen
P exists is liable as if one does exist.
OTHER FORMS
LTD P: one GP and one ltd P. Req’s ltd P Certificate with names
of all gen pars. Gen P: liable personally for all ltd P
obligations, incl torts and Ks. Rt to manage ltd P.
REGISTERED LTD LIABILITY P: req’d to register Stmt of
Qualification and annual reports. No liability for underlying
obligations of P, but liability for own wrongdoing.
LLC: members are owners w/ ltd liab for debts and obligations of
business + benefits of Personal taxation. Req’s Art. Of Org and
Operating Agmt. Mems control, but Art can delegate to mgrs.
Ltd liquidity (mems can’t freely transfer interests). Ltd life.
RIGHTS AND LIABILITIES BETWEEN PARTNERS
FIDUCIARIES: Duty of Loyalty (no self-dealing; usurping opp;
secret profits).
REMEDY: action for accounting – recover losses caused by
breach AND disgorge profits.
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BUSINESS ASSOCIATIONS and AGENCY
P PROP: No transfer of specific P assets w/o P authority, e.g.
land, leases or equipment. Personal Prop: can transfer
profits/surplus owned by indiv Ps to 3rd party. Share in Mgmt:
GPs have rt to share mgmt but may not transfer.
MGMT: each P entitled to equal control and vote, absent agmt.
SALARY: absent agmt, Ps don’t’ get salary unless winding up.
PROFITS/LOSSES: Absent agmt, profits shared equally; losses
shared like profit.
PARTNERSHIP DISSOLUTION
DISSOLUTION: begins end of P. At will – dissolution automatic
upon notice of express will of any 1 GP to dissociate. Not at
will: dis occurs upon happening of event specified in agmt OR
maj vote of Ps to dissolve w/in 90 days of dissociation of a
single P. Termination: actual end. Winding up: time btwn
COMPENSATION: Ps get comp during winding up. GPs retain
liability on txs entered into to wind up old biz w/ creditors. GPs
still retain liability on new txs until actual notice of dis given to
creditors or 90 days after filing Stmt of Dis.
PRIORITY: Creditors 1st: outside non-partner trade creditors
AND inside Ps who loaned $ to P. Capital Contributions by Ps
2nd. Remainder: Profits shared equally absent agmt. Losses
shared like profits.
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California Bar Exam - Page 4 of 46
CIVIL PROCEDURE
AUTHORITY TO DECIDE?
PERSONAL JURISDICTION (JX)
TRADITIONAL: D domiciled in forum; personally served while
present in forum; express or implied consent to jx.
LONG ARM STATUTE: assume statute reaches to the
constitutional limit.
CONSTITUTIONAL ANALYSIS: Does D have such minimum
contacts with the forum so that exercise of jx doesn’t offend
traditional notions of fair play and substantial justice? My
Parents Frequently Forgot to Read Children’s Stories:
MINIMUM CONTACTS: Purposeful availment + Foreseeability.
FAIRNESS: Relatedness + Convenience + State’s Interest.
RELATEDNESS: Specific = D’s specific contact with forum.
General = D had continuous and systematic ties with forum.
SUBJECT MATTER JX (FED):
DIVERSITY: Complete diversity + Amt in Controversy > $75K.
AGGREGATION: Ok to agg claims of one P against one D, but
not two claims by two or more Ps against two or more Ds.
FEDERAL QUESTION: “Arises under” federal law.
SUPPLEMENTAL JX: “common nucleus of operative fact”
BUT, P cannot use supp jx in diversity case to overcome lack of
diversity.
REFUSAL: FQ is dismissed early on; state claim is complex;
state law issue predominates.
REMOVAL: D can remove if case could be heard in fed ct under
subject matter jx. All Ds must agree. No removal by P, if more
than a year passed since case was filed, or in a diversity case
where any D is a citizen of the forum. Once D files permissive
counterclaim in state ct, he can’t remove.
SUBJECT MATTER JX (CA):
LIMITED CIVIL: amt < $25K, $25K limit on recovery;
UNLIMITED CIVIL: amt > $25K; no limit on recovery;
SMALL CLAIMS: Individual < $7500; Entity < $5000.
INITIAL CLASSIFICATION: Demand or recovery not including
atty’s fees, interest on claim or costs.
RECLASSIFICATION: Automatic: P amends complaint to change
amt in controversy. On motion: party can move to reclassify or
ct can reclassify if notice and hearing.
VENUE
LOCAL ACTIONS: anything re: land.
TRANSITORY: FED: District in which all Ds reside; if same state
but diff districts then any district where one resides; OR subst
part of claim arose. Corp’s reside anywhere it does business.
CA: any county where any D resides, but if all Ds are non-res,
any county OR where K entered into or injury occurred. Corp is
Principal Place of Business (“PPB”), where K or breach arose.
TRANSFER: FED: consider convenience of parties and Ws and
interest of justice – public factors re: applicable law, what
community should bear burden of jury service. CA: whether
impartial trial impossible; convenience of W and ends of justice;
no qualified judge.
FORUM NON CONVENIENS: Fed: far more appropriate ct exists
elsewhere (Ct dismiss w/o prej or stays case)- location of Ws
and evid; undue hardship for D; avail of adequate alternative
forums; use of judicial resources; public policy. Applicable
when transfer is impossible b/c ct is in diff jud system, but
never granted if P is resident of forum. CA: “in the interest of
substantial justice” action could be heard in another state.
SERVICE
SUMMONS AND COMPLAINT. PERSONAL SERVICE; or
SUBSTITUTED SERVICE: Fed: left with someone at D’s usual
abode and to someone of suitable age and discretion who
resides there. CA: personal service not possible with reasonable
diligence; made at Ds usual abode; left w/ competent household
member 18+; person informed of contents and process mailed;
SERVICE ON AGENT;
WAIVER BY MAIL: Fed: Process mailed to D; formal service
waived if returned in 30 days. If no return, personal or sub
service req’d. CA: Mail to D and D acknowledges;
SERVICE BY PUBLICATION: (CA ONLY) affidavit by atty that D
can’t be served after reasonable diligence.
IMMUNITY (FED ONLY): if in state as W or party.
TIMING: Fed: Must serve D within 90 days after complaint
filed, or Ct. must dismiss with prejudice unless P shows good
cause. CA: 60 days or Ct. may issue order to show cause.
WHAT LAW GOVERNS THE DISPUTE?
FED: Erie Doctrine: In div and supp jx cases, Fed Ct must
apply state substantive law: SoL; choice of law rules; elements
of claim/defense; rules on tolling SoL. But Ct uses Fed Proc.
Law. If substantive law, analyze if outcome determinative
(SL) ; balance of interest; avoid forum shopping (SL). If Fed
conflicts (Fed law prevails)
CA: CA governs substantive and proc.
INTERLOCUTORY INJUNCTIONS
PRELIMINARY INJUNCTION (PI): preserves status quo pending
determination of merits of litigation. Must provide notice to
adverse party. Must show: (1) imminent irreparable injury
(non-monetary); (2) no adequate legal remedy; (3) substantial
likelihood of success on the merits; (4) balance hardships; (5)
not adverse to public interest.
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CIVIL PROCEDURE
TEMPORARY RESTRAINING ORDER (TRO): preserves status quo
of subj matter of litigation, and prevents irreparable harm until
PI hearing. Must provide notice unless (i) immediate and
irreparable injury; (ii) effort to give notice; and (iii) provide
security in case party wrongfully restrained/enjoined. Must
show same elements as PI. Lasts 14 days unless ext granted.
PROPER PLEADINGS?
RULE 11 (FED): atty must sign all pleadings, etc. to certify that:
no improper purpose; legal contentions are warranted by law;
factual contentions and denials have evidentiary support. Can
be raised by opp party w/ 21 day safe harbor OR by Ct sua
sponte . Fed = no safe harbor. CA: same, but 21 day safe
harbor.
FEDERAL
CLAIM: Must plead FACTS supporting plausible claim enough
to put D on notice and prep reasonable response
(Iqbal/Twombly standard) + basis of SMJ + demand for relief.
D RESP: Motion for more def stmt/motion to strike. Motion or
Answer – Waivable: lack of Pers Jx; improper venue;
insufficient process or service. Non-waivable: failure to state
claim, failure to join indispensable party; lack of SMJ. Answer:
must respond (admit, deny, lack info) + raise affirmative D
(SoL, SoF, res judicata, self defense).
RIGHT TO AMEND: P once within 21 days after D serves first
response. D once within 21 days after D serves answer. If no rt,
seek leave of Ct. Ct considers delay, prejudice, futility.
SUPPLEMENTAL: pertain to matters that occur after initial
pleading. Permission from Ct. req’d.
CALIFORNIA
CLAIM: Fact pleading = ultimate facts constituting action +
demand for jgmt (unless personal injury or wrongful death).
D RESP: Motion to Quash Service of Summons/Dismiss for
Inconvenient Forum: (sp appearance): lack of PJ, improper
process or service. Waived if not made first. Gen Demurrer: Fail
to state facts sufficient to state claim or lack SMJ (purely fed
case). Sp Demurrer: lack of capacity; existence of another
pending action; defect or misjoinder of parties; uncertain
pleading; failure to plead whether K is oral or written; and
failure to file certain required certificates. Not avail for Ltd
cases. Assert other defenses. Motion to Strike: strike all or part
of complaint as “irrelevant, false, improper.” Answer. Admit;
deny or lack info/General denial + affirmative D using fact
pleading.
FICTITIOUS D: Doe D is ok if P was (i) genuinely ignorant of
ID; (ii) pleaded ignorance; (iii) substituted true D w/in 3 yrs.
Relation back when substituted.
DEFENDANT’S CLAIMS:
Counterclaims/Cross Complaint against P: Compulsory if arises
from same transaction (“tx”) or occurrence.
Cross-Claim/Cross Complaint against Co-D: permissive if
arising from same tx or occurrence or under supplemental jx.
Impleader if by D/Cross Complaint against 3rd Party: No
diversity req’d for 3rd party practice btwn 3rd party D and 3rd
party P.
JOINDER: ARE PROPER PARTIES BEFORE CT?
PARTIES:
PERMISSIVE: Arise under same tx or occ + raise one common
question.
COMPULSORY: 1) complete relief can’t be given to existing
parties without them; 2) disposition in party's absence may
impair their ability to protect their own interest; or 3) their
absence would expose existing parties to double or inconsistent
obligations.
HOW? If feasible, PJ + SMJ (keep diversity). Discretion of Ct.
If unfeasible, Ct can proceed w/o. Look at alternative forum;
actual likelihood of prejudice; can ct shape relief to avoid
prejudice; whether P will be deprived of adequate remedy.
INTERVENTION:
Of Right: applicant has an interest in the property or tx and
action without him may impair ability to protect his interest.
Permissive: applicant’s claim or defense and the main action
have common question of fact in common; must have own jx.
(In CA, in order to be permissive, the intervenor’s interest must
be direct and immediate.”)
CLAIMS:
FED IMPLEADER: Join 3rd party for indemnity/ contribution on
underlying claim.
INTERPLEADER: Instituted by P to determine who has a valid
claim to the stake. Under Fed Rule, interpleader must follow
regular federal question or diversity rules. Under statutory rules,
interpleader has special, simpler standards – diversity between
one claimant and $500 in issue, service nationwide and venue
properly where any claimant resides.
FED CLASS ACTION:
SMJ req’d. Req’t: (Nobody Can Touch Rocky's Apple)
Numerosity; Commonality; Typicality; and Representative is
Adequate.
TYPES: Prejudice – class treatment necessary to avoid harm to
class member or party opposing class; Injunction/Declaratory
Judgment – class members treated alike by other party;
Damages (most likely. ex. mass tort) – (i) common questions
predominate; (ii) class action is superior.
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CIVIL PROCEDURE
NOTIFICATION: If Damages class action: notify all identifiable
members that they can opt out, otherwise bound if they don’t
Can enter sep appearance. Class Rep pays.
SMJ: Fed Q or Div. If Div: only look to rep, no one else in
class. Trad = rep has complete div from Ds + Rep claim > 75K;
Class Action Fairness Act: SMJ if any class mem div from any
D, + more than 100 class mems, + aggregate claim > $5m.
SETTLEMENT Req’s Ct approval, notice to all class, 2nd chance
to opt out.
CA STATE CLASS ACTION
Question is one of common or gen interest and is impracticable
to bring all before Ct. Req’t: ascertainable class + well defined
community of interest (common question predominates, rep
adequate, superior method).
DISCOVERY
REQUIRED DISCLOSURES (FED ONLY): Duty to produce w/o
request: (1) Initial Disclosures (i. ID people & docs likely to
have discoverable info; ii. computation of damages; iii.
insurance coverage.); (2) List of Experts; (3) Pretrial – detailed
info about trial evid at least 30 days before trial.
other party + intent to deprive other party of data = Ct. may (i)
presume or instruct jury it may/must presume lost data
unfavorable to party; or (ii) dismiss action or enter default jgmt.
ADJUDICATION WITHOUT A TRIAL
VOL DISMISSAL: Fed: P can vol dismiss before D serves answer
or mot w/o prej. CA: before trial, P can dismiss w/ or w/o prej.
After trial, P can move for vol dismissal with prej.
INVOL DISMISSAL: Failure to prosecute, or abide ct order.
CA: discretion to dismiss if trial not brought w/in 2 yrs;
mandatory dismissal if no trial w/in 5 yrs or no process w/in 3
yrs.
SUMMARY JUDGMENT: Moving party: no genuine dispute of
material fact. Opp party: show triable issue exists. Evid looked
at in light most favorable to non-moving party. CA: sep stmt of
material facts req’d.
PRETRIAL CONFERENCES
FEDERAL
Ct may hold as many as needed to expedite case and facilitate
settlement.
PRETRIAL ORDER: controls course of action taken in conference.
SCOPE: Relevant – reasonably calculated to lead to admissible
evid (Fed: relevant to claim or defense; CA: relevant to subject
matter of litigation). Proportional – must be proportional to
needs of case. Benefit Outweighs Burden.
FINAL PRETRIAL CONF: Ct may use to formulate trial plan. Held
close to trial date, may be modified by ct. only to prevent
manifest injustice.
DEPOS: Non-parties subpoenaed; parties req notice.
INTERROGATORIES: Fed: allow 25; CA: allow 35.
SANCTIONS: failure to attend conf or obey order, being
substantially unprepared, acting in bad faith.
VERDICTS & JUDGMENTS
REQUEST TO PRODUCE. REQUESTS FOR ADMISSION.
PHYS/MENTAL EXAM: Ct order req’d. CA: party requesting can
attend phys exam; mental exam if Ct order.
RECOVERY: if default, recovery limited to what’s sought in
complaint.
DUTY TO SUPPLEMENT: Fed: if incomplete or incorrect,
response must be supplemented. CA: if unlimited, info must be
accurate + complete when given. Opp party must make supp
demands.
JURY TRIAL: 7th Am similar to CA Constitution. Fed: if law and
equity, jury decides facts first in law. CA: Try equity first. If
damages incidental, no jury trial.
SANCTIONS: CA: Work out on own unless total violation. Fed:
Partial or Total Violation. Fed/CA: Cost or Contempt +
Extreme sanction for extreme violations: monetary sanctions;
strike pleadings; disallow evid; dismiss; default jgmt.
VOIR DIRE: Fed: unlimited strike for cause; each side gets 3
peremptory. 6-12 jurors, no alts. Req’s unanimous verdict. CA:
Unlimited strike for cause; each party gets 6 peremptory. Alts
avail. 3/4 verdict req’d.
PRIVILEGE: Work Prod/Atty Work prod = mental impression,
conclusion, legal theories, opinions. CA: Balance privacy/need
for info.
JURY VERDICTS: (FED) General - finds in favor of P or D
completely, gives amount of damages. Special – jury makes
finding on all issues of material fact submitted to them, ct.
applies law. General w/ Special Interrogatories – jury answers
factual questions to ensure general verdict valid.
E-DISCOVERY: FED/CA similar - No need to produce ESI if
party shows not reasonably accessible because undue burden,
but ct. may order production + cost sharing/shifting.
MOTION FOR NON-SUIT: (CA ONLY) if D moves at close of
P’s opening or at close of P’s evid.
Authentication: may use metadata to authenticate. Safe harbor:
no sanctions if ESI lost in good faith, before knowing would be
discoverable in litigation.
MOTION FOR JUDG AS MATTER OF LAW/DIRECTED VERDICT:
D moves at close of P’s evid and close of all evid. P only move
at close of all evid. Std: Reasonable ppl couldn’t disagree.
Failure to Preserve (Fed) – must take reasonable steps to
preserve ESI if litigation anticipated. If data lost + prejudice to
RENEWED MOTION FOR JUDG AS MATTER OF LAW/JNOV:
FED: Must bring Mot for Judg as Matter of Law FIRST. Claim
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CIVIL PROCEDURE
that jury verdict not reasonable. Within 28 days of entry of
judgment. Same standard as Mot for Judg as Matter of Law.
CA: no req’t to make directed verdict motion first.
MOTION FOR NEW TRIAL: Grounds: prejudicial error making
judgment unfair; new evid that couldn’t have been obtained
with due diligence; prejudicial misconduct; judgment is against
the weight of evid; excessive/inadequate damages that shocks
the conscience (remittitur: jury award too large, P chooses lesser
figure or new trial. Additor: state ct only; jury award too small,
P chooses greater amount or new trial).
APPEALABILITY & REVIEW
APPEAL: File in the trial court. CA: limited and small claims
appealed in appellate division of Superior Ct.
FINAL JUDGMENT RULE: Fed: decision on final merits of claim.
All Ds must agree. CA: judgment of one of several parties is
final judgment. Fed: Denial of motion for SJ; grant for new
trial; grant to remand to state ct. → NO FJ. Denial of new trial;
Grant or denial of renewed motion for judgment as matter of
law → YES FJ. Default jgmt that does not dispose of all claims
among all parties → NO FJ unless directed by ct.
INTERLOCUTORY REVIEW: (FED) As of Right – orders re:
injunctions, receivers, property possession; admiralty, patent
infringement, grant/deny class cert. Discretionary - but Ct may
review interlocutory orders only if: (i) order involves
controlling question of law, (ii) substantial ground for diff of
opinion; (iii) immediate appeal may advance ultimate
termination of case (iv) Ct of appeals allows appeal.
IS DECISION BINDING IN FUTURE CASES?
RES JUDICATA – CLAIM/CAUSE OF ACTION PRECLUSION
Claimant won Case 1 – res judicata merges cases. Claimant lost
Case 1 – res judicata bars the case. Req’ts: (i) Same parties; (ii)
ended in valid final judgment on the merits; (iii) Assert the same
cause of action/claim.
COLLATERAL ESTOPPEL – ISSUE PRECLUSION:
(i) Against someone who was a party in Case 1;
(ii) Case 1 ended in valid, final judgment on the merits;
(iii) Issue actually litigated and determined;
(iv) Issue essential to the judgment.
WHO ASSERTS?: Trad: mutuality req’d. Mod: Non-mutuality
DEFENSIVE: D can assert if P was party to prior case, but only if
P had full chance to litigate.
NON-MUTUALITY OFFENSIVE: P can assert against D if not
“unfair” – full and fair opp to litigate; party could foresee
multiple suits; P couldn’t have been joined easily; no
inconsistent judgments on record.
EXTRAORDINARY WRITS
TYPES: Writ of Mandate: compel lower Ct to do something law
requires. Writ of Prohibition: to stop a lower Ct from doing
something the law doesn’t allow.
REQ’TS: Party will suffer irreparable harm if writ is not issued,
e.g. unusually harsh or unfair; normal appellate route is
inadequate; party has beneficial interest in outcome.
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California Bar Exam - Page 8 of 46
COMMUNITY PROPERTY
BASIC PRESUMPTIONS
The marital economic community (“MEC”) begins at marriage
and ends upon divorce, death of spouse or permanent physical
separation with an intent not to resume the marital relationship.
SEPARATE PROP (“SP”): Prop acquired before marriage; during
marriage if through gift, bequest, devise or dissent or purchased
with SP funds; after end of MEC.
COMMUNITY PROP (“CP”): Presumption of CP if acquired
during marriage or temp separation.
QUALIFIED CP: Prop acquired by either spouse while domiciled
in a non-CP state that would have been CP if couple had been
domiciled in CA at time of acquisition. Treated like SP during
marriage after moving to CA; like CP upon end of MEC.
THRESHOLD ISSUES AFFECTING ITEMS OF PROPERTY
DISTRIBUTION AT DIVORCE
Upon divorce, all CP assets are divided equally between the
spouses base upon an item theory of distribution (not an
aggregate, but on a per item basis).
DISPARITY in earning power only considered in determining
spousal support.
DEVIATIONS FROM EQUAL DIVISION: Family residence; shares
of closely held corp; pension benefits; artwork; SH voting
control.
STAT EXCEPTIONS: Misapprop by one spouse; SP debts assigned
to debtor spouse; tort liability to tortfeasor spouse; personal
injury recovery awarded to injured spouse; negative community
assigned to one spouse.
