Printable Flashcards
California Bar Exam (CA+MBE)
July 2019 Edition
© 2019 SmartBarPrep | www.smartbarprep.com
Printable Flashcards
© 2019 SmartBarPrep | www.smartbarprep.com
Agency
If there is:
When does an Agency Relationship exist?
1) Assent;
2) Benefit; AND
3) Control.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
An agent is a person or entity that acts on behalf of
another – the principal.
What is an Agent?
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
When does Express Actual Authority exist?
̹ƒ”–ƒ””‡’Ǥ ‘
When the principal has explicitly told the agent that
he is entitled to act (either orally or in writing).
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When either:
When does Implied Actual Authority exist?
a) The agent believes he is entitled to act to carry out
his express authorized duties;
b) The agent has acted similarly in prior dealings; OR
c) It is customary for agents in that position to act in
that way.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
When does Apparent Authority exist?
1) The principal holds out another as having authority;
AND
2) A third-party reasonably relies on that authority.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When he:
How does a principal hold out an agent as having
authority?
a) Gives the agent a position/title indicating such authority;
b) Has previously held the agent out as having authority and
has not published a revocation; OR
c) Has cloaked the agent with the appearance of authority.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When the principal:
When does Ratification occur?
1) Has knowledge of all material facts or contract terms;
AND
2) Thereafter manifests assent (approval) of the same
through words or conduct.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
Under respondeat superior, an employer is
vicariously liable for an employee’s negligent act if
the employee was acting within the scope of
employment.
When is an employee deemed to be acting within
that scope?
a) Performing work assigned by the employer;
b) Engaging in a course of conduct subject to the
employer’s control; OR
c) The conduct is of the same general nature as that
authorized or incidental to that authorized.
**Conduct is not outside the scope merely because an employee
disregards the employer’s instructions.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
When is an employee’s act NOT deemed within
the scope of employment?
1) The act occurs within an independent course of
conduct; AND
2) It is not intended by the employee to serve any
purpose of the employer.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When the act:
When are an employee’s intentional torts WITHIN
the scope of employment?
a) Was specifically authorized by the employer;
b) Was driven by a desire to serve the employer; OR
c) Was the result of naturally occurring friction from
the type of employment.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What is an Independent Contractor?
When is a party vicariously liable for an
Independent Contractor’s torts?
A person who contracts with another to do something,
but who is NOT controlled nor subject to the other’s
right to control with respect to his performance.
A party is generally NOT vicariously liable for an
Independent Contractor’s torts.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Employee
vs.
Independent Contractor
Employee: The principal has the right to control the
manner and method in which the job is performed.
Independent Contractor: Subject to less extensive
control.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What other factors are important in distinguishing
the difference between an Independent Contractor
and an Employee?
1) The degree of the employer’s control;
2) Whether the pay was hourly or by the job;
3) Whether the employer furnished the tools needed
for the job;
4) Whether the job was for the benefit of the
employer’s business; AND
5) The length of the working relationship.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
When may an employee seek Indemnification from
the employer for damages resulting from his
negligent conduct?
̹ƒ”–ƒ””‡’Ǥ ‘
When the employee acts within the scope of his
employment in order to further the goals of the
employer.
**Otherwise a person is generally liable for his own negligent
conduct.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Partnerships
When:
When is a General Partnership created?
1) Two or more persons;
2) As co-owners;
3) Carry on a business for profit.
*No written agreement or subjective intent is required.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
When is a Partnership presumed?
̹ƒ”–ƒ””‡’Ǥ ‘
When there is an agreement to share profits equally.
Absent an agreement:
1) Each partner has an equal vote;
2) Profits are shared equally; and
3) Losses are shared the same as profits.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
A Limited Liability Partnership (LLP) is where all
partners have limited personal liability.
Any partnership may become an LLP upon what
two events?
̹ƒ”–ƒ””‡’Ǥ ‘
1) Approval by the same vote that is necessary to amend the
partnership agreement; AND
2) By filing a Statement of Qualification with the Secretary
of State.
*Unless otherwise agreed, a unanimous vote is required to amend a
partnership agreement.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
What information must a
Statement of Qualification include?
̹ƒ”–ƒ””‡’Ǥ ‘
1) The name and address of the partnership;
2) A statement that the partnership elects to become an
LLP; AND
3) A deferred effective date (if any).
*The filing DOES NOT create a new partnership; it continues to be the
same entity that existed prior to the filing.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Whether the business:
What does the court consider to determine whether
two businesses are separate entities rather then a
partnership?
1)
2)
3)
4)
5)
6)
Operates under a separate name;
Keeps the files of the business in a separate room;
Uses the same office staff;
Has contributed money to the other person/entity;
Intends to share the profits; AND
Pays rent for a separate office.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Upon receiving said authority from the partners.
When does a partner have Express Actual Authority
to bind the partnership?
x Acts within the ordinary course of business = approved
by a majority vote of partners.
x Acts outside the ordinary course = can only be approved
unanimously.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
A partner with Apparent Authority will NOT bind
the partnership during what circumstance?
̹ƒ”–ƒ””‡’Ǥ ‘
1) The partner lacked authority; AND
2) The third-party knew or had notice that the
partner lacked authority.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
When does a partner have Implied Actual Authority?
̹ƒ”–ƒ””‡’Ǥ ‘
When he has to take actions that are reasonably
incidental or necessary to achieve the partner’s
authorized duties.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When is an act considered to be within the “ordinary
course of business”?
If the act is normal and necessary for managing the
business, and a person would reasonably conclude that.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What is the liability for General Partners?
Incoming Partners?
Outgoing Partners?
General Partners: Personally liable for ALL obligations of the
partnership (joint and severally liability with the other partners).
Incoming Partners: NOT liable for obligations incurred prior
to their admission, but still at risk for losing capital
contributions made to satisfy partnership obligations.
Outgoing Partners: Remain liable for debts while they were
still a partner UNLESS there was a novation/release/payment.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
When can a judgment creditor levy execution of a
judgment against a partner’s personal assets for a
partnership debt?
̹ƒ”–ƒ””‡’Ǥ ‘
1) When a judgment has been rendered against the partner;
AND
2) The partnership assets have been exhausted or are
insufficient.
*A judgment against the partnership is NOT itself a judgment against
the individual partners.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
The obligation is SOLEY the obligation of the LLP.
Who is responsible for an obligation incurred by a
Limited Liability Partnership (LLP)?
*Under RUPA, a partner in an LLP is NOT liable for
partnership obligations.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What are the three exceptions in which Limited
Partners ARE personally liable for the obligations
of the Limited Liability Partnership (LLP)?
1) They are ALWAYS liable for their own misconduct (or if
they sign a PERSONAL guarantee).
2) Always at risk for losing any capital contributions made
to the partnership.
3) Obligations incurred before the partnership became a
LLP are treated as obligations of the prior entity. (i.e.
general or limited partnership).
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
1) The interest in the share of the profits and losses;
What aspects of Partnership Ownership can be
transferred to another?
AND
2) The right to receive distributions.
*ALL other incidents of partnership ownership CANNOT be
transferred (unless all partners agree or an agreement states
otherwise).
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When he engages in:
When does a partner
breach his Duty of Care?
a) Grossly negligent or reckless conduct;
b) Intentional misconduct; OR
c) A knowing violation of law.
Examples include: violating a partnership policy; failing to
thoroughly investigate facts before entering into a contract; and acting
outside the scope of the business without consent from the other
partners.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
What acts constitute a violation of a partner’s
Duty of Loyalty?
̹ƒ”–ƒ””‡’Ǥ ‘
a) Engaging in self dealing;
b) Usurping a business opportunity; OR
c) Competing against the partnership.
* When this duty is breached, a partner’s profits may be disgorged,
and any contracts may be revoked or rescinded.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What is “winding up”?
When does termination of a partnership occur?
The process of settling of partnership affairs after
dissolution.
The partnership is only terminated when the winding up
of its business is completed.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
During the winding up process, partnership assets
are converted to cash and distributed in what order?
̹ƒ”–ƒ””‡’Ǥ ‘
1)
2)
3)
4)
Outside creditors;
Insider creditors (i.e. partners who made loans);
Partners’ capital contributions; AND
Profits (if any) to be distributed among the partners.
*If assets are insufficient, the loss will be divided among the
partners.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Corporations
When does a Corporation’s existence begin?
On the date the Articles of Incorporation are
properly filed with the Secretary of State (unless a
delayed date is specified).
*An earlier date CANNOT be specified.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
They must contain:
What must the Articles of Incorporation contain?
1) The corporate name;
2) The number of shares the corporation is authorized to
issue;
3) The address of the corporation’s initial registered office
and the name of its initial registered agent; AND
4) The name and address of each incorporator.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
What is a de jure corporation, and when is it
formed?
̹ƒ”–ƒ””‡’Ǥ ‘
It is a legally formed corporation, and is formed when
the Articles of Incorporation are filed with the
Secretary of Sate.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
No.
Can a corporation that is NOT a de jure corporation
enter into contracts?
In such an instance, personal liability of the
owners/promoters will result (unless De Facto
Corporation or Corporation by Estoppel applies.)
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When the entity:
When does a de facto corporation arise?
1) Made a good faith attempt to incorporate;
2) Is otherwise eligible to incorporate; AND
3) Took some action indicating that it considered itself a
corporation.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Who may assert the de facto
corporation doctrine?
Only a person who was unaware that the corporation
was not properly formed.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When any person/entity treated a business as a corp.,
they may be estopped from denying that the business is
a corporation (even if a valid corp. was NOT formed)
What is the doctrine of Corporation by Estoppel,
and who does it apply to?
It applies to both:
a) 3rd parties that treated the business as a corp; AND
b) An entity that held itself out as a corporation and
benefited from that claim.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What is a Promoter?
A person who acts on behalf of a corporation that has
not yet been formed.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Upon entering any pre-incorporation contracts, EVEN IF the
corporation subsequently adopts the contract.
Two exceptions are:
When does a Promoter have personal liability, and
what are the TWO exceptions to this?
c) There is a subsequent novation; OR
d) The contract explicitly provides that the promoter has
no personal liability on the contract.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When the corporation expressly or impliedly adopts the contract
post-incorporation.
When is a Corporation liable on pre-incorporation
contracts entered into by a Promoter?
Expressly = through board resolution.
Impliedly = corp. knows the material terms and accepts/retains
the benefits.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When are a Corporation’s activities deemed
ultra vires?
When a corporation’s activities are outside of the scope
of the stated corporate purpose.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Ultra Vires acts under:
Common Law
vs.
RMBCA
Common Law = deemed void and unenforceable.
RMBCA = generally valid and enforceable (those who
approved the transaction can be held personally liable).
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
A court will Pierce the Corporate Veil, and hold the
shareholders personally liable in what situations?
1) The corporation is acting as the alter ego of the shareholders
(little or no separation between the shareholder and
corporation);
2) Where the shareholders failed to follow corporate formalities;
3) The corporation was inadequately capitalized at its inception
to cover debts/liabilities; OR
4) To prevent fraud.
*Even if a court doesn’t pierce the veil, a person is ALWAYS liable
for their own torts.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What do shareholders in a Close-Corporation owe
the other shareholders?
The duty of loyalty and good faith, and will be liable
for any damages resulting from a breach of these duties.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What is watered stock?
Stock that is issued at a price that is greater than its
actual market value.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
Who has the power to issue dividends and make
distributions in a corporation?
̹ƒ”–ƒ””‡’Ǥ ‘
Only the Board of Directors have the power to issue
dividends/distributions.
*Once declared, the SH has a legal right to that distribution.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
A shareholder DOES NOT have the right to compel
a corporation to issue a distribution, but when may a
court interfere with the board’s discretion?
They WILL interfere and order a distribution upon a showing
of:
1) Bad faith or dishonest purpose; AND
2) That funds were available for the dividend/distribution.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
It must be signed on:
A shareholder may vote shares at a meeting without
physically attending through use of a proxy.
What is required for a valid proxy?
a) An appointment form; OR
b) An electronic transmission.
(oral proxy is invalid)
A proxy must be accepted by the corp. if on its face there are no
reasonable grounds to deny its genuineness and authenticity.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
YES, even if the proxy states that it is irrevocable.
Are proxy agreements freely revocable by the
shareholder?
One exception to this rule is a proxy coupled with an
interest or legal right, which is irrevocable if the proxy
expressly states as such.
*A proxy is only valid for 11 months (unless it states otherwise).
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
What is a Shareholder Voting Agreement?
̹ƒ”–ƒ””‡’Ǥ ‘
An agreement (with no durational limit) providing how
shareholders will vote their shares. It is specifically
enforceable and must be in writing and signed by all
parties.
*CANNOT remove the shareholder’s right to elect or remove
directors.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
A voting trust is more formal. It can only last for 10
years and requires:
How is a voting trust different from a voting
agreement?
1) Legal ownership of the shares to be transferred to
the trust; AND
2) The shareholders provide the trust agreement to
the Secretary of the corporation.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
When can the Board of Directors act or vote?
̹ƒ”–ƒ””‡’Ǥ ‘
A quorum must be present at the time when the vote is
being taken.
Quorum = a majority of the Board of Directors unless
otherwise stated in the Articles of Incorporation
(however at minimum one third must be present).
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
The Board of Directors is allowed to determine the
compensation of Directors and Officers.
What duty do they have concerning this?
̹ƒ”–ƒ””‡’Ǥ ‘
A duty to set compensation in accordance with
reasonable parameters, taking into account the needs
of the corporation and ensuring they don’t waste assets.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
How may a Director be removed from the Board of
Directors?
̹ƒ”–ƒ””‡’Ǥ ‘
By a vote of the majority of shareholders for or without
cause (unless stated otherwise in the Articles of
Incorporation).
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
At ANY time, with or without cause, by:
When can an Officer be removed from their position
in the corporation?
a) The Board of Directors;
b) The Officer who appointed such officer; OR
c) By any other Officer (if authorized).
*Removal does NOT affect their contract rights.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Actual authority: to act consistently with their duties as
outlined by the bylaws OR as provided by the Board of
Directors.
What is an Officer’s actual or apparent authority?
Apparent authority: to bind the corporation when a third-party
reasonably believes the officer has authority to act on behalf of
the corporation AND that belief is traceable to the corporation’s
manifestations.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
What is the implied authority of the President of a
corporation?
̹ƒ”–ƒ””‡’Ǥ ‘
He has the implied authority to bind the corporation for matters
within its ordinary course of business (normal and necessary for
managing the business),
BUT does not have authority to bind the corporation for
extraordinary acts.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
They must discharge their duties:
What is a Director’s duty of care to the
corporation?
1) In good faith;
2) In a manner they reasonably believe to be in the best
interest of the corporation; AND
3) With the care that a person in a like position would
reasonably believe appropriate under similar
circumstances.
*If duty is breached, they will be liable.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
May a Director rely on the advice of advisors?
Yes, when such reliance was reasonable AND the advisor
or committee was qualified to provide such advice.
*Directors must be reasonably informed on the decisions that they
make, and can be held liable for breach of this duty.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
What does the Duty of Loyalty require of a
Director/Officer?
̹ƒ”–ƒ””‡’Ǥ ‘
That in his dealings with the corporation, he must act in
the best interests of the corporation AND without
personal conflict.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
A Director is forbidden from:
What does the Duty of Loyalty forbid a
Director/Officer from doing?
a)
b)
c)
d)
Entering into conflicting interest transactions;
Usurping a corporate opportunity;
Competing with the corporation; OR
Trading on inside information.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When a director shows that:
When is a conflicting interest transaction NOT a
breach of loyalty?
a) It was approved by a majority of disinterested
directors after full disclosure of all material facts;
b) It was approved by a majority of disinterested
shareholders after full disclosure of all material
facts; OR
c) The transaction as a whole was fair to the
corporation at the time it was entered into.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When the Director or a family member either:
When does a conflict of interest arise?
a) Is a party to the transaction;
b) Has a beneficial interest in the transaction or is so closely
linked to it that the director’s judgment may be affected;
OR
c) Is involved with another entity that is conducting
business with the corporation and that transaction would
normally be brought before the Board because of its
importance.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Any opportunity that the corporation has an
interest/expectancy in;
What is a corporate opportunity?
OR
Any opportunity that’s in the corporation’s line of
business.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If he:
When may a Director/Officer pursue a
corporate opportunity?
1) First presents it to the corporation’s Board of Directors;
AND
2) The Board decides NOT to pursue the opportunity.
*It is not a defense to show that the corporation would not have
been able to take the opportunity.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Direct Action
vs.
Derivative Action
Direct Action: Involves an injury or breach of duty owed to the
shareholder of a corporation. Damages are awarded directly to
the shareholder.
Derivative Action: A shareholder is suing to enforce the
corporation’s claim, NOT his own personal claim. Damages
awarded will be paid to the corporation.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
The plaintiff-shareholder must:
What are the requirements to commence a
Derivative Suit?
1) Be a shareholder at the time of the act/omission OR
became a shareholder by operation of law from such a
shareholder;
2) Be a shareholder through entry of judgment;
3) Fairly and adequately represent the interests of the
corporation; AND
4) Make a written demand upon the corporation to take
suitable action (suit can’t commence until 90 days after).
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
What is needed for a Fundamental Change to be
approved?
̹ƒ”–ƒ””‡’Ǥ ‘
It must be approved by a majority of the total votes
entitled to be cast for the corporation, NOT just the
majority of votes present at the meeting.
*A corp. MUST hold a special meeting when a fundamental change
is proposed, with notice mailed to all shareholders.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
What does Rule 10b-5 prohibit?
̹ƒ”–ƒ””‡’Ǥ ‘
The use of any means or instrumentality of interstate
commerce in any scheme to defraud, make material
misrepresentations or omissions, or in any other way
use fraud in the purchase and/or sale of securities.
Priority: Medium
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That the defendant:
What are the elements of a Rule 10b-5 claim?
1)
2)
3)
4)
5)
6)
Engaged in a fraudulent scheme or device;
That was relied upon;
In connection with the purchase/sale of securities;
Acted with scienter;
Used some means of interstate commerce; AND
Caused damages.
Priority: Medium
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It includes:
What does a fraudulent scheme or device include?
a) Misrepresentation of material facts;
b) Insider trading; OR
c) Tipping.
Priority: Medium
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What is an “insider”?
A person that discloses non-public information that a
reasonable trader would want to know before
buying/selling stock OR abstaining from trading.
Priority: Medium
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What does Section 16(b) require of a director,
shareholder, or officer?
̹ƒ”–ƒ””‡’Ǥ ‘
That if they own more than 10% of a corporation, they must
surrender any profit realized to the corporation from the
sale or purchase of equity securities within a 6 month
period when the corporation:
a) Is publicly traded; OR
b) Has more than 10 million in assets and at least
2,000 shareholders.
Priority: Medium
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Upon Dissolution, in what order are corporate assets
distributed?