DISTRIBUTION AT DEATH
A spouse can transfer all of their SP and 1/2 of their CP by will.
WIDOW’S ELECTION CLAUSE: If T tries to devise all of the CP
by will, or has included an explicit widow’s election clause in
will, then surviving spouse (“SS”) must make an election
between her CP rights and her rights under the will. If no
election clause and T only passes 1/2 CP interest in the will, W
can assert both CP rights and her rights under the will.
DISTRIBUTION BY INTESTACY: If spouse dies intestate, their ½
interest in CP passes to the surviving spouse and the SS’s share
of decedent’s SP depends on the number of heirs that survive
decedent. SS gets their 1/2 of CP and decedent’s 1/2 of CP. SS
gets all SP if no surviving heirs; 1/2 if 1 surviving child; 1/3 if
>1 surviving child.
CREDITOR RIGHTS
Creditor can reach a debtor spouse’s SP and all of the CP to
satisfy debts incurred before and during marriage. After divorce
or legal separation, a creditor cannot reach the CP awarded to a
spouse unless that spouse incurred the debt or was assigned the
debt by the court.
NON-DEBTOR SPOUSE (“NDS”): CP earnings not liable for debt
incurred before marriage if held in separate bank acct. But,
liable for debts of necessaries during marriage (e.g. food,
clothing, shelter & med expenses). Can only be reimbursed if
CP and SP funds were available at time of debt.
WHEN DEBT INCURRED: Generally, at time obligation arises.
Tort – when tort occurs. K – when K was entered into.
Child/Spousal support from prior relationship treated like SP
debt incurred before marriage.
UPON DIVORCE: Spouse is personally liable for debts that
she/he incurred or that were assigned to them by the Ct.
REIMBURSEMENT RIGHT: NDS reimbursed for CP funds used
to pay child/spousal support from previous relationship IF
debtor spouse had SP funds available at time to pay debt. NDS
reimbursed for SP funds used to pay for debtor spouse’s
necessaries if debtor spouse had SP or CP funds avail at time to
pay debt.
TORT LIABILITY: CP is subject to tort liability of either spouse.
If tortfeasor was acting for the benefit of the community,
liability is first satisfied from CP and then from the tortfeasor’s
SP. If tortfeasor was not acting for the benefit of the community,
then liability is first satisfied from the tortfeasor’s SP and then
from the CP.
UNMARRIED COUPLE’S PROPERTY RIGHTS
In CA, a lawful marriage requires legal capacity and the
performance of formal legal procedures.
UNMARRIED CO-HABITANTS: General K rules apply. If no
express K, cohabitants may prove implied K by conduct to
prevent unjust enrichment. If married later, K law applies to
prop acquired during co-habitation. CP law only applies to prop
acquired during marriage.
PUTATIVE SPOUSE: To qualify as a putative spouse, a person
must have a good faith belief based upon objectively reasonable
grounds that she is lawfully married, but once that person
discovers that the marriage is not valid, her quasi-marital
property rights no longer accrue. All prop that would be
CP/QCP if couple were legally married at time of acquisition is
quasi-marital prop. Bad faith putative spouse may have claim
to QMP rights accumulated by good faith spouse. When
decedent survived by a lawful and putative spouse, Cts will
divide decedent’s estate equally.
DOMESTIC PARTNERS: CP rules apply to DPs registered in CA.
Must be same sex or opp sex if one partner is over 62.
WHEN/WHERE WAS THE ASSET ACQUIRED ?
OUT-OF-STATE CP AND QCP
QCP retains its SP nature after a couple moves to CA, but QCP
is treated like CP upon divorce or for purposes of creditor’s
rights. Upon death of the acquiring spouse, the SS has a 1/2
interest in the decedent’s QCP. Upon death of non-acquiring
spouse, then heirs have no interest in decedent’s QCP.
DIVISION
When dividing out-of-state CP and QCP realty:
Upon divorce, Cts will award realty to one spouse and equal
offsetting assets to the other spouse.
Upon death, this prop will be divided by applying the probate
law of the state in which the realty is located.
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California Bar Exam - Page 9 of 46
COMMUNITY PROPERTY
WHAT WAS THE SOURCE OF FUNDS USED TO ACQUIRE THE
ASSET ?
LUCAS AND ANTI-LUCAS
LUCAS: Under the Lucas ruling, property purchased with SP
and CP funds before Jan 1, 1987 is presumptively CP if the
spouse took title in joint and equal form. SP contribution is
considered a gift and SP contributor has no separate ownership
or reimbursement claim.
ANTI-LUCAS STATUTE: As a result of the Anti-Lucas statute, the
CP presumption for property purchased with SP and CP funds
after Jan 1, 1987 is rebuttable by a collateral written agmt or
explicit stmt that prop is SP in the title. The SP contributor can
be reimbursed for down payments, improvements, and principal
payments upon divorce. The Lucas presumption of a gift
remains in effect for marriages ending in death.
PROP PURCHASED FROM COMMINGLED BANK ACCT
Prop purchased from a commingled bank acct is not
presumptively CP, but the burden of proof is on the SP
proponent to show that SP funds were used to purchase the
asset. The SP proponent can use either the exhaustion method
or direct tracing method to prove that SP funds were used to
purchase the prop.
EXHAUSTION METHOD: At time of purchase, CP funds in acct
must have already been exhausted through the payment of
family expenses.
DIRECT TRACING METHOD: At time of purchase, there were
sufficient SP funds available (and SP proponent intended to use
SP funds).
FAMILY EXPENSES: Paid with CP funds. SP only if CP has run
out. SP funds used are then a gift so no reimbursement is
available. SP can’t use recapitulation accounting to show that
family expenses exceeded total CP to prove that the remaining
funds are his SP.
CP FUNDS OR LABOR ENHANCE VALUE OF SP BUSINESS
When CP funds or CP labor enhance the value of a SP business,
Cts will apply Van Camp or Pereira to calculate the CP portion
of the business. Van Camp is used when the character of the
business was the primary reason for its growth or productivity
and Pereira is used when personal skills and effort of the
managing spouse increased the business’s value.
VAN CAMP: Market Salary for managing spouse’s services (avg
salary X years) – family expenses paid from business earnings =
CP. Remainder SP (favors SP). Consider substantial salary or
large bonuses.
PEREIRA: Value of managing spouse’s SP business at time of
marriage + Fair rate of return (10% X Years) = SP. Remainder
CP (favors CP). Consider long hours or modest salary
CP FUNDS USED TO IMPROVE OR PAY PRINCIPAL ON SP PROP
When CP funds are used to pay the principal on SP property, the
community establishes a pro-rata ownership interest to the
extent that the CP mortgage payments reduced the principal
debt, as determined by buy-in rule. When one spouse uses CP
funds to improve the other spouse’s SP property, the funds are
presumed to be a gift, although the community may be granted a
right of reimbursement if the court rejects the presumption. If
one spouse uses CP funds to improve his own SP property, the
funds are not presumed to be a gift, and the community is
entitled to reimbursement for the greater of improvement costs
or the amount by which the improvement increased the property
value.
BUY-IN RULE: Principle debt reduction that is CP/Purchase Price
= Share of CP. If interest contribution → CP is percentage of
appreciation. If principle contribution → CP is percentage of
prop. Insurance premiums, mortgage interests and property
taxes are not included in buy-in rule.
PROP PURCHASED WITH CREDIT
Purchases made with borrowed funds treated like cash
purchases in terms of ownership interest. When credit or
purchase money loans are used to purchase property, property is
presumptively CP, but presumption can be overcome by the
“intent of lender” test, e.g. proving that lender relied primarily
on the borrowing spouse’s SP in granting loan or extending
credit. But, personal credit of either spouse during marriage is
CP if based on earning capacity or personal creditworthiness.
HAVE ACTIONS TAKEN BY PARTY CHANGED THE
CHARACTER?
MANAGEMENT & CONTROL OF PROP
Each spouse has exclusive mgmt and control of his SP and
equal mgmt and control of the CP. Either spouse acting alone
can buy, sell, spend or encumber all of the CP.
CONVEYANCES: Both spouses must jointly execute written
instrument in order to validly convey community real property.
If sold to BFP and spouse misrepresents his marital status, the
non-consenting spouse has one year to void the transfer. But,
transfers to BFP are presumed valid.
EXCEPTION FOR PERSONAL PROP: One spouse can’t transfer
furnishings or clothing w/o written consent of the other.
Transfer can be void at anytime and doesn’t need to refund
purchase price to the transferee.
BUSINESSES: Spouse who manages business has primary
control, but must give prior written notice to the non-managing
spouse for any sale of all personal prop used to operate
business.
GIFTS: Written consent req’d to give gift but, if not obtained,
non-consenting spouse can ratify or void gift in its entirety
during donor’s lifetime. Upon donor’s death, SS can only
recover 1/2 of CP.
HOW AGREEMENTS AFFECT RIGHTS
PRE-MARITAL AGMTS: A valid premarital agmt must be in
writing and voluntarily signed in the presence of independent
legal counsel, but oral agmts are still enforceable if the promise
was carried out by promisor or promisee detrimentally relied on
the oral K. Prenup can’t be unconscionable nor promote
divorce.
ORAL AND WRITTEN TRANSMUTATIONS DURING MARRIAGE:
Oral transmutations before Jan 1, 1985 are enforceable. After
Jan 1, 1985, all transmutation must be (i) in writing; (ii) signed
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COMMUNITY PROPERTY
by spouse adversely affected; (iii) expressly state that change in
ownership is made.
TITLE AGMTS: Joint Tenancy and CP with Right of Survivorship
have survival rights. Tenancy in Common and CP have equal
rights but no right of survivorship.
MARRIED WOMAN’S SPECIAL PRESUMPTION: Prop is
presumptively SP if prop was acquired before 1975 and title
was taken in the wife’s name only or if title was taken in the
wife’s name and a 3rd party. If husband and wife took title as
Tenants in Common, then presumption that 1/2 is wife’s SP and
1/2 husband’s CP. After 1975, if title is in the other spouse’s
name, it is presumed to be a gift.
policy was paid for with CP and SP funds, Cts employ the buyin rule to apportion the CP ownership interest in the policy.
Buy-in Rule: # of Premium Payments made with CP/Total # of
Premium Payments = CP.
Term Life: Term insurance has no investment feature, so most
Cts hold that it has no value upon divorce. Upon death, Cts will
employ the apportionment method or hold that the
characterization of the final premium payment will determine
whether the proceeds are CP or SP.
PROPERTY INSURANCE: Depends on nature of the property
itself – SP insurance for SP prop are SP, even if CP funds are
used to pay premium. But CP can claim reimbursement.
FEDERAL PREEMPTION OF CP LAW
DOES ITEM FALL WITHIN CERTAIN CLASSIFICATION ?
SPECIAL CATEGORIES
PERSONAL INJURY RECOVERY FROM 3RD PARTY TORTFEASOR:
Injury before or after marriage, recovery is SP but injured
spouse must reimburse CP or spouse’s SP for injury-related
expenses. If during marriage, recovery is CP. At divorce,
recovery will go to injured spouse unless already expended or
commingled with CP or in the interest of justice. At death,
recovery is CP.
EDUCATION/TRAINING EXPENSES: Community has right of
reimbursement for one spouse’s education expenses if CP funds
were used to pay for expenses, earning capacity of educated
spouse was substantially enhanced, AND spouses didn’t waive
right of reimbursement by a signed agmt. No reimbursement if
10 yrs pass and CP has substantially benefited; other spouse
also received education; or education reduced need for spousal
support.
FED HOMESTEAD CLAIMS: Characterization depends on Fed
homestead law.
ARMED FORCES LIFE INSURANCE BENEFITS: SP.
US SAVING BONDS: SP unless fraud.
SOC SEC: SP.
RR RETIREMENT BENEFITS: SP if benefits are parallel to Soc
Sec; CP if supplemental.
MILITARY RETIREMENT: CP.
MILITARY/VA DISABILITY: SP.
CIVIL/FOREIGN SERVICE PENSION: CP.
COPYRIGHT: Not preempted.
BUSINESS/PROFESSIONAL GOODWILL: Those qualities that
generate income beyond that derived from the labor of a spouse
and the reasonable return on capital and physical assets.
STOCK OPTIONS: Awarded during marriage are CP, and Cts use
the time rule to apportion the CP ownership interest.
Time Rule: Date option awarded to date MEC ends/Date Option
Awarded to Date it can be Exercised = % CP.
PENSION BENEFITS: Earned during marriage are CP, and Cts use
the time rule to apportion CP ownership interest. Time Rule:
Yrs employed during marriage/Total Yrs of Employment = %
CP.
DISABILITY PAY/WORKERS COMP: Treated like wage
replacement and classified according to when received, not
when earned, and the characterization of the benefits depends
on what it is intended to replace. (Marital earnings and
retirement benefits = CP; Post-divorce earnings = SP).
SEVERANCE PAY: If resembles retirement pension b/c it was
earned through employment during marriage, severance is CP.
If intended to replace lost earnings, it’s treated like SP after
divorce or permanent separation.
LIFE INSURANCE:
Whole Life: Upon the death of an insured spouse, the 3rd party
beneficiary and the surviving spouse each get 1/2 of whole life
insurance proceeds if the policy was paid with CP funds. If the
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CONSTITUTIONAL LAW
FEDERAL JUDICIAL POWER
JUSTICIABILITY
(A SPERM)
ABSTENTION: fed can’t enjoin pending st. ct proceeding.
STANDING: Req’ts: (Pickled Doughnuts Cause Reflux) Personal
& Direct Injury; Causation; Redressibility. No Third party
standing: EXCEPT close relationship; injured 3rd party unlikely
to assert his own rts; Associational standing: indivs have
standing; germane to organization’s purpose; neither claim nor
relief requires participation of indivs.
POLITICAL QUESTION: Will not adjudicate challenges to
Amend’s; Foreign policy; Repub form of gov; Impeachment;
partisan gerrymandering.
IMPEACHMENT: Removed for treason, bribery, and high crimes
& misdemeanors. Req’s maj house vote and conviction in Sen
by 2/3.
FEDERALISM
PREEMPTION: Supremacy Clause: Q and laws/treaties made
pursuant to it are supreme. Express or Implied (either Fed/St
law mutually exclusive; st law impedes on fed objective; or
Cong evidences clear intent to preempt). Tax: can’t pay state tax
out of fed treasury, but can tax private store on fed land.
DORMANT COMMERCE CLAUSE: state or local law is
unconstitutional if it places excessive burden on interstate
commerce.
FEDERAL LEGISLATIVE POWER
POLICE POWER: none except MILD – Military; Indian
reservations; Land (fed); DC.
GENERAL WELFARE: may only tax and spend.
Discrimination
PRIVILEGES AND IMMUNITIES CLAUSE OF ART IV: state may
not deny citizens of other states of the privileges and
11TH AM/SOVEREIGN IMMUNITY: states can’t be sued in fed ct
immunities it accords its own citizens.
unless Fed gov’t sues; Express waiver; or Congress clearly
DORMANT CC & PRIVILEGES AND IMMUNITIES CLAUSE:
removes immunity; suits against state official for enforcing
unconstitutional statute; state v. state.
P&I under Article IV
Commerce Clause
RIPENESS: some viol of law or when nothing to be gained with
Discrim re: Civil Liberty /
Burden on Interstate
actual violation.
Ability to Earn Livelihood
Commerce
MOOTNESS: live controversy. Except: wrongs capable of
Violation unless necessary to Violation unless necessary to
repetition but evading review; voluntary cessation; class actions.
achieve substantial
achieve important gov’t
COMMERCE POWER: (1) Channels of interst comm; (2)
instrumentalities of IC; (3) substantial effect on IC (cumulative
impact for economic activity only).
FEDERAL EXECUTIVE POWER
TREATIES: Must be ratified by Sen but no Sen approval req’d to
void. Conflicts: St. law is invalid. Fed law – last adopted
controls. US Constitution (“Q”) – treaty invalid.
EXECUTIVE AGMTS: No Sen approval needed. Conflicts: St. law
is invalid. Ex Agmt never valid over conflicting fed law or Q.
APPT: Pres appoints ambassadors, fed judges, officers w/ Sen
confirmation. Cong may vest appt authority but may not give
itself appt power.
REMOVAL: unless limited by stat, Pres can fire exec officer. Fed
judges removed only if impeached. Cong may limit if
independence from Pres desirable AND may only limit removal
with good cause.
PARDON: only for Fed crimes, not state. Only crim liability, not
civil, and not for impeachment.
VETO: within 10 days or pocket veto (if cong term changing
during timeframe, Pres does nothing and bill dies). No line item
veto. 2/3 vote by house and senate to override veto.
interest and no less
discriminatory than
necessary to achieve
objective. EXCEPT: Cong.
approval or Market
Participant
No application
Simple balancing test.
Violates if burdens exceed
benefits.
Taxes ok if:
No Discrimination
LIMITATION: 10th Am - can’t compel st to regulate or act, but
may induce w/ strings on grants if expressly stated & related to
purpose. 14th Am – cong can't create new or expand existing
rights. Only prevent or remedy violations of existing rts if
propor/congruent to violation.
government interest and no
less restrictive means to
achieve objective
- Substantial nexus to
state.
- Fairly apportioned.
- Fair relationship to
services or benefit
provided by state.
Limit – corps and aliens can’t sue under P&I.
INDIVIDUAL LIBERTIES
STATE ACTION: req’d before Qal provisions applied to private
entities. Occurs if excessive st financial entanglement or where
entity performs public function. Entanglement = gov’t
authorizes, encourages, or facilitates activity.
Bill of Rts: Selected incorporation to states under 14th Am.
SCRUTINY
RATIONAL BASIS: rationally related to legitimate gov’t interest.
INTERMEDIATE SCRUTINY: law must be substantially related to
an important gov’t interest. Must be narrowly tailored to
achieve objective.
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CONSTITUTIONAL LAW
STRICT SCRUTINY: law must be necessary to achieve a
compelling state interest. Least restrictive means necessary to
achieve objective.
DUE PROCESS
PROCEDURAL DP
Deprivation of life, liberty or property (only if entitlement). If
yes, balance (1) Importance of interest to indiv; (2) ability of
add’l procedures to increase accuracy of fact finding; (3) gov’t
interest in fiscal & admin efficiency.
SUBSTANTIVE DP
ECONOMIC LIBERTIES – rational basis, limiited protection.
K CLAUSE: state/local law effecting already existing Ks → inter
scrutiny. (1) subst impairment of K relationship; (2) whether st
law is designed to promote a significant and legitimate public
purpose and narrowly tailored.
TAKINGS: 5th Am provides that private property may not be
taken for public use without just compensation.
Taking: (1) denial of all economic value or (2) decrease of
economic value that leaves no economically viable use for the
property. Ct considers: the social goals; diminution in value to
owner; and the owner’s reasonable expectations. If reduction in
value > promotion of pub welfare → taking.
Public Use: rationally related to a legitimate public purpose.
Does not need to actually be used by public. Purpose is key.
Remedy: If not, gov must pay for land or give land back +
damages.
FUNDAMENTAL RTS → SS. CARP SPERM: Contraception.
Abortion. Rt. to privacy. Procreation. Speech.
Parenting/Custody. Extended family together. Rt under 1st Am.
Marriage.
ABORTION → undue burden. Before viability – no prohibition,
but reg ok so long as not an undue burden. After viability – sts
may prohibit unless nec to protect life of mother. No partial
birth abortion. Spousal notice/consent – unQ. Parental
notice/consent for minors ok, but only if alt jud approval
process.
UNKNOWN SCRUTINY: refuse med treatment and homosexual
activity.
NO RIGHT: physician assisted suicide; practice trade; educ.
EQUAL PROTECTION
Q PROVISIONS: St/Local → 14th Am. Fed → 5th Am DP
clause.
RACE/NAT’L ORIGIN: Exists if: Discrim on face or discrim
impact + intent. Scrutiny: SS. Set asides/quotas: req’s clear
proof of past discrim and congruent remedy. College
Admissions: race can be a factor b/c of compelling interest of
diversity, but may not simply add pts or have a set aside. Not ok
in public secondary schools. Apportionment: consideration ok
but can’t be predominant.
GENDER: Exists if: Discrim on face or discrim impact + intent.
Scrutiny: Intermediate. Role Stereotypes: not ok. Remedial
measures: ok if designed to address past discrim and diff in
opportunity.
ALIENAGE: Gen: SS. But re: self gov’t/demo process: Rational
Basis (e.g. voting, jury serv, being police or elem/sec teacher).
Undoc Alien Children: Inter Scrutiny (rt to educ).
NON-MARITAL CHILDREN: Scrutiny: Interm.
RT. TO TRAVEL: SS, e.g. preventing ppl from moving or
residency req’ts.
RT. TO VOTE: SS. At large elections ok unless proof of discrim
purpose.
POL CANDIDACY: Fee can’t preclude indigent. Ballot access
regs must be reasonable and non discrim means of promoting
imp state interest.
ALL ELSE: Rational basis (e.g. age, disability, wealth/econ, sex
orientation, educ.)
FIRST AMENDMENT
RESTRICTION ON SPEECH: Content based → SS. Two types:
Subject matter - law restricts topic of speech. Viewpoint restricts specific ideologies. Content Neutral → generally
immediate scrutiny.
PRIOR RESTRAINTS: Judicial order or admin system stopping
speech before it occurs. Prelim Injunction → SS. Req’s: (1) std
narrowly drawn, reasonable & definite; (2) injunction promptly
sought; (3) prompt and final determination. Person must act
according to injunction until overturned. If in violation, no
challenge. Licenses/Permits: no discretion in licensing
authority. Must contain procedural safeguards like prompt
determination of requests for licenses and judicial review.
FACIALLY INVALID REGULATIONS: Vagueness: reas person can’t
tell what is prohibited/allowed Overbreadth: regulates
substantially more speech than Q allows. Unfettered discretion:
too much power given to licensing authority. NOTE: Fighting
word bans are unQ as vague and overbroad.
SYMBOLIC SPEECH: conduct that communicates. Test: Reg ok if
(1) imp st. interest independent of suppression of msg; and (2)
impact on comm no greater than necessary. (Int. Scrutiny)
Types: Flag burning protected. Draft card and nude dancing not
protected. Burning cross protected unless done w/ intent to
threaten. Contribution limits ok; expenditure limits unQ.
LESSER PROTECTED SPEECH:
Incitement of Illegal Activity: punishable if (1) substantial
likelihood of imminent illegal activity and (2) speech directed to
causing imminent illegality.
Obscenity: Test: PIPS – Prurient Interest. Patently offensive.
Serious value (lack of). Prurient interest = local std of
shameful/morbid interest in sex. Patently offensive = local std.
Serious value = no redeeming artistic, literary, political or
scientific value based on national reasonable person standard.
Zoning Regs: ok to reg location and size of adult bookstores and
movie theaters in order to target secondary effects. Child porn
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CONSTITUTIONAL LAW
may be completely banned, even if not obscene, but actual
children must be used in production.
FREEDOM OF ASSOCIATION:
PROFANE AND INDECENT LANGUAGE: gen protected, except
Broadcast Media: radio station/free network tv b/c of
intrusiveness into home and accessibility by kids.
Prohibit/Punish Group membership → SS. Req’s: AAA
(knowing + specific intent) (1) Actively Affiliated with group;
(2) knowing of illegal Activities; (3) specific intent of furthering
illegal activities.
Schools: responsibility of teaching civilized discourse.
Disclosure of Group Membership: if chilling effect → SS.
COMMERCIAL SPEECH: Truthful com speech always protected.
False and deceptive ads not protected. Test: Interm scrutiny. (1)
serves substantial gov’t interest; (2) directly advances that
interest; (3) narrowly tailored to serve that interest (need not be
least restrictive)
Unrelated to Suppression of Ideas → SS.
DEFAMATION: Libel and slander not protected.
Pub official: must show falsity and actual malice.
Pub figure: Same as pub official.
Private fig: if pub concern, must show falsity and negligence. If
no pub concern, no malice necessary.
FREEDOM OF PRESS/PRIVACY: Truthful Public Info: no
restrictions so long as info was lawfully obtained by gov’t
records.
Illegally intercepted calls: media no liability so long as media
didn’t participate in illegality and re: matter of pub importance.
Access to Govt: gov’t may limit dissem of info to protect
privacy.
Gov’t Papers: no req’t for public accessibility.
Criminal Trials: public and press have rt to attend, but may
be limited by overriding interest determined by judge based
on intermediate scrutiny.
Prohibition of Discrimination: Qal unless interfere with intimate
association (small groups) or expressive association (discrim
integral to expressive activity of group, e.g. KKK).
FREEDOM OF RELIGION:
Free Exercise Clause: No punishment on basis of religious
beliefs. But Free Ex can’t be used to challenge neutral laws of
general applicability, except denial of unemployment benefits if
person quit for religious reasons or Amish who have rt not to
educ children. If not generally applicable or if enacted to
discriminate → SS.
Establishment Clause: Lemon test. SEX. (1) Secular purpose;
(2) Effect neither advances nor inhibits religion; (3) No
eXcessive entanglement with religion. No discrimination
against religious speech or among religions unless SS. School:
No gov’t sponsored religious activity. BUT, religious groups
must be given same access to school facilities.
PUBLIC EMPLOYMENT: Public concern → balance employee's
rts as citizen against gov’t interest in efficient performance of
pub service. Not public concern → wide deference to employer
judgment. If within employee duties → punishment ok. No
firing for party affil unless in policy making position.
FORUMS FOR SPEECH:
Public forums: (parks, sidewalks, etc.) regs must be subj
matter and viewpoint neutral. If not → SS. Regs must serve
imp gov purpose and leave open adequate alt places for comm.
Designated public forums: (Gov properties which gov allows
open for speech.) same as public forums.
Limited public forums: (gov properties ltd to certain groups or
dedicated to disc of limited topics). Regs ok if reasonable and
viewpoint neutral.
Non-public forums: (mil bases, outside prisons, sidewalks on
post office prop, ad space on city buses, airports) Reg ok if
reasonable and viewpoint neutral.
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California Bar Exam - Page 14 of 46
Constitutional Law Charts
EQUAL PROTECTION
Step One: What is the classification?
Step Two: What is the level of scrutiny?
Strict Scrutiny
Intermediate Scrutiny
Law must be necessary to
achieve a compelling state
interest.
 Race
 Alienage, generally
 National origin
 Domestic travel
 Voting
Rational Basis
Law must be substantially related to Law must be rationally related to a legitimate
an important government interest.
government interest.
 Gender
 Illegitimacy
 Undocumented alien children






Alien (gov’t and demo process)
Congressional regulation of aliens
Age
Disability
Wealth
Everything Else
Step Three: Does the law meet the level of scrutiny?
FORUMS FOR SPEECH
Public
Forum
Designated
Public
Forum
Limited
Public
Forum
Non-Public
Forums
Definition
Neutrality Required
Gov’t property that is
historically open for
speech, e.g. streets,
sidewalks and pub parks
Gov’t property that could
be closed to speech, but
which government has
chosen to open
Gov't property limited to
certain groups or
dedicated to discussion of
limited topics
Subject and Viewpoint
neutral.
Gov’t property that gov’t
can and does close to
speech
Viewpoint neutral
Subject and Viewpoint
neutral.
Viewpoint neutral.
Test
Narrowly tailored to serve important gov’t
interest and leaves open alternative channels
of communication. Need not use least
restrictive alternative.
Narrowly tailored to serve important gov’t
interest and leaves open alternative channels
of communication. Need not use least
restrictive alternative.
Reasonably related to a legitimate
government purpose.
Reasonably related to a legitimate
government purpose.
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California Bar Exam - Page 15 of 46
CONTRACTS
1) What is the APPLICABLE LAW?
THE UCC: UCC Art. 2 governs the sale of goods, with applicable
rules also applying to merchants.
THE COMMON LAW: majority rules governing contracts other
than the sale of goods.
MIXED CONTRACTS are determined by the more important part
of the deal, except divided contracts in which both UCC and
common law rules may apply.
SELLER OF GOODS SENDS WRONG GOODS, unless with
explanation (then it’s a counteroffer)
OFFEREE PROMISE TO PERFORM
ADD’L TERMS: CL mirror image rule; UCC – one party
merchant → add’l term is proposal subject to sep rejection; both
parties merchants → add’l term is part of K unless materially
alters, offeror objects within reasonable time, or offer limits
acceptance to the terms.
CONSIDERATION
TYPES OF KS:
Unilateral K: offer expressly required perf as method for
acceptance.
Divisible Ks: perf divided into 2 + parts under K; number of
parts due from ea party is the same; and perf between parties is
equivalent.
Option K: agmt to leave open in exchange for consideration.
Ads: gen preliminary proposal unless words are to identifiable
person, e.g. first come first serve.
Quasi-K: equitable remedy when K results unfair. Prevents
unjust enrichment.
2) Contract FORMATION problems
OFFER
REQUIRES: 1) a manifestation of a present intent to contract
demonstrated by promise, undertaking or commitment, 2)
definite and certain terms, and 3) communicated to an identified
offeree.
CONTENT: UCC Sale of Goods – description + quantity. Price
not needed. Req’t K – terms of exclusivity. Req’t K – terms of
exclusivity. Real estate – ID of land and price. Employment –
duration.
TERMINATION
REVOCATION: unambig stmt by offeror to offeree or unambig
conduct indicating unwillingness to K that offeree is aware of.
Option K: No revocation.
Firm offer: (UCC – offer can’t be revoked for up to 3 months if
offer to buy or sell goods, signed written promise to keep open
and party is merchant).
Detrimental reliance: (no revoke if reasonably foreseeable
detrimental reliance).
Start of performance: MBE: offer irrevocable once perf started.
Rejection: counteroffers kill; add’l terms under CL mirror
image rule; lapse of time, e.g. > 1 month; conditional
acceptance kill.
ACCEPTANCE
A manifestation of assent to the terms of an offer in the manner
prescribed or authorized by the offer.
Req's bargained-for exchange of legal detriment btwn parties.
PAST CONSIDERATION: MBE: not consideration, except
expressly requested performance/ forbearance and expectation
of payment. New consideration req’d for pre-existing K or
statutory duty: except in CL, unforeseen difficulty, third party
promise or promise to pay debt barred by SoL.
SUBSTITUTES: written promise when prior obligation had
applicable legal defense; promissory estoppel.
DEFENSES
INCAPACITY: under 18 has a rt to disaffirm K unless minor
retains benefit after gaining capacity.
ILLEGALITY – subject matter illegal → K is void; subject matter
is legal, purpose is illegal → K enforceable only by person who
didn’t know of illegal purpose.
PUBLIC POLICY: (covenant not to compete, exclupatory clause).
MISREPRESENTATION/NONDISCLOSURE: innocent party may
rescind if induced to enter K by fraudulent misrep or nonfraudulent material misrep .
DURESS: improper threat and no reasonable alternative.
Unconscionability: unfair surprise and oppressive terms at time
of K.
AMBIGUITY/ MISUNDERSTANDING: each party uses a material
term open to two reasonable interpretations; each party attaches
diff meaning to term; neither party knows or has reason to know
the term is subject to two interpretations causing ambiguity.
MISTAKE: no K if mutual mistake on basic assumption of fact
that materially affects agreed upon exchange and not a risk that
either party bears. Unilateral mistake not voidable unless other
party knew or should have known.
STATUTE OF FRAUDS: Applies to MY LEGS - Marriage, Year,
Land, Executory guarantee, Goods > $500, Suretyships. Satisfy
by perf, writing, or judicial admission. In real estate, part perf
req’s 2 out of 3 of the following: payment, possession, or
improvements.
Writing req’s: Non-UCC: parties, subj matter, terms &
conditions, consideration, sig. UCC: quantity terms and sig,
unless confirmatory memo of oral K and no obj w/in 10 days.
FULL PERFORMANCE
START PERFORMANCE: for bi-lateral K, but not for unilateral K.
MAILBOX RULE: (acceptance effective when mailed, all else
when received);
TERMS
PAROL EVIDENCE RULE: integration issues. Merger clause is
highly persuasive but not determinative. No PE to reform or
contradict written terms, unless there’s a mistake in integration.
PE ok to argue defense to enforcement, explain ambiguous
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CONTRACTS
terms, to provide add’l terms if only partial integration, or add’l
terms would ordinarily be in sep agmt.
CONDUCT: course of perf (same ppl, same K), course of dealing
(same ppl, similar K) custom and usage (dif ppl, similar K).
UCC DEFAULT: delivery obligation - either Shipment Ks or
Destination Ks; FOB means “free on board.” If city is where
seller is located → shipment contract; if buyer's city →
destination contract.
Risk of loss: - determined by agmt, breach (even slight) shifts
risk of loss, delivery by common carrier (shipment K → risk of
loss to buyer when seller delivers to carrier; destination K →
risk of loss to buyer when seller delivers to buyer). If none,
merchant seller → risk of loss to buyer on receipt of goods; if
non-merchant → risk of loss to buyer upon tender. If risk of
loss on buyer → buyer pays full K price; on seller → possible
liability on seller for non-perf);
fully performed); suspend perf and wait for perf date to sue;
treat repudiation as offer to rescind and treat K as discharged.
Retraction ok if other party hasn’t materially changed position.
Insecurity – if reasonable grounds, relying party can demand
adequate assurance and may suspend perf.
LATER K:
Rescission: only if perf not completed.
Accord and satisfaction: mutual agmt of existing obligation to
accept diff perf or by acceptance of check marked “paid in full.”
Modification: mutual agmt to accept diff agmt to satisfy
existing K. CL: new consideration needed to modify. UCC: not
needed to modify, but must show good faith for mod.
Novation: mutual agmt to substitute existing party w/ another,
excusing perf of substituted party.
LATER UNFORESEEN EVENT:
Express Warranties: UCC – seller liable for breach (statements
of fact, promises, description of goods, etc)
Impossibility: can’t be done (damage, desctuction, death,
subsequent law or reg)
Implied Warranty of Merchantability: if dealing in goods of that
kind and fitness for a particular purpose if seller has reason to
know of purpose and reliance. .
Impracticability: can’t be done w/o extreme and unreasonable
difficulty or expense. Increase in seller cost rarely excuse
All Ks have implied warranty of good faith and fair dealing.
3) PERFORMANCE problems
BREACH OF CONTRACT occurs any time a party refuses to
perform under the terms of the agreement. Such breaches are
categorized as either material or minor, with material breaches
excusing the other party from performance.
SALE OF GOODS:
Perfect tender: if sale of goods, S’s perf must be perfect or B
can reject.
Rejection of goods: retain and sue for damages or reject all of a
commercial unit and sue for damages. Cure: S has second
chance at perfect tender if: S had reasonable ground to believe
delivery would be accepted OR time to perform hadn’t expired.
Installment Ks: B can reject installment only if there’s a
substantial impairment that can’t be cured.
Frustration of purpose: unforeseeable supervening event
destroys purpose of K.
5) What are the REMEDIES?
NON-MONETARY (IN REM):
Specific performance: typically limited to real estate, sale of
unique goods, but never for services. Req's – valid K, conditions
satisfied, inadequacy of legal remedies, mutuality, feasibility of
enforcement.
Rescission: cancels K. Req's – grounds for rescission, e.g.
mutual mistake or unilateral mistake if non-mistaken party
would suffer undue hardship or knew of mistake. No
negligence.
Reformation: changes written agmt to conform to parties’
original understanding. Req's – valid K, grounds for
reformation. No negligence, SoF, PER.
Revocation: if B hasn’t accepted goods, B may cancel K by
revoking acceptance if: nonconformity substantially impairs
value of goods, excusable ignorance of grounds for revocation
or reasonable reliance on S’s assurance, and revocation w/in
reasonable time after discovering nonconformity.
Reclamation: rt of unpaid seller to get goods back. Only if
Buyer was insolvent at time of receipt and Seller makes demand
for return w/in 10 days of buyer’s receipt or reasonable time if
buyer gives express representation; and buyer has goods at time
of demand.
Rights of good faith purchaser in entrustment: owner entrusts
goods to person who sells that kind of good and person
wrongfully sells to third party. GFP cuts off rt of original
owner.
Common law: substantial performance
MONETARY DAMAGES:
Acceptance of goods: if accepting goods, B can’t later reject.
Payment doesn’t equal acceptance w/o opportunity to inspect.
Implied acceptance if B keeps for reasonable amt of time.
4) EXCUSE for non-performance?
PERFORMANCE EXCUSED IF:
Improper perf by other guy - material breach.
Non-occurrence of condition – mutually agreed promise
requiring strict compliance.
Anticipatory Repudiation – Effect → excuse relying party from
perf and immediately sue for damages (not avail if relying party
Expectation interest: put P as if K wasn’t breached.
Reliance interest: puts P in same dollar position as if K wasn’t
breached.
Restitution interest: prevent D’s unjust enrichment.
DAMAGES FOR SALE OF GOODS: S breaches/B keeps –
difference btwn value of goods delivered and fair market value
had they been perfect. S breaches/S keeps – difference btwn K
price and either market price or cost of replacement. B
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CONTRACTS
breach/B keeps – S recovers K price. B breaches/S keeps – Diff
btwn market and K price.
ADDITIONAL DAMAGES:
Incidental: cost for finding replacement.
Foreseeable consequential damages: damages from P’s special
circumstances, only if D had reason to know of special
circumstances.
LIMITATIONS: Avoidable damages: P must mitigate. Certainty:
loss must be proved w/ reasonable certainty
LIQUIDATED DAMAGES: K fixes amount of damages . Valid if:
damages difficult to ascertain & reasonable forecast.
6) THIRD PARTY RIGHTS and obligations
THIRD PARTY BENEFICIARIES: Incidental TPB don’t have K rts,
only intended TPB’s do. No cancellation or modification after
TPB’s rts have vested by either relying, assenting or suing for
enforcement.
ASSIGNMENT OF RIGHTS: one party transfers rts under K to
assignee. Language important: If K states “Rights under this K
are not assignable” → Assignment is still valid. Assignor is
liable for breach but assignee who doesn’t know of prohibition
can enforce. BUT, if K states “All assignments under this K are
void”→ assignments are invalidated.
Gratuitous assign: can be revoked; last gratuitous assign wins.
Assign for consideration: no recovery from obligor. Assignor
implies warranty that rt exists, rt is not subject to any defenses,
assignor won’t do anything to impair value of assignment. First
assign for consideration wins.
DELEGATION: allowed unless K prohibits delegation, K calls for
very special skills, or K has very special reputation. If 3rd party
doesn’t perform, delegating party always remains liable.
Delegatee liable only if she receives consideration from
delegating party, in which delegatee is liable to delegating party
and obligee.
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California Bar Exam - Page 18 of 46
CRIMINAL LAW AND PROCEDURE
CRIMINAL LAW
GENERAL MATTERS
JURISDICTION: legal situs is where conduct or result of crime
happened, or should have happened.
MERGER: only solicitation and attempt merge into substantive
offense. No merger for conspiracy – separate crime.
ESSENTIAL ELEMENTS: physical act (actus reus): own volition,
but not reflective, convulsive or unconscious; and mental state
(mens rea).
SPECIFIC INTENT CRIMES: BAM ACTS. Burglary, Assault,
Murder (1st degree), Attempt, Conspiracy, Theft, Solicitation.
MALICE CRIMES: reckless disregard of obviously high risk of
harm. Murder/Arson.
GENERAL INTENT CRIMES: awareness of all factors constituting
crime, e.g. awareness of act or high likelihood it will occur
STRICT LIABILITY: no required awareness
TRANSFERRED INTENT: two charges – attempt and offense.
ACCOMPLICE LIABILITY
LIABILITY: crime itself and all foreseeable crimes. Req’s active
involvement, e.g. aid, counsel or encourage, with intent to aid.
INCHOATE OFFENSES
SOLICITATION: asking someone to commit crime. Req’s intent
for person to commit the crime. Crime ends at the asking – if
person subsequently commits the crime it becomes conspiracy.
CONSPIRACY: (i) Agreement; (ii) intent to agree; (iii) unlawful
objective. Maj jxs require overt act. Liability: all foreseeable
crimes committed to further consp. Withdrawal: (i) affirmative
act notifying all members of withdrawal & (ii) assistance in
neutralizing. Cuts off liab for future crimes, not conspiracy.
ATTEMPT: SI to commit + substantial step beyond mere prep
DEFENSES NEGATING CRIM CAPACITY
INSANITY: Def to all, incl Strict L. D - burden of production.
M’Naghten – at time of conduct, D lacked ability to know
wrongfulness of actions or nature/quality of actions;
Irresis Imp – D lacks capacity for self-control & free choice
Durham Rule – D’s conduct product of mental illness;
MPC/ALI – D lacked capacity to (i) appreciate criminality of
conduct or (ii) conform conduct to req’ts of law.
INTOXICATION: Volun– only def for Specific Intent. Invol– like
insanity and is def to all, incl SL. Req’s: taking drugs/alcohol
w/o knowledge; under duress; pursuant to med advice w/o
awareness of intoxicating effect.
INFANCY: < 7, no liab. < 14 – rebuttable presumption of no liab.
EXCUSES/JUSTIFICATION
SELF DEFENSE: Non-deadly –reasonably necessary. D – (i) D
w/o fault; (ii) confronted w/ unlawful force; (iii) threatened w/
imminent death/great bodily harm. Min - retreat unless in
person’s home; making lawful arrest; or vic of rape/robbery.
Orig aggressor must withdraw and communicate withdrawal.
DEFENSE OF OTHERS: person assisted reasonably appeared to
have legal rt to use force in his own defense.
DEFENSE OF PROPERTY: non deadly force ok. No force to
regain possession unless in hot pursuit.
CRIME PREVENTION: Non deadly force to prevent felony or
breach of peace. Deadly only to prevent dangerous felony.