̹ƒ”–ƒ””‡’Ǥ ‘
1) Outside creditors
2) Inside creditors
3) Shareholders
Priority: Medium
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̹ƒ”–ƒ””‡’Ǥ ‘
Under the Deep Rock Doctrine, when will the
claims of shareholders (who make a loan to the
corporation) be subordinated to the claims of
outside creditors?
If the corporation:
a) was undercapitalized; OR
b) the shareholder acted wrongly.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Civil Procedure
When does the California Superior Court have
general subject matter jurisdiction?
Over ALL civil matters, as long as another court does
not have exclusive jurisdiction.
Priority: Low
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If:
When does a Federal Court have subject matter
jurisdiction?
a) Federal Question jurisdiction exists;
b) Diversity of Citizenship among the parties; OR
c) Supplemental jurisdiction is present.
*Subject matter jurisdiction is NOT waived if a party fails to raise it
at trial.
Priority: HIGH
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When a Complaint alleges a claim that arises under:
When does Federal Question Jurisdiction exist?
a) Federal law;
b) The U.S. Constitution; OR
c) United States treaties.
*The plaintiff MUST be enforcing a federal right and the federal
question of law must be present on the face of the Complaint.
Priority: HIGH
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When:
When does Diversity of Citizenship Jurisdiction
exist?
1) There is complete diversity of citizenship between all
plaintiffs and defendants; AND
2) The amount in controversy exceeds $75,000.
*Jurisdiction DOES NOT exist for cases among aliens, unless U.S.
citizens are present on both sides of the action. Diversity is
determined at the time the action is commenced.
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
It is based on the damages alleged in good faith in the
Complaint, unless it is legally certain that the plaintiff
cannot recover the specified amount.
What is the amount in controversy based on?
*A claim for injunctive relief is valued by either the benefit to the
plaintiff OR the cost of compliance for the defendant.
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
When they arise from the same “case or controversy.”
When may a federal court exercise Supplemental
Jurisdiction over additional state court claims?
Generally, such claims must arise from a common
nucleus of operative fact.
Priority: Medium
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How is Supplemental Jurisdiction limited?
̹ƒ”–ƒ””‡’Ǥ ‘
1) It CANNOT be used to overcome a lack of diversity.
2) There is NO jurisdiction over claims against third-parties.
3) The court may decline to exercise it when:
a. The claim raises a novel/complex issue of law;
b. The claim substantially predominates over the claim(s)
of which the District Court had original jurisdiction;
c. The Federal District Court has dismissed all claims it
had original jurisdiction over; OR
d. In exceptional circumstances.
Priority: Medium
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When must a federal court remand a case to a state
court?
̹ƒ”–ƒ””‡’Ǥ ‘
If there is no federal subject matter jurisdiction. They
can also remand a case to a state court after the federal
claims have been decided.
*A motion must be made within 30 days after the filing of the notice of
removal.
Priority: Medium
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When the case primarily involves domestic relations.
Under the Domestic Relations Exception, when
MUST federal courts decline jurisdiction?
A court should NOT decline jurisdiction when
domestic relations issues are ancillary to the case.
Priority: N/A
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When:
When may a defendant remove a case to federal
court?
1)
2)
3)
4)
The federal court has subject matter jurisdiction;
All defendants agree;
No defendant is a resident of the forum state; AND
Removal is sought within 30 days (of either service
of the Summons or receiving the initial pleading).
*A plaintiff CANNOT remove a case to federal court.
Priority: HIGH
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What are the four Abstention Doctrines?
̹ƒ”–ƒ””‡’Ǥ ‘
1) Pullman Doctrine (cases that arise from unsettled areas
of state law).
2) Younger Doctrine (cases that would interfere with state
judicial proceedings).
3) Colorado River Doctrine (when there are parallel state
and federal litigations pending).
4) Burford Doctrine (only appropriate if federal
adjudication would interfere with a state’s administration
of a complex regulatory scheme).
Priority: N/A
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What are the traditional bases of Personal
Jurisdiction?
̹ƒ”–ƒ””‡’Ǥ ‘
a)
b)
c)
d)
Domicile;
Transient jurisdiction (presence in the state when served);
Consent;
Waiver.
*The above grounds comport with the Constitutional
requirements of due process.
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
How is Personal Jurisdiction exerted over a nonresident defendant of the forum state?
1) The forum state must have a long arm statute; AND
2) The Constitutional requirements of due process must be
met.
*Long-arm analysis requires: (1) the defendant have sufficient
minimum contacts with the forum state; (2) so as not to offend
traditional notions of fair play and substantial justice. BOTH prongs
must be satisfied.
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
Long-arm analysis requires:
What is the Constitutional Long-Arm Analysis?
1) D has sufficient Minimum Contacts with the forum state –
either:
a. General Jurisdiction – contacts so substantial that D is
essentially at home in the state; OR
b. Specific Jurisdiction – a connection between the forum
state and underlying controversy.
2) Not offend traditional notions of Fair Play and Substantial
Justice – it must be fair and reasonable for D to be sued in the
forum state.
*BOTH prongs must be satisfied*
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
Either:
In Federal Court, if the Summons and Complaint is
NOT served upon the defendant within 90 days of
filing, what must a court do?
a) Dismiss the action without prejudice against the
defendant; OR
b) Order that service be made within a specified
time.
*Service may be made by any person who is at least 18 years old and not a
party to the action.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
What does the Due Process Clause require for
service to be valid?
̹ƒ”–ƒ””‡’Ǥ ‘
The notice must be reasonably calculated to make the
parties aware of the action and give them an
opportunity to object.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
It requires that notice:
1) Be reasonably calculated to make the parties aware of
the action; AND
2) Give them an opportunity to object.
What are the Due Process Clause requirements for
service of process?
Priority: HIGH
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In any district where:
a) Any defendant resides;
b) Where a substantial portion of the claim occurred;
c) Where a substantial part of property is located (if
property is the subject of the action); OR
d) If none of the above apply, then venue is proper in any
district in which any defendant is subject to the court’s
personal jurisdiction.
Venue in Federal Court
When is venue proper?
*Proper venue is determined at the time the suit is filed.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If:
Venue in Federal Court
If venue was proper when the case was filed, then
when MAY the court transfer the case?
1) Needed for the convenience of the parties and witnesses
or interests of justice; AND
2) The action could have initially been brought in the
receiving court.
*Following a transfer, the new court MUST apply the same
substantive law as the original transferor court.
Priority: Medium
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̹ƒ”–ƒ””‡’Ǥ ‘
The court MUST either:
Venue in Federal Court
What MUST the court do if venue was improper
when the case was filed?
a) Dismiss the case; OR
b) Transfer the case to a proper court if the interests of
justice require it.
*Following a transfer, the law applied is that of the new transferee
court.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
California State Courts – Proper Venue
Local Action
vs.
Transitory Action
Local: An action involving real property. Venue is proper
in the county where the real property is located.
Transitory: Venue is proper in any county where any
defendant resides.
*If no defendant resides in CA, then venue is proper in
any county where the court has jurisdiction.
Contracts: Proper in county that contract was executed or performed.
Torts: Proper where act or omission giving rise to tort occurred.
Priority: Low
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̹ƒ”–ƒ””‡’Ǥ ‘
If:
California State Courts – Proper Venue
When may venue be changed to another forum?
a) Venue was improper;
b) There is reason to believe there will not be an
impartial trial;
c) For the convenience of witnesses and in the interests
of justice; OR
d) No judge is qualified to act.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Residence of a Party for Venue Purposes
Corporation
vs.
Individual
vs.
Non-Resident
̹ƒ”–ƒ””‡’Ǥ ‘
Corporation: Residence includes ALL districts where it is
subject to personal jurisdiction.
Individual: Determined by their domicile (residence and intent
to make the place their permanent home).
Non-resident: May be sued in ANY judicial district.
Priority: Medium
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Made be made by any person who:
What are the California statuary provisions for
service upon a defendant?
1) Is at least 18 years old; AND
2) Not a party to the action.
The Summons and Complaint must be served upon the
defendant within 3 years after the Complaint is filed
with the court.
Priority: Low
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̹ƒ”–ƒ””‡’Ǥ ‘
By:
Under the California Code of Civil Procedure, how
may service upon a defendant be accomplished?
a)
b)
c)
d)
e)
Personal delivery;
Substituted service;
Acknowledgment and receipt;
By Mail (only for an out of state defendant); OR
Publication.
*Service to a Defendant in a foreign country may be done by any method
above or as directed by the court (so long as it’s not prohibited by an
international agreement).
Priority: Low
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What law is applied under the Erie Doctrine in
federal court?
̹ƒ”–ƒ””‡’Ǥ ‘
The court will apply its own federal procedural laws,
but MUST apply state substantive law.
(A federal court sitting in diversity MUST apply the
forum state’s choice of law rules to determine the
applicable state substantive law in the action)
Priority: Medium
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When may a Preliminary Injunction be issued?
̹ƒ”–ƒ””‡’Ǥ ‘
1) Upon notice to the adverse party; AND
2) If the moving party gives security in an amount
the court deems proper.
*The Federal Rules of Civil Procedure allow the court to issue both a
restraining injunction or a mandatory injunction.
Priority: N/A
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What must the moving party show for a Preliminary
Injunction to be issued?
̹ƒ”–ƒ””‡’Ǥ ‘
1) Likelihood of success on the merits;
2) Likely threat of irreparable harm to the movant;
3) That the harm alleged by the movant outweighs any
harm to the non-moving party; AND
4) The injunction is in the public interest.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What is a Temporary Restraining Order (TRO), and
when is it available?
An emergency remedy used to maintain the status quo
pending the outcome of a hearing or application.
It is ONLY available when the moving party will suffer
immediate and irreparable harm.
Priority: N/A
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For an ex parte TRO, what must a party (or his
attorney) show?
̹ƒ”–ƒ””‡’Ǥ ‘
1) Provide specific facts in sworn statement that clearly
show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party
can be heard in opposition; AND
2) Certify in writing any efforts made to give notice to the
adverse party or why notice should not be required.
*An ex parte TRO expires after 14 days, unless an extension is granted for
good cause or if the opposing party consents.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
When does an amendment to a Pleading relate back
to the original pleading?
a) The amendment asserts a claim or defense that
arose out of the same conduct, transaction, or
occurrence as the original pleading allegations;
OR
b) The law that provides the applicable statute of
limitations allows the relation back.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
When does an amendment to a change a party name
relate back to the original pleading?
̹ƒ”–ƒ””‡’Ǥ ‘
a) The amendment concerns the same conduct, transaction,
or occurrence as the original pleading allegations;
b) The new party received notice of the original action
within 90 days of filing (so that it will not be prejudiced
in defending on the merits); AND
c) The new party knew or should have known that the
action would have been brought against it, but for a
mistake concerning the proper party’s identity.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
A claim that:
What is a Compulsory Counterclaim?
1) Arises out of the same transaction or occurrence
as the opposing party’s claim; AND
2) Doesn’t require adding another party whom the
court cannot acquire jurisdiction.
*A permissive counterclaim is a counterclaim that is NOT
compulsory.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
Under the Same Transaction Occurrence test, what
4 factors do federal courts look at?
̹ƒ”–ƒ””‡’Ǥ ‘
1) Whether the issues of fact and law raised by the claims
are largely the same;
2) Whether res judicata would bar a subsequent suit on the
counterclaim/cross-claim;
3) Whether substantially the same evidence supports or
refutes plaintiff’s claim and defendant’s
counterclaim/cross-claim; AND
4) Whether there is any logical relation between the claims.
*These factors apply to both counterclaims AND cross-claims.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
That:
When presenting papers to a Federal Court, what
must a party certify under Rule 11?
1) It is not being presented for any improper purpose;
2) The claims, defenses, and other legal contentions were
warranted and non-frivolous;
3) The factual contentions have evidentiary support or will
likely have it after further discovery; AND
4) The denials of factual contentions are warranted.
*Sanctions may be issued for failure to comply.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
What is the two-part test (under Twombly and Iqbal)
that a Federal Court will apply to determine whether
a Complaint is sufficiently well pleaded?
̹ƒ”–ƒ””‡’Ǥ ‘
Part 1: The court will disregard any conclusory allegations.
Part 2: Taking all remaining factual allegations as true, they
will determine whether the facts as alleged would make it
plausible for the party to succeed in obtaining the relief sought.
Priority: Low
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̹ƒ”–ƒ””‡’Ǥ ‘
The circumstances constituting fraud or mistake must
be alleged with particularity (specific facts must be
alleged).
What must be plead for a well-pleaded Complaint
alleging fraud or mistake?
Malice, intent, knowledge, and other conditions of a
person’s mind can be alleged generally.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If:
Under the Federal Rules of Civil Procedure, when
may multiple plaintiffs join in one action
(Permissive Joinder)?
1) Joint and several relief is asserted by them OR the claim
arises out of the same transaction or occurrence;
2) A common question of law or fact to all plaintiffs exist;
AND
3) Subject matter jurisdiction exists for each claim.
*The process is similar for multiple defendants.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
How many claims may a party bring against an
opposing party?
As many claims as it has, EVEN if they are unrelated or
do not have a common nucleus of operative fact.
If the claims are brought in Federal Court: at least one
of the claims must satisfy Subject Matter Jurisdiction.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
A party is necessary if:
A party MUST be joined in an action if that party is
necessary AND joinder is feasible.
When is a party necessary?
a) The court cannot grant complete relief without the absent
party;
b) The absent party has an interest in the action that would
be impaired or impeded if that person is not joined; OR
c) The party’s absence would leave an existing party subject
to a substantial risk of multiple liability or inconsistent
obligations.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
1) Joinder will not remove subject matter
jurisdiction; AND
2) The court has personal jurisdiction over the
necessary party.
A party MUST be joined in an action if that party is
necessary AND joinder is feasible.
When is joinder feasible?
*If joinder isn’t feasible, the court will consider whether to continue or
dismiss the action.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If:
In California courts, in a personal injury case, when
can a defendant demand a physical examination of
the plaintiff as a matter of right?
1) The examination doesn’t include any diagnostic test or
procedure that is painful, protracted, or intrusive; AND
2) The exam is conducted at a location within 75 miles of
the examinee’s residence.
*For non-personal injury cases, a party must make a motion to compel to
perform an exam. (Must be made in good faith and show the party’s health
is in controversy).
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
That:
In Federal Court, the court MUST permit
Intervention as of Right if the non-party can
demonstrate what?
1) The application to intervene is timely;
2) It has an interest in the subject matter of the action;
3) The protection of this interest would be impaired because
of the action; AND
4) The non-party’s interest is not adequately represented by
existing parties to the litigation.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If the non-party:
If Intervention as of Right is NOT warranted, a
court MAY still allow Permissive Intervention
when?
1) Files a timely motion; AND
2) Either:
a. Has a claim or defense that shares a common
question of law or fact with the main action; OR
b. Is given a conditional right to intervene by a federal
statute.
*Courts will consider if the intervention will unduly delay or prejudice the
adjudication of the original party’s rights.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
1) The class is so numerous that joinder of all members is
impracticable (numerosity);
2) There are questions of law or fact in common to the class
(commonality);
3) The claims or defenses of the representative parties are
typical of the claims/defenses of the class (typicality);
AND
4) The representative parties will fairly and adequately
protect the interests of the class (adequacy of
representation).
Class Actions
When can one or more members sue on behalf of an
entire class?
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If:
Class Actions
Once the class action requirements are met, the
class will be certified when?
a) Separate actions would create a risk of inconsistent
adjudications or harm the interest of other members;
b) The party opposing the class has acted/refused to act on
grounds that apply to the class and the grounds of relief
would be appropriate to the class as a whole; OR
c) Common questions of law/fact to the class predominate
over questions affecting individual members and a class
action is superior to other methods of adjudication.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
A party is permitted to conduct a deposition of any
person/party so long as it’s what?
̹ƒ”–ƒ””‡’Ǥ ‘
1) Limited to one day of no more than 7 hours;
AND
2) Proper notice is given.
*A subpoena is NOT required to depose an opposing party.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Information that is:
During discovery in Federal court, what type of
non-privileged information may a party obtain?
1) Relevant to any party’s claim or defense; AND
2) Proportional to the needs of the case.
*In California courts, a party may obtain any information
that is relevant to the subject matter involved in the pending
action.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
How may a non-party respond when served with a
Subpoena Duces Tecum?
They may respond with a motion to quash or a written
objection refusing to produce the documents requested.
If such motion is filed, the burden shifts to the subpoenaing
party to establish the need for discovery.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
Discovery in Federal Courts
Under Rule 37(e), when may a party be sanctioned
for failing to preserve ESI?
1) The ESI should have been preserved in anticipation of
litigation;
2) The party failed to take reasonable steps to preserve it;
AND
3) It cannot be restored or replaced through additional
discovery.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
That it is:
Discovery in Federal Courts
Under Rule 26(g), when signing any discovery
document (besides disclosure) what must a party
certify?
1) Consistent with the Federal Rules of Civil Procedure
and is non-frivolous;
2) Not being presented for any improper purpose; AND
3) Not unreasonable, unduly burdensome, or expensive
considering the case, issues at stake, and prior
discovery.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Discovery in Federal Courts
What must be disclosed in the Rule 26(a) Initial
Disclosure?
1) Contact information of individuals likely to have discoverable
information and what the info may be;
2) A copy or description of all documents, ESI, and items a party
may use to support its claims or defenses;
3) Computation of each category of damages claimed by the
disclosing party; AND
4) Any insurance agreements that may be liable to satisfy a
possible judgment in the action.
*The disclosures MUST be made within 14 days of the rule 26(f)
conference.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
All materials prepared by an attorney or his agents in
anticipation of or during a litigation. They are protected from
disclosure unless:
What does the Attorney Work Product doctrine
protect?
1) A substantial need for the materials exist; AND
2) A substantial equivalent cannot be obtained without
undue hardship.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Federal Court Conferences
When may a court issue sanctions with respect to
Pretrial Conferences?
If a party or attorney:
a)
b)
c)
d)
Fails to appear;
Is substantially unprepared to participate;
Does not participate in good faith; OR
Fails to obey a scheduling or other pretrial order.
Priority: N/A
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The court must:
Motion to Dismiss – Federal Courts
Under Rule 12(b), what is the standard on a Motion
to Dismiss?
1) Consider the facts in the light most favorable to the nonmoving party; AND
2) Determine whether there is any basis upon which relief
can be granted for the non-moving party.
*The court DOES NOT evaluate the merits of the case.
Priority: Low
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Motion to Dismiss – Federal Courts
What are the Motion to Dismiss grounds?
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1)
2)
3)
4)
5)
6)
7)
Lack of subject matter jurisdiction;
Lack of personal jurisdiction;
Improper venue;
Insufficient process;
Insufficient service of process;
Failure to state a claim upon which relief can be granted;
Failure to join a necessary party.
*Grounds 2-5 are deemed waived if not raised in the first responsive
pleading or Motion to Dismiss.
Priority: Low
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When:
When will a court grant a Motion for Summary
Judgment?
1) There is no genuine issue of material fact; AND
2) The movant is entitled to judgment as a matter of law.