EFFECTUATE ARREST: Private person: deadly force only if
person harmed was actually guilty of offense. Officer: deadly
force to apprehend fleeing felon who threatens death /serious
bodily harm and necessary to prevent escape.
DURESS: Threat of imminent infliction of death/great bodily
harm on self or member of immediate family. No homicide.
NECESSITY: reasonably necessary to avoid imminent and
greater injury to society. No homicide.
OTHER DEFENSES
IMPOSSIBILITY: Factual – no defense. Legal Impossibility – not
illegal to do what D intended to do.
MISTAKE OF FACT: Spec Int – any mistake. Malice/Gen Int::
reasonable mistake only. SL – never.
CONSENT: only if crime req’s lack of consent, e.g. rape. Req's
consent voluntarily/freely given; legally capable; no fraud.
ENTRAPMENT: only if police originated criminal design and D
was not predisposed to commit act.
OFFENSES AGAINST PERSON
BATTERY: unlawful application of force resulting in bodily
injury or offensive touching. Aggravated: deadly weapon;
serious bodily harm; to a child, woman or police.
ASSAULT: attempted battery (SI) ; threat to bodily injury (GI).
HOMICIDE: unlawful killing of human w/ malice aforethought:
intent to kill; intent to inflict great bodily injury; reckless
indifference to an unjustifiably high risk to life; felony murder.
First: deliberate, willful, and premeditated and enumerated
felony, e.g. arson, robbery, burglary, rape, mayhem and
kidnapping. Second: everything else under CL murder.
Unjustified. No felony murder once D reaches temp safety or if
death of co-felon is result of resistance by victim or police
MANSLAUGHTER: Bump down murder if “imperfect self-D” –
D was at fault in starting fight or unreasonably but honestly
believed in necessity. Vol – murder w/ adequate
provocation/heat of passion w/o time to cool; Invol – criminal
negligence, battery, or misdemeanor.
PROPERTY CRIMES
LARCENY: taking and carry away of personal prop of another by
trespass w/ intent to permanently deprive.
EMBEZZLEMENT: fraudulent conversion of personal prop of
another by a person in lawful possession of that property.
FALSE PRETENSE: Obtaining title to personal prop of another by
an inten’l false stmt of past or existing fact w/ intent to defraud
LARCENY BY TRICK: Obtaining possession to personal prop of
another by inten’l false stmt of fact with intent to defraud.
ROBBERY: Taking of personal prop of another from other’s
person or presence by force or threat of imminent death/injury
with intent to permanently deprive.
EXTORTION: obtain prop by threat of harm/exposing info.
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California Bar Exam - Page 19 of 46
CRIMINAL LAW AND PROCEDURE
RECEIPT OF STOLEN PROPERTY: receiving possession and
control of stolen personal prop known to have been stolen by
another person with intent to permanently deprive owner.
OFFENSE AGAINST HABITATION
BURGLARY: Breaking and entering of a dwelling of another at
nighttime with intent to commit felony therein.
ARSON: Malicious burning of dwelling of another. Req’s
damage to structure.
CRIMINAL PROCEDURE
EXCLUSION
FRUIT OF THE POISONOUS TREE – Prohibits introduction of
evid obtained in viol of 4th, 5th, 6th Am. Exceptions: (i) stmts
in violation of Miranda; (ii) independent source; (iii) inevitable
discovery; (iv) intervening act of free will by D; (v) violation of
knock and announce. BUT, voluntary confessions in viol of
Miranda admissible to impeach and evid from illegal search can
impeach D’s trial testimony.
GOOD FAITH DEFENSE: reliance on (i) judicial opinion; (ii) stat
or ordinance; (iii) defective search warrant.
GOOD FAITH NEGATED if: (i) affidavit so lacking in probable
cause (“PC”) that no reasonable officer would rely on it; (ii)
warrant defective/invalid on face; (iii) affiant lied or misled
judge; (iv) judge wholly abandoned judicial role.
HARMLESS ERROR: admission of illegal evid will overturn
conviction unless gov’t can show beyond a reasonable doubt
that error was harmless.
FOURTH AMEND - SEARCH AND SEIZURE
ARREST: PC + warrant if D in home; stop in car requires
reasonable suspicion, incl checkpoint and pretextual stops.
VALID WARRANT: particularity of place searched/things seized
and issued by neutral and detached judicial officer.
CHALLENGE IF: affiant intentionally and recklessly included
material false stmt. But, good faith still applies.
SEARCH & SEIZURE: Three-Step Analysis: 1) does person have
4th Am rt? (gov’t conduct and reasonable expectation of
privacy – requires standing, e.g. ownership or living in premises
searched; overnight guest; but not items held out to public); 2)
search warrant valid?; 3) is there an exception?
Incident to lawful arrest: search contemporaneous in time
and place; limited to wingspan of individual.
Automobile: incident to arrest → interior compartment of car
but not trunk; probable cause → full search, including any
containers.
Plain View: officer legitimately on premises
Consent: voluntary and intelligent by someone who has
apparent equal right of use and access. Valid search even if
indiv did not have auth if police reasonably believed they did.
Stop & Frisk: stop if reas susp of criminal act supported by
articulable facts; frisk if reas suspicion that suspect is armed
and dangerous but limited to finding weapons.
Hot Pursuit/Evanescent Evid: may follow suspect into
dwelling if in pursuit (should be within 15 min of suspect);
seize evid that is likely to disappear
WIRETAPPING: if prob cause; named persons; description w/
particularity re: conversations; limited time; terminated when
info obtained; return to ct to show what was intercepted.
CONFESSIONS
5TH AM: Miranda for custodial (not free to leave)
interrogations (reas likely to elicit response). Unamb assertion
of rt to atty prohibits questioning unless accused initiates
resumption. NOT offense specific. Voluntary confessions made
in violation of Miranda are admissible to impeach.
WAIVER: must be knowing, voluntary & intelligent
6TH AM: Right to counsel: post-charge at critical stages of
proceeding. Offense specific.
14TH AM: requires confession be voluntary
ADMISSIBILITY OF CO-D CONFESSION: redact all portions
referring to other D; confessing D takes stand and subj to cross;
confession of non-testifying D is being used to rebut the D’s
claim that his confession was obtained by coercion.
IDENTIFICATIONS (GROUNDS FOR ATTACK)
COUNSEL: 6th Am. for post charge line ups and show ups. No rt
to counsel at photo ID.
DENIAL OF DUE PROCESS: if unnecessarily suggestive or
substantially likely to present mistake.
REMEDY: exclude in-court ID. Negated if P can show adequate
independent source of identification, incl ample opportunity to
observe person at time of crime.
DOUBLE JEOPARDY
Attaches when jury is sworn or, if no jury, first witness is sworn.
Does not apply to separate sovereigns.
EXCEPTIONS: hung jury; mistrial from manifest necessity;
retrial after successful appeal unless insufficient evidence to
support verdict; breach of agreed plea; termination at behest of
D on grounds not constituting acquittal.
FIFTH AMEND PRIVILEGE AGAINST SELF-INCRIM
Any nat person can assert, but only apply to testim disclosure.
LIMITATIONS: doesn’t apply to compulsory disclosure of docs;
must be asserted at first instance of questioning on that subject,
including civil trials.
EFFECT: P can’t make negative comment on silence, unless D
asserts that D wasn’t able to tell his side of the story.
ELIMINATED if: grant of immunity; no possibility of
incrimination (e.g. stat of limitations); waiver
MISC
PRE-TRIAL DISCLOSURE: P – disclose material, exculpatory
evid; D – disclose use of alibi or insanity
JURY TRIAL: rt if maximum auth sentence > 6 months.
JURY: if 6, must be unanim. 9-3 ok. Jury pool must reflect fair
cross section of community. In Death Pen, may exclude juror w/
absolute opposition that may prevent or subst impair perf.
DEATH PENALTY: present all relevant mitigating evidence; no
automatic DP; only jury can determine aggravating factor
imposing DP.
PLEAS: Judge must address D personally re: nature of charge,
max possible penalty/mandatory min, that D has a rt to plead
guilty but would wave rt to trial.
OVERTURN PLEA if: plea involuntary; lack of jx; ineffective asst
of counsel; P fails to keep agreed plea bargain
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California Bar Exam - Page 20 of 46
EVIDENCE
(California Distinctions are Italicized in Red )
PROP 8
CRIMINAL CE OF D: D must open door first, unless acts of prior
sex assault or child molest. CA - prior acts of domestic violence
Prop 8 is part of the California Constitution. Under Prop 8, all
relevant evid is admissible in CA crim cases unless the evid
admis. If D offered CE of V, P can offer evid of D’s same trait.
falls within an exemption.
CA – Narrower - if D offered CE of V’s violent char, P may rebut
EXEMPTIONS: CHOP SUR: Confrontation clause; Hearsay;
with D’s violent char. P can rebut pertinent CE if D opened the
Open the door; Privilege, Secondary evidence, Unfair prejudice,
door. Direct Exam: only reputation and opinion. Cross Exam:
Rape shield.
reputation, opinion, specific acts, but no extrinsic evid. CA –
FORM
only reputation and opinion on direct or cross. Prop 8 –
OBJECTIONS: Calls for narrative, Unresponsive, Leading
everything subject to balancing.
Questions, Assumes facts not in evid, Argumentative,
CRIMINAL CE OF V: FRE - Prosecutor can’t first offer CE,
Compound. Objections must be timely and specific or objection unless homicide case where D alleges self defense, but P can
is waived.
offer V’s peacefulness. D can open door with CE of V, and P
PURPOSE
can rebut only with D’s same character trait. Direct Exam:
LOGICAL RELEVANCE: if it has any tendency to make a material only reputation and opinion. Cross Exam: reputation, opinion,
and specific acts, but no extrinsic evid. CA Prop 8: relevant CE
fact of consequence more or less probable than it would be
without the evidence. CA Evid Code – also requires the fact of of V admissible, subject to balance. Reputation/opinion, specific
acts on direct or cross.
consequence in dispute to be relevant.
RAPE SHIELD: Crim – reputation and opinion not allowed for V.
Similar Happenings: typically irrelevant unless: used to show
Specific acts ok to show 3rd party source of physical evid or
causation; to show a pattern in fraudulent claims or a
prior consent between D and V. Civil – reputation, opinion, and
preexisting condition; to prove intent; rebut defense of
specific acts only if probative value substantially outweighs
impossibility; to show comparable sales relevant to establish
unfair prejudice. If reputation, only if V put rep at issue.
value; evid of habit; routine practice; industrial custom.
CA – Prop 8 does not apply to rape shield.
LEGAL RELEVANCE: If the probative value of the evidence is
SPECIFIC ACTS: admissible to demonstrate MIMIC, subject to
outweighed by its prejudicial effect. - emotionally disturbing,
balancing. (Motive, Intent, Mistake (not), Identification,
e.g. gory photograph or evidence that is admissible for one
Common Scheme/Plan)
purpose but inadmissible for another.
POLICY CONSIDERATIONS:
PRESENTATION
Liability insurance: inadmissible to prove culpable conduct, e.g.
WITNESS COMPETENCY: Witness must have (1) Personal
negligence, or D’s ability to pay.
knowledge: first hand sensory perception; (2) Present
Subsequent remedial measures: safety measures or repairs after
Recollection; (3) Ability to communicate; and (4) Sincerity:
accident inadmissible to prove culpable conduct or, if products
make oath or affirmation to tell truth. CA: W must understand
liability, defective product design. CA – if strict prod liability
legal duty to tell truth. Ws who have been hypnotized to refresh
case, evid of remedial measures is admis to prove defective
recollection are incompetent, except Ws in crim case who have
design. Limitation only applies to negligence theories.
been hypnotized by police using procedures protecting against
Settlement offers: not admissible to prove liability or guilt if a
suggestion.
claim is asserted. Not severable from other statements. CA –
DISQUALIFICATION: Only judges and jurors automatically
also includes mediation proceedings.
Offers to Pay Medical Expenses: inadmissible to prove liability DQ’d. No DQ for insanity, religious belief or age, but may
affect credibility.
or guilt, but may be severed from other statements. CA –
admissions of fact also inadmis and stmts are not severable.
IMPEACHMENT
Expressions of Sympathy (CA): civil action: expression of
CONTRADICTION;
sympathy to victim is inadmis, but severable from other stmts.
PRIOR INCONSISTENT STMT: cross or extrinsic evid if not a
Criminal Pleas: offers to plea, and related statements are
collateral matter and W is given opportunity to explain or deny.
inadmissible to prove guilt.
Must be under oath. CA: doesn’t need to be under oath.
CHARACTER EVIDENCE
CIVIL: Inadmissible to prove conduct unless character is at issue, BIAS/INTEREST/MOTIVE: Cross exam or extrinsic evid if not a
collateral matter;
e.g. defamation, negligent entrustment, child custody. Opinion,
reputation, and specific acts can be used. Fed only – Prior
sexual assaults or child molestation are admissible to prove
conduct.
PRIOR CONVICTION: Fed - felonies and misdem involving false
statements always ok unless over 10 yrs old. Felonies not
involving false statements ok subject to balancing;
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California Bar Exam - Page 21 of 46
EVIDENCE
(California Distinctions are Italicized in Red )
misdemeanors not involving false statements NOT admissible.
If admissible, extrinsic evid can be used; CA – all felonies re:
moral turpitude (lying, violence, theft, extreme reck, or sex
misconduct, ok subj to balancing. Felonies not involving moral
turp are inadmis, subj to Prop 8. Misdem inadmis, but under
Prop 8 misdem involving moral turpitude ok subj to balancing.
accept. CA - ct must take judicial notice of matters generally
known w/in jx, regardless of whether requested.
NON-CONVICTION ACTS: ok if involves lying, but no extrinsic
evid. CA: inadmis, but under Prop 8 misconduct re: moral
turpitude OK subj to balance;
Out of court statement offered to prove the truth of the matter
asserted in the statement. Usually inadmissible.
BURDENS OF PROOF: Crim – beyond a reasonable doubt. Civ –
preponderance of evidence. Presumptions. Shifts burden to
party against whom presumption is asserted.
HEARSAY
EXEMPTIONS: Admissible b/c not hearsay.
REPUTATION/OPINION RE: TRUTHFULNESS: extrinsic evid ok
or opinion of W;
FACTS OF INDEPENDENT LEGAL SIGNIFICANCE.
SENSORY DEFICIENCIES.
EFFECT ON HEARER: knowledge or notice.
DOCUMENT RELIABILITY
AUTHENTICATION: Signatures – admission, eyewitness
testimony, expert opinion, lay opinion by someone familiar with
sig, circumstantial evid, genuine exemplar (known sig
compared to sig admitted).
Self Authenticating: certified public docs, acknowledged docs,
official pubs, newspapers, periodicals, FED only - business
records, trade inscriptions.
Photos: must fairly and accurately depict what it is purporting to
show at time of event. Non-unique items – chain of custody.
Best Evidence Rule (CA: Secondary Evid Rule): Evidence is
being offered to prove contents of a writing. Originals and
duplicates ok. Testimony ok only if original was lost or
destroyed, unless bad faith by proponent of testimony. CA –
duplicate includes machine duplicate and other written evid of
contents.
OPINION TESTIMONY
LAY OPINION: admissible if based on W’s perceptions and
helpful to trier of fact. OK to show speed of auto, sanity,
intoxication, emotions, value of W’s property. No legal or
scientific opinions requiring specialized knowledge.
EXPERT OPINION: Hot Quiznos for Cold Penguins. Req’ts:
Helpful to the jury; Qualified; supported by proper Factual
basis; reasonable degree of Certainty; based on reliable
Principles that were reliably applied – Fed/Daubert standard:
Peer reviewed and published scientific journals; tested and
subject to retesting; low error rate; reasonable level of
acceptance. CA - Kelley-Frye Standard: Based on principles
generally accepted by experts in the field.
JUDICIAL NOTICE: Generally known in jx OR capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned. Civil – judicial
notice is conclusive. Crim – jury may but doesn’t need to
SPEAKER’S KNOWLEDGE OF FACTS.
CIRCUMSTANTIAL EVID OF STATE OF MIND.
ADMISSION BY PARTY OPPONENT: not subject to personal
knowledge req or the opinion rule.
VICARIOUS PARTY ADMISSION: Employee – if authorized
spokesperson or w/in scope of employment and during
employment relationship. Auth can be express or implied. CA –
limited: only if negligence exposes employer to respondeat
superior.
ADOPTIVE ADMISSION: silence admission if: party heard and
understood, was physically and mentally able to deny,
reasonable person would have denied.
PRIOR INCONSISTENT STMT UNDER OATH. Used for
impeachment and substantive proof. CA does not require oath.
PRIOR CONSISTENT STMT TO REBUT CHARGE OF LYING: if
made before bribe or inconsistent stmt as substantive proof or to
bolster credibility.
PRIOR STMT OF ID: ID made after perceiving him.
EXCEPTIONS: Hearsay but still admissible
EXCEPTIONS REQUIRING UNAVAILABILITY:
Requires privilege, death/illness, proponent cannot procure by
process or other reasonable means. Refusal to testify despite ct
order, failure of memory. CA: refusal to testify out of fear, total
memory loss.
Former Testimony: party against whom offered had opportunity
and motive to conduct exam. In civil case, party must have
close privity-like relationship with earlier party, e.g. predecessor
in interest. CA – also applies if W lives at least 150 miles from
Ct. In civil case, no privity req’t so long as opportunity and
motive are similar. OK if offered against person who originally
offered it into evid in the prior proceeding.
Dying Declaration: only in civil and homicide cases by one
believing he is about to die and describing cause or
circumstance leading to injury. CA – all cases if declarant is
actually dead.
Stmt against interest: At time made, against pecuniary, penal or
proprietary interest. If used to exculpate, must have
corroborating evid. CA – also if against social interest. No
corroborating evid req’d.
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California Bar Exam - Page 22 of 46
EVIDENCE
(California Distinctions are Italicized in Red )
Personal/Family History: declarant must be family member or
close associate. Requires personal knowledge.
Stmt Offered Against Person Procuring Declarant Unavail: only
if person offered against engaged or acquiesced in intentional
wrongdoing.
CA: Infliction or Threat of Physical Abuse: made at/near injury
explaining infliction or threat. Includes written or recorded
stmts and stmts made to police/medical prof.
FEDERAL CATCH-ALL: Guarantees of trustworthiness; strictly
necessary; and notice given to adversary as to nature of stmt.
CONSTITUTIONAL ISSUES: Even if not inadmissible b/c of
hearsay, Confrontation clause can make statement inadmissible
against D in a crim case. Testimonial stmts are inadmissible
unless the declarant is unavailable AND the D had an
opportunity to cross the declarant when the stmt was made.
Only in crim cases and only when the prosecution is offering
the evid.
CA: Past Physical/Mental Condition: only if at issue in case, but
does not need to be made for treatment purposes.
PRIVILEGES
EXCEPTIONS - UNAVAILABILITY IMMATERIAL: (PAPERS PBJ)
Present Sense Impression: While perceiving event or
immediately thereafter. CA – stmt made to explain conduct
while engaged in it.
Ancient Docs: FRE: 20 years. CA: 30 years.
Past Physical Condition for Med Diagnosis: If made to medical
professional to assist in diagnosis or treatment. Only statements
re: cause or source. CA – only in child abuse or neglect cases
when victim is under 12.
Excited Utterance: During or soon after startling event while
under stress of excitement of event. CA: aka spontaneous stmt.
Recorded Recollection: W once had personal knowledge; doc
made by W under W’s direction or adopted; Written or adopted
when memory was fresh; accurate when made; W now doesn’t
remember
State of Mind: Present mental, emotional, sensation or physical
condition. Only if state of mind is directly at issue and material
or to establish intent (circumstantial evid that intent was carried
out)
Public Record: record describing activity of office, describing
matter observed pursuant by duty imposed by law. Record
contains factual findings from investigation made pursuant to
authority granted by law. (Prosecution can’t use). CA:
prosecution may use if made by public employee, w/in scope of
employee’s duties, made near time of matter described, under
circumstances indicating trustworthiness.
Business Record: record of event, condition, opinion or
diagnoses kept in regular course of business, made at or near
time of matter described. CA: no opinions or diagnoses unless
simple.
Judgment of Previous Conviction: Judgment of felony
conviction (e.g., copy of judgment of conviction) admissible in
both civil and crim case to prove any fact essential to judgment,
but when offered by prosecution for purposes other than
impeachment, judgments against person other than the accused
are inadmissible. CA: civil only but includes pleas of nolo
contendre. Prop 8 may apply in crim if moral turpitude.
Learned treatises:std scientific treatise or authoritative work if
relied on by expert in direct or called to attn of expert on cross.
CA: narrow to point of uselessness – only facts of general
notoriety.
Misc: vital stats, prop interest docs, family records, market
reports. CA – judgment in prior civil case in indemnity.
ATTORNEY/CLIENT: Communication between attorney and
client, or rep, intended by client to be confid and made to
facilitate legal services, is privileged, unless waived by client.