When reviewing the motion, the court MUST view the evidence
in the light most favorable to the non-moving party.
In California: a party must include a Statement of Undisputed
Facts in the motion.
Priority: Medium
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It will be granted if:
When will a motion for Judgment as a Matter of
Law (JMOL) be granted?
*In CA, it’s called a Motion for Judgment of Nonsuit.
1) The non-moving party has been fully heard on an issue
during a jury trial; AND
2) The court finds that a reasonable jury would not have a
legally sufficient basis to rule in favor of the non-moving
party on the issue.
*The court MUST draw all reasonable inferences in the light most favorable
to the opposing party.
Priority: Low
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In Federal Court, what are the reasons a court may
grant a Motion for a New Trial?
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a) An error at trial makes the judgment unfair;
b) New evidence surfaced that could not have been obtained
(with due diligence) at the original trial;
c) Prejudicial misconduct of a party/attorney/juror/thirdparty;
d) The judgment was against the weight of evidence; OR
e) The verdict was excessive or inadequate.
Priority: N/A
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When the rendering court has jurisdiction over:
In Federal Court, when will a Default Judgment
have a preclusive effect?
1) the claims; AND
2) the parties to the action.
*Court needs both subject matter and personal jurisdiction.
Priority: N/A
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Claim Preclusion
What are the elements of Claim Preclusion (a.k.a.
res judicata)?
1) The parties are identical or in privity;
2) The judgment in the prior action was rendered by a court
of competent jurisdiction;
3) The prior action was concluded by a final judgment on
the merits; AND
4) The same claim was involved in both actions.
In California: claim preclusion may ONLY be used when all
appeals are exhausted for the case.
Priority: HIGH
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When:
Claim Preclusion
In which situations has the Supreme Court found
sufficient privity?
1) A party who agrees to be bound by the action.
2) A substantive legal relationship between two parties.
3) A party that was adequately represented in a class action
or by trustee, guardian, or fiduciary.
4) The party assumed control over the first action.
5) A party seeking to re-litigate through a proxy.
6) When a special statutory scheme expressly forecloses
successive litigation by non-parties.
Priority: N/A
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When:
Issue Preclusion
When may Issue Preclusion (collateral estoppel) be
invoked?
1) A valid and final judgment was rendered in the first
action;
2) The issue is identical to the issue decided in the prior
action;
3) The issue was actually litigated, determined, and
essential in the prior action; AND
4) The party against whom enforcement is sought had a full
and fair opportunity to litigate the issue in the first action.
Priority: Medium
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Right to Jury Trial
How will a case be tried if it involves BOTH legal
and equitable claims?
The legal claims will be tried first to the jury, and then
the equitable claims will be tried before the judge.
A demand for jury trial MUST be made within 14 days
of service of the last pleading concerning the claims.
Priority: Medium
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Appeals – Final Judgment Rule
What is a Final Judgment?
One which ends litigation on the merits (all claims are
resolved) and leaves nothing for the rendering court to do but
execute the judgment. (For the exceptions to this rule, appeals
must be filed within 30 days after entry of the judgment
appealed from.)
In California courts: Appeals must be filed within 60 days
after the court clerk/party serves a notice of Entry of Judgement
OR within 180 days after entry of judgement.
Priority: Medium
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Appeals
What is an Interlocutory Appeal?
An appeal of a ruling by a trial court that is made
before all claims are resolved in the action.
An appellate court may consider it on matters where the
parties/court would be severely prejudiced or would
lose their rights if they waited to act.
Priority: Medium
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Appeals – Federal Court
What are the exceptions to the Final Judgment Rule
in Federal court?
1)
2)
3)
4)
5)
6)
7)
Rule 54(b) Exception.
Statutory Exceptions.
Certified Appeal Exception.
Collateral Order Doctrine.
Writs of Mandamus and Prohibition.
Pendent Appellate jurisdiction.
Certification of Class Action.
Priority: Medium
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When:
Appeals – Federal Court
Under the Rule 54(b) Exception, when is an appeal
allowed?
1) The action has multiple parties or multiple claims;
2) The court directs entry of a final judgment for some of
the claims or parties; AND
3) The court expressly determines that there is no just
reason for delay.
*If the above elements are NOT met, then the appeal must wait until after a
final judgment for the entire case.
Priority: Medium
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Community Property
It includes:
What does Separate Property include?
1)
2)
3)
4)
5)
Property acquired prior to marriage;
Property acquired after separation;
A gift, devisee, or bequest;
Property acquired with separate funds; AND
Profits from separate property.
Priority: HIGH
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They will trace back the source of the funding used to
acquire the property.
How will courts determine the character
of an asset?
*A change in the form of the property will NOT change its
characterization.
Priority: HIGH
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What happens to Community Property (CP) upon
divorce?
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All CP is divided equally between the spouses, and a
spouse’s Separate Property (SP) will remain his/her
own.
Priority: HIGH
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Property acquired in another state that would be
considered Community Property if acquired in CA.
What is Quasi-Community Property (QCP)?
*At divorce, QCP is treated as CP.
Priority: HIGH
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What happens to QCP upon death?
The surviving spouse has a ½ interest in QCP titled in
decedent. (The decedent DOES NOT have any rights
in QCP titled in surviving spouse’s name.)
Priority: HIGH
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If:
When does the married woman’s special
presumption give the wife a presumption of
Separate Property?
1) Title is taken in her name alone; AND
2) The property was acquired prior to 1985.
Priority: Medium
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When:
a) Either spouse dies;
When does the economic community end?
OR
b) Permanent physical separation (permanently
living apart + no intent to continue marriage).
Priority: HIGH
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A spouse that has a good faith reasonable belief that
he/she is married.
What is a Putative Spouse, and what is he/she
entitled to?
They are entitled to quasi-marital property (QMP)
which is treated like CP upon divorce.
*QMP ends once a person learns they are not lawfully married.
Priority: Medium
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Unmarried Cohabitants
What will courts enforce under
the Marvin case?
Agreements between cohabitating couples that are not
married (as long as they are not expressly based on
performance of illicit sexual acts).
Priority: Medium
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What are the rights of each spouse to manage and
control Community Property?
They may sell, encumber, or otherwise dispose of CP
without the other’s consent.
Priority: HIGH
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What are the four exceptions to a spouse’s right to
manage community property?
1) Personal property transfers of CP for less than fair and
reasonable value.
2) If one spouse is managing a business, they are given
primary management and control of that business.
3) Transfers of community Real Property requires BOTH
spouses to join the transaction.
4) Inter Vivos gifts of CP require written consent.
Priority: HIGH
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Fiduciary Duties
What duty does the confidential relationship of
marriage impose?
The duty of the highest good faith and fair dealing on
each spouse, and neither shall take any unfair advantage
of the other.
Priority: HIGH
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Fiduciary Duties
What two acts are considered a breach of the duties
imposed by marriage?
1) An intentional grossly negligent/reckless
dissipation or destruction of property; and
2) A gain in financial advantage at the expense of
the other spouse.
Priority: HIGH
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When do courts apply the Moore Principle?
When property is acquired with comingled funds (both
CP and SP) AND there is no title presumption.
*CP and SP are apportioned based on their relative
contributions.
Priority: Low
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How is jointly titled property acquired during a
marriage treated under the Anti-Lucas Statute?
At divorce: It is treated as presumptively CP, but any
SP used for the purchase is entitled to reimbursement.
At death: SP used to acquire jointly titled property is
presumed to be a gift. (NO REIMBURSEMENT,
unless otherwise agreed).
Priority: HIGH
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During marriage: personal injury awards/settlements are CP.
Personal Injury Awards – Against 3rd Parties
During marriage/divorce
vs.
At divorce: assigned entirely to the injured spouse (unless
funds were comingled or there is economic hardship).
Before/after marriage: award is SP of injured spouse.
Before or after marriage
Priority: HIGH
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Personal Injury Awards – Against Spouse
Who receives a personal injury award when the
cause of action is against the spouse?
Personal injury awards/settlements against a tortfeasor
spouse are ALWAYS the SP of the injured spouse.
Priority: HIGH
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When business growth is mostly due to the spouse’s
labor and abilities.
When will courts use the Pereira Method to
determine CP/SP business interests at divorce?
Owning spouse receives original principal value, plus a
10% annual rate of return. Remaining value of
business is CP.
Priority: HIGH
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When business growth is mostly due to the character
and nature of the business itself.
When will courts use the Van Camp Method to
determine CP/SP business interests at divorce?
The community receives a reasonable salary
REDUCED by expenses, and remaining value of the
business is the SP of the owning spouse.
Priority: HIGH
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How is the “Goodwill” of a
business defined?
The intangible value of the business reputation beyond
personal skill or value of assets.
*When goodwill is generated by community labor it is deemed CP.
Priority: Medium
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By either:
How is Goodwill valued?
a) The Market Value Method – price in sale of
business; OR
b) Capitalization of Excess Earnings Method –
present value of the future stream of income that
the goodwill developed during marriage.
Priority: Medium
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How do courts determine the CP interest in a Whole
Life Insurance Policy that was paid for with CP and
SP funds?
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They use the Buy-in-Rule, which states that CP value
is apportioned using the formula below:
# of premium payments made with CP
y
total number of premium payments
Priority: Low
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Is Term Life Insurance designated as CP or SP?
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Under the Final Payment Rule, it is designated as CP
or SP according to the characterization of the last
payment made.
Priority: Low
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Are stock options designated as CP or SP?
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They are a form of employee compensation and are
entirely CP, but only if they become exercisable
during marriage.
Priority: Medium
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It depends on how they were earned and intent of employer.
How are stock options deemed if they were awarded
during marriage, but become exercisable after
marriage?
If awarded for past services: CP value is the time employed
during marriage divided by the time employed until the date the
option becomes exercisable.
If awarded to encourage the employee to stay: CP value is
the time from the date the option was granted to the economic
community ended divided by the time from the option was
granted to the date the option becomes exercisable.
Priority: Medium
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Is a Loan taken out during the marriage considered
a community or separate debt?
The personal credit of a spouse belongs to the
community during marriage. Thus, a loan taken out
is community debt (unless the lender’s primary
intent for giving the loan was the spouse’s SP used
as collateral).
Priority: Medium
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What does the Anti-Lucas Statute state?
That any SP used to acquire jointly titled property is
entitled to reimbursement.
*Reimbursement includes: down payments, payments for
improvements, and principal payments.
Priority: Medium
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CP used to improve the other spouse’s SP
vs.
CP used to improve a spouse’s own SP
CP used to improve other spouses SP: CP is then
presumed a gift.
CP used to improve a spouse’s own SP: The
community is entitled to reimbursement (for either cost
of improvement or the increase in value of SP).
Priority: Medium
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SP used to improve CP
vs.
SP used to improve other spouse’s SP
SP used to improve CP: the spouse is entitled to
reimbursement (for either the cost of the improvement
or increase in value).
SP used to improve other spouse’s SP: the spouse
is entitled to reimbursement for the amount of
contribution made.
Priority: Medium
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When:
When is the community entitled to reimbursement
for Professional Degrees acquired during the
marriage?
1) CP funds are used to pay educational expenses
including loans; AND
2) The education enhanced the spouse’s earning
capacity.
Priority: Medium
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Where:
When is reimbursement NOT required to the
community for Professional Degrees acquired
during a marriage?
a) The community has substantially benefited from the
education (after 10 years a benefit is presumed);
b) The other spouse received community funded
education; OR
c) The education lessens the need for spousal support.
Priority: Medium
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When SP is NOT available.
When can Community Property be used to make
child support payments from a prior marriage?
When CP is used to make payments and SP WAS
available, then the community is entitled to a
reimbursement.
Priority: Medium
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When:
When is a spouse entitled to reimbursement when
they expend their SP for the other spouse’s medical
expenses?
a) Community Property was available; OR
b) If the debtor spouse had available Separate
Property.
Priority: Medium
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Pro-Rata Rule
How are payments made with CP treated when
paying a spouse’s SP loan?
The community is entitled to a pro-rata ownership
share of the property for amounts that reduced the
principal debt on the asset.
Payments for mortgage interest, taxes, and insurance
DO NOT count as reducing the principal debt.
Upon divorce: The community is entitled to
reimbursement for its pro-rata share of SP.
Priority: Low
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An agreement between spouses during marriage to
change the character of an asset.
What is a Transmutation, and when is it valid?
It’s valid only if (1985 and later):
1) It’s in writing;
2) Signed and consented to by spouse whose
interest is adversely affected; AND
3) It expressly declares a change in ownership.
Priority: HIGH
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Transmutations
What is the Gift of Insubstantial Value exception?
CP will be transmuted into SP by a gift from one
spouse to the other, if the gift is:
1) Tangible property of a personal nature;
2) Used solely by the recipient spouse; AND
3) Insubstantial in value (considering the lifestyles
of the two parties).
Priority: HIGH
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When:
a) It’s fully performed; OR
b) If the party detrimentally relied on the
agreement.
When is an oral Prenuptial Agreement valid?
Priority: Medium
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When in writing and signed by both parties.
When is a Prenuptial Agreement valid?
Priority: Medium
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If it is:
a) Involuntary;
b) Unconscionable; OR
c) Encourages divorce.
When will a Prenuptial Agreement be deemed
Unenforceable?
Priority: Medium
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If:
When will a Prenuptial Agreement be deemed
Unconscionable?
a) The terms are unfair; OR
b) If a spouse DID NOT know the extent of the
other spouse’s property before signing the
agreement.
Priority: Medium
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It is deemed involuntary UNLESS a court finds all of the following:
When will a Prenuptial Agreement be deemed
Involuntary?
1) The party (against whom enforcement was sought) was
represented by independent legal counsel or waived counsel
requirement in writing;
2) The party has not less than 7 days to review the agreement;
3) If unrepresented: the party (against who enforcement was
sought) was fully informed of the terms and is proficient in
the language used in the agreement; AND
4) The agreement was NOT executed under duress, fraud, undue
influence, or lack of capacity.
Priority: Medium
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Can creditor’s reach CP to satisfy debts incurred
before or during the marriage?
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Yes, including debts for child and spousal support. But, a nondebtor spouse’s earnings are protected if:
1) The debt occurred before the marriage; AND
2) The earnings were held in a separate account to which
the debtor didn’t have access and no comingling
occurred.
Priority: HIGH
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SP can only be reached to satisfy a spouse’s own
personal debts.
What are the TWO exceptions where both CP and
SP can be reached to satisfy such debts?
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Necessities: The community is obligated to pay for a spouse’s
necessities during marriage. When separated = only obligated
during emergency situations.
Tort Liability: If the debtor was acting to benefit the
community when the tort occurred, then CP must be used before
reaching SP. If debtor was not acting to benefit community,
then SP must be used first.
Priority: HIGH
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When can a creditor reach CP awarded to a spouse
AFTER divorce?
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When the spouse incurred the debt OR was assigned
the debt by the court.
*A debt is incurred at the time the obligation to pay arises.
Priority: HIGH
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How are assets divided upon divorce?
Each spouse gets ½ of each community asset UNLESS
the court determines that the interests of justice require
a different division.
Priority: Medium
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1) Misappropriation by one spouse;
2) Separate debt;
3) Educational debts = assigned to spouse who incurred the
What exceptions will change the division of assets
upon a divorce?
education;
4) Tort liabilities = assigned to tortfeasor spouse if liability
was NOT for community benefit;
5) Family home = awarded to spouse given custody; and
6) Closely held corporations.
Priority: Medium
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Constitutional Law
The 11th Amendment prohibits a party from suing a
state or state agency in federal court.
What are the exceptions to this?
a) The state explicitly consents to waive its 11th
Amendment protections;
b) The suit pertains to federal laws adopted under Section 5
of the 14th Amendment;
c) The suit seeks only injunctive relief against a state
official for conduct in violation of the Constitution or
federal law; OR
d) The suit seeks money damages from a state official.
Priority: HIGH
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a) To local governments;
b) Federal suits brought by one state against another;
When does the 11th Amendment not apply?
OR
c) A suit by the federal government against a state.
Priority: HIGH
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1) Whether congress unequivocally expressed its
What issues must be resolved to determine if
congress validly abrogated state immunity (under
Section 5 of the 14th amendment)?
intent to abrogate the immunity; AND
2) If it did, whether they acted pursuant to a valid
grant of Constitutional authority.
Priority: HIGH
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It exists when the plaintiff:
When does a party have Standing to sue?
1) Personally suffered an injury in fact;
2) The injury was caused by the defendant; AND
3) The injury is redressable by a court order.
Priority: HIGH
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Standing
What does a plaintiff NEED to show when seeking
injunctive or declaratory relief?
He must show that there is a concrete, imminent
threat of future injury that is neither conjectural nor
speculative.
Priority: HIGH
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Third-Party Standing
vs.
Organizational Standing
Third-party: NOT permitted, but exceptions are made when
there is a close relationship between the plaintiff and 3rd party –
if it would be difficult for the 3rd party to assert their rights or if
the 3rd party is an organization.
Organizational: An organization has standing to sue on behalf
of their members if (1) the suit is related to an issue that is
germane to the organization’s purpose, (2) the members would
have standing to sue, and (3) the member’s participation is not
necessary.
Priority: Medium
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Whether a case is ready to be litigated.
What does Ripeness refer to?
A case is ripe for review when there is actual harm or
an immediate threat of harm to the plaintiff.
Priority: Medium
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To instances when the dispute has ended or was resolved before
review.
What does Mootness refer to?
A court may hear a case that has ended/resolved when:
a) The wrong alleged is capable of being repeated and
escaping review;
b) The defendant voluntarily stops an offending practice but
can resume it any time; OR
c) In a class action.
Priority: Medium
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1) The channels of interstate commerce;
2) The people and instrumentalities that work and
travel in interstate commerce; AND
3) Economic or commercial activities that have a
substantial effect on interstate commerce.
Under the Commerce Clause, what may Congress
regulate?
Priority: Medium
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If:
When will federal regulations regarding intrastate
activities be upheld?
1) If there is a rational basis,
2) To conclude that the cumulative national impact of
the activities;
3) Have a substantial effect ON interstate commerce.
*Aggregation CANNOT be used when the activities regulated are NOT
commercial or economic in nature.
Priority: Low
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What Taxing and Spending Powers does Congress
have?
They have the power to tax and spend for the general
welfare. These powers are interpreted BROADLY and
allows Congress to attach restrictions or conditions on
federal funding in order to regulate areas they would
otherwise not have the power to do so.
Priority: Low
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The:
Spending Power
What must be satisfied when Congress places
conditions on States receiving federal funds?
1) Spending must be for the general welfare;
2) Condition must be imposed unambiguously;
3) Condition must be related to federal interests in national
projects or programs;
4) Condition cannot induce unconstitutional activities;
AND
5) Condition cannot be so coercive to turn pressure into
compulsion.
Priority: Low
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What powers does the President have?
1) Faithfully execute the law;
2) Appoint ambassadors, public ministers, consuls,
supreme/federal court judges, and other officers;
3) Appoint inferior officers (when the power is given to him
by Congress);
4) Remove cabinet level appointees
5) Enter into agreements without senate approval;
6) Pardon federal crimes; AND
7) Control troops as Commander in Chief.
Priority: Low
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They can so long as:
When does Congress have the power to delegate
Legislative Powers?
1) The powers are delegable under the Constitution;
AND
2) Congress provides reasonably intelligible
standards to guide the delegation.
*Congress CANNOT delegate powers it does not have.
Priority: Low
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Under the 10th Amendment, all powers not granted
to the federal government are reserved to the states.
What can congress do to induce state government
action?
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They can induce state action by attaching restrictions
and conditions on federal funding grants pursuant to its
federal taxing and spending powers.
Priority: Medium
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State and local governments CANNOT pass laws that:
What is the Negative Commerce Clause?
a) Discriminate against out-of-state commerce; OR
b) Place an undue burden on interstate commerce.
*Note: If congress has passed laws on a matter, state and local laws on that
same matter would be pre-empted by the federal law.
Priority: Medium
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When it is either:
Negative Commerce Clause:
When is a law deemed discriminatory?
a) Facially discriminatory; OR
b) The law has a discriminatory impact because it favors instate commerce over out-of-state commerce. These laws
are typically unconstitutional, unless:
a. The burden on Interstate commerce is narrowly
tailored to achieve a legitimate, non-protectionist
state objective; OR
b. The state/local gov’t is a “market participant.”
Priority: Medium
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Negative Commerce Clause:
When is a law deemed unduly burdensome?
State and local laws that place an undue burden on
interstate commerce are unconstitutional when:
1) The burden on interstate commerce,
2) Is clearly excessive to the putative benefits to the
state and local government.
Priority: Medium
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Express: When federal legislation specifically states that the
federal law is exclusive.
Express Preemption vs. Implied Preemption
Implied: Occurs either through:
a) Direct conflict with the state law;
b) Through field preemption; OR
c) When the state law substantially interferes with the
objective of the federal law.
*Validly enacted federal laws will always preempt conflicting state
laws.
Priority: Medium
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When the conduct involves either:
When will a court find “state action” for private
conduct?
a) A traditional public function – powers traditionally
and exclusively reserved to the government; OR
b) When significant government involvement exists to
authorize, encourage, or facilitate private conduct
that is unconstitutional.
Priority: Medium
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What 4 Amendments have not been incorporated to
the states through the Incorporation Doctrine?
1)
2)
3)
4)
3rd Amendment (Freedom from quartering soldiers)
5th Amendment (right to indictment by a grand jury)
7th Amendment (right to jury trial in civil cases)
8th Amendment (protection against excessive fines)
Priority: Medium
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What does the 13th Amendment prohibit?
Involuntary servitude. It applies to both government
and private actors.
Priority: Low
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Substantive Due Process
Fundamental Rights Test
vs.
Non-Fundamental Rights Test
Fundamental: To regulate rights, government must satisfy
strict scrutiny (law is necessary to serve a compelling
government interest). Rights include: right to vote, right to
interstate travel, and right to privacy.
Non-Fundamental: The government may regulate activities
not deemed fundamental rights so long as it meets the rational
basis test (law is not rationally related to a legitimate
government interest).
Priority: HIGH
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Procedural Due Process
Deprivation of Liberty vs. Deprivation of Property
Liberty: When the government deprives an individual of a
freedom provided by the Constitution or statute.
Property: When an individual has an entitlement that is not
fulfilled (i.e. welfare or security benefits).
*The Due Process Clause guarantees that no person shall be denied
life, liberty, or property without due process of the law.
Priority: HIGH
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The court balances:
Procedural Due Process
What are the three Matthew v. Eldridge factors?
1) The importance of the private interests being affected;
2) The risk of error under current procedures and the value
of additional procedures; AND
3) The importance of state interests and the burdens on the
government that would arise from additional safeguards.
Priority: HIGH
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Equal Protection Clause
What must the government show under Strict
Scrutiny, and when will courts apply it?
The government must show that a classification is necessary to
serve a compelling government interest.
Courts will apply strict scrutiny when:
a) Classification is based on suspect class (race, origin); OR
b) When the law infringes on a fundamental right for a class
of people.
*Alienage is a suspect class ONLY when a state is involved.
Priority: HIGH
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Equal Protection Clause
What must the government show under
Intermediate Scrutiny, and when will courts apply
it?
The government must show that a classification is substantially
related to an important government interest.
Courts will apply it when:
A classification is based on a quasi-suspect class (gender, nonmarital children, etc.)
Priority: HIGH
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Equal Protection Clause
What classes does the Rational Basis test apply to,
and what must a plaintiff show regarding the
classification?
This test applies to ALL other classes not covered under
strict or immediate scrutiny (age, disability, undocumented
aliens, etc.).
Under this test the plaintiff must show that the
classification is not rationally related to any legitimate
government interest.
*Indigent individuals are NOT a suspect class and need only meet the
rational basis test.
Priority: HIGH
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Takings (5th Amendment)
Possessory (per se) takings vs. Regulatory takings
Possessory: When the government physically takes or occupies
the property (even just a small portion).
Regulatory: Is a taking when a regulation leaves no
economically viable use of the property. To determine whether
a taking occurred, courts balance the Penn Central Factors:
1) The economic interest of the regulation on the claimant;
2) The extent of the interference; AND
3) The character of the governmental action.
Priority: HIGH
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If it is:
Use regulations MAY NOT be applied retroactively
to prohibit a nonconforming use.
When will a non-conforming use lose its protection?
a) Abandoned;
b) Substantially changed; OR
c) Destroyed.
*Termination of a non-conforming use can be done through
amortization provisions, which require the termination of a use after a
specific period of time (if reasonable its Constitutional).
Priority: Low
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What factors are considered to determine if
spot zoning will be upheld?
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1) The size of the specific area of land;
2) Whether the zoning is arbitrary or compatible
with an existing comprehensive zoning plan;
AND
3) The benefits and detriments to surrounding
landowners.
Priority: Low
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When:
When does the Vested Rights Doctrine protect
landowners from subsequent changes in zoning?
1) Substantial construction has begun; AND
2) Substantial expenditures have been made in
reliance on a valid permit.
*Generally, if no construction has begun, they WILL NOT receive vested
rights to continue.
Priority: Low
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Under the Privileges and Immunities Clause, States
CANNOT intentionally discriminate against nonresidents concerning what?
a) Civil liberties (right to vote, travel); OR
b) Important economic activities (ability to earn a
livelihood).
*Laws will be upheld if the state is justified for the discrimination.
Priority: Medium
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If the state is justified for the discrimination, then the
laws will be upheld when:
When will laws that discriminate against nonresidents be upheld?
1) There is a substantial reason for the difference in
treatment; AND
2) The discriminatory law has a substantial
relationship to that reason.
Priority: Medium
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What rights does the 1st Amendment of the U.S.
Constitution protect?
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1)
2)
3)
4)
5)
Freedom of speech and expressive activities;
Freedom to exercise religion;
Freedom of the press;
Freedom to peacefully assemble; AND
The right to petition the government for a redress of
grievances.
*Congress also shall make NO law concerning the
establishment of religion.
Priority: HIGH
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The government from establishing a religion or
endorsing/supporting religion.
What does the Establishment Clause prohibit?
Laws that discriminate MUST satisfy strict scrutiny.
Laws that do not discriminate will be upheld if:
1) It has a secular purpose;
2) Its primary effect does not advance/prohibit religion;
AND
3) It does not excessively entangle the gov’t with religion.
Priority: HIGH
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The government from interfering with the exercise of
religion.
What does the Free Exercise Clause prohibit?
Laws that interfere MUST satisfy strict scrutiny.
*Laws of general applicability that cause unintentional burdens on
religion ARE constitutional, and do not offend the Free Exercise
Clause.
Priority: HIGH
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Free Speech:
Content-Based Restrictions
vs.
Content-Neutral Restrictions
Content-Based: Regulations regarding the content of protected
speech (subject matter, viewpoint). Gov’t MUST satisfy strict
scrutiny (narrowly tailored to achieve a compelling government
interest AND it used the least restrictive means).
Content-Neutral: Gov’t may regulate the time, place, and matter of
content-neutral speech if the regulation satisfies intermediate scrutiny
(narrowly tailored to achieve a significant government interest AND
leave open alternate channels of communication.
Priority: HIGH
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Free Speech:
Public Forum
vs.
Limited Public Forum
vs.
Non-Public Forum
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Public Forum: Traditionally available to the public for free
speech.
Limited Public Forum: Not traditionally available for free
speech, BUT the government chooses to make it available.
Non-Public Forum: Public spaces that have traditionally been
limited for free speech. The government may regulate speech
here if the regulation is reasonable AND viewpoint neutral.
Priority: Medium
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If:
Free Speech:
When are licensing requirements permitted?
1) The government has an important reason for licensing;
2) Specific, articulated standards are used to grant the
licenses to remove discretion of the licensing body; AND
3) Procedural safeguards are in place.
Priority: HIGH
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Words, which by their very utterance:
Unprotected Speech:
What are fighting words?
a) Inflict injury; OR
b) Tend to incite an immediate breach of the peace.
*The 1st Amendment DOES NOT protect fighting words or true threats.
Priority: N/A
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When it:
Unprotected Speech:
When does speech Incite Imminent Lawless Action?
1) Advocates the use of force or illegality;
2) It is directed to inciting or producing imminent
lawless action; AND
3) It’s likely to incite or produce such an action.
*Speech that Incites Imminent Lawless Action is NOT protected by the 1st
Amendment and may be outlawed.
Priority: N/A
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When:
Unprotected Speech:
Obscenity is NOT protected under the 1st
Amendment.
What speech/material is characterized as obscene?
1) It appeals to the prurient interest;
2) It is patently offensive under the laws prohibiting
obscenity; AND
3) It lacks any serious, artistic, literary, or scientific
value based on a national standard.
Priority: Low
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If the regulation:
Commercial Speech:
When may the government regulate truthful, nonmisleading commercial speech?
1) Directly advances;
2) A substantial government interest; AND
3) Is no more restrictive than necessary.
*False or misleading speech is NOT protected under the 1st
Amendment.
Priority: Low
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Free Speech – Public Schools
Schools are given a greater latitude to regulate
speech. When are school officials justified in the
suppression of speech?
They must prove that the conduct would materially and
substantially interfere with the operation of the
school.
Priority: N/A
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The employee must speak:
1) As a citizen; AND
2) On a matter of public concern.
Free Speech – Gov’t Employees
For a government employee’s speech to be
Constitutionally protected, what is required?
*An employee’s statements made pursuant to their official duties are
NOT protected.
Priority: Low
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If:
1) The government has an important purpose;
2) The purpose is independent of the suppression of
speech; AND
3) The restriction is no greater than necessary to achieve
that purpose.
Free Speech – Expressive Conduct
When may expressive conduct or symbolic speech
be regulated?
Priority: Medium
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If:
Free Speech – Prior Restraints
When are procedural safeguards for licensing
Permitted?
1) The government has an important reason for licensing;
2) Specific, articulated standards are used to grant the
licenses to remove discretion of the licensing body; AND
3) Procedural safeguards are in place, assuring prompt final
judicial decision when a license is denied.
Priority: Medium
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Free Speech – Prior Restraints
When the government attempts to prohibit speech
before it happens through a court order or licensing
requirement.
What is a prior restraint on speech?
*Prior restraints are generally disfavored and unconstitutional, and court
orders preventing speech MUST satisfy Strict Scrutiny.
Priority: Medium
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A statute is unduly vague of it does not put the public on
reasonable notice as to what is prohibited.
When is a statute unduly vague or overbroad?
A statute is overbroad if it regulates more speech than is
Constitutionally permitted.
*A defendant CANNOT be convicted under a law that is deemed overboard
or vague.
Priority: Medium
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For a Public Figure, the plaintiff needs to prove:
Freedom of the Press & Defamation:
What are the elements needed to prove actual
malice for a public and private figure?
1) That the statement was false; AND
2) That the defendant spoke with either:
a. Recklessness as to the truth of the statement; OR
b. Knowledge of its falsity.
If a Private Figure, the plaintiff need only prove that the:
1) Statement is false; AND
2) Speaker was negligent.
Priority: N/A
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Freedom of the Press:
The 1st Amendment protects the press from liability
when publishing what?
1)
2)
3)
4)
Truthful private facts;
On a matter of public concern;
Where such information is legally obtained; AND
There is no knowledge that any information was obtained
illegally.
*The 1st Amend. doesn’t protect the press from liability for violating
generally applicable laws.
Priority: N/A
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If it proves that:
Freedom of Association:
When may the Government punish a person’s
membership in a group?
1) The group is actively engaged in illegal activity or incites
imminent lawless action;
2) The person has knowledge of the group’s illegal
activities; AND
3) The person has specific intent of furthering those illegal
activities.
Priority: Low
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Contracts
What are the elements of a valid contract?
1) Mutual Assent (offer and acceptance);
2) Consideration or a substitute; AND
3) No defenses to formation.
Priority: HIGH
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Article 2 of the Uniform Commercial Code.
What law governs contracts for the Sale of Goods?
*For mixed contracts the predominant purpose of the
contract determines what law governs.
Priority: HIGH
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What are the elements of Mutual Assent?
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1) Offer: A manifestation of intent to contract, with
definite and reasonably certain terms, that is
communicated to the offeree.
2) Acceptance: A manifestation of assent to the terms of
the offer, which indicates a commitment to be bound.
Bilateral contracts: performance manifests acceptance,
Unilateral contracts: offer is accepted only when performance is
complete.
Priority: HIGH
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No, BUT instead are deemed invitations for offers.
Are advertisements considered offers?
It may be considered an offer if it includes sufficiently
clear and definite terms so a reasonable person would
understand how performance and acceptance may be
completed.
Priority: Medium
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What is the Mailbox Rule?
If the offeror mails a letter revoking, but the offeree
sends a letter accepting BEFORE he receives the
revocation, then a valid contract is created. This is
because the acceptance was effective before the
revocation.
Acceptance = once sent or communicated
Revocation = when received
Priority: Low
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If:
When will conduct by the parties create a contract?
1) The conduct is intentional; AND
2) Each party knows (or has reason to) that the other
party will interpret the conduct as an agreement
to enter into a contract.
Priority: Low
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Output Contract
vs.
Requirement Contract
Output: Requires a seller to sell all of the output of the
particular goods to the buyer.
Requirement: Requires the buyer to purchase all of
the particular good that the buyer requires from the
seller.
Priority: Medium
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Offers may be terminated before acceptance by:
When is an offer Terminated?
a)
b)
c)
d)
Rejection or Counter-offer by offeree;
Lapse of time;
Revocation by offeror; OR
Death / Incapacity of either party.
Priority: Medium
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̹ƒ”–ƒ””‡’Ǥ ‘
Offers may be revoked at any time before acceptance
through unambiguous words/conduct indicating an
unwillingness/inability to contract (effective when
received).
When may an offer be revoked, and which types of
offers are not revocable?
Irrevocable offers include: option contracts, a
merchant’s firm offer, and offers that were relied on to
the offeree’s detriment.
Priority: Medium
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What is a Merchant’s Firm Offer?
1)
2)
3)
4)
An offer to buy or sell goods;
By a merchant;
In a signed writing;
Which states that the offer will be held open and is
not revocable; AND
5) The assurance to keep the offer open must be signed
separately by the offeror.
*Enforceable WITHOUT consideration.
Priority: Low
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Rejection vs. Counteroffer
Rejection: Manifestation of intent to not accept an offer
(words/conduct) which terminates the offer. Offers CANNOT
be accepted after they have been rejected.
Counteroffer: Both a rejection that terminates the original
offer and a NEW offer.
Priority: N/A
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The common law Mirror Image Rule holds that an acceptance
MUST exactly mirror the offer.
What is the Mirror Image Rule and UCC
exception?
UCC Art. 2 Exception: The acceptance DOES NOT need to
mirror the offer, and additional terms may be added. Additional
terms are included if:
1)
2)
3)
4)
Both parties are merchants;
The term is not a material change;
The offer doesn’t limit acceptance to the exact terms; AND
No objection was made within a reasonable time.
Priority: Medium
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When is an agreement deemed Indefinite?
When the terms of the agreement are NOT certain (they cannot
be ascertained to a reasonable degree of certainty), the contract
is deemed indefinite and is UNENFORCEABLE.
*A contract that is indefinite as to duration is generally invalid.
Priority: N/A
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A bargained for exchange of a promise for a return
promise or performance (that benefits the promisor or
causes detriment to the promisee).
What is Consideration?
*Past or moral consideration is NOT sufficient to support a contract.
Priority: HIGH
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Applies when:
When does Promissory Estoppel apply?
1) A party reasonably and foreseeably relied to his
detriment on the promise of the other party;
2) The promisor should have reasonably expected a
change in position in reliance of the promise; AND
3) Enforcement of the promise is necessary to avoid
injustice.
Priority: Medium
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Settlement of Legal Claims
The voluntary relinquishment of some known right or
privilege.
*Constitutes valid consideration.
Priority: N/A
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̹ƒ”–ƒ””‡’Ǥ ‘
Past performance or performance of a pre-existing duty is NOT
adequate consideration.
What is the Common Law Pre-Existing Duty Rule?
What are the exceptions?
Exceptions:
a) If there is an addition or change in performance or
promise; OR
b) A fair and equitable modification is made due to
unanticipated changed circumstance AND the contract is
not yet fully performed by either party.
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
NO, consideration is not required for contract modifications
made in good faith.
Is consideration required for a modification to a
UCC Art. 2 sale of goods contract?
BUT, the modification must be in writing if:
a) It falls within the Statute of Frauds; OR
b) The original contract states that modifications must be in
writing.
Priority: HIGH
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Are contracts enforceable when entered into by
those who lack capacity?
A party MUST have capacity to enter into a contract,
otherwise they are VOIDABLE.
Minors (under 18) and those who lack mental capacity
lack the capacity to enter into a contract.
Priority: Low
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Duress
Physical Compulsion vs. Economic Duress
Physical Compulsion: If a person physically compels a person
to agree to contract, then the contract is void.
Economic Duress: If a person makes an improper threat that
induces a party (who has no reasonable alternative but to enter
into the contract), then the contract is void.
*A mere threat to breach is generally insufficient.
Priority: N/A
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There is:
Undue Influence occurs when?
1) Unfair persuasion of a person,
2) Who is either:
a. Under the domination of the person exercising the
influence; OR
b. Justified in assuming that the person will not act in
a manner inconsistent with his welfare because of
his relationship between them (i.e. parent/child).
Priority: N/A
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Mutual Mistake vs. Unilateral Mistake
Mutual Mistake: When (1) both parties are mistaken as to the
basic assumption on which the contract is made, (2) the mistake
is material to the contract, AND (3) the person asserting the
mistake did not bear the risk of the mistake.