Purpose must be to procure prof legal service. Cannot be made
in presence of 3rd party, unless unknown eavesdropper. Applies
to comms from employee/agent if corp authorizes them to
comm. Privilege extends beyond client’s death. Not applicable
to malpractice action. CA: comm between company's employee
and atty only applies if employee is natural person to speak to
atty on behalf of co on that matter OR if employee did
something for which co may be liable. Atty can disclose if
necessary to prevent crime likely to result in death or serious
bodily harm.
PSYCHOTHERAPIST-SOCIAL WORKER /CLIENT: Comm between
patient and psych, intended by client to be confid, and made to
facilitate rendition of prof psych services, is privileged, unless
waived by patient. CA: no privilege if necessary to prevent
crime that is likely to result in death or serious bodily harm.
DR/PATIENT: doesn’t apply if patient puts physical condition in
issue, physician’s services sought to aid in crime, or case alleges
breach of duty arising out of relationship. CA - doesn’t apply in
crim case or to info doctor is required to report to public office.
SPOUSAL PRIVILEGE: Testimonial – in crim cases, W may
refuse to testify against spouse. Can be waived by testifying
spouse. Doesn’t apply in crim case where spouse is charged w/
crime against spouse or kids. Requires legal marriage at time of
trial. CA: applies in both civ and crim, and spouse doesn’t have
to go on stand. Confidential Communication – protects all
communications during marriage. Requires legal marriage at
time of communication. Both spouses hold and can prevent
testimony of the other.
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California Bar Exam - Page 23 of 46
Evidence Charts
Hearsay Exemptions
Type
Statements not Offered for Truth
Federal
California Distinction
Facts of Independent
Legal Significance
Statement has words forming legal significance
based in substantive law, e.g. forming a contract or
stating that transfer of title is a gift.
No distinction.
Effect on Hearer
In negligence case, words that show knowledge or
notice on the part of the listener or is relevant to
the issue of motive.
No distinction.
Speaker’s Knowledge
of Facts
Statement proves the writer had knowledge of the
facts and shows connection to the claim at issue
No distinction.
Circumstantial
Evidence of State of
Mind
Statements used to demonstrate that the declarant
believed them to be true, to demonstrate insanity
or knowledge.
No distinction.
Admission by Party
Opponent
Considered hearsay, but falls under
exceptions.
Prior Consistent
Statement Offered to
Rebut Charge of W’s
Lying or Exaggeration
Statements of admission made by a party, or
someone attributable to a party, offered by a party
opponent.
 Personal knowledge not required
 Opinion rule barring statements of legal
conclusions inadmissible
 Employees
 An authorized spokesperson
 Employee of a party concerning a matter
within the scope of his employment and
made during the employment relationship
 Co-conspirators in furtherance of a conspiracy
to commit a crime or civil wrong.
 Partners made within the scope of partnership
Silence may be an admission if:
 Party heard and understood
 Party was physically and mentally capable of
denying
 Reasonable person would have denied the
accusation.
Inconsistent statement must be made under oath at
a prior proceeding or deposition and is admissible
for impeachment and as substantive proof.
(distinguish between prior testimony requiring
unavailability)
A consistent statement is admissible if made
before an alleged bribe or inconsistent statement
and can be used as substantive proof or to bolster
credibility.
Prior Statement of
Identification
Statements of identification made after perceiving
him (does not require oath or formal proceeding).
Considered hearsay, but falls under
exceptions.
Vicarious Party
Admission
Admissions
Adoptive Admission
Prior Inconsistent
Statement Given
Under Oath
Prior Statements
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Considered hearsay, but falls under
exceptions.
Narrower w/r/t employees’ statements
– only an admission where negligent
conduct of the speaker is the basis for
an employer’s liability in the case
under respondeat superior.
Considered hearsay, but falls under
exceptions.
Considered hearsay, but falls under
exceptions.
All prior inconsistent statements are
admissible.
Considered hearsay, but falls under
exceptions.
California Bar Exam - Page 24 of 46
Evidence Charts
Hearsay Exceptions
Requiring Unavailability
UNAVAILABILITY:
Privilege, Death or Illness, Proponent can't procure attendance by process or other reasonable means.
Federal
 Refusal to testify despite court order (fed only)
 Failure of memory (fed only)
Type
Former Testimony
California
 Refusal to testify out of fear
 Total Memory Loss
Federal
California Distinction
 Party against whom testimony is now offered
had an opportunity to examine and similar
motive to conduct the examination.
 In civil case, party against whom testimony is
now offered was not a party but has a close
privity-like relationship with the earlier party
(predecessor in interest)
 Unavailability also extended to prior
deposition witness who lives 150 miles
from courthouse.
 In civil case, no predecessor in
interest/privity requirement if opportunity
and motive are similar
 OK if offered against person who
originally offered it into evidence in the
prior proceeding
 Applies in all civil and criminal cases
 Requires declarant’s dead
Dying Declaration
 Admissible only in civil and homicide cases
 Made by one believing he is about to die
 Describing cause or circumstances leading to
impending death
Statement Against
Interest
 At time made, against pecuniary, penal or
proprietary interest
 If offered to exculpate accused, must have
corroborating evidence
 Includes statements against social interest
 Does not require corroborating evidence
Personal or Family
History
 Concerning birth, marriage, divorce, death,
relationship, etc.
 Declarant must be family member or closely
associated
 Personal knowledge required
Admissible if party against whom offered
engaged or acquiesced in intentional
wrongdoing to procure unavailability.
No distinction.
Statement Offered
Against Person
Procuring Declarant’s
Unavailability
 Applies only in serious felonies.
 Only if there is clear and convincing
evidence that declarant was killed or
kidnapped.
 Prior stmt must have been recorded by
law enforcement.
Infliction or Threat of Physical Abuse
 Made at or near time of injury or threat
 Describes or explains infliction or threat
 Written or recorded or made to police or
medical professional
 Trustworthy circumstances
Past Physical or Mental Condition
 Only if at issue in case
 Does not need to be made for medical
treatment (or even made to medical
professional)
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California Bar Exam - Page 25 of 46
Evidence Charts
Hearsay Exceptions
Unavailability Immaterial
P.A.P.E.R.S. P.B.J.
Type
Present Sense
Impression
Ancient Documents
Federal
California Distinction
 Made while perceiving an event or
immediately thereafter
 Called Contemporaneous statement
 Only statement made to explain conduct
of declarant while engaged in it.
 Authenticated document over 30
 Treated as accurate by someone who has a
reason to care.
Authenticated document over 20 years old
Past Physical
Condition for
Medical Diagnosis/
Treatment
 Past bodily condition if made to medical
personal to assist in diagnosing or treating
 Cause or source of condition also admissible if
pertinent to diagnoses or treatment
V. narrow – made by child abuse or neglect
victim under age 12
Excited Utterance
 During or soon after a startling event
 Made under stress of excitement of event
 Concerning immediate facts of event
Called Spontaneous Statement
Recorded
Recollection
 W once had personal knowledge
 Document made by W under W’s direction or
adopted by W
 Written or adopted when memory is fresh
 Accurate when made
 W now has insufficient recollection
 State of mind, emotion, sensation, or physical
condition
 Admissible only when state of mind is directly
in issue and material OR to establish intent of
person and as circumstantial evidence that
intent was carried out.
 PRESENT TENSE!
 Record describing activities of office
 Describes matters observed pursuant to duty
imposed by law (prosecution cannot use this)
 Record contains factual findings resulting
from investigation made pursuant to authority
granted by law, unless untrustworthy
(prosecution cannot use this)
 Records of events, conditions, opinions or
diagnoses
 Kept in regular course of business (not in
preparation for litigation)
 Made at or near time of matter described
 By person with personal knowledge or w/in
personal knowledge of one w/ business duty to
transmit info to the entrant
 Regular practice to make such recording
 NOTE: police records may fall under this
category in civil cases but not criminal
State of Mind
(Present)
Public Records
Business Records
Same.
Excludable if made under suspicious
circumstances
No restriction for prosecution so long as
record
 Made by public employee
 Within scope of employee’s duties
 Made near time of matters described
 Under circumstances indicating
trustworthiness
 Does not include opinions or diagnoses,
but will admit simple opinions or
diagnoses
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California Bar Exam - Page 26 of 46
Evidence Charts
Hearsay Exceptions
Unavailability Immaterial…Continued
P.A.P.E.R.S. P.B.J.
Type
Judgments of Prior
Convictions
Vital Statistics
Federal
California Distinction
 Felonies: admissible in criminal and civil to
prove fact essential to judgment but not if plea
of nolo contendre
 No misdemeanors
 Substantive evidence only re: the accused
 Impeachment for anyone
Births, deaths, marriages made to public office as
required by law
 CEC: only use in civil case but included
nolo contendre.
 Prop 8: Felony or misdemeanor
conviction admissible in criminal if crime
involves moral turpitude
Same.
Property Interest
Documents
Deed, will, or other document affecting property
interest admissible regardless of age
Same.
Learned Treatises
 Standard scientific treatise or authoritative
work as substantive evidence
 Called to attn of expert W on cross or relied
upon by expert W on direct
 Established as reliable authority
Personal or family history in family Bibles,
genealogy, urns, tombstones
 Narrow to point of uselessness
 Applies only to facts of general notoriety
or interest
Published compilations like lists or directories
Same
Family Records
Market Reports
Judgment in Prior
Civil Case
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Same
 Final judgment admissible when P is
trying to get indemnification or enforce
warranty
 Final judgment against third party
admissible to show current D is not liable
California Bar Exam - Page 27 of 46
Evidence Charts
Character Evidence (Offered to Prove Conduct)
Civil Cases
 Character evidence inadmissible to prove conduct
 EXCEPTION: where character is at issue in the case, all evidence (opinion, reputation, and specific acts) are admissible.
Cases to which this applies are:
o
Defamation
o
Negligent entrustment
o
Child Custody
Federal
 EXCEPTION: prior acts of sexual assault or child
molestation are admissible to prove conduct
California
 No sexual assault or child molestation exception
Criminal Cases on Character Evidence of DEFENDANT
Federal
California
 P cannot first offer CE.
 EXCEPTION
- Sexual assault or child molestation cases where
prior acts of same are admissible.
- Where D has offered character of V, P can be
first
to offer evidence of D for the same trait.
 D can offer CE to prove or disprove conduct
 P can rebut on pertinent character trait of D.
 On direct, only reputation and opinion.
 On cross, reputation, opinion or specific instances. But
no extrinsic evidence.
 P cannot first offer CE.
 EXCEPTION:
- Sexual assault or child molestation cases where
prior acts of same are admissible.
- Where D has offered evidence of V’s violent
character, P may only rebut with D’s similar
character of violence.
- Domestic violence cases where prior acts of same
are admissible.
 CEC only allows reputation and opinion evidence on
direct and cross.
 Prop 8: everything is admissible, subject to balance.
Criminal Cases on Character Evidence of VICTIM
Federal
 P cannot first offer CE.
 EXCEPTION: in homicide case, if D alleges selfdefense, P may offer evidence of V’s character for
peacefulness.
 D can offer CE of V.
 P can rebut, but only with D’s same character trait.
California
 Prop 8: if relevant, V’s character is admissible, subject to
balance.
 Reputation, opinion and specific instances are permitted
on direct and cross.
 On direct, only reputation and opinion.
 On cross, reputation, opinion or specific instances. But
no extrinsic evidence.
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Evidence Charts
Rape Shield
Federal
 Criminal
- Reputation and opinion not allowed for V.
- Specific instances admissible to show third
party
source of semen or injury or prior acts of
consent between D and V.
 Civil
- Reputation, opinion and specific instances
admissible if probative value substantially
outweighs unfair prejudice and, with regard to
reputation, if V put reputation at issue.
California
 Same.
 Rape shield is an exception to Prop. 8
Methods of Impeachment
(Offered to Discredit Credibility)
Impeachment by Contradiction
Impeachment by Prior Inconsistent Statement
 Prove by
- Cross Examination
- Extrinsic evidence (if not a collateral matter)
 If admitting extrinsic evidence, W must be given an opportunity to explain or deny inconsistency.
Impeachment by Evidence of Bias, Interest or Motive
 Prove by
- Cross Examination
- Extrinsic evidence (if not a collateral matter)
 W must be asked on cross about facts showing bias or interest before admission of extrinsic evidence. If admitted on
cross, admission of extrinsic evidence is at court’s discretion.
Impeachment by Prior Convictions (if allowed, extrinsic evidence is admissible)
Federal
 Crimes involving false statements:
- Felonies and misdemeanors involving false statements
are always admissible to impeach.
- EXCEPT: if conviction or release from prison
is over 10 years old, then subject to balancing
 Crimes not involving false statements
- Felonies are admissible, subject to balancing
- Misdemeanors are NOT admissible.
 If admissible, extrinsic evidence can be used.
California
All felonies involving moral turpitude are admissible
subject to balancing. Moral turpitude = lying, violence,
theft, extreme recklessness and sexual misconduct. NOT
negligence or unintentional acts.
Felonies not involving moral turpitude are inadmissible
and not subject to Prop 8.
 Under CEC, misdemeanors are inadmissible to impeach.
But, under Prop 8, misdemeanors involving moral
turpitude are admissible in a criminal case, subject to
balancing.
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Evidence Charts
Impeachment by Non-Conviction Bad Acts
Federal
 Admissible in civil and criminal if act involves lying.
 No extrinsic evidence.
California
Non-convicting bad acts are inadmissible under CEC.
 Under Prop 8, non conviction misconduct involving
moral turpitude is admissible in criminal cases using
cross or extrinsic evidence, subject to balancing.
Impeachment with Reputation and Opinion Regarding Truthfulness
 Extrinsic evidence is admissible (calling another witness)
 Opinion of W is admissible
Impeachment with Sensory Deficiencies
 Cross examination or extrinsic evidence
 Shows faculties of perception or recollection are impaired or that W lacks personal knowledge
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California Bar Exam - Page 30 of 46
PROFESSIONAL RESPONSIBILITY
CLIENTS LOVE FIERCE COUNSEL; COURTS FEEL DIFFERENTLY.
DUTIES OWED TO:
CLIENTS: Confidentiality. Loyalty. Fiduciary responsibilities. Competence. COURTS: Candor. Fairness. Dignity/Decorum.
“The attorney owed a duty of ___ to client/court.”
DUTY OF CONFIDENTIALITY
Attorney may not reveal any info obtained during the course
of the attorney-client relationship.
SCOPE: applies to all info, regardless of whether privileged,
without consideration of source. May attach before
atty/client relationship formed, regardless of whether one
ever established.
DISCLAIMERS must be in plain English terms.
EXCEPTIONS:
Consent – may be implied to render effective legal services.
Crimes – if atty reasonably believes disclosure is necessary
to prevent death or substantial bodily harm, atty may
reveal. Fed does not require criminal act. CA: permissive
disclosure but atty must i) make good faith effort to persuade
client not to commit act and ii) inform the client of their
decision to reveal confidences.
Financial: permissive disclosure if client is using your
services to commit a crime and disclosure necessary to
prevent or mitigate substantial financial loss. CA: N/A.
long as you don’t knowingly participate in decisions adverse
to clients.
Limiting Liability: No limit re: client’s rts to report you. No
limit on malpractice liability unless client independently
represented in agmt.
Publication Rts: Not until after rep. CA: discourages but ok
if judge determines client understands and consents.
Loans: None except costs and lit expenses when
representing indigent and advances on litigation expenses in
contingent fee cases. CA: prohibits promise to pay
prospective client’s debts, but allows any loan after atty is
hired if written.
Use of Info: can’t use info to the disadvantage of client w/o
consent.
Gift: can’t solicit from client, but may draft instrument for
close relative/client that provides substantial gift.
Opposing Counsel: can’t have close relationship with opp
counsel w/o informed consent.
Defending yourself – in disciplinary actions, malpractice
suits, suit for client’s refusal to pay.
Trial Counsel as W: Can’t testify unless testimony is
uncontested, or regarding nature of services rendered, or if
withdrawal would create substantial hardship. CA: no
testimony in jury trial unless written consent.
Compelled by law.
CONFLICTS BETWEEN CLIENTS:
DUTY OF LOYALTY
An atty owes their client a duty of loyalty and must exercise
professional judgment solely for the benefit of her client,
free of compromising influences and loyalties.
TIMING: Atty may accept representation if you i) reasonably
believe that you can provide effective rep; ii) you inform
each affected client; and iii) clients give written consent.
After representation begins and a conflict arises, you must
disclose the conflict and get further written consent.
IMPUTED DISQUALIFICATION: all attys in firm share
conflicts, unless conflict from gov’t service or personal
relationships (use of ethical wall may permit representation).
CA: disqualification is imputed, but an imputed atty is not
subject to discipline.
REMEDIES: Refuse to take the case; advise multiple clients
to get separate counsel; withdraw.
CONFLICTS BETWEEN ATTY AND CLIENT:
Business Txs and Adverse Interests: ok if terms are fair,
fully disclosed, client had opportunity to consult outside
lawyer, & client provides written consent.
Stock Payments: ok if fair and reasonable.
Board Service: no automatic bar, but strongly discouraged.
Atty can’t represent an individual employee case if on BOD.
Pro Bono exception: may be officer of legal services org so
Firm: can’t represent party if atty at firm represents the other
side in direct conflict.
Present Clients: CA: no rep if adverse to current client,
unless policyholder and insurance co. Can represent two
sides of an issue, so long as neither client would be
disadvantaged.
Multiple clients: Civil – if sides actually conflict, e.g.
confidential info, then must withdraw and advise them to get
sep counsel. Criminal – very narrow, because may
compromise loyalty and impede effective assistance of
counsel.
Former Client: no rep of new client materially adverse to
former w/o former’s consent. Can’t use confidential info if
relevant to new client’s matter. Imputed Disqual: if atty
leaves firm, former firm can’t work on case if matter is
substantially related or the same and any remaining atty has
confidential material info.
Gov’t lawyers: Conflict if atty worked “personally and
substantially” on the matter, unless gov’t provides written
consent. No imputed disqual if atty is screened off, doesn’t
share part of fee and gov’t employer is informed. CA:
prosecutors may not work on defense of same case.
Screening is allowed.
THIRD PARTY INTERFERENCE: Compensation from 3rd party
ok with client’s informed consent.
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California Bar Exam - Page 31 of 46
PROFESSIONAL RESPONSIBILITY
DUTY OF COMPETENCE, ETC.
Securities Laws: Fed law requires atty to disclose to
CEO/legal counsel of Corp. If ignored, go up ladder to BOD
or highest authority. If reasonably necessary to prevent
fraud or substantial injury to org, or if services are being
used directly to cause injury, must disclose to SEC w/o client
consent. ABA – similar reporting up and out. CA: report up
BUT NOT out.
COMPETENCE: using legal skill, knowledge, thoroughness
and preparation reasonably necessary for representation.
Failing to do so subjects atty to discipline, disqualification as
counsel in the litigated matter, and civil malpractice.
FINANCIAL DUTIES
COMMUNICATE: duty to keep client informed about case. If
settlement and multiple clients, must convey and determine
division of settlement before accepting.
ATTORNEY FEES:
Non-Contingency: Agmt includes how fee calculated, what
services covered, atty/client duties. CA: Must be in writing,
unless <$1000, corporate client, routine service for regular
client, or emergency.
Contingeny: Written agmt including % of recovery,
expenses to be reduced, and whether % is taken before or
after expenses. No domestic or crim cases. CA: requires
how work not covered by contingency will be paid and that
atty’s fees be negotiable. Liens ok to guarantee collection
from award. OK for divorce so long as agmt won’t
encourage breakup.
Termination before judgment: if client wins, may recover in
proportion to work completed.
UNREASONABLE FEES: ABA: totality of the circumstances,
fee must be reasonable, taking into account the labor,
novelty, difficulty, skill and timing required, result obtained,
and experience of atty and other demands on them. CA: must
not be unconscionably high.
FEE SPLITTING:
Within firm: OK.
Outside Firm: OK if ethical, written disclosure and consent.
ABA: division must be proportionate to work done unless all
attys jointly responsible.
Non-Lawyers: not allowed except death benefits and fees
shared in pension and salaries to non-attys; referral service
fee; award sharing with non-profit that recommended atty.
PARTNERSHIPS WITH NON-ATTYS: Prohibited. Non-attys
can’t be partners, officers, SHs, or control/direct professional
judgment. Reciprocal referral arrangements OK if not
exclusive and arrangement explained to clients.
CLIENT TRUST ACCTS:
Duty to Safeguard Client Property: office safe or safe
deposit box.
Holding Money: must be held in client trust acct. No
borrowing or commingling fees with personal funds. Use
individual interest bearing acct or if smaller funds held for
short time, in an interest on lawyer’s trust account (IOLTA).
Interest pays for service charge, remainder to state bar.
Duty to Keep Records. Provide accountings and notify
client when property is received. CA: keep records for 5
years.
DILIGENCE: duty to diligently, promptly, and zealously
pursue case to completion.
ACCEPTING REP: free to accept or reject, but should accept
case of defenseless/oppressed if only reason not to is selfish.