Unilateral Mistake: A mistake by one party, that is unknown
to the other party, concerning a basic assumption that has a
material effect on the contract. (not a valid defense to formation)
Priority: HIGH
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Fraudulent Misrepresentation
vs.
Non-Fraudulent Misrepresentation
Fraudulent: When one party knowingly makes a false
representation of a fact AND the other party reasonably relies
on the misrepresentation to their detriment.
Non-Fraudulent: When there is a statement of material fact by
a party or agent that is false, inducing the contract, AND the
other party reasonably relies on the misrepresentation to his
detriment.
Priority: N/A
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Procedural Unconscionability
vs.
Substantive Unconscionability
Unconscionability usually occurs if the contract/term is BOTH
substantively and procedurally unconscionable.
Procedural: When one party to the contract has a superior
bargaining position over the other and uses that power to their
advantage.
Substantive: When the contract contains terms that are
obviously unfair and one-sided in favor of the person with the
superior bargaining power.
Priority: Medium
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Under the Statute of Frauds, which types of
contracts require a signed writing to be valid?
1) Marriage contracts.
2) Suretyships (unless the main purpose exception
applies).
3) Contracts that cannot be fully preformed in 1 year.
4) Contracts for the sale of real property.
5) Promises to pay an estate’s debt from the personal
funds of the Executor/Administrator.
6) Contracts for the sale of goods for $500 or more.
Priority: HIGH
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In what situations will a contract that violates the
Statute of Frauds still be enforceable?
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1) Full performance;
2) Judicial acknowledgment: the party admits to the
agreements in pleadings/testimony; OR
3) Estoppel: reasonable and foreseeable detrimental
reliance on a promise.
Priority: Medium
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Contracts for the sale of goods for $500 or more
MUST be in writing.
What are the four exceptions to this rule?
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1)
2)
3)
4)
Merchant’s Confirmatory Memorandum.
Goods accepted or Paid for.
Custom Made Goods.
Admission during judicial proceeding.
Priority: Medium
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The writing MUST:
What satisfies the writing requirement under the
Statute of Frauds?
1) Be signed by the party to be charged;
2) Identify the subject matter of the contract;
3) Indicate that a contract has been made by the parties;
AND
4) State the essential terms with reasonable certainty.
*An agreement DOES NOT need to be in one writing, it may consist
of several writings.
Priority: HIGH
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What are the exceptions to the Parol Evidence Rule?
1)
2)
3)
4)
To correct a clerical error or typo.
To establish a defense against formation.
To interpret vague or ambiguous terms.
To supplement a partially integrated writing.
*The parol evidence rule DOES NOT apply to subsequent
agreements.
*Merger clause is evidence that the writing is complete on its face.
Priority: HIGH
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What are the two instances where a Condition
Precedent may be excused?
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1) A protected party’s failure to cooperate or make a
good faith effort.
2) Waiver – a protected party voluntarily gives up
the protection of the condition.
Priority: Medium
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A voluntary and intentional relinquishment of a contract
right by words or conduct (performance is excused when
waived).
What is a waiver, and when are conditions waived?
Condition are waived when:
1) A party indicated through words/conduct that a
condition DOES NOT need to be satisfied; AND
2) The other party detrimentally relies on that waiver.
Priority: Medium
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Good faith is defined as:
How is good faith defined under the UCC?
1) Honesty in fact; AND
2) The observance of reasonable commercial standards
of fair dealing.
*Every contract contains an implied obligation of good
faith and fair dealing.
Priority: Low
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Impossibility vs. Impracticability
Impossibility: Performance is discharged because of (a) the
death/physical incapacity of a necessary person; (b) an
unanticipated destruction of the necessary subject matter; OR
(c) when a new law/regulation makes performance extremely
and unreasonably difficult/expensive.
Impracticability: When an event occurs after contract
formation, making performance extremely and unreasonably
difficult/expensive.
Priority: HIGH
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When the purpose of the contract no longer exists IF:
When is performance excused under the Frustration
of Purpose Doctrine?
1) A party’s principal purpose is substantially frustrated
without his fault;
2) By an unforeseeable supervening event out of their
control; AND
3) Both parties knew the purpose at the time of
formation.
Priority: HIGH
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Performance
Material Breach
vs.
Material: WILL excuse the non-breaching party’s
performance. It occurs when a party does not render
substantial performance.
Minor: WILL NOT excuse performance (the nonbreaching party must perform, though they may bring a
separate action for damages resulting from the breach).
Minor Breach
Priority: HIGH
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They will consider:
How do courts determine whether a breach is
material?
1) The extent of the benefit deprived to the injured party;
2) The adequacy of compensation for loss to the nonbreaching party;
3) The extent the breaching party will suffer forfeiture;
4) The likelihood that the breaching party will cure; AND
5) Absence of good faith and fair dealing by the breaching
party.
Priority: HIGH
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What is a time is of the essence clause?
It requires performance by a specific date, where failure
to perform by said date is deemed a material breach.
Without this clause, failure to perform by a specified
date is usually NOT deemed a material breach.
Priority: Medium
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When:
1) The performances to be exchanged can be divided
into corresponding pairs of part performances,
2) In a way that the elements of each pair will be treated
as if the parties had agreed they were equivalents.
When is a contract divisible?
*Both elements MUST be satisfied.
Priority: N/A
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Under the UCC Perfect Tender Rule, the seller
must deliver conforming goods and the smallest
non-conformity is a breach.
What are two exceptions to this rule?
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Exceptions:
1) The seller has the right to cure in 2 situations: (1) If
the time for performance has not yet expired, the seller
can cure within the remaining time; (2) The seller had
reasonable grounds that the non-conforming goods would
be accepted.
2) Installment contracts: These contracts may only be
cancelled if the installment is so defective that it
substantially impairs the value of the entire contract.
Priority: HIGH
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IF:
After the acceptance of goods, when may a buyer
later revoke that acceptance?
1) The non-conformity substantially impairs the value of the
goods; AND
2) Either the defect was difficult to discover (latent) OR the
buyer accepted the goods on the reasonable assumption
that the defect would be cured.
*If a buyer successfully revokes acceptance, he is entitled to return of
the purchase price.
Priority: N/A
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When a party unequivocally communicates that he is unable
or unwilling to perform.
When does an Anticipatory Repudiation occur?
*A party that breaches may retract its repudiation and
restore the contract UNLESS the aggrieved party has:
cancelled, materially changed his position, or indicated that
he considers the repudiation final.
Priority: HIGH
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When an Anticipatory Repudiation occurs, what
may a non-breaching party do?
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a) Treat the contract as repudiated and sue for
damages;
b) Treat the contract as discharged;
c) Wait until performance is due and sue when
performance doesn’t occur; OR
d) Urge the party to perform.
Priority: HIGH
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An accord is an executory contract between the parties
promising to relieve a party of his contractual
obligations in return for a specific act.
What is an Accord and Satisfaction?
Upon Satisfaction of that act, a person is excused from
further performance under the contract.
Priority: Low
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When:
When is an Express Warranty created?
1) A seller makes an affirmation of fact, promise, or
description or provides a sample;
2) Which relates to the goods; AND
3) Becomes part of the basis of the bargain.
*Intent or direct words of “warranty” or “guarantee” are not required.
Priority: N/A
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What is the Implied Warranty of Merchantability?
Requires that all goods sold by a merchant MUST be fit
for their ordinary purpose. To disclaim the implied
warranty, a merchant must do so expressly in a
conspicuous writing.
*Merchant = person dealing in goods of the kind.
Priority: Medium
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The Warranty of Title includes what warranties?
1) The title conveyed shall be good and its transfer rightful;
AND
2) The goods shall be delivered free from any security
interest or other lien or encumbrance.
Priority: N/A
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Intended Third-Party Beneficiary
vs.
Incidental Beneficiary
Intended: Not a party to the contract, but has rights because the
contracting parties agreed that their respective performances
were intended to benefit an identified third-party.
Incidental: A person that just happens to benefit, but has NO
legal rights because the purpose of the contract was not to
benefit them.
Priority: Low
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When the beneficiary:
When does an Intended Third-Party Beneficiary’s
rights vest?
a) Manifests assent to the promise under the contact;
b) Detrimentally relied on the contract; OR
c) Brings suit to enforce the contract.
*Once rights vest, a contract CANNOT be modified without the
third-party’s consent.
Priority: Low
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IF:
When may rights and benefits under a contract be
transferred (assigned) to a third-party?
1) The assignor manifests his intent to transfer the
rights; AND
2) The assignee assents to the assignment.
Consideration is NOT required but if provided makes the
assignment irrevocable.
Priority: Medium
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IF:
When is an Assignment NOT valid?
a) It materially alters what is expected under the contract;
b) It is prohibited by law or public policy; OR
c) It is precluded by contract.
Priority: Medium
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Assignments
Prohibitions vs. Invalidations
Prohibitions: Terms in a contract that prohibit the transfer of
rights. If the rights are assigned, the assignor is liable for
damages, but the assignment is still valid and enforceable by the
assignee.
Invalidations: Terms in a contract that void all assignments. If
the rights are assigned anyway, the assignment is void.
Priority: Medium
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Gratuitous: The last ASSIGNEE prevails
Which prevails in:
Multiple Gratuitous Assignments
Multiple Assignments for Consideration
Consideration: The first assignment prevails, unless the
later assignment:
1) Has no notice of the earlier assignment; AND
2) Is the first to obtain payment or indicia of
ownership.
Priority: Medium
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When are contract duties not delegable?
a) The contract prohibits delegations/assignments;
b) The delegation is against public policy;
c) The contract is for personal services that call for
the exercise of personal skill or discretion; OR
d) The delegation materially alters the expectancy of
the oblige.
*An assignment generally includes a delegation of the unperformed
duties under a contract.
Priority: Low
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What are Expectation Damages?
They arise directly from the breach, and are an attempt to put
the non-breaching party in the same position it would have been
in but for the breach.
To recover, the damages must be:
When are they recoverable?
1)
2)
3)
4)
Caused by the defendant;
Foreseeable;
Certain; AND
Unavoidable.
Priority: N/A
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They arise indirectly from the breach, and are awarded because
of the injured party’s special circumstances.
What are Consequential Damages?
When are they recoverable?
To recover, the damages must be:
1) Reasonably foreseeable at the time of contract formation;
2) Arise from the plaintiff’s special circumstances that the
defendant knew of (or should have known); AND
3) Certain (not speculative).
Priority: N/A
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Under the UCC, what remedies does a seller have if
a buyer breaches a contract for the sale of goods?
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a)
b)
c)
d)
e)
f)
Withhold delivery of the goods;
Cancel;
Recover cover damages;
Recover market damages;
Recover lost profits if the seller is a lost volume seller;
Stop delivery of the goods when he discovers buyer is
insolvent;
g) Stop delivery of a truckload when buyer breaches; OR
h) Replevy identified goods.
Priority: Low
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Cover Damages
vs.
Market Damages
vs.
Loss-in-Value Damages
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Cover: Difference in price between the contact price and price
of substitute goods.
Market: Difference between the market price and contract
price (used if buyer did not cover in good faith or at all).
Loss-in-Value: Difference between the value as promised and
the value of the non-conforming goods (used if buyer keeps the
non-conforming goods).
Priority: Medium
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IF:
1) The contractor preforms in good faith, but defects
nevertheless exist; AND
2) Remedying the defects would entail economic waste.
When will the Waste Doctrine apply?
*In this instance, the decrease in value becomes the proper
measure of damages.
Priority: N/A
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It is awarded to prevent unjust enrichment, and is
available when one party confers a benefit to another
party.
When is Restitution awarded?
Damages will be awarded based on the value of the
benefit conferred.
Priority: N/A
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When:
When does a novation occur?
1) All parties to a contract,
2) Agree to discharge an original party to the
contract, AND
3) Substitute a third party in the original party’s
place.
Priority: Low
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Recession treats the contract as canceled.
What is Rescission?
*It is available if there was a problem with contract formation
(defense to formation, fraud, misrepresentation).
Priority: N/A
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IF:
When will a contract NOT be rescinded?
a) A valid equitable defense applies; OR
b) The plaintiff sued for damages under the contract in a
prior action.
Priority: N/A
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Criminal Law
Elements:
What are the elements of a crime?
1)
2)
3)
4)
Physical act (actus reus);
Mental State element (mens rea);
Causation (actual and proximate cause); AND
Concurrence (mental state and physical act occur at
the same time).
Priority: N/A
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When is an Omission to act considered a crime?
1) The defendant had a legal duty to act;
2) The defendant had knowledge of facts concerning
the duty to act; AND
3) It was reasonably possible for the defendant to
act.
Priority: N/A
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It requires both:
What does Causation require?
1) Actual causation (but for); AND
2) Proximate cause (it was foreseeable that the injury
would have occurred from the defendant’s physical
act).
Priority: N/A
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It is a third-party’s act that breaks the chain of causation.
This normally cuts off the defendant’s liability.
What is a Superseding Intervening Cause?
An act will ONLY break the chain if the force was:
1) Independent of the defendant’s wrongful conduct;
AND
2) Not foreseeable.
Priority: N/A
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What is the Simultaneous Acts Rule?
A person’s acts will still be the proximate cause of a
resulting injury if his wrongful conduct created a condition
of peril.
A wrongful act that accelerates death is still the legal
cause of death, even if the person was going to die
eventually.
Priority: N/A
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Under the Common Law, what mental state
categories were used?
Mental states under the Model Penal Code?
Common Law: Specific Intent, General Intent, Malice, &
Strict liability.
MPC: Purposefully, Knowingly, Recklessly, & Criminal
Negligence.
*Willful Blindness Standard: A person acts knowingly when they are
aware that certain facts are highly probable OR are intentionally
ignorant of them.
Priority: N/A
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Upon a showing of:
Murder
When is a Malice Aforethought killing established?
a) An intent to kill;
b) An intent to inflict great bodily injury;
c) A reckless disregard of an extreme risk to human life;
OR
d) An intent to commit an inherently dangerous felony
under the felony murder rule.
Priority: HIGH
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Murder
Second Degree Murder
vs.
First Degree Murder
Second Degree Murder: The unlawful killing of a person with
malice aforethought.
Malice aforethought: is established upon a showing of an intent to
kill, an intent to inflict great bodily injury, a reckless disregard of an
extreme risk to human life or an intent to commit an inherently
dangerous felony under the felony murder rule.
First Degree Murder: Occurs when the killing was deliberate
AND premeditated.
Priority: HIGH
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The killing of a person either:
Murder
Murder under the Model Penal Code (MPC)
a) Committed purposely/knowingly; OR
b) Recklessly under circumstances manifesting an extreme
indifference to the value of human life.
*Recklessness and indifference are presumed if the killing occurred
during the commission of or an attempt to commit a dangerous felony
(Felony Murder Rule).
Priority: N/A
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A person is guilty of murder if a person is killed during:
Murder
Felony Murder Rule
a) Commission of (or attempt to commit) a
dangerous felony; OR
b) Felony escape.
*Dangerous felony = robbery, rape, arson, burglary, kidnapping
*All participants of the crime will be found guilty.
Priority: Medium
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An intentional killing of a person with adequate provocation.
Adequate provocation is established if:
What is Voluntary Manslaughter?
1) The defendant was provoked;
2) A reasonable person would have been provoked;
3) There was not enough time to cool off before the killing;
AND
4) The defendant DID NOT cool off before the killing.
Priority: HIGH
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An unintentional killing of a person committed:
What is Involuntary Manslaughter?
a)
b)
c)
d)
Recklessly;
Under the Misdemeanor Murder Rule;
During a non-dangerous felony; OR
Criminal negligence.
Priority: Low
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The killing of a person:
What is Manslaughter under the Model Penal Code
(MPC)?
a) Committed recklessly; OR
b) Which would otherwise be murder, but is committed
under the influence of extreme mental or emotional
disturbance.
*The MPC doesn’t distinguish between voluntary/involuntary
manslaughter.
Priority: N/A
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̹ƒ”–ƒ””‡’Ǥ ‘
The:
What are the elements of Larceny?
1)
2)
3)
4)
Trespassory taking,
And carrying away,
Of the personal property of another,
With the intent to permanently deprive the owner of the
property.
*Larceny by Trick = when one obtains possession of another’s
property by trick or deception.
Priority: Medium
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A trepass is considered continued until the intent to
permanently deprive arises.
How is a trespass defined under the
Continuing Trespass Doctrine?
Thus, one is still liable for larceny EVEN THOUGH
the intent to permanently deprive the owner of the
property did not arise until after the taking.
Priority: Low
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It occurs when one:
What are the elements of False Pretenses?
1)
2)
3)
4)
Obtains title,
To personal property of another,
Through a known false statement of material fact,
With the intent to defraud.
*Opinion or commercial puffery is NOT false pretenses.
Priority: Medium
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What are the elements of Embezzlement?
1)
2)
3)
4)
The fraudulent or wrongful,
Conversion,
Of personal property of another,
By a person with lawful possession of the
property.
Priority: Low
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When a person:
What are the elements of Receiving Stolen Goods?
1) Receives possession of stolen property,
2) Who knows the property is stolen at the time of
receiving it, AND
3) With the intent to permanently deprive the owner of
the property.
Priority: Medium
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What are the elements of Robbery?
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1)
2)
3)
4)
4)
The trespassory taking and carrying away,
Of the personal property of another person,
In their presence;
By the use of force or threat of immediate physical harm,
With the intent to permanently deprive the owner of the
property.
*Armed robbery requires the elements above, PLUS the use of a
dangerous weapon.
Priority: Low
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Burglary is:
What are the elements of Burglary?
1)
2)
3)
4)
5)
The breaking and entering,
Of a dwelling,
Of another,
At night,
For the purpose of committing a felony inside.
*Most jurisdictions have extended burglary to any structure at any
time.
Priority: Low
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1) Illegally obtaining property;
2) Either by:
a. Force; OR
b. Threats of violence, property damage or
exposing information.
What are the elements of Extortion?
Priority: Low
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Under the Common Law, what are the elements of
Rape?
1) The unlawful sexual intercourse,
2) Of a woman by a man (not her husband),
3) Without her consent.
*Under the common law, a husband could not be convicted of
raping his wife. The modern definition now contains marital
rape.
Priority: N/A
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When:
a)
b)
c)
d)
Rape
When is there a Lack of Effective Consent?
Actual force is used;
Threats of immediate great bodily harm are used;
The victim is incapable of consenting; OR
The defendant fraudulently caused the victim to
believe that the act is not intercourse.
Priority: N/A
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If:
Under the MPC, when is a man guilty of rape?
a) He compels her to submit by force or by threat of
imminent death, serious bodily injury, extreme pain, or
kidnapping;
b) He has substantially impaired her power to consent by
secretly drugging her;
c) The female is unconscious; OR
d) The female is under 10 years old.
*Deviate sexual intercourse is gender neutral and has the same
elements as above.
Priority: N/A
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What are the elements of Statutory Rape?
1) The unlawful sexual intercourse,
2) With a person,
3) Under the age of consent, regardless of whether it’s
against the person’s will.