SCOPE OF REP: client decides substantive rts, e.g. testify,
plea, settle; atty makes decisions on procedure and legal
strategy.
DUTY TO WITHDRAW:
Mandatory: if continuing would violate ethical rule, i.e. your
physical or mental shape renders you incompetent.
Permissive: if good cause and withdrawal will not cause
undue delay or disruption. Good cause = failure to pay fees,
client acting illegally, client insists on pursuing illegal
objective. ABA recognizes financial burden, using services
to commit crime or fraud.
Procedure: provide timely notice to client; promptly return
unspent fees and all material papers. CA: forbids
withholding material until client pays.
SEX: ABA – no sex unless preexisting; CA excuses
preexisting relationships and allows new relations with
caution.
DUTIES OF CANDOR TO PUBLIC & DIGNITY OF
PROFESSION
EXAM TIP: ID duties that could run to multiple parties.
Give each a separate heading to maximize.
COMMERCIAL SPEECH: Constitutional test: regulation
directly advances interest and narrowly tailored.
ADS: Can’t be false or misleading or raise unjustified
expectations. Targeted direct mail ok, unless person
indicated they want to be left alone. Ads must be labeled as
ads, ID atty responsible. Must keep records of ads for 2 yrs.
CA: anything with guarantee, warranty or predicition is
improper.
Legal Specialists: only if “certified specialist.” CA:
experience, examination, education, and evaluations.
Rebuttable presumption of falsity if communication delivered
to person in hospital or suffering from physical/mental
stress; seeking fee-paying work that isn’t labeled as ad;
testimonials or endorsements w/o disclaimer.
Solicitation: ABA: no real time electronic contact. CA: only
phone or in person solicitation is prohibited. Contact at
accident is presumptively improper.
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California Bar Exam - Page 32 of 46
PROFESSIONAL RESPONSIBILITY
DUTY OF CANDOR TO COURT AND FAIRNESS TO
ADVERSARY
Atty prohibited from engaging in conduct involving
dishonesty, fraud, deceit or misrepresentation.
DUTY TO PRESENT FACTS AND EVIDENCE TRUTHFULLY:
can’t make or offer false stmts. Must correct false stmts of
material fact or law. Client Perjury: only evid you know is
false; reasonable belief is sufficient. Civil: refuse to call as
W. Crim: counsel client to testify truthfully or withdraw
from case. ABA: tell judge. CA: have D testify in narrative.
DUTY TO PRODUCE EVID: cannot suppress evid nor obstruct
access or tamper with evid of crime. Don’t need to disclose
how you obtained the object. Atty may look at evid w/o
alerting authorities, but can’t touch it. Evid may be retained
for reasonable time to conduct tests so long as it won’t alter
or destroy evid. Prosecutors: must timely disclose evid
favorable to D.
DUTY TO STATE LAW TRUTHFULLY: can’t knowingly make
false stmts of law. Must cite adverse authority if controlling
and directly on pt.
DUTY TO UPHOLD LAW: Prevention of death or serious
bodily injury – permissible disclosure. ABA not require
crim act; Prevention of substantial financial loss – ABA:
permits disclosure if services were employed in crime. CA:
no disclosure to prevent or rectify financial crime;
DUTY OF FAIRNESS
DUTY TO DEAL FAIRLY WITH OTHERS: can’t lie to
adversaries or 3rd parties; can’t violate legal rts of person to
obtain evidence. Can’t use means with no purpose but to
delay, burden or embarrass. Unless authorized, can’t talk to
party you know is represented by counsel w/o consent of
counsel.
PRESS: can’t make stmts that have a substantial likelihood of
materially prejudicing case. Except: public record, to warn
public, informing of ongoing investigation and asking for
help, or stmts required to protect client from substantial
undue prejudice from recent pub not self-initiated.
Prosecutor – no stmts that heighten public condemnation.
PRESERVING DIGNITY OF CT AND ADDITIONAL DUTIES
DUTY TO PRESERVE IMPARTIALITY AND DECORUM OF
TRIBUNAL: Can’t speak with prospective or empaneled juror
before and during trial. After trial, can interview jurors.
Must maintain decorum.
DUTY TO EXPEDITE CASES: affirmative duty to expedite.
CA: can’t delay case to harass or for personal
gain/convenience.
DUTY TO FOLLOW VALID PROCEDURAL RULES AND CT
ORDER.
DUTY NOT TO ENGAGE IN UNAUTHORIZED PRACTICE OF
LAW: Practice while suspended, or in state where you aren’t
admitted. CA: atty must register, pay dues, satisfy CLE and
follow CA ethics. ABA: temp out of state lawyer in good
standing can practice if: associated with locally admitted atty
who actively participates in matter; the services related to
alternative dispute resolution; or matter arises out of matters
reasonably related to atty’s practice in state of admission,
and are not services where forum requires pro-hac vice.
DUTY TO REPORT MISCONDUCT: ABA: must report another
atty’s violation of rules if it raises doubt about honesty,
trustworthiness, fitness. CA: self reporting.
DUTY OF SUBORDINATES:
Subordinates: if action is clear violation of ethical rule →
discipline. If debatable → partner solely responsible.
Supervising Atty: ethical responsibility if: ratify action or
knew of conduct by subordinate and failed to take action.
Managing Partner: must make reasonable efforts to ensure
conduct of firm employees comport with professional
obligations.
CA: may be disciplined for knowing of a fellow firm
member’s disciplinary violation and doing nothing to
prevent it.
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California Bar Exam - Page 33 of 46
REAL PROPERTY
ESTATE CLASSIFICATION
PRESENT ESTATES
FEE SIMPLE ABSOLUTE: divisible, descendible and alienable.
PERMISSIVE WASTE: life T must pay all ordinary taxes and
mortgage interest payments and protect land from disrepair by
conducting reasonable maintenance.
FEE TAIL: abolished and turns into a fee simple absolute.
AMELIORATIVE WASTE: acts that may enhance prop’s value not
allowed unless future interest holders know + give consent.
LIFE ESTATE: Req’ts: life tenant limited by doctrine of waste (see
below). Future interest: reversion in grantor or remainder in 3d
party. If life estate in 2 persons, contingent remainder in fee
simple upon death of first.
RULE AGAINST PERPETUITIES: voids future interest if there is
any possibility that the given interest may vest >21 yrs after
death of measuring life.
Defeasible Fees:
FEE SIMPLE DETERMINABLE: Req’ts: Clear conditional
language, violation of which leads to automatic forfeiture.
Characteristics: Divisible, descendible, alienable – but always
subject to durational condition. Future Interest: possibility of
reverter.
FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT: Req’ts:
clear language that grantor has a right to re-enter. Char:
Divisible, descendible, alienable, subject to condition. If
violated, interest may terminate at grantor’s option. Future
Interest: right of entry.
FEE SIMPLE SUBJECT TO EXECUTORY LIMITATION: Char:
Divisible, descendible, alienable subject to condition. Future
interest: Shifting executory interest to 3rd party.
FUTURE INTERESTS
Analysis: (1) Last person mentioned by proper name; (2) next
subsequent party not mentioned by proper name takes. (3) the
rest is struck.
Reform: Wait and See/Second Look: Majority jxs determine
RAP at the end of the measuring life. Uniform Statutory Rap:
provides for 90 year vesting period instead of life + 21 yrs.
CONCURRENT ESTATES/CO-OWNERSHIP
JOINT TENANCY: Creation: TTIP – time; title; interest (equal);
and possession of the whole. Grantor must clearly express
survivorship rts. Char: not devisable or descendable; alienable
but destroys JT. Severance: SPAM – Sale, Partition (voluntary
agmt; partition in kind; forced sale), Mortgage (if title theory).
TENANCY BY THE ENTIRETY: marital interest btwn H & W w/ rt
of survivorship. Creation: only H&W who take as one.
Presumption when couple takes. Char: creditors can’t touch and
no unilateral conveyance to 3rd party.
TO GRANTOR: Possibility of Reverter. Right of Entry. Reversion TENANCY IN COMMON: Char: each co-T owns individual pt
TO 3RD PARTY:
with rt to possess the whole. Descendible, divisible &
Shifting Executory Interest: follows defeasible fee of some sort. alienable. No survivorship rts.
Springing Executory Interest: occurrence of condition cuts short
Grantor’s interest in property in favor of Grantee.
Contingent Remainder: unascertained person OR subject to
condition precedent, or both. If condition precedent, conditional
language appears before language creating remainder. If
satisfied, becomes an indefeasibly vested remainder.
Vested Remainder: ascertainable person and not subject to
condition precedent.
Indefeasibly Vested Remainder: 3rd person certain to acquire
future interest w/o condition.
Vested Remainder Subject to Complete Defeasance/Total
Divestment: 3rd party’s future interest could get cut short by
satisfaction of a condition subsequent.
Vested Remainder Subject to Open: remainder vested in group
with ≥ one qualified to take, but may add more class members.
DOCTRINE OF WASTE
(Very Athletic Purple Aliens)
VOLUNTARY or AFFIRMATIVE WASTE: overt conduct causing a
decrease in value or consump/exploit of natural resource, except
PURGE – Prior Use (if exploitation previously occurred, but
limited to open mines doctrine); Reasonable repairs; Grant; or
Exploitation (land only suitable for this purpose).
RTS OF CO-T: Possession: each has rt to possess whole; no
ouster. Rent from Co-T: none, absent ouster. Rent from 3rd
Parties: lease of premises must acct to co-T for fair share of
income. Adverse Possession: co-T can’t adversely possess w/o
ouster. Carrying Costs: ea co-T must pay for portion of taxes &
mortgage. Repairs: contribution from other co-T if co-Ts
advised of reasonable & necessary repairs. Improvements: no
contribution from co-Ts. But at partition, improver responsible
for increase or decrease in value. Waste: no waste and liability if
commits. Partition: any co-T can seek it.
LANDLORD/TENANT
TENANCY FOR YEARS/TERM OF YEARS/ESTATE FOR YEARS:
Lease of fixed, determined period. Termination: no notice req’d.
Req’ts: >1yr must be in writing (SoF).
PERIODIC TENANCY: Successive or continuous intervals.
Termination: notice req’d; must be at least equal to length of
period with end at natural lease period.
Express or Implied: implied if: no duration specified but
payment req’d at spec intervals; oral agmt of terms of years
with payment at spec intervals; or if L elects to holdover T who
wrongfully stays.
TENANCY AT WILL: no fixed period of duration. Termination: at
any time.
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REAL PROPERTY
TENANCY AT SUFFERANCE: T wrongfully holds over expiration
of lease.
TENANT DUTIES
DUTY TO 3RD PARTIES: keep premises in good repair; liability
for injuries sustained by invitees, even if L promised to repair.
DUTY TO REPAIR: maintain premises and make ordinary repairs.
No waste. Fixtures: Fixtures pass with ownership of land
unless: private agmt OR T can remove w/o causing substantial
harm to premises. Loss: CL – T liable for any loss, incl force of
nature. Modern: if loss w/o fault of T, T may terminate lease.
DUTY TO PAY RENT: CL: duty indy of L’s obligations. Mod:
duty dependent on L’s covenants under lease. Breach when T on
prop: Commercial Ts may be held for new yr-to-yr lease if orig
was >1 yr. Residential Ts held to new month-to-month lease,
regardless of orig term. Rent = new rent if L advised T before
term of old lease OR old rent if L advised T after term.
Breach when T out of possession: SIR – Surrender (L treats as
ending of leasehold, but if >1yr left, writing may be req’d);
Ignore (hold T responsible for rent unpaid); Re-Let (hold T
liable for deficiency but L must diligently try to re-let).
LANDLORD DUTIES
DUTY TO DELIVER POSSESSION: Majority (English rule): put T
in phys possession; if former T on premises, L is liable for
damages. Minority(American rule): put T in legal possession; if
former T on premises, that is T’s issue.
IMPLIED COVENANT OF QUIET ENJOYMENT: Breached by
Total/Partial Actual or Constructive Evic. Total Eviction: L
exlcudes T from entire premises; or actual or continual refusal
to repair material damages that prevent habitability (terminates
T's oblig to pay rent); Partial Eviction: 3rd party retakes and
physically excludes T from portion of leased premises (rent
proportionately reduced).
CONSTRUCTIVE EVICTION: SING – Substantial Interference
(chronic problem fundamentally incompatible w/ quiet
enjoyment); Notice (T notifies L, who fails to respond); Get out
(T must vacate w/in reasonable time.
OTHER TS: L not responsible for actions of other Ts, except
cannot permit nuisances and must control/police common areas.
TORT: CLAPS – Common Areas (must maintain); Latent
Defect (warn of those he should be aware of); Assumption of
Repairs (if you say you’ll fix, fix w/ reasonable care); Public
Use Rule (defects if leasing public space); Short term lease of
furnished apt (liable for any defects causing harm).
IMPLIED WARRANTY OF HABITABILITY (RESID. ONLY): Req’t: fit
for basic human habitation as determined by housing code or
indy judicial conclusion. Breach: M+3Rs – Move out (and
terminate); Repair & deduct; Reduce rent (or withhold until ct
determines fair mkt value – but put $ in escrow); Remain and
sue (pay rent and get damages).
TENANT POWER: T only has ability to assign or sublease the
interest (time) he has. If extended, then sublease for that extra
time would be invalid and the subletter/assignee could be
ejected.
ASSIGNMENTS: transfer in entirety. L and T2 are in privity of
estate but not privity of K. L and T1 are not in privity of estate
but in privity of K. T2 is primarily responsible and T1 is
secondarily responsible. Sublease: only portion of interest
transferred. L and T2 are not in privity of estate or K. T1 and
T2 are responsible to each other.
SERVITUDES
EASEMENTS: non-possessory prop interest.
Terms: Affirmative: rt to do something on servient land.
Negative: req’s holder to compel servient owner to refrain.
Limited to LASSS: Light, Air, Support, Stream, Scenic view.
Appurtenant: physical use/enjoyment of property. Passes auto
w/ dominant tenement and with servient tenement unless BFP
w/o notice. In gross: only personal or commercial advantage.
Non-transferrable unless for commercial purpose.
Creation: PING – Prescription (COAH – see below);
Implication (if division, implied from existing use if apparent
and reasonably necessary to dominant land’s use/enjoyment);
Necessity (if division creates land lock); Grant (>1yr must be in
writing).
Termination: END CRAMP – Estoppel (servient landowner
materially changes position in reasonable reliance that easement
won’t be enforced); Necessity; Destruction of servient land;
Condemnation of servient land by eminent domain; Release (in
writing); Abandonment (phys action by holder expressing intent
never to use again); Merger (if separated again later, doesn't
automatically revive); Prescription (servient owner interferes)
LICENSE: privilege to enter land for specific purpose. Informal
and freely revocable, unless estoppel – licensee invested
substantial $/labor in reasonable reliance on continuation.
PROFIT: permission to enter land to take soil. Same rules as
easements.
COVENANT ($ DAMAGES): contractual promise to do or not do
something on land. Burden runs: WITHVN – Writing (by orig
parties); Intent (by orig parties to run); Touch/Concern
(provides some value to benefited party); Horizontal and
Vertical Privity (H: succession of estate btwn original parties,
e.g. grantor/ee; L/T; debtor/creditor. V: non-hostile nexus);
Notice (Actual, Record, or Inquiry). Benefit runs: WITV –
Writing; Intent; Touch/Concern; Vertical Privity.
EQUITABLE SERVITUDE (INJUNCTION TO ENFORCE BURDEN):
Creation: WITNES – Writing; Intent; Touch/Concern; Notice;
Eq Serv.
Implied Equitable Servitude: Maj rule. Req’ts: General Scheme
by subdivider when sale began and Notice. Defenses: changed
condition is so pervasive it affects entire area.
ADVERSE POSSESSION: Possession for stat period of time can
ripen into title if it's COAH – Continuous; Open/Notorious;
Actual and exclusive; Hostile. Possessor's state of mind is
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REAL PROPERTY
irrelevant. No adverse possession if owner disabled at inception.
Tacking ok if privity between adverse possessors.
LAND CONVEYANCES
LAND CONTRACT
SoF req’s writing unless (2 of 3): possession; payment; subst
improvemts. If K > actual size – spec perf w/ pro rata reduction
in price. Risk of Loss: B owns land when K is signed so buyer
bears risk. Implied Promises: marketable title at closing free
from adv possession, encumbrances, zoning viols. No false stmt
of material fact, incl failure to disclose latent, material defects.
No implied promise of fitness or habitability unless new home
builder (promise of workmanlike construction). Untimely
Performance: time not of the essence unless stated in K. Perf
rendered within reasonable time after closing date is ok.
DEED
Replaces K as controlling doc. Req’s: LEAD – Lawfully
Executed And Delivered. Lawful ex: writing, signed by grantor
(“G”), comports w/ stat req’ts (no consideration req’d and
description only requires “good lead”). Delivery: G must have
present intent to be immediately bound. Recipient’s express
rejection defeats delivery.
TYPES OF DEED:
Quitclaim: no covenants; gives what G has.
General Warranty Deed: Sad, Crying Elvis Wants Queen
Anne – Seisin – G owns estate he’s conveying; Rt. to Convey
– has power to convey w/o temp restraints; Against
Encumbrances – no servitudes or mortgages; Warranty –
promise to defend against lawful claims by others; Quiet
Enjoyment – no disturbance by 3rd party’s lawful claim of title;
Further Assurances – do whatever necessary to perfect title.
Statutory Special Warranty Deed: promises G makes on behalf
of himself that he won’t convey to anyone else and property is
free from encumbrances made by G.
RECORDING SYSTEM
WHO IS PROTECTED? BFP = purchaser for value and without
notice of someone else buying first (actual, inquiry or record
notice). Doomed Donee: no protection for heir, devisee, or
donee except shelter rule. Shelter Rule: one who takes from
BFP is protected just like BFP. Wild Deed: out of order deed
doesn’t give record notice. Estoppel: person conveying land
w/o any interest in it is estopped from denying validity of
conveyance if he later acquires.
NOTICE STATUTE: 2nd buyer wins if BFP and A not record.
RACE NOTICE: 1st buyer wins if records before 2nd buyer.
MORTGAGES
(INCREASINGLY TESTED ON MBE)
TYPES
LEGAL MORTGAGE: encumbrance in writing.
EQUITABLE MORTGAGE: deed absolute on face given as
collateral.
TRANSFER: Note must be negotiable and made payable to
named mortgagee; original note must be endorsed and signed by
mortgagee; original must be delivered; transferee must take note
in good faith w/o notice of illegality; transferee must pay value
for note. Transferee is holder in due course. T takes free of
personal defenses but subject to real defenses (MAD FIFI4 –
material alteration, duress, fraud in factum, incapacity,
illegaility, infancy, insolveny)
SELLING WITH MORTGAGE: Assumption of mort: debtor and
buyer are personally liable. Buyer primarily liable; debtor
secondarily. Subject to mort: buyer has no personal liability;
only owner is personally liable but home can still be foreclosed.
FORECLOSURE (Judicial Action)
JOINDER: all jr lien holders must be joined or mortgage will
remain on land. D must be joined if seeking deficiency judg.
AMT: If sale < debt, mortgagee brings deficiency action. If sale
> debt, jr liens paid in full by order of priority, surplus to debtor.
SR. INTEREST: not affected by foreclosure. B at sale takes
subject to sr. interest, which can still foreclose on if not paid.
PRIORITY: First to record, first in right. BUT, purchase money
mortgagee has “super-priority.”
REDEMPTION: in equity: up to date of sale, debtor may pay
missed payments + interest + cost. Statutory redem: ½ states
allow redem w/in fixed period, e.g. 6mths. Mortgagor has rt to
possess during that time.
MISCELLANEOUS
LATERAL SUPPORT: Strict liability if excavation causes adj land
in natural state to cave or if land w/ bldg can show that land
would have collapsed in natural state. Otherwise, negligence.
WATER RIGHTS
RIPARIAN DOCTRINE: H2O belongs to landowners (riparians)
bordering water course. Liable only for unreasonable
interference w/ other’s use.
PRIOR APPROPRIATION DOCTRINE: H2O initially belongs to
the state. Rt to divert and make beneficial use can be acquired
by indiv. Rts determined by priority of beneficial use (e.g.
agriculture) first in time, first in rt.generally.
GROUNDWATER: Surface owner has rt to make reasonable use
of H2O beneath surface, but can’t be wasteful.
SURFACE H2O: common enemy rule: landowner can change
drainage, but can’t unnecessarily harm land of another.
ZONING
VARIANCE: creates flexibility. Reqt’s: 1) undue hardship; 2)
variance won’t decrease neighboring prop value. Determined
by admin action before zoning board.
NON-CONFORMING USE: once lawful but no longer b/c of new
zoning ordinance. Can’t be eliminated all at once unless just
comp paid.
UNQ EXACTIONS: amenities gov’t seeks in exchange for
granting permission to build. Inherently suspect – must be
reasonably related in nature and scope to impact of proposed
development.
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California Bar Exam - Page 36 of 46
ESTATES DIAGRAM
Present Interest
Life Estate
 “To A for life”
 Must be measured in explicit
life years
 Life tenant’s entitlement
rooted in WASTE
Fee Simple Absolute
Defeasable Fee Simple
“To A” or “To A and his heirs.”
Devisable
Descendible
Alienable
No future interest
 Requires more than words of
mere desire, hope or intention
 Absolute restraints on
alienation are void
FS Determinable
 To A for so long
as/during/until
 Requires durational
language
 Divisible
 Descendible
 Alienable (subject to
duration)
Reversion
 “To A for
life”
Future Interest









Executory
Interest
Remainder
 To A for life, but
if X, then to B.
 Shifting or
Springing
Contingent
Remainder
Condition
precedent; or
Unascertainable
taker
CL: destroyed if
not vested before
life estate ended
or destroyed by
merger
Mod indestructable
 To A for life, then to B
 Capable of becoming
possessor upon
expiration
Indefeasibly
Vested Remainder
 To A for life,
remainder to B
 No condition
precedent; and
 Ascertainable
taker
 No attached
conditions
Possibility of
Reverter
 Grantor
Vested Remainder Subject to
Open
 To A for life, then to B’s
children
 No condition precedent;
and
 Ascertainable taker subject
to open class
 May be divided among ppl
born in future
 Rule of convenience – class
closes at death of present
estate holder
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



FS Subject to Condition
Subsequent
To A, but if X grantor
reserves right to re-enter
and re-take.
Divisible
Descendible
Alienable (subj to
condition. Forfeiture not
automatic, but subject to
grantor’s prerogative)
Right of
Entry
 Grantor
Fee Tail
 To A and the heirs of his body
 Abolished and forms FSA
 Historically, future interest in
grantor (reversion) or 3rd party
(remainder)




FS Subject to Executory
Interest
To A, but if X event
occurs, then to B OR To
A, if X.
Divisible
Descendible
Alienable – forefeiture is
automatic
Springing
Executory
Interest
 To A, if X.
 Cuts short interest
of grantor
Shifting
Executory
Interest
 To A, but if X, to B.
 Cuts short interest
of someone other
than grantor
Vested Remainder Subject to
Complete Defeasance/
Divestment
 “To A for life, remainder to
B, provided, however, that
if X, to C.”
 No condition precedent,
subject to a condition
subsequent; and
 Ascertainable taker
 Can be destroyed by the
occurrence of an event
California Bar Exam - Page 37 of 46
REMEDIES
TORTS
TORTS REMEDIES APPROACH
FIRST QUESTIONS TO ASK: (1) Has P been injured? (2) Has D
derived a benefit? (3) Does P was prop returned? (4) Does P
need an injunction?
SECOND QUESTIONS TO ASK: (1) Do the wrongs relate to past
only? → only money damages. (2) Do the wrongs relate to
future only? → no damages available. (3) Do wrongs relate to
both past and future damages? → All remedies in play.
GENERAL DAMAGES APPROACH:
(A) If P injured and D receives no benefit → compensatory
(B) If P slightly injured and D receives benefit → nominal &
restitutionary.
(C) If P injured and D receives benefit → compensatory OR
restitutionary. Both available, but P must choose.
(D) Punitive damages always available as an add-on.
LEGAL REMEDIES
COMPENSATORY DAMAGES: P is entitled to compensatory
damages to put him in the position he would have been in had
the wrong and resulting injury not occurred.
REQ’TS: (1) D has title; (2) title traced to prop D wrongfully
acquired; (3) D’s retention would be unjust enrichment; (4)
(some jxs) P has no adequate remedy at law.
TRACING: OK. Under replenishment theory, P may be limited to
traceable prop and proceeds, unless shown that other prop was
intended to substitute as restitution. If D converts and sells it to
purchase something else, P can trace, force sale, and retain
increase in value.
PRIORITY: P over unsecured creditors but loses to BFPs.
Limitation: may not be used when D improved other prop with
Ps prop.
EQUITABLE LIENS
D improperly acquires title of prop and is directed to conduct
immediate cost-directed sale. Use when prop value decreases.
REQ’TS: (1) D misappropriated under circumstances creating
debt or obligation to pay; (2) P's prop can be traced to prop held
by D; (3) D’s retention would be unjust enrichment.
TRACING: OK.
Priority: P has priority over unsecured creditors but loses to
BFPs.
REQ’TS: (1) Causation; (2) Foreseeability; (3) Certainty – Past
loss proven with greater certainty, Future losses use all or
nothing rule in which P must show likelihood of losses
occurring; (4) Unavoidability – must take reasonable steps to
mitigate damages. Amount: single payment. Trad: no inflation
for future losses. Mod: account for inflation.
RECOVERY: Limited to P’s claim. If insufficient – deficiency
judgment where difference will be held against D’s other assets.
NOMINAL DAMAGES: if no injury.
Temp. Restraining Order: Pending hearing, status quo preserved
for 10 days. Hardship: No weighing of hardship. Process: no
notice and ex parte TRO is OK so long as good faith effort to
give D notice and chance to appear.
PUNITIVE DAMAGES: results from D’s willful, wanton, or
malicious conduct. Must be accompanied by compensatory,
nominal, or restitution damages. Amount: must be relatively
proportionate to actual damage and no more than 10x
compensatory damages.
RESTITUTION REMEDIES – Legal
RESTITUTIONARY DAMAGES: amount req’d to prevent D’s
unjust enrichment. P must elect between Compensatory and
Restitutionary damages.
INJUNCTIVE RELIEF
Order requiring D to do/refrain from doing something.
TYPES:
Temp/Prelim Injunction: Maintain status quo pending trial on
merits. Hardship: D's hardship will be weighed.
Permanent Injunction: issued after trial on merits. Negative inj
= forces D to stop doing something. Mandatory inj = requires
affirmative action.
EFFECT: Even if erroneous, injunction must be obeyed until ct.
modifies or dissolves it. Disobedience → contempt. Civil
Contempt coerces D to obey through fine. Criminal contempt
punishes D with fine or imprisonment.
REPLEVIN: recovery of personal prop. Req’ts: P has rt to
possession + D has wrongfully withheld possession. Timing: If
P gets before trial – P must post bond. If D keeps through trial – REQ’TS: I Paid For Bono's Dog:
D must post re-delivery bond.
(1) Inadequate Legal Remedy Alternative – Damages too
EJECTMENT: regain possession of real prop. No punitive
speculative; D insolvent; irreparable injury to D; Replevin
damages. Req’ts: P has rt to possession + D has wrongfully
impossible b/c executing writ to return personal prop too
withheld.
difficult, or D filed re-delivery bond and flees or destroys;
RESTITUTION REMEDIES – Equitable
Ejectment inadequate;
(Property or Insolvent D)
CONSTRUCTIVE TRUST
D improperly acquires title and is directed to serve as trustee to
return to P. Use when prop value increases.
(2) Property Rt/Protectable Interest – Trad: only if prop rts
involved, Mod: any protectable interest OK;
(3) Feasibility of Enforcement – no prob if negative inj;
mandatory inj may be problem b/c of supervision issues, out of
state action, or difficulty assessing compliance;
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REMEDIES
(4) Balancing of Hardships – No balance if D was willful or
intentional. If gross disparity in balancing or public hardship
→ deny injunction and award money damages;
(5) Defenses. Unclean hands: P committed improper conduct
related to present lit; Laches: too much time since P knew of
injury and is unreasonable and prejudicial to D. Impossibility:
for D to carry out injunction’s terms. Free Speech: in
defamation or privacy, prior restraints limit injunctions.
CONTRACTS
LEGAL REMEDIES
RESTITUTIONARY REMEDIES – Equitable
COMPENSATORY/EXPECTATION DAMAGES: P is entitled to
compensatory damages to put him in the position he would have
been in had the wrong and resulting injury not occurred.
CONSTRUCTIVE TRUSTS (same as torts)
REQ’TS: (1) Causation; (2) Foreseeability (tested at time K
entered into); (3) Certainty – Past loss proven with greater
certainty, Future losses - “all or nothing” rule in which P must
show likelihood of happening; (4) Unavoidability – must
reasonable steps to mitigate damages.
(1) Contract is valid – terms must be definite and certain and
w/o formation issues. If option K, must be supported by
consideration.
FORM OF PAYMENT:
Single payment (no installments). Trad: present value does not
acct for inflation. Mod: present value does acct for inflation.
NOMINAL DAMAGES: if P suffered no actual injury.
PUNITIVE DAMAGES: none in K.
CONSEQUENTIAL DAMAGES: for related damages foreseeable at
time of formation, e.g. reputation fact patterns.
LIQUIDATED DAMAGES: limits damages recoverable. Req’ts:
damages are difficult to ascertain at time of formation;
Liquidated amount was reasonable forecast of what damages
could be. Clause can't force choice between actual or liquid
damages.
RESTITUTIONARY REMEDIES - Legal
QUASI K: Grounds: (1) Mistake/Fraud. (2) Material Breach:
Non-breaching party: restitutionary damages for benefit. If
value of benefit > K rate → P gets greater amt. If prop is
unique or insolvent → P gets the prop back. Breaching party:
Trad → no recovery. Mod → recovery ok but not more than K
amt and reduced by damages suffered by breach. (3)
Unenforceable K: Restitutionary damages for value of benefit,
whether used or not. If value of benefit is greater than K, P can
get greater amt. If prop unique or insolvent → P gets prop back.
RESTITUTIONARY DAMAGES: amt req’d to prevent D’s unjust
enrichment. P must elect between Compensatory and
Restitutionary.
REPLEVIN: recovery of personal prop. Req’ts: P has rt to
possession and D has wrongfully withheld. Timing: If P gets
before trial – P must post bond. If D keeps through trial – D
must post re-delivery bond.
EJECTMENT: regain possession of real prop. NO punitive
damages. Req’ts: P has rt to possession + D has wrongfully
withheld.
EQUITABLE LIEN (same as torts)
SPECIFIC PERFORMANCE: Cha Cha Is My Favorite Dance:
(2) Conditions satisfied – P must fulfill all his conditions under
K. If defective fulfillment of consideration, ct will abate
purchase price. If time of the essence and timely performance
not met: no SP if wholly executory K; if partly executory and
buyer makes late payment and brings SP claim, equity may be
granted IF: a) payment forthcoming within reasonable time, b)
Seller's loss is slight, c) full compensation tendered for delay, or
d) enforcing time condition is unconscionable.
(3) Inadequacy of other remedies – if damages speculative, D is
insolvent, multiple suits necessary, thing bargained for is
unique.
(4) Mutuality – Ct must be secure that P will perform K terms.
(5) Feasibility of enforcement – No SP for service K or out-ofstate land sale or construction K.
(6) Defenses – unclean hands, laches, unconscionability (tested
at time of K), mistake, misrep, SoF; disproportionate hardship
to D or public.
RESCISSION: Original K voidable and rescinded. Good Dog:
(1) Grounds – Formation Problem and K was never valid.
Mutual mistake of material fact, or unilateral mistake only if
non-mistaken party would suffer undue hardship or knew or
should have known of mistake. Misrep if P can show that they
actually relied on misrep of a material fact.
2) Defenses – unclean hands; laches. NOTE: negligence not a
defense. Rescission not avail if P gets damages. Damages
implies valid K. If suing for both, must elect rescission or
damages before judgment.
CANCELLATION: may cancel voidable instrument if it may cause
injury to person entitled to void it.
REFORMATION: conform w/parties orig intent. Very Good Dog:
(1) Valid K; (2) Grounds for reformation – mutual mistake,
misrep, or unilateral mistake if non-mistaken party knew; (3)
Defenses – unclean hands and laches.
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California Bar Exam - Page 39 of 46
TORTS
INTENTIONAL TORTS
BATTERY: P must show 1) a harmful or offensive contact, 2) to
P’s person, 3) D’s intent and 4) causation.
ASSAULT: P must show 1) an act by the D which causes
reasonable apprehension in P; 2) of immediate harmful or
offensive contact to P’s person; 3) D’s intent; and 4) causation.
Re-entry on land: wrongdoer → reasonable time and manner;
innocent party → reasonable time and peaceful manner with
notice; on land through owner’s fault → no privilege.
Re-capture of chattel: force only if in hot pursuit. May only
recapture from tortfeasor or third party with knowledge of
wrongful taking.
Shopkeepers privilege: shopkeeper may detain for reasonable
FALSE IMPRISONMENT: P must show 1) an act or omission by D time and manner if reasonably believes person committed theft
that confines or restrains P; 2) to a bounded area; 3) D’s intent; in order to conduct an investigation.
and 4) causation. NOTE: P must be aware or harmed by
Public necessity: protect community as a whole, absolute
confinement.
defense for trespass and damages;
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: P must
Private Necessity: protect own interest only if emergency is not
show 1) extreme and outrageous conduct by D; 2) intent or
of his own making, only defense for trespass, e.g. D still liable
recklessness; 3) causation; and 4) damages in the forum of
for actual harm.
severe emotional distress.
DEFAMATION
BYSTANDER IIED: P must show 1) P present when injury
occurred; 2) P is a close relative to V; and 3) D knew P was
present and a close relative.
DEFAMATION: To prove a prima facie case for common law
defamation, the P must show:
TRESPASS TO LAND: P must show 1) a physical invasion of P’s
real property; 2) intent; and 3) causation. NOTE: Negligent or
reckless entries are only subject to liability if D causes harm to
land.
1) defamatory language,
2) of or concerning P;
TRESPASS TO CHATTEL: P must show 1) an act by D that
interferes with P’s right of possession in chattel; 2) intent; 3)
causation; and 4) damages.
4) damages, possibly. If libel or slander per se, then damages
are presumed. If any other slander, damages must be proven
with some showing of economic harm.
CONVERSION: P must show 1) an act by D that interferes with
P’s right of possession of chattel, 2) which is so serious that D
must pay for chattel’s full value; 3) intent; and 4) causation.
NOTE: even a BFP of chattel may be guilty when chattel has
been stolen from its true owner.
In addition, if this is a matter of public concern (constitutional
defamation), P must also prove 1) falsity of the statement; and 2)
fault on D’s part.
DEFENSES TO INTENTIONAL TORTS
3) publication by D to a third person; and
If the P is a public figure, she must prove malice (e.g. D
knowing of the falsity or acting in reckless disregard), in which
case damages are presumed.
If P is a private figure, she must only prove negligence, in
CONSENT: Req’s legal capacity. Express or implied (Apparent which case she must prove damages, or demonstrate malice, in
common understanding, custom and usage or D’s reasonable
which case damages are presumed.
interpretation of P’s objective conduct; Implied by law where
DEFENSES TO DEFAMATION
necessary to save life).
SELF DEFENSE AND DEFENSE OF OTHERS: invasion is imminent CONSENT (supra). TRUTH. PRIVILEGE: Absolute – spouses (no
or in progress; reasonable mistake does not negate; may use only publication); officer of gov’t in course of official duties.
proportionate force.
Qualified privilege – public interest in promoting candor.
Speaker must have a reasonable belief that info is true and
FALSE ARRESTS:
speech confined to matter at hand.
Felony Arrest w/o Warrant – Police → reasonable grounds to
INVASION OF RIGHT TO PRIVACY
believe felony was committed and arrested person committed it;
Private → felony was actually committed and private person had APPROPRIATION OF P’S PICTURE OR NAME: P must establish an
reasonable grounds to believe person committed it.
unauthorized use of P’s picture or name for D’s commercial
Misdemeanors Arrest w/o Warrant – Police and Private →
breach of the peace and committed in presence of arrester;
advantage, unless news worthy publication. Remedies →
injunction; damages.
Crime Prevention w/o Warrant – Police and Private → if felony
or breach of the peace is in progress, or reasonably appears to
be. Deadly force only allowable if felony and suspect poses
serious harm
INTRUSION: P must show that D’s act of prying or intruding into
a private affair, in which P has a reasonable expectation of
privacy, would be objectionable to a reasonable person.
DEFENSE OF PROPERTY: Must ask to desist; no deadly force
allowed.
FALSE LIGHT: P must show that D attributed to P certain views
that he does not hold or actions that he did not take which would
be objectionable to a reasonable person under the circumstances.
In addition, there must be publication (must be widespread
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TORTS
POSSESSORS OF LAND
dissemination of major/material falsehood). If public concern,
must prove malice.
If activity, then RPP under similar circumstances.
DISCLOSURE: P must show a public disclosure of private info
UNDISCOVERED TRESPASSERS: No duty of care. But, no traps.
about P that would be objectionable to a reasonable person (must
be widespread dissemination of confidential info), unless news DISCOVERED TRESPASSERS (including anticipated trespassers):
If dangerous cond → duty to warn of concealed unsafe cond that
worthy publication.
may cause death or serious bodily harm. P must show 1)
DEFENSES TO PRIVACY TORTS
artificial cond; 2) highly dangerous; 3) concealed; and 4) prior
Consent; Absolute and Qualified privileges (for disclosure and knowledge. No duty to inspect or repair.
false light). Note: Truth is not a defense
ATTRACTIVE NUISANCE DOCTRINE: Child trespassers injured by
artificial cond are entitled to the care of a RPP under the
MISCELLANEOUS TORTS
circumstances, if P shows 1) dangerous cond present on land that
INTENTIONAL MISREPRESENTATION (Fraud, Deceit): P must
owner is or should be aware; 2) owner knows of or should know
prove an 1) affirmative misrepresentation of a material fact; 2)
that kids frequent vicinity of cond; 3) cond is likely to cause
that D made knowing or believing it was false; 3) which induced injury; 4) expense of remedy is slight versus risk.
P to act in reliance upon the misrepresentation; 4) justifiable
LICENSEES: entrants w/ own purpose but with permission, e.g.
reliance; 5) causation; and 6) damages.
social guest. If dangerous condition, possessor has duty to warn
NEGLIGENT MISREPRESENTATION: P must prove 1) misrep by D licensee of all known dangerous conditions. P must show 1)
in a business or professional capacity; 2) breach of duty toward concealed condition; and 2) possessor had prior knowledge. No
the P; 3) causation; 4) justifiable reliance; 5) damages.
duty to inspect or repair.
INDUCEMENT OF A BREACH OF CONTRACT: P must prove 1)
INVITEE: possessor holds open land for commercial benefit or to
existence of a valid contractual relationship btwn P and a third
public if land is generally open. If dangerous condition,
party or valid business expectancy of P; 2) D’s knowledge of
possessor has duty to protect invitees from all reasonably
relationship or expectancy; 3) an intentional interference by D
knowable dangerous conditions. P must show 1) concealed
inducing breach or termination; 4) damages. Defense: D’s own condition; and 2) possessor had prior knowledge or would have
business interest or protection of interest.
discovered by reasonable inspection. EXCEPTION: if owner of
MALICIOUS PROSECUTION: Must be 1) institution of criminal
proceedings against P; 2) termination in P’s favor; 3) absence of
probable cause for the prior proceedings; 4) improper purpose;
and 5) damages.
ABUSE OF PROCESS: Must be 1) wrongful use of the legal
process for an ulterior purpose and 2) a definite act or threat
against P in order to accomplish the ulterior purpose.
recreational land w/o fee, no liability for injuries unless
willfully and maliciously failed to guard against or warn.
LESSOR: general duty to warn of existing defects if aware that
lessee will not discover upon reasonable inspection.
LESSEE: general duty to maintain.
VENDOR OF REALTY: disclose concealed, unreasonably
dangerous conditions not discoverable by reasonable inspection.
NEGLIGENCE
STATUTORY STANDARDS OF CARE
DUTY: Duty of care owed to foreseeable plaintiffs in the zone of
danger is the amount of care a reasonably prudent person (RPP)
would exercise acting under similar circumstances, taking into
account the person’s superior skill, knowledge, and physical
characteristics.
Statutory duty may replace common law duty of care, thus
creating negligence per se, if: i) the statute provides for a
criminal penalty; ii) statute clearly defines the standard of
conduct; iii) plaintiff is within the protected class; and iv) statute
was designed to prevent the type of harm suffered by plaintiff.
SPECIALIZED DUTY RULES
DUTY TO RESCUE
CHILDREN: under 4 → no liability; 4-18 → care of a child of
similar age, intelligence and experience under similar
circumstances, unless child is engaged in adult activity.
PROFESSIONALS: owe the care of an average member of that
profession participating in a similar community. Specialists
compared with other specialists nationwide.
COMMON CARRIERS AND INNKEEPERS: held to high degree of
care and liable for even slight negligence if P is a passenger or
guest.
AUTO DRIVER TO GUEST: owed duty of ordinary care, although
for nonpaying passengers may only be liable for reckless
tortuous conduct.
Generally none, unless (i) family member, (ii) common carrier
and innkeepers to customers, or (iii) land possessors to invitees.
BUT, if attempt rescue, liable for any negligence during rescue.
BREACH
CUSTOM OR USAGE; VIOLATION OF STATUTE; RES IPSA
LOQUITOR: P lacks info of what D did wrong, but as a matter of
logic the accident that occurred is normally, typically or
routinely associated with negligence.