*This is a Strict Liability crime.
Priority: N/A
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Battery: Unlawful application of force, directly or indirectly
upon another person (or their clothes/belongings) that results in
an injury or offensive contact. (General Intent Crime).
Battery vs. Assault
Assault is either:
a) An attempted battery; OR
b) The intentional creation of a reasonable apprehension of
imminent bodily harm to a person.
Priority: Low
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Kidnapping is:
What are the elements of Kidnapping?
1) Either moving, confining, or restraining;
2) Of another person;
3) Against that person’s will.
*Using fear or threats of force is sufficient.
Priority: Medium
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The:
What are the elements of False Imprisonment?
1)
2)
3)
4)
Unlawful,
Confinement of a person,
Against their will,
With knowledge that the restriction is unlawful.
MPC: Knowingly restraining another person unlawfully so as to
substantially interfere with the person’s liberty.
Priority: N/A
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The:
What are the elements of Arson?
1)
2)
3)
4)
Malicious,
Burning,
Of a dwelling,
Of another.
*Under the Common Law, a person could not be convicted of
arson if it was their own home.
Priority: N/A
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What are the elements of Criminal Possession?
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It involves the unlawful possession of an item according to a
jurisdiction’s statute.
To be found guilty, a person must have both:
1) Knowledge of the possession; AND
2) Knowledge of what the item is.
Priority: N/A
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If the person:
1) Had the specific intent to commit a crime; AND
When is a person guilty of Attempt?
2) Took an overt act sufficiently beyond mere
preparation.
*Most states & the MPC require the overt act be a substantial step.
*The attempt merges with the underlying crime (can’t be convicted
for attempt and the crime itself).
Priority: HIGH
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What are the elements of Conspiracy?
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1) An express or implied agreement between two or more
people;
2) Intent to enter into the agreement;
3) Intent to pursue an unlawful objective; AND
4) The commission of an overt act in furtherance of the
unlawful objective.
*Co-conspirators are liable for both the conspiracy itself AND all
foreseeable crimes committed by other conspirators in furtherance of
the objective.
Priority: Medium
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A person is guilty if:
What are the elements of Solicitation?
1) He requests another person to commit a crime;
2) With the specific intent that the crime be
committed; AND
3) The other person receives the request.
*NO defenses once solicitation is complete.
Priority: Medium
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An accomplice is a person who:
Who is an Accomplice?
What are they liable for?
1) Aids, abets, or facilitates the commission of a crime;
AND
2) Has dual intent (intent to assist and intent the crime is
committed).
An accomplice is liable for ALL crimes he committed/assisted,
AND all foreseeable crimes committed by the principal.
Priority: Low
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First: Merely being present while a crime is committed will
NOT create liability.
What limitations exist to Accomplice liability?
Second: A person cannot be convicted if they are a member of
the class of persons protected by the criminal statute OR the
crime inherently involves several types of participants and the
person is not criminally liable under the statute.
Third: A minority of jurisdictions DO NOT allow accomplice
liability for involuntary manslaughter.
Priority: Low
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It is valid ONLY if the accomplice withdraws
involvement before the crime becomes unstoppable.
When is Withdrawal a valid defense to Accomplice
Liability?
How is it accomplished?
It can be accomplished by either:
a) Repudiating the encouragement given; OR
b) Neutralizing the assistance.
Priority: Low
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When is a person guilty for Accessory After the
Fact?
If that person knowingly aids a felon in escape from
arrest, trial, conviction and/or punishment.
Priority: Low
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If the conduct was the result of:
When does the defense of Duress excuse a
defendant’s conduct?
1) A threat of imminent death or serious bodily injury,
2) To the defendant or another, AND
3) The defendant reasonably believed he was unable to
avoid the harm by non-criminal conduct.
Priority: N/A
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What are the four Insanity tests?
1)
2)
3)
4)
The M’Naghten test.
The Model Penal Code test.
The Irresistible Impulse test.
The Durham test.
*A defendant will be acquitted if he meets the
applicable insanity test of his jurisdiction.
Priority: Low
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Insanity
What is the M’Naghten Test?
A mental disease or defect that resulted in being:
a) Unable to know the wrongfulness of the conduct;
OR
b) Unable to understand the nature and quality of the
acts.
Priority: Low
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Insanity
What is the Model Penal Code Test?
As a result of a mental disease or defect, the defendant
was:
a) Unable to appreciate the criminality of the
conduct; OR
b) Unable to conform his actions to the law.
Priority: Low
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Defendant’s mental illness made him:
Insanity
What is the Irresistible Impulse Test?
a) Unable to control his actions; OR
b) Unable to conform his actions to the law.
Priority: Low
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Insanity
What is the Durham Test?
Defendant must show that his unlawful conduct was the
product of mental illness.
Priority: Low
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Justification – Self-Defense
Deadly Force
vs.
Deadly Force: is justified when: (1) the defendant kills another
on a reasonable belief, (2) that he was in imminent danger of
being killed or suffering great bodily injury, and (3) the use of
deadly force was necessary to defend against the danger.
Non-Deadly Force: is justified when: The defendant
reasonably believes that he is imminent danger of being harmed.
Non-Deadly Force
Priority: Medium
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If:
When may an aggressor use self-defense?
a) He withdraws from the altercation and
communicates such intent; OR
b) The other person suddenly escalates the fight
with deadly force and withdrawal is not possible.
Priority: Medium
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Justification – Self-Defense
What is Imperfect Self-Defense?
When the defendant kills another based on a good faith belief
that:
1) She was in imminent danger of being killed or suffering
great bodily injury; AND
2) The use of deadly force was necessary to defend against
the danger; BUT
3) At least one of those beliefs was unreasonable.
*This can reduce a murder charge to manslaughter.
Priority: Low
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vs.
Voluntary Intoxication: ONLY a defense to specific intent
crimes if it negates the state of mind required to commit the
offense.
Involuntary Intoxication
Involuntary Intoxication: A defense to ALL crimes if the
defendant is deemed insane at the time of the offense.
Voluntary Intoxication
(as a defense)
Priority: Low
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Defenses
Legal Impossibility
vs.
Legal Impossibility: IS a defense. Occurs when the
defendant’s acts would not have constituted a crime, even if
the acts were as the defendant assumed.
Factual Impossibility: Is NOT a defense. Occurs when
the defendant’s acts would have constituted a crime, BUT
FOR a circumstance or fact unknown to the defendant.
Factual Impossibility
Priority: Medium
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Defenses
Mistake of Fact
Mistake of Fact: Is a defense if it negates the state of mind
required for the offense.
Mistake of Law (not knowing the activity was illegal):
Generally, NOT a defense to a crime.
vs.
Mistake of Law
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Priority: Low
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That:
What must a defendant prove to succeed with
Entrapment as an affirmative defense?
1) The police created the criminal environment;
AND
2) The defendant was not predisposed to commit the
crime.
Priority: Low
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Criminal Procedure
STANDING.
What is required to challenge a Search and Seizure?
The challenger must have a reasonable expectation of
privacy regarding the item or place searched.
*Courts have held that individuals have a reasonable expectation of
privacy in that of which they own or possess.
Priority: HIGH
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Arrests
When does Probable Cause arise?
It arises when the police officer has:
1) Trustworthy facts or knowledge,
2) Sufficient to warrant a reasonable person to believe,
3) That a crime has occurred.
*If in a public space, probable cause is all that’s required. If in
someone’s home, a warrant is required to make an arrest.
Priority: Medium
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If the police officer:
When may a police officer Stop and Inquire?
1) Has reasonable articulable suspicion,
2) That criminal activity is afoot.
*Allows only a brief detention for questions, after which the suspect must
be released.
*An officer may make a request for information anytime, except on whim
or caprice.
Priority: HIGH
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If the police officer:
When may a police officer Stop and Frisk?
1) Has reasonable articulable suspicion,
2) That criminal activity is afoot, AND
3) That the person has a weapon.
*Under the Plain Feel Doctrine, the officer may only seize items
during the frisk that he reasonably believes is contraband or a
weapon.
Priority: HIGH
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To be valid:
1) There must have been probable cause;
2) The warrant must state with particularity the
place to be searched and the items to be seized;
AND
3) It must be issued by a neutral and detached
magistrate.
What is required for a valid Search Warrant?
Priority: HIGH
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1)
2)
3)
4)
5)
6)
7)
8)
What are the exceptions that permit a Warrantless
search and seizure?
Plain View doctrine.
Exigent circumstances.
Automobile exception.
Search incident to an arrest.
Consent.
Inventory searches.
Stop and Frisk.
Where the U.S. Supreme Court has concluded there is a
special need.
Priority: HIGH
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If:
When is the use of sensory enhancement technology
deemed a search?
1) The technology is NOT in general public use; AND
2) The police obtain activities inside the home.
It also depends on the type of surveillance, the type of
information accessed, the nature of the property and the
availability of the tech used.
Priority: Low
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The police may seize evidence without a warrant if:
Exception to Warrant Requirement
Plain View Doctrine
1) It is observed in plain view (5 senses);
2) From a place the officer is lawfully permitted to
be; AND
3) Probable cause exists to believe that the items are
evidence of a crime or contraband.
Priority: HIGH
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This exists when:
Exception to Warrant Requirement
Exigent Circumstances
a) The evidence is evanescent;
b) It’s necessary to prevent imminent destruction of
evidence;
c) The emergency aid exception applies; OR
d) The police are in hot pursuit of a felon and the
evidence is in plain view.
Priority: Medium
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Exception to Warrant Requirement
Search Incident to Arrest
Police CAN make a warrantless search incident to a lawful
arrest, and can search the suspect’s person and also areas
within the suspect’s wingspan (if in a car, the wingspan
includes the passenger’s compartment).
Priority: Medium
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Exception to Warrant Requirement
Consent
It is an exception ONLY if it is given freely, voluntarily
and intelligently.
A third person may consent to a search, BUT that person
must have authority.
Priority: Medium
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Administrative Searches: DO NOT require a warrant.
They serve special needs distinct from the ordinary interest
in law enforcement.
Exception to Warrant Requirement
Administrative and Inventory Searches
Inventory Searches: To be valid the search must be:
1) Reasonable; AND
2) Conducted pursuant to established police agency
procedures.
Priority: Low
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Police may stop a vehicle if:
Exception to Warrant Requirement
Checkpoints
1) It is conducted in a nondiscriminatory manner;
2) For a purpose other than investigation of criminal
activity; AND
3) It is reasonable in scope.
Priority: Medium
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This exception allows a warrantless search of the car if the
police have probable cause that either contraband OR
evidence of a crime will be found in the vehicle.
Exception to Warrant Requirement
Automobile Exception
*If there is probable cause: Police can search the entire car
AND packages, luggage, or containers that may reasonably
contain items for which there is probable cause.
Priority: Low
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A confession is inadmissible if it’s the product of
police coercion that overbears the suspect’s free will.
Under the 14th Amendment Due Process Clause,
when will a Confession be excluded at trial?
*Courts will consider the characteristics of the
interrogation AND the individual.
Priority: N/A
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If the defendant:
When may a judge deny the right to selfrepresentation by a defendant?
a) Lacks the competence to stand trial; OR
b) Validly waives the right to counsel.
The right must be assumed knowingly AND
intelligently.
Priority: Medium
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1)
2)
3)
4)
What will a court consider, to determine if a
defendant’s right to a speedy trial was violated?
The reason for the delay;
Whether the defendant objected to the delay;
The length of the delay; AND
Any prejudice the defendant suffered.
Priority: Low
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Miranda warnings inform suspects that:
What are Miranda Warnings?
1) They have the right to remain silent;
2) Anything they say can be used against them in court;
3) They have the right to talk to an attorney and have one
present when they are questioned; AND
4) If they cannot afford one, an attorney will be provided to
them.
*These rights only attach when there is a custodial interrogation
of a suspect.
Priority: HIGH
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If:
When may a custodial interrogation be reinitiated
after the right to counsel has been invoked?
1) The suspect has been re-advised of his Miranda rights;
2) Has provided a knowing and voluntary waiver; AND
3) Either:
a. Counsel is present,
b. The suspect initiates the communication; OR
c. At least 14 days have passed since the suspect was
released from custody.
Priority: HIGH
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When does the accused have the Right to Counsel
under the 6th Amendment?
The accused has the right to counsel in ALL criminal
prosecutions except in State misdemeanor prosecutions that do
not carry a substantial risk of jail time.
This attaches once formal adversarial judicial proceedings have
commenced.
When does it attach?
*This right to counsel is offense-specific.
Priority: HIGH
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They must show that:
What must a defendant show in order to prove
Ineffective Assistance of Counsel?
1) His counsel’s performance was deficient; AND
2) But for the counsel’s errors, the result of the trial
would have been different.
*If shown, the verdict is reversed, and the defendant is entitled
to a new trial.
Priority: HIGH
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When:
1) The witness identified the defendant in-court based
on the witness’s previous knowledge,
2) Which is trustworthy, AND
3) Was obtained by the witness in a previous
transaction.
Under the Independent Source Rule, when is an
in-court identification admissible at trial?
Priority: Low
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If:
When does the Exclusionary Rule NOT apply?
a) The police had an independent source for the secondary
evidence;
b) The discovery of the evidence would have been
inevitable regardless of the illegality;
c) Through the attenuation doctrine; OR
d) The police relied in good faith on a defective search
warrant.
Priority: HIGH
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What are the 4 exceptions where a police officer’s
good faith reliance DOES NOT excuse an invalid
warrant?
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1) The warrant is lacking in particularity that no reasonable
officer could believe in good faith that the warrant is
valid.
2) The warrant is lacking in probable cause that no
reasonable officer could have relied on it.
3) When the magistrate judge who issued the warrant is
biased.
4) When the police officer who obtained the warrant lied on
the application.
Priority: HIGH
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Limitation #1: Failure to give warnings DOES NOT require
suppression of physical evidence.
What are the limitations on the Exclusionary Rule
as applied to Miranda Violations?
Limitation #2: Statements made after Miranda warnings are
admissible, UNLESS a non-mirandized statement was the result
of coercive police tactics offensive to due process.
Limitation #3: Statements obtained in violation are
inadmissible in the prosecution’s case-in-chief, BUT may be
used to impeach a defendant on cross examination.
Priority: Medium
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A valid waiver must be:
1) Voluntary; AND
2) Knowing and intelligent.
What is required for valid waiver of Miranda
Rights?
Priority: Low
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IF:
Double Jeopardy will bar separate prosecutions of a
defendant arising out of the same offense.
Each crime requires proof of a fact which the other
does not.
When are crimes NOT deemed to be the “same
offense”?
Priority: N/A
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Exceptions:
Double Jeopardy will bar separate prosecutions of a
defendant arising out of the same offense.
What exceptions exist where a defendant can be
retried?
a) When the first trial ends in a hung jury;
b) When manifest necessity exists to end the original trial;
OR
c) When the original trial is terminated at the defendant’s
request, and it’s not for an acquittal on the merits.
Priority: N/A
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Under the Harmless Error Rule, when will a guilty
verdict stand on appeal?
It will stand if the prosecution can prove that the error
(evidence in violation of the defendant’s constitutional
rights was improperly admitted) was harmless because
the defendant would have been convicted without the
tainted evidence.
Priority: N/A
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When:
When is a guilty plea valid?
1) It is voluntary and intelligent; AND
2) The judge informs the defendant of the following at the time
the plea is entered:
a. The nature of the charge;
b. The maximum possible sentence;
c. The mandatory minimum sentence;
d. That they have a right to a jury trial, to confront a
witness, and are protected against self-incrimination;
e. That those rights will be waived.
Priority: Low
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Evidence
When is evidence Relevant?
(logically and legally)
Logically Relevant:
1) When it has any tendency to make a fact more or
less probable than it would be without the evidence,
AND
2) The fact is of consequence in determining the action (in
CA, the fact of consequence must be in dispute).
Legally Relevant:
1) If it’s not excluded on policy grounds; AND
2) If it’s not excluded under FRE 403/CEC 352
Priority: HIGH
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FRE Rule 403/CEC 352 Exclusions
A court may exclude evidence if its probative
value is outweighed by a danger of what?
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a)
b)
c)
d)
e)
f)
Unfair prejudice;
Confusing the issues;
Misleading the jury;
Undue delay;
Wasting time; OR
Being needlessly cumulative.
Priority: HIGH
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ALL relevant evidence in a criminal trial.
What is admissible under California Proposition 8,
and what does it NOT affect?
It does not affect the following:
1) Exclusionary rules based on U.S. Constitution;
2) Secondary/Best evidence rule;
3) Hearsay or privilege exclusions;
4) Evidence barred under rape-shield statutes; and
5) Limits on prosecution from offering specific character
evidence.
Priority: HIGH
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When the evidence is:
When is evidence Unfairly Prejudicial?
1) Unnecessary;
AND
2) Might cause the jury to improperly sympathize
or dislike a party.
Priority: HIGH
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To prove:
When is evidence of Subsequent Remedial
Measures NOT admissible?
a) Negligence;
b) Culpable conduct;
Additionally, under the FRE:
c) A defect in product or design; OR
d) A need for a warning or instruction.
*But, it may be admissible to impeach or prove a disputed issue of
ownership, control, or feasibility of precautionary measures.
Priority: Medium
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When are Settlement Offers and statements made
during Settlement Negotiations NOT admissible?
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a) To prove the validity or amount of a disputed claim
(claim must be filed or threatened); OR
b) To impeach by a prior inconsistent statement or
contradiction.
c) CA: Excludes written/oral statements made during
mediation proceedings.
*It may be admitted to: prove bias/prejudice of a witness, negate a
contention of undue delay, or prove obstruction in a criminal matter.
Priority: Medium
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What Pleas and Plea Negotiations are NOT
admissible in a subsequent civil or criminal case?
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1) Statements made during plea discussions.
2) A nolo contendere plea.
3) A defendant’s guilty plea that was later
withdrawn.
Priority: N/A
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Liability
Evidence of paying (or promising/offering to pay
for) medical expenses is NOT admissible to prove
what?
(even if there is no disputed claim)
FRE: Any related statements or factual admissions ARE
admissible.
CA: Related factual statements are NOT admissible.
Priority: Medium
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Culpability
(that a person acted negligently of wrongfully)
Evidence of Liability Insurance is NOT admissible
to prove what?
*However, a court may admit it for another purpose (i.e. proving
bias/prejudice of witness, proving agency/ownership/control).
Priority: Medium
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By:
All physical evidence MUST be authenticated
before being admitted into evidence.
How may physical evidence be Authenticated?
a) Witness testimony; OR
b) By evidence that shows it has been held in a
substantially unbroken chain of custody.
*A party must prove that the item it seeks to admit is actually what
the party purports it to be, unless stipulated otherwise.
Priority: HIGH
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By anyone who:
Voice recordings may be Authenticated by whom?
1) Has heard the person speak (either firsthand or
electronically);
AND
2) Identified the recorded person as the speaker.
Priority: Medium
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A party must provide the original document (or a reliable
duplicate) when a witness:
What is the Best Evidence Rule?
a) Testifies to the contents of a writing; OR
b) Testifies to knowledge gained solely from a writing.
FRE: Handwritten duplicates are NOT admissible.
CA: Handwritten duplicates ARE admissible.
Priority: HIGH
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Character Evidence
Character evidence may only be offered as
circumstantial evidence to prove propensity in what
limited circumstances?
1) Criminal cases – by defendant OR by prosecution if the defendant
“opens the door” (unless in CA only: elder abuse or domestic
violence);
2) Victim’s character (except in rape cases) – to prove defendant’s
innocence. (In CA, ONLY violent traits);
3) Homicide cases – if defendant claims victim was the aggressor, the
prosecution may offer evidence of the victim’s character for
peacefulness. (NOT IN CA);
4) Sex offense cases – not admissible, unless exceptions apply.
5) Civil cases – only if sex offense cases exception applies.
a. In CA, NO exception for sex offense cases.
Priority: HIGH
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Character Evidence
Under the FRE, what are the exceptions in Sex
Offense Cases that allow character evidence (to
prove a victim’s sexual behavior or predisposition)
to be admissible?
1) Civil cases: If its probative value substantially
outweighs the danger of harm to the victim and unfair
prejudice to any party. (Evidence of the victim’s
reputation is admitted only if the victim placed it in
controversy).
2) Criminal cases: If offered to prove the defendant was
not involved in the sex crime, to prove consent, if offered
by the prosecution, OR if exclusion would violate the
defendant’s Constitutional rights.
Priority: HIGH
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Character Evidence
How may character evidence be proven under FRE
and CA rules?
FRE:
On direct examination, by opinion testimony or testimony of the
reputation in the community.
On cross examination of the character witness, by opinion,
reputation, or specific acts.
CA:
Defendant’s character may only be proven by
opinion/reputation, and victim’s character by opinion,
reputation, or specific acts.
Priority: HIGH
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Proving:
Prior Bad Acts may be admissible for NONPROPENSITY purposes, such as?
a)
b)
c)
d)
e)
f)
g)
Motive;
Identity;
Absence of mistake or accident;
Intent;
A common plan or scheme;
Opportunity; OR
Preparation.
Priority: HIGH
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1) That the prior act was committed by a preponderance of
the evidence (vague references are insufficient).
What must a proponent show in order to offer Prior
Bad Acts as evidence?
AND
2) That’s its probative value substantially outweighs the
danger of unfair prejudice.
Priority: N/A
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When is evidence of a person’s Habit or an
organization’s Routine Practice admissible?
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To prove that on a particular occasion the party acted in
accordance with the habit or routine practice.
*This may be admitted regardless of corroboration or eyewitnesses.
Priority: Low
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Extrinsic Evidence of Prior Inconsistent Statements
are only admissible to impeach if it’s what?
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1) Relevant to a material issue at trial (other than the
witness’s credibility); AND
2) A proper foundation is shown (witness is given a chance
to explain/deny, and the adverse party is given a chance to
examine the witness about it).
*BUT, the above limitation is NOT applicable to statements by a
party opponent.
*CA = Prior inconsistent statement is admissible as non-hearsay
when offered only to impeach a witness. It is also an exception to the
hearsay rule.
Priority: Medium
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Under the FRE, when is evidence of Prior
Convictions admissible to attack a witness’s
character for truthfulness?
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1) Prior felony or misdemeanor convictions involving
dishonesty – a dishonest act or false statement.
2) In Felonies that DO NOT involve dishonesty, when:
a. The witness is not a defendant (criminal/civil);
b. In a criminal case where the witness IS a
defendant, BUT the probative value outweighs the
prejudicial effect.
*Evidence of a conviction is NOT admissible if it has been
pardoned/annulled on a finding of innocence.
Priority: Low
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When prior felony convictions involve:
MORAL TURPTITUDE (subject to CEC 352 balancing).
In CA, when is evidence of Prior Convictions
admissible to attack a witness’s character for
truthfulness?
In a criminal case, ONLY misdemeanors involving moral
turpitude (under Proposition 8) are admissible.
Moral turpitude = crimes involving lying, violence, sex crimes,
and extreme recklessness.
Priority: Low
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When may a witness’s credibility be attacked on
cross-examination with Specific Instances of
Conduct (i.e. prior bad acts)?
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Under the FRE: Only when:
The conduct is probative of the witness’s character for
truthfulness or untruthfulness. (BUT, extrinsic evidence is
NEVER admissible to attack/support such instances of a
witness’s credibility.)
In CA: Prior bad acts are only admissible under Proposition 8
if the acts involve moral turpitude.
Priority: Medium
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By:
How can a witness’s Character for Truthfulness
(credibility) be attacked or supported?
a) Reputation testimony about the witness’s character for
truthfulness or untruthfulness in the community; OR
b) Opinion testimony about the witness’s character.
**Evidence of truthful character is only admissible AFTER the
witness’s character for truthfulness has been attacked.
Priority: N/A
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May a witness’s ability to observe, remember, or
relay facts accurately be attacked on impeachment?
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YES, a witness may be impeached on these issues on:
a) cross-examination; OR
b) with extrinsic evidence.
Priority: N/A
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Under the FRE, how may a Hearsay Declarant’s
credibility be impeached (when a hearsay statement
has been admitted into evidence)?
By any evidence that would be admissible if the declarant had
testified as a witness.
*A court may admit evidence of inconsistent statements/conduct
regardless of when the statement occurred or if the declarant had the
opportunity to explain or deny it.
Priority: N/A
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When:
When is Refreshing a Witness’s Recollection using
a document permitted?
1) The witness once had a personal knowledge of the
matter,
2) But is unable to recall the matter when testifying.
a. In CA: The refreshing may be done prior to or
during trial.
**Only the opposing party may offer the document into evidence.
Priority: Medium
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1) The subject matter of the direct examination(s);
What is the Scope of Cross-Examination?
AND
2) Matters affecting the witness’s credibility.
Priority: Low
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When indisputable facts are either:
When may a court take Judicial Notice?
a) Commonly known in the community; OR
b) Readily capable of verification and cannot be reasonably
questioned.
FRE: In civil cases, the court must instruct the jury to accept the
facts as conclusive. In criminal cases, they must instruct the jury that
they may or may not accept the noticed facts as conclusive.
CA: Judicially noticed facts are conclusive in civil & criminal cases.
Priority: Medium
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Trial Objections
What is a leading question, and when are they
permitted on direct examination?
One that suggests an answer to a witness. They are allowed on
direct when:
a) The witness is hostile, an adverse party (or identified
with);
b) It clarifies background information; OR
c) The witness has difficulty remembering.
In CA: Leading questions are ONLY permitted on direct
examination in the interests of justice.
Priority: Medium
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What is a Lay Witness?
When is Lay Witness testimony admissible?
Any person who gives testimony in a case that is NOT
called as an expert. Their testimony is admissible if they
are competent to testify (FRE: competency is presumed,
additionally. CA: the witness must understand the legal
duty to tell the truth).
They must take an oath to tell truth, only testify to matters
of personal knowledge, AND have the capacity to perceive,
recall, and communicate.
Priority: HIGH
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If it is:
When may a Lay Witness offer an opinion?
1) Rationally based on the witness’s perception;
2) Helpful to clearly understand the testimony or to
determine a fact in issue;
AND additionally, under the FRE:
3) Not based on scientific, technical, or other specialized
knowledge.
Priority: HIGH
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When is Expert Witness testimony permitted?
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When the:
1) Witness is qualified as an expert;
2) Opinion is helpful to the jury;
3) Witness believes in the opinion to a reasonable degree of
certainty;
4) Opinion is supported by sufficient facts/data;
AND
5) Opinion is based on reliable principles/methods that were
reliably applied.
Priority: HIGH
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FRE Daubert/Kumho standard:
Expert Testimony
What is reliability based on (FRE vs. CA)?
Reliability is based on the methodology’s: (1) Publication and
peer review; (2) Error rate; (3) Testability; AND (4) Whether it
is generally accepted in the field.
CA Kelly/Frye standard:
Reliability is based on whether a methodology is generally
accepted in the field.
Priority: HIGH
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1) An out of court statement,
2) That is offered to prove the truth of the matter asserted.
What is Hearsay?
*Hearsay is ONLY admissible if it falls under an exception.
*A statement is an oral/written assertion or nonverbal conduct if
intended as an assertion (it MUST assert something).
Priority: HIGH
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An out of court statement that is offered to prove something
other than the truth of the statement. It IS admissible.
What is Non-Hearsay?
Non-Hearsay includes:
1)
2)
3)
4)
Verbal acts of independent legal significance.
Statements to show the effect on the listener.
A prior inconsistent statement used to impeach.
Circumstantial evidence of the speaker’s state of mind.
Priority: HIGH
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What is a Statement by a Party Opponent?
(deemed non-hearsay under the FRE, and a hearsay
exception under CA)
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1) Any statement offered against an opposing party,
2) That either:
a. Was made by the party in an individual or
representative capacity;
b. Is adopted or believed to be true;
c. Was made by an authorized person;
d. Was made by the party’s agent or employee; OR
e. Was made by the party’s co-conspirator in
furtherance of the conspiracy.
Priority: HIGH
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Hearsay Exclusion
When are Prior Statements of Identification by a
declarant witness deemed Non-Hearsay (under FRE
and CA)?
FRE:
1) If the declarant testifies; AND
2) If the declarant is subject to cross-examination
CA: Prior statements made are an exception to the hearsay rule if:
1) It identifies someone who participated in the crime;
2) It was made at the time of the crime and was fresh in the
witness’s mind; AND
3) Before the evidence of the statement is offered, they testify that
they made the identification and that it was a true
reflection of his opinion at the time.
Priority: Low
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When:
Hearsay Exceptions
When does a person’s silence constitute an
Adoptive Admission?
1) The person heard the statement; AND
2) A reasonable person would have denied the
statement.
This is excluded from hearsay under the statements made
by a party opponent hearsay rule.
Priority: Medium
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Admissions made by:
Hearsay Exceptions
What is a Vicarious Admission?
a) An authorized spokesperson;
b) A principal or agent made during the scope of the
agency relationship - (Not applicable in CA); OR
c) Co-Conspirators.
*This is excluded from hearsay under the statements made by a party
opponent hearsay rule.
Priority: HIGH
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Hearsay Exceptions
What is a Statement Against Interest, and when is
it admissible?
A statement made against one’s own penal, proprietary, or
pecuniary interest. (In CA, statements made against one’s
societal interests are also admissible.)
Admissible when the declarant is unavailable.
Priority: HIGH
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Hearsay Exceptions
When are Prior Statements Made Under Oath
admissible?
1) If they are offered against a party who was present in the
previous trial;
2) The same issues are involved; AND
3) The party who it is offered against had the same motive
and opportunity to examine the witness in the previous
trial. (In CA: the party sharing similar interests is
sufficient).
*ONLY applicable is the declarant is unavailable.
Priority: Medium
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When the statement:
Hearsay Exceptions
Under the FRE, when is a hearsay statement NOT
excluded by the rule against hearsay?
1) Has equivalent circumstantial guarantees of
trustworthiness;
2) Is offered as evidence of a material fact;
3) Is more probative on the point for which it is offered than
any other evidence that can be obtained by reasonable
means; AND
4) Admitting it will best serve the interests of justice.
* CA does not have the above catch-all hearsay exception.
Priority: Low
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A statement describing an event made by the declarant;
Hearsay Exceptions
What is a Present Sense Impression?
What statements does this apply to in CA?
a) While observing the event; OR
b) Immediately thereafter.
In CA: This is called a Contemporaneous Statement, and
applies when the statement: (1) is offered to explain,
qualify, or make declarant’s conduct understandable; AND
(2) was made while declarant was engaged in such conduct.
Priority: HIGH
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A statement:
Hearsay Exceptions
What is an Excited Utterance (or Spontaneous
Statement as referred to in CA)?
1) Relating to a startling event or condition,
2) Made while the declarant was under the stress of
excitement that the event/condition caused.
Priority: HIGH
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If it is:
Hearsay Exceptions
Business Records are an exception to the Hearsay
rule.
When are they admissible under the FRE?
1)
2)
3)
4)
5)
A record of events, conditions, opinions, or diagnoses;
Kept in the regular course of business;
Made at or near the time of the matter described;
Made by a person with knowledge of the matter;
The regular practice of the business to make the record;
AND
6) The opponent party does not show a lack of
trustworthiness in making the record.
Priority: HIGH
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Hearsay Exceptions
Business Records are an exception to the Hearsay
rule.
When are they admissible in CA?
The same elements have to be met as required under the
FRE.
However, in CA the exception DOES NOT include
records of opinions or diagnosis, and the party
introducing the business record has the burden of
showing that the record was made under circumstances
indicating trustworthiness.
Priority: HIGH
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YES, when:
Hearsay Exceptions
Are Statements made for Medical Diagnosis or
Treatment an exception to Hearsay rule?
1) It’s made for and reasonably pertinent to a medical
diagnosis, AND
2) It describes medical history or symptoms (past or
present).
In CA: Statements made concerning a person’s past physical state
are only admissible IF they were made to medical personnel for the
diagnosis/treatment of a child abuse/neglect victim under 12.
Priority: Medium
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Hearsay Exceptions
Are Statements of Mental, Emotional, or
Physical Conditions an exception to the Hearsay
rule?
Yes, the declarant’s then existing state of mind (motive, intent,
or plan) OR their emotional, sensory, or physical condition are
exceptions to the Hearsay rule.
HOWEVER:
Statements of memory or belief offered to prove a fact
believed or remembered are NOT admissible, unless it
relates to the validity/terms of the declarants will.
Priority: HIGH
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It is a Hearsay exception, and is admissible when:
Hearsay Exceptions
1) The declarant is unavailable (In CA, must be
deceased);
2) The declaration was made under a sense of impending
death; AND
3) Was about the circumstances that put the declarant in
the position of impending death. (In CA, must
concern what killed him).
What is a Dying Declaration?
In what cases may it be offered?
*Used in civil cases and criminal homicide cases (CA = any criminal case).
Priority: Medium
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If he:
Hearsay Exceptions
When is a declarant deemed Unavailable?
a) Is exempted due to privilege;
b) Refuses to testify despite a court order (not applicable in
CA);
c) Testifies that he doesn’t remember the matter;
d) Can’t be present to testify due to death or illness; OR
e) He is beyond the reach of the court’s subpoena.
*Unavailability must NOT have been caused by either party.
Priority: HIGH
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Hearsay Exceptions
Under the FRE, what records are admissible under
the Government or Public Records hearsay
exception?
1) Policies and practices of a public office.
2) Observations in accordance with duties by law (except
police reports in criminal cases).
3) Factual findings from a legally authorized investigation,
BUT only in:
a. Civil cases; and
b. Against the government in criminal cases.
*Record will not be admitted if opposing party shows they were made under
circumstances lacking trustworthiness.
Priority: Medium
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A writing that is:
Hearsay Exceptions
In California, what records are admissible under
the Government or Public Records hearsay
exception?
1) Made by and within the scope of duty of a public
employee;
2) Made at or near the time of the act/condition/event;
AND
3) The record was made under circumstances indicating
trustworthiness.
Priority: Medium
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If:
Hearsay Exceptions
When is a Past Recollection Recorded admissible?
1) The witness had personal knowledge of the events at one
time;
2) The writing was made/adopted by the witness;
3) The writing was made while the events where still fresh;
4) The writing is accurate;
AND
5) The witness can no longer remember the event.
Priority: Medium
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When:
Right to Confront Witnesses
When does an out-of-court statement violate a
Defendant’s 6th Amendment rights?
1) The statement is testimonial;
2) The declarant is unavailable to be cross-examined at trial;
AND
3) The defendant didn’t have an opportunity to crossexamine the declarant before trial.
**Exceptions: dying declarations, wrongdoing by a defendant.
Priority: HIGH
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Right to Confront Witnesses
What types of statements are testimonial in nature?
a) Statements made to grand juries;
AND
b) Statements made to police whose primary purpose is to
collect testimony to be used at a later trial.
(It is NOT testimonial if used to assist police in an
emergency.)
Priority: HIGH
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FRE:
What is Spousal Immunity?
(FRE vs. CA)
A witness-spouse in a valid marriage may refuse to testify
against his/her spouse in a criminal case. Spousal Immunity
DOES NOT apply in civil cases.
CA:
The spouse holding the privilege may refuse to testify in BOTH
criminal and civil cases.
Priority: Medium
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Communications between spouses are privileged if:
What is the privilege of Confidential Marital
Communications?
1) Made during the course of a valid marriage; AND
2) Were intended to be confidential.
*Applies in both civil and criminal cases, held by both spouses
even after a divorce.
Priority: Medium
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In what circumstances do the Spousal Privileges
(spousal immunity and confidential martial
communications) NOT apply?
1) In cases between the spouses.
2) When a spouse commits a crime against the other
spouse or their children.
Priority: N/A
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It protects ALL materials prepared by an attorney or his agents
in anticipation of or during litigation. (In CA: Only materials
prepared in anticipation of litigation are deemed work product).
What does the Attorney Work Product Doctrine
protect?
Under what circumstances is it NOT protected?
They are protected UNLESS a party can show:
1) A substantial need for the materials exists; AND
2) A substantial equivalent of the materials cannot be
obtained without undue hardship.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Attorney Work Product Doctrine (California)
Absolute Privilege
vs.
Qualified Privilege
Absolute: Materials prepared in anticipation of litigation and
are comprised of the attorneys’ mental impressions, notes, or
opinions. These are absolutely protected and are NOT
discoverable.
Qualified: All other materials prepared in anticipation of
litigation are deemed as qualified work product. These may be
discoverable upon showing of substantial need and inability to
obtain elsewhere.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What is the Attorney-Client Privilege?
It protects confidential communications between an Attorney
and Client from disclosure if the communication:
1) Was confidential; AND
2) Made to facilitate legal services.
*The client holds the privilege.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
When does the Attorney-Client Privilege NOT
apply?
a) Legal services are sought to further a crime or fraud;
b) There is litigation related to the breach of duty between
attorney and client; OR
c) Jointly represented clients are subsequently involved in a
civil litigation against each other.
*CA: Privilege DOES NOT survive the client, and does not apply if the
attorney believes disclose is necessary to prevent a crime likely to result in
bodily harm or death.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What is the Physician-Patient Privilege?
It protects confidential communications between a Physician
and Patient from disclosure if the communication:
1) Was confidential; AND
2) Made for the purpose of medical diagnosis or treatment.
*The patient holds the privilege (not the physician).
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When is the Physician-Patient Privilege recognized?
(CA vs. Federal)
CA: Recognizes the privilege
Federal Courts: DO NOT recognize the privilege
*Exception: Federal courts will recognize it when:
1) it’s a civil case;
2) a claim/defense is based on state law; AND
3) state law recognizes a physician-patient privilege.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Professional Responsibility
When:
When is a Lawyer-Client Relationship formed?