CAUSATION
ACTUAL CAUSATION: Single D: “But for” test. Multiple D:
merged or mingled causes → substantial factor; unascertainable
cause → shift burden of proof to D
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TORTS
PROXIMATE CAUSE: (aka fairness). Key is Foreseeability. If D
is direct cause, result is foreseeable unless freakish and bazaar.
If indirect cause: D always liable for intervening medical
negligence; negligence rescue; protection or reaction forces; and
subsequent disease or accident. No liability if intervening force
is crime or intentional tort.
DAMAGES
Eggshell plaintiff rule – you take P as you found P
DEFENSES TO NEGLIGENCE
IMPLIED WARRANTY OF MERCHANTABILITY: goods are of
average acceptable quality and generally fit for the ordinary
purpose for which the goods are used. SL if breached. Defense
→ assumption of risk; contributory neg.
IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE:
seller knows or has reason to know the particular purpose for
which goods are to be used and buyer relies on seller to select
goods. SL if breached. Defense → assumption of risk;
contributory neg.
CONTRIBUTORY NEGLIGENCE: minority → contributory
negligent P is barred from recovery. Last clear chance applies.
EXPRESS WARRANTY: affirmation of fact or promise that
becomes basis of the bargain. Breach if bargain isn’t lived up to.
ASSUMPTION OF THE RISK: min. P knew of risk and
voluntarily proceeded.
MISREPRESENTATION OF FACT: SL if stmt was of material fact
concerning quality or use of goods. Seller intended to induce
reliability with stmt.
COMPARATIVE NEGLIGENCE: P failed to take proper degree of
care for their own safety. Jury assigns % of fault.
MISCELLANEOUS TORTS
NUISANCE: Public nuisance is established if the community’s
right to health, safety, or property have been interfered with to
Partial/Modified comparative fault → P recovers % only if fault an unreasonable degree, requiring a balance of interests. Private
is < 50%. Last clear chance does not apply
nuisance is established if P’s ability to use or enjoy his property
has been interfered with to a substantial and unreasonable
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
degree, requiring a balance of interests.
P must show 1) D was negligent; 2) P was within zone of
LOSS OF CONSORTIUM: If V is married, uninjured spouse may
physical danger as a result of D’s negligence; and 3) physical
claim damages for loss of: 1) domestic services; 2)
manifestation of that stress (exception: physical manifestation
companionship; 3) sexual intimacy.
assumed if mishandling of corpse).
Pure comparative fault → strictly by the numbers.
STRICT LIABILITY TORTS
VICARIOUS LIABILITY: Arises out of specific relationships.
Employer/Employee – respondeat superior when employee
commits tort while w/in scope of employment; no VL for
intentional torts outside scope of liability unless i) job entails use
of force; ii) employer authorizes; or iii) motivated by desire to
INJURIES CAUSED BY ANIMALS: Always SL if livestock or wild
benefit employer.
animals. No SL for domesticated animals, unless D knew of
Hiring party/ind contractor: no VL except land possessors are
vicious propensities.
liable for independent contractor injuries to invitees.
ULTRA-HAZARDOUS ACTIVITY: SL if P proves 1) activity cannot
be made safe given existing technology; 2) activity poses severe Car owner/Car Driver: generally no VL unless owner lends car
to driver for owner errand or owner provides express/implied
risk of harm; 3) activity is uncommon in the area where it’s
permission to immediate family member.
conducted.
Parent/Child: generally no VL, unless there is negligence or
PRODUCT LIABILITY
negligent entrustment.
STRICT TORT LIABILITY: P must show 1) that D was a merchant
CO-DEFENDANTS
routinely dealing in goods of this type; 2) defective product; 3)
existence of defect when product left D’s control; and 4) that P JOINT AND SEVERABLE LIABILITY: two or more negligent acts
was making foreseeable use of the product at the time of injury. are proximate causes to injury. If indivisible → each D is liable
for entire amount of damage. If divisible → each D is liable for
DEFECTIVE PRODUCT:
their identifiable portion. If Ds acting in concert → each D
Manufacturing defect: product differs from others off the
liable for entire amount of damage.
assembly line and failed to perform as safely as an ordinary
COMPARATIVE CONTRIBUTIONS:
consumer would expect.
Design defect: all products in the line are dangerous. D has duty Contribution: typically relative to proportion of fault; min –
to use alternative design if alternative is i) safer; ii) economical; apportionment in equal shares.
and iii) practical, e.g. doesn’t impair the products utility, make it Indemnity: shifts entire loss between or among tortfeasors if by
more difficult to use, or present alternative safety issues.
K, VL, strict products liability, or (in some jx) identifiable
difference in degree of fault.
Inadequate warnings: consumers must be warned of residual
risks, preferably at point of use, using more than words, e.g.
icons or pictures.
For SL, P must prove: i) existence of an absolute duty to make
safe; ii) breach of duty; iii) actual and proximate cause of the
P’s injury; and iv) damage to the P’s person or property.
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WILLS & TRUSTS
WILLS
EXECUTION OF WILLS
TYPES
ATTESTED WILL: Requires (i) writing; (ii) signed by T; (iii) in
presence of two Ws; (iv) Ws sign will understanding that
instrument is T’s will. CA: W’s don’t have to sign in presence of
ea other or in presence of T. T doesn’t have to publish that this
is his will. Ts and Ws can sign anywhere. Substantial
compliance Doctrine: deemed valid so long as no issue of fraud
or mistake.
HOLOGRAPHIC WILL: (i) Signed by T and (ii) material
provisions in T’s handwriting. Extrinsic evid ok to prove T’s
intent. Date not required, but may present inconsistency or
capacity issues.
Interested Ws: unless two disinterested Ws present, presumption
that interested W secured gift by wrongdoing. N/A if interested
W is a fiduciary.
INTENT
CAPACITY: T must be > 18 years old; able to understand extent
of T’s property; know the natural objects of their bounty (e.g.
beneficiaries); and know the nature of his act. If no capacity →
will is invalid.
INSANE DELUSION: T had false belief that was a product of a
sick mind; no evidence to support that belief; and delusion
affected T’s will. Part affected by delusion is invalid and will go
to residuary or intestate.
FRAUD: Representation of material fact known to be false by
wrongdoer for the purpose of inducing action or inaction and
does in fact induce desired action.
Fraud in Execution: T’s sig forged or T given doc that he
believes isn’t testamentary → entire will invalid.
Fraud in Inducement: Wrongdoer’s representation effects
contents of T’s will → only affected part is invalid.
Fraud in preventing T from revoking: misrep or lie leads T not
to revoke. Results in no probate. Prop goes to heirs as
constructive trustees until ct determines intended beneficiary.
UNDUE INFLUENCE:
Prima Facie Case: (i) Susceptibility; (ii) Opportunity; (iii)
Active participation; (iv) Unnatural result.
Presumption: (i) Confidential relationship; (ii) Active
Participation; (iii) Unnatural result. Only affected part is invalid.
Statutory Undue Influence: Donative transfer invalid if
transferred to person that drafted instrument or drafter’s family;
person who has fiduciary relationship and transcribed the
instrument; or to care custodian of dependent adult. UNLESS:
T is related to drafter; will reviewed by independent atty, or Ct
finds that no wrongdoing occurred. Consequence → transferee
doesn’t take if gift exceeds person’s intestate share.
REVOCATION
SUBSEQUENT WILL: express or implied (Will #2 totally
disposes T’s estate).
Revival: If #2 is revoked later, #1 isn’t revived unless T
manifests specific intent to revive through oral stmts at time of
will #2’s revival or if codicil revoking will #2 so states.
PHYSICAL ACT: burn, tear, cancel (cross out), destroy, obliterate
(erase). Act and intent must be simultaneous.
Interlineations: must still satisfy req’ts of attested or
holographic will. No Dependent Relative Revocation (“DRR”)
if interlin is less than canceled provision; DRR ok if interlin is
more than canceled provision.
Cancellation: doesn’t increase gift but goes to residuary if no
beneficiary is specified.
BY OPERATION OF LAW: result of a pretermitted spouse or
child; or final dissolution of marriage.
DEPENDENT RELATIVE REVOCATION: disregards revocation
(physical act or subsequent instrument) caused by mistake.
Req’ts: T revokes will in mistaken belief that a substantially
identical will or codicil effectuates T’s intent. By operation of
law, revocation of the first is deemed conditional, dependent
and relative to second will effectuating T'’s intent.
NOTE: if second will is invalid b/c of fraud or execution, then
revocation of first is invalid too, and will #1 was never revoked.
PREVENTION OF REVOCATION VIA K: Material provisions of K
in will; will expressly references K; clear and convincing evid
of agmt enforceable in equity; clear and convincing evid of
agmt for the benefit of claimant that is enforceable in equity.
COMPONENTS OF WILLS
INTEGRATION: determines what makes up will. Look for
staples, numbered pgs, etc.
INCORPORATION BY REFERENCE: (i) Doc or a writing; (ii) in
existence when will was executed; (iii) doc clearly identified in
will; and (iv) T intended to incorporate doc into will (assumed if
1-3 are proven).
FACTS OF INDEPENDENT SIGNIFICANCE. Fact would have
existed without will.
CA PROBATE CODE (CPC) §6132: if death after Jan 1, 2007,
writing can be testamentary if writing is referred to in will,
dated, and signed or handwritten OR if extrinsic evid establishes
T’s intent. Writing describes items and recipients with reas
certainty and directs disposition of personal property of < $5K,
and > $25K in aggregate.
POUR OVER WILLS: T devises all assets into inter-vivos trust.
Valid through incorp by ref; independent sig; or Uniform
Testamentary Additions to Trusts Act if trust valid before or at
time of will’s execution.
CODICILS: modify, amend or revokes will. Codicil republishes
will (re-dates).
Effect on Revocation: If T executed will, then codicil, then
revokes codicil → rebuttable presumption that T intended only
to revoke codicil. If T executes will, then codicil, then revokes
will → rebuttable presumption that both will and codicil are
revoked.
INTERPRETATION OF WILLS
CHOICE OF LAWS: Probate in CA if: compliance with CA law;
law of state of execution; law of state where T was domiciled at
time of execution.
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WILLS & TRUSTS
MISTAKE:
Mistake in Content: if omission, no judicial remedy b/c Cts
won’t rewrite. If addition, remedy possible b/c Ct can just cross
out.
Mistake in execution: no probate if no intent, unless reciprocal
or mutual will.
Mistake in Inducement: no relief unless both mistake and what
T would have done are expressed on will.
Mistake in Description: Latent (on face, will looks ok) →
introduce parol evid to establish ambiguity and T’s intent.
Patent (on face will is invalid) → CL: no remedy; Mod: use
parol evid.
ADOPTION: adopted kids treated as natural kids. Natural
parents’ relationship severed at adoption unless spouse of
natural parent adopts.
Equitable Adoption: parties hold out as parent/child.
Stepkids/Foster kids: treated as adopted if: relationship began
during minority; continued throughout parties’ life; and
established by clear and convincing evidence that they would
have adopted but for a legal barrier.
LAPSE: Beneficiary must survive T. Anti-Lapse Statute: if
predeceased is T’s blood relative and leaves issue, then issue
will step into shoes of predeceased and take, absent contrary
provision.
ADEMPTION: Specific devise (unique); General devise (payable
out of general assets); Demonstrative devise (from particular
source, but if not enough, from general property); Residuary
devise (all the leftovers).
Ademption by Extinction: only specific gifts. If T doesn’t own
specific property, then specific gift is adeemed by extinction,
unless securities change form; conservator sells off assets
(beneficiary will take net sale price) or eminent domain,
casualty or installment sale.
Ademption by Satisfaction: may satisfy a general or
demonstrative gift. Reqt’s: will provides for deduction of inter
vivos gift; T declares contemporaneous writing that gift is a
satisfaction; beneficiary acknowledges in writing the
satisfaction; and prop given in satisfaction is the same as the gift
in the will.
ADVANCEMENTS: inter vivos down payment made by intestate
to heir apparent – same result as satisfaction. Intestate declares
in writing that gift is advancement and heir acknowledges gift
as advancement.
DISTRIBUTION ISSUES
WHAT PASSES? After acquired prop and increases during T’s
life, e.g. dividends and splits, will go to intended beneficiary.
Between death and probate, specific devises will go to
beneficiary; general devises don’t get increase.
ABATEMENT: gifts will increase or decrease by operation of law.
If must satisfy payment to pretermitted spouse or child, abate
by: property not passing by will or trust; all beneficiaries pro
rata. To satisfy gen debt, abate by: intestate prop; residuary gift;
gen gift to non-relative; gen gift to relative; specific gift to nonrelative; specific gift to relative.
EXONERATION: extinguishes debt on gift. CL: T personally
liable and executor must pay off debt before passing to
beneficiary. CA: no automatic exoneration, even “to pay all
just debts” will not do. T’s will must state that specific gift is to
be exonerated.
INTESTATE SUCCESSION
ORDER IF NO SURVIVING SPOUSE (“SS”): Issue; Parents;
Siblings; Grandparents; Aunts and Uncles; Step-kids; Next of
kin; Parent in laws; sibling in laws; escheat.
Distribution: CPC § 240 – issue of same degree take “per
capita” starting at first level where there is a living being.
Strict per stripes – distribution at first level so long as there is
issue.
NON-MARITAL KIDS: If domestic partnership, non-birthing
parent is parent if child born during DP; non-birthing DP named
on birth certificate; or makes voluntary promise to pay child
support.
SIMULTANEOUS DEATH: T and devisee die simultaneously →
devisee deemed to predecease T. If Joint tenants → sever JT and
each get 1/2. If H&W → Comm prop and Qualified CP divided
in half. Life insurance → alternative beneficiary or residuary.
Heir must survive for 120 hours to take.
RTS OF SURVIVING SPOUSE AND CHILDREN
OMITTED CHILD: child born after testamentary instruments are
executed and not provided for → child will get intestate share
plus share of assets in trust. Exception: omission intentional on
face of instrument; T had a child and transferred assets to parent
of omitted child; or child provided for outside of testamentary
instrument, e.g. annuity.
OMITTED SPOUSE/DP: same as child, but go through CP/QCP
rules. Except: intentional; provided for in alternative; spouse
signed waiver.
Waiver: voluntary relinquishment of known right whether
signed before or during marriage. Req’ts: waiver in writing;
full disclosure of decedent’s finances; independent counsel by
waiving spouse. Not invalid if spouse had or should have had
knowledge of finances or if waiver was in fact fair. No
enforceability if waiver was unconscionable.
BARS TO SUCCESSION
HOMICIDE: requires conviction or, in all other cases, probate
court determines guilt by preponderance of evid. Killer deemed
to predecease so that killer not issue take.
ELDER ABUSE.
NO CONTEST CLAUSE: enforced unless beneficiary, with
reasonable cause, brings contest on grounds of forgery,
revocation, or invalid transfer.
WILL SUBSTITUTES
GIFTS CAUSA MORTIS: gifts made in contemplation of
imminent death. Donor must make delivery by actual delivery;
symbolic delivery (something representative of prop is given to
donee; or constructive delivery (CL: key providing access to
corpus OR Mod: donor has done everything possible to
effectuate delivery & no fraud or mistake).
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WILLS & TRUSTS
TRUSTS
CREATION OF VALID TRUST
(1) PROPERTY; (2) BENEFICIARY (“B”): Unincorporated
associations can only be beneficiary under mod law;
(3) TRUSTEE (“T”): Not fatal if absent; Ct will appoint;
(4) INTENT: Must be present manifestation – precatory words
not enough; (5) CREATION; (6) VALID LEGAL PURPOSE: If
illegal at creation → excise bad part. If impossible – invalidate
trust at inception and settlor remains owner or allow trustee to
keep property. If illegal condition → trust provided to B free of
condition. If illegal after creation → decree resulting trust.
ALIENATION: Voluntary: allow B to sell or transfer prop interest.
Involuntary: creditors.
TYPES
DISCRETIONARY: T given sole and absolute discretion to
determine how much to pay B. Must be expressly stated in
terms of trust. No voluntary or involuntary alienation. Settlor
(“S”) can trust for himself, but can’t with regard to involuntary
alienation in order to deny creditors.
SPENDTHRIFT: prevents B from voluntarily transferring future
payments, and creditors from attaching. Same rules as
discretionary.
SUPPORT: T req’d to use only so much income or principle as
necessary for B’s health, support, maintenance or education.
Same rules as discretionary.
HONORARY: trust has no ascertainable B and confers no
substantial benefit to society, but rather a goal of the S. T isn’t
required to carry out goal, but has the power to if he wants. If
not, resulting trust is created.
CONSTRUCTIVE: prevents fraud or unjust enrichment. Applies
if self dealing, fraud, secret trust, or oral real estate trust. (Oral
Real Estate Trust: Deed handed to A for B. A can’t invoke SoF
if: fid relationship between S and A; fraud in inducement on A’s
part; detrimental reliance by B, e.g. takes possession and makes
improvements.)
SECRET: will on face gives gift outright to A, but T requires A to
provide oral promise to use prop to benefit B. Parol evid is
admitted to show T’s intent.
intestate takers. Result if: private express trust ends or fails for
illegality or lack of B; charitable trust if cy pres isn’t an option;
excess corpus; or purchase money resulting trust (X purchases
and is intended B but title is in name of Y).
MODIFICATION & TERMINATION
MOD BY S: only if expressly reserved.
MOD BY CT: cy pres; in express trust, Ct can deviate from
admin or mgmt provisions, but not the B’s if unforeseen
circumstances or necessity.
TERMINATION OF REVOCABLE TRUST: Maj: S may only revoke
if expressly reserved. Min: S has power to revoke, unless
expressly said irrevocable.
TERMINATION OF IRREVOCABLE TRUST: If all B's and S
consent; if all B’s agree and all material purposes done;
operation of law – if real property in private trust and T has no
active duties.
TRUST ADMINISTRATION AND DUTIES
POWERS: all enumerated; implied (sell prop; incur expense;
lease; borrow (under CL)
DUTY OF LOYALTY: admin trust for B’s benefit. No self-dealing.
DUTY TO INVEST. 3 diff authorities.
(1) State List: in absence of directions, good investments are fed
gov’t bonds, fed insured certs of deposit, 1st deeds of trust,
public co stock. No new businesses or 2nd deed of trust.
(2) CL Prudent Person Test: req’s T to act as RPP investing own
money. Good investments are fed gov bonds, 1st deeds of trust;
fed insured certs of deposit; blue chip stocks; mutual funds. No
new businesses or 2nd deeds of trust.
(3) Uniform Prudent Investors Act: T must act as prudent
investor, as measured in context of entire trust portfolio.
DUTY TO DIVERSIFY. DUTY NOT TO SPECULATE.
DUTY TO EARMARK. CL: if loss, T personally liable. Mod: if
loss, T personally liable only if loss from failure to earmark.
DUTY TO SEGREGATE: no commingling with personal funds or
trust of another.
SEMI-SECRET: will makes a gift to a person to hold as a trustee,
but names no beneficiary. Court decrees a resulting trust; no
parol evid.
DUTY NOT TO DELEGATE: CL: T can rely on professional
advisors, but can’t delegate authority to them. Unanimous T
decision req’d. Mod: T can delegate to professional advisors; T
may act by majority.
TOTTEN TRUST: tentative bank acct trust naming B who takes
whatever is left in acct at death.
DUTY TO ACCT: T must provide B's with stmt of income and
expenses on regular basis.
CHARITABLE TRUST: Restatement: any trust that confers
substantial benefit on society, e.g. help poor, advance educ, help
sick or promote religion. Req’s same as private express trust.
No RAP. If impossible or impracticable, Ct will use intrinsic
and extrinsic evid to ascertain S’s intent and determine cy pres,
“as nearly as possible.”
DUTY OF DUE CARE: must act as RPP would as if dealing with
own affairs.
RESULTING TRUST: implied in fact trust based on presumed
intent of parties. T transfers prop to S if alive, to S’s estate, or
DUTY TO COLLECT/PROTECT PROP.
DUTY TO MAINTAIN MARKETABILITY OF PROP.
DUTY TO KEEP TRUST PROPERTY PRODUCTIVE.
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WILLS & TRUSTS
REMEDIES: damages; constructive trust; tracing and equitable
lien; ratify transaction if good; remove T.
LIABILITY TO 3RD PERSONS: K: CL - T sued in personal
capacity but may get indemnification from trust. T may be sued
directly in rep capacity if K stated so. Mod – if promisee knew
T was acting in rep capacity, T must be sued in rep capacity.
Tort: CL – T sued in rep capacity and, if w/o fault, can get
indemnification from trust. Mod – T sued in indiv capacity and
personally liable if T is at fault. If agent committed neg act in
case of strict liability, T sued in rep capacity.
INCOME AND EXPENSES
LIFE TENANT: Gets income from: cash dividend, interest
income, net business income. Pays expenses for: interest on
loans, taxes, minor repairs.
REMAINDERMAN: Gets income from: stock dividend, stock
split, net proceeds on sale of trust asset. Pays expenses for:
principal of loans, major repairs/improvements.
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California Bar Exam - Page 46 of 46