1) A person seeks legal advice from a lawyer;
AND
2) The lawyer either:
a. Manifests consent to provide services; OR
b. Fails to manifest a lack of consent and knows
the person would reasonably rely on the
lawyer to provide legal services.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Generally, a client controls the goals of the
representation while the lawyer controls the means.
When:
1) It’s reasonable under the circumstances; AND
2) The client gives informed consent.
When may a lawyer limit the scope of the
representation?
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Duty of Competence
What does the Duty of Competence require of a
lawyer?
To possess the legal knowledge, skills, preparation, and
thoroughness to effectively represent the client.
*Lawyer cannot take a case in an unfamiliar area of
law, UNLESS he: (a) associates with another
competent lawyer; OR (b) acquires sufficient learning
& skill before performance.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Duty of Competence
What does incompetence expose a lawyer to?
1) Discipline by the bar;
2) Disqualification from a litigation; AND/OR
3) A civil malpractice lawsuit.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Duty of Competence
In California, when does a lawyer breach the
Duty of Competence?
If he intentionally, recklessly, acts with gross
negligence, or repeatedly fails to preform legal
services with competence.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
What does the Duty of Communication require?
̹ƒ”–ƒ””‡’Ǥ ‘
1) Informing a client when informed consent is required;
2) Keeping the client reasonably informed on status;
3) Promptly complying with requests for info (i.e. phone
calls and inquiries);
4) Consulting with the client on strategy decisions and on
matters requiring their consent; AND
5) Advising when the lawyer knows a client expects
assistance not permitted by ethical rules.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
Under the ABA, when MAY a lawyer disclose
Confidential Information?
a)
b)
c)
d)
e)
The client consents;
Ordered by law;
It’s needed to defend a malpractice action;
To prevent death or substantial bodily harm;
To prevent the client from committing a crime/fraud
that will result in substantial financial loss; OR
f) To secure legal advice about complying with ethical
rules.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
ONLY ALLOWED to prevent a crime that will result in
death or substantial bodily injury.
In California, when MAY a lawyer disclose
Confidential Information?
Before disclosure the lawyer must:
1) Make a good faith attempt to counsel the client out of
committing the crime; AND
2) Inform the client of the lawyer’s ability/decision to
disclose the information.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
ABA: Lawyer has a duty to notify opposing counsel of any
documents accidentally received.
What must occur when a lawyer receives
Confidential & Privileged Documents
inadvertently?
(ABA vs. CA)
CA: Must do three things:
1) Refrain from examining materials any more than
necessary to determine if privileged;
2) Immediately notify the sender; AND
3) Proceed to the resolve the situation.
*NOT required to return the documents under ABA or CA.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Lawyer must hold property of a client separate from the
lawyer’s own property. Funds must be kept in a
separate Attorney Trust Account.
What does the Duty to Safeguard Property
require?
In addition, a lawyer MUST return client property upon
request or at the end of representation.
*In CA, a client case file cannot be withheld for the purpose of
getting paid.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If:
When does a Concurrent Conflict of Interest exist?
a) The representation is directly adverse to another
client; OR
b) There is a significant risk that the representation
will be materially limited due to personal
interests or responsibilities to another
present/former client or third-party.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
When MAY a lawyer represent a client even though
a Concurrent Conflict of Interest exists?
1) Lawyer reasonably believes that he will be able to
provide competent and diligent service;
2) It’s not prohibited by law;
3) Lawyer is not representing parties on opposite sides of
the same litigation; AND
4) Each client affected by the conflict gives informed
consent.
CA = informed written consent
ABA = informed consent, confirmed in writing
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If:
In what situations is a lawyer prohibited from
representing a client?
a) It’s prohibited by law; OR
b) Representing parties on opposite sides of the
same litigation.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Unless the former client gives informed consent, the lawyer
CANNOT:
When is a lawyer NOT allowed to represent a client
due to a Former Client Conflict of Interest?
1) Represent another client in the same or substantially
related matter,
2) When the person’s interests are materially adverse to the
interests of the former client.
*Lawyer also CANNOT represent a client of their previous firm if:
(1) the above 2 factors are present, AND (2) he acquired confidential
info material to the former client matter.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
Generally, a conflict of interest is imputed to the
entire firm, and all lawyers in the firm are
disqualified from the representation.
When is this NOT the case?
a) The conflict is purely personal and doesn’t
materially limit the representation; OR
b) It arises out of association with the lawyer’s
previous firm and the lawyer is properly
screened.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If the govt. lawyer worked personally and substantially
on a matter, he CANNOT work on that same matter at
a private firm unless:
When is a former Government Lawyer not allowed
to work on a matter?
the government agency consents in writing.
BUT, the conflict will NOT be imputed to the rest of
the firm if: (1) the lawyer is properly screened; AND
(2) prompt written notice is given to the govt. agency.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Yes.
May a lawyer own and operate a business separate
from the practice of law?
However, he must be careful to not engage in a
business that would pose a conflict of interest with his
clients.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If:
When are business transactions between a lawyer
and client permitted?
1) All terms are fair and reasonable to the client;
2) All terms are fully disclosed in writing;
3) The client is advised to consult outside counsel
(and given reasonable time to do so); AND
4) The client consents in writing.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When the interest is:
When can a lawyer acquire a proprietary interest
in the cause of action or subject matter of litigation?
a) A lien authorized by law to secure the lawyer’s
fee/expenses; OR
b) A contingency fee in a civil case.
*In CA, there is no similar rule.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
ABA: Loans in excess of litigation costs/expenses are
NOT permitted.
Loans to Clients
(ABA vs. CA)
CA: Loans ARE permitted if:
1) made after lawyer is retained,
2) with written promise to repay by client, AND
3) compliance with relevant ethical rules
(concurrent conflicts rule + business transactions
with client rule).
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When may a lawyer advance an indigent client’s
litigation expenses?
When the lawyer can later recover the expenses as part
of his contingency fee.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
When may a third-party pay a client’s legal fees?
1) The client gives informed consent (need
informed written consent in CA);
2) There is no interference with the lawyer’s
independence of professional judgement; AND
3) The information related to the representation
remains confidential.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
YES.
May a lawyer serve as a board member for an
Organization he represents?
But, he must do so effectively AND without
jeopardizing his ethical duties to the organization as his
client.
*He will be held to a higher standard in his knowledge of company
matters.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
When can a lawyer settle aggregate claims?
̹ƒ”–ƒ””‡’Ǥ ‘
With informed written consent of each client.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
ABA: Contract is PERMITTED if the client is independently
represented in making the agreement.
Contracts Limiting a Lawyer’s Liability
(ABA vs. CA)
CA: Lawyer CANNOT contract to limit prospective liability
(for malpractice).
ABA & CA: Lawyer CANNOT settle a claim for malpractice
liability UNLESS: (a) client has independent lawyer; OR (b)
the client is informed in writing that they may seek the advice of
an independent lawyer (and is given an opportunity to do so).
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Sexual Relations with Clients
Under both ABA & CA, a lawyer CANNOT engage in
consensual sexual relations with a client UNLESS the
relationship existed before the representation.
(ABA vs. CA)
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
The Organization is the client, and lawyer MUST act in
its best interest.
Who does the attorney represent when retained by
an Organization?
*The lawyer generally DOES NOT represent the
officers, directors, or managers of the organization
individually (unless otherwise agreed).
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
What action may a lawyer take when representing
an organization, and is aware of a matter that
violates a law, legal obligation, or will result in
substantial injury to the organization?
̹ƒ”–ƒ””‡’Ǥ ‘
Lawyer MAY refer the matter to higher authorities within
the organization.
ABA: Permits disclosure to an outside source if there is a
clear violation of law AND it’s needed to prevent
substantial injury.
CA: Only permits disclosure to outside source to prevent
death or substantial bodily harm [see confidential info
rule].
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Mandatory Withdrawal
When MUST a lawyer withdraw from representing
a client?
When:
a) Discharged;
b) Physical/mental condition of lawyer exists (ABA =
materially impairs the representation; CA = unreasonably
difficult to effectively carry out representation); OR
c) Continuing the representation would violate an ethics
rule or other law.
In CA: A lawyer must ALSO withdraw if he knows that the client is
bringing an action (1) without probable cause, (2) for the purpose of
harassing or maliciously injuring a person.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Lawyer must:
How does a lawyer properly withdraw?
1) Provide timely notice to the client; AND
2) Promptly return any unspent fees and all of the
client’s papers and property.
*After a lawsuit has been filed, the lawyer MUST obtain the court’s
approval to withdraw.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Permissive Withdrawal
Under the ABA, when MAY a lawyer withdraw
from representing a client?
a) Client persists on a criminal or fraudulent course of action;
b) Client used lawyer’s services to commit a crime or fraud;
c) Client fails to substantially fulfill an obligation after reasonable
warning (i.e. pay legal fees);
d) Representation has been rendered unreasonably difficult by the
client;
e) Other good cause exists;
f) Withdrawal will not materially damage the client’s interests;
g) Client insists on an action the lawyer deems repugnant or has a
fundamental disagreement with; OR
h) Representation will result in an unreasonable financial burden on
lawyer.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Permissive Withdrawal
In California, when MAY a lawyer withdraw from
representing a client?
a) Client persists on a criminal or fraudulent course of action;
b) Client used lawyer’s services to commit a crime or fraud;
c) Client fails to substantially fulfill an obligation after reasonable
warning (i.e. pay legal fees);
d) Representation has been rendered unreasonably difficult by the
client;
e) Other good cause exists;
f) Client insists on unwarranted claim, defense, position, or demand;
g) Client freely and knowingly consents;
h) Inability to work with co-counsel;
i) Mental or physical condition makes representation difficult; OR
j) Likely to violate an ethical rule.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Duty of Candor
What types of conduct are prohibited?
To knowingly:
a) Make a false statement of fact/law;
b) Fail to correct a false statement of material fact or
law;
c) Fail to disclose known controlling legal authority
(unless opposing counsel does so); OR
d) Offer or use evidence that the lawyer knows to be
false.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
When a criminal defendant wants to testify on his
own behalf (and lawyer knows he will commit
perjury), what MUST the lawyer do?
̹ƒ”–ƒ””‡’Ǥ ‘
1) Try to persuade client to not commit perjury;
2) Attempt to withdraw from the case; AND
3) If attempt to withdraw is unsuccessful, then:
a. ABA: Lawyer must tell the court
(including confidential info, if necessary).
b. CA: Allow defendant to testify in narrative
fashion (cannot disclose confidential info to
the court).
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
What is a lawyer required to do during an
authorized Ex Parte Proceeding with the court?
̹ƒ”–ƒ””‡’Ǥ ‘
To inform the tribunal of all material facts known that
will enable the tribunal to make an informed decision
(whether or not the facts are adverse).
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
It prohibits:
A lawyer CANNOT file frivolous claims or
defenses with the court.
What does the rule specifically prohibit?
1) Actions that lack probable cause and are intended
to harass or maliciously injure; and
2) Unwarranted claims or defenses under existing
law without a good faith argument for a change in
the law.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
1) The other party is a relative, employee, or other
agent of the client; AND
2) The lawyer reasonably believes that silence will
not adversely affect the person’s interests.
Under what circumstances can a lawyer request a
person (other than a client) to refrain from giving
information to another party?
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
For:
a) Expenses reasonably incurred (i.e. travel, hotel);
b) Reasonable compensation for loss of time; OR
c) Reasonable fee to an expert witness.
When is a lawyer permitted to pay a witness?
*CANNOT offer an unlawful inducement to a witness or make
payments contingent upon the content of the testimony or
outcome of the case.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Lawyer as Witness Rule
(ABA vs. CA)
A lawyer CANNOT act as trial counsel when likely to be a
necessary witness, unless:
a) it relates to an uncontested issue;
b) it relates to the nature/value of legal services
rendered in case;
c) the lawyer’s disqualification would create a
substantial hardship on the client [ABA only]; OR
d) lawyer has obtained informed written consent of the
client [CA only].
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If:
When can a lawyer (that knows a person is
represented by counsel in a matter) speak to that
person regarding that matter?
a) Lawyer has permission from the other person’s
lawyer;
*Even if the represented person agrees, it is still a
violation without the permission of their lawyer.
b) Authorized by law or court order; OR
c) Communications with a public official, board
committee or body [CA only].
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
A lawyer participating in an investigation/litigation
CANNOT make statements to the public which:
When are Extrajudicial Statements NOT permitted?
1) he knows (or should know),
2) will be disseminated by means of public
communication; AND
3) will have a substantial likelihood of materially
prejudicing the case or influencing jurors.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
What are the exceptions to the Extrajudicial
Statements rule?
̹ƒ”–ƒ””‡’Ǥ ‘
Statements:
1) To protect the client from substantial undue prejudice.
2) Of the claim, offense, defense, or identity of persons
(unless prohibited by law).
3) Regarding information in a public record.
4) To inform the public of an ongoing investigation.
5) Requesting assistance in obtaining evidence.
6) Warning of danger.
7) Of certain information in a criminal case.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Statements that have a substantial likelihood of
enhancing public disapproval of the accused.
What types of Extrajudicial Statements are
Prosecutors NOT permitted to make?
Prosecutors MUST exercise reasonable care to prevent
others under their supervision/direction from making
statements that the Prosecutor would be prohibited
from making.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
What type of evidence MUST a Prosecutor disclose
to the Defendant?
̹ƒ”–ƒ””‡’Ǥ ‘
Prosecutors MUST disclose any exculpatory or
mitigating evidence.
(The evidence must be provided within a sufficient time to allow
the defendant to prepare for trial.)
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If there are:
Prosecutors may only proceed with a case if
probable cause exists.
When does probable cause exist?
1)
2)
3)
4)
Sufficient facts;
To lead a reasonable person to believe;
That a crime was committed; AND
That the defendant committed the crime.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Ethical Amount of Lawyer’s Fees
ABA: Must be reasonable in light of the skill,
experience, time, degree of specialty, and difficulty
required for the task.
(ABA vs. CA)
CA: Fee CANNOT be unconscionable or illegal.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
ABA: NOT required to be in writing, BUT the fee must be communicated
to the client.
General Fee Arrangements
(ABA vs. CA)
CA: ALL agreements must be in writing unless:
a) The fee is $1,000 or less;
b) The work is routine work for a regular client;
c) The client is a corporation;
d) The client states in writing, after full disclosure, that a written fee
agreement is not required;
e) An emergency to avoid foreseeable prejudice to the client’s
rights/interests; OR
f) The circumstances make a written agreement impractical.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
In CA, what MUST a Fee Arrangement include?
̹ƒ”–ƒ””‡’Ǥ ‘
1) How the fee is calculated;
2) Nature of legal services to be provided; AND
3) The responsibilities of the lawyer and client.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What is a Contingency Fee Agreement?
What are the requirements under the ABA?
An agreement between lawyer and client stating that the
legal fees will be paid out of any recovery the client
receives.
Requirements:
1) Must be in a writing signed by the client; AND
2) Include: the % of recovery the lawyer will take, the
expenses deducted from recovery, and whether the %
will be taken before or after expenses.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
In CA, what additional items are required in a
Contingency Fee Agreement?
̹ƒ”–ƒ””‡’Ǥ ‘
The writing must also include:
1) How work/expenses not covered by the
contingency fee will be charged; AND
2) That the fee is not set by law and is negotiable.
Failure to comply with ethical rules, renders the
agreement voidable at option of the client.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Prohibited:
When are contingency fees prohibited?
1) In domestic relations matters – when payment is
contingent upon divorce or amount obtained.
2) When representing a criminal defendant.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
Under the ABA, when CAN a lawyer share legal
fees with lawyers outside of the law firm?
1) the total fee is reasonable;
2) the client agrees (incl. share of each lawyer) and
the agreement is confirmed in writing; AND
3) the division is proportional to the work done by
each lawyer (unless each is jointly responsible).
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
In CA, when CAN a lawyer share legal fees with
lawyers outside of the law firm?
1) the lawyers enter into a written division
agreement;
2) the client consents in writing after full disclosure;
AND
3) the total fee is not increased by virtue of the fee
division agreement.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
When CAN a lawyer / law firm share legal fees with
a non-lawyer?
̹ƒ”–ƒ””‡’Ǥ ‘
For:
a) Death benefits paid to the deceased lawyer’s estate or heirs;
b) Payments to an estate/representative for the purchase of a
lawyer’s practice;
c) Compensation or retirement plan payments to non-lawyer
employees;
d) Court awarded legal fees that are shared with a non-profit
organization that employed, retained, or recommended the
lawyer; OR
e) Authorized lawyer referral service [CA only].
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Advertising is permitted in all formats if it:
What are the requirements for
Advertising Legal Services?
1) Is not false or misleading;
2) Identifies at least one lawyer or law firm;
3) Does not hold out a lawyer to be a specialist, unless
the lawyer is certified as such; AND
4) [CA only] clearly includes the word
“Advertisement”, unless it’s apparent that the
communication is an advertisement.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
A lawyer CANNOT solicit a person for professional
employment by in person, live telephone, or real time electronic
contact when a significant motive is for pecuniary gain,
What are the rules for Solicitation?
UNLESS the person:
a) is a lawyer;
b) has a family, close personal, or prior professional
relationship with the lawyer; OR
c) routinely uses the type of legal services offered for
business purposes [ABA only].
Priority: HIGH
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A lawyer may:
a) Pay reasonable costs of permitted advertisements;
b) Pay usual charges of a legal service plan or approved
lawyer referral service;
c) Pay for a law practice; OR
d) Give nominal gifts as an expression of appreciation –
not intended/expected to be compensation for
recommending the lawyer’s services.
When CAN a lawyer pay another person/entity for
recommending the lawyer’s services?
Priority: Medium
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Can a lawyer enter into a business deal
with a non-lawyer?
YES.
However, non-lawyers CANNOT be partners,
shareholders, or officers in a law firm or business that
involves the practice of law.
Priority: Medium
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To:
What is Professional Misconduct?
a) Violate ethical rules [or an attempt to – ABA only];
b) Commit a criminal act that reflects adversely on the honesty,
trustworthiness, or fitness as a lawyer;
c) Engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation;
d) Engage in conduct that is prejudicial to the administration of
justice;
e) State/imply an ability to improperly influence a govt. agency or
official; AND/OR
f) Knowingly assist a judge or judicial officer in a violation of ethical
rules or other law.
Priority: Low
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Reporting of Ethical Violations
(ABA vs. CA)
ABA: Must report another lawyer/judge when (1) the
lawyer knows, (2) the other lawyer/judge violated an
ethical rule, (3) that raises a substantial question, (4) as to
their honesty, trustworthiness, or fitness as a lawyer/judge.
CA: NOT required to report another lawyer/judge. But, all
lawyers MUST self-report in certain instances.
Priority: Low
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Real Property
What is a Fee Simple Absolute?
A conveyance of absolute ownership of real property.
The property is freely devisable, descendible, and
alienable.
Priority: N/A
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What is a Fee Tail?
A conveyance of real property to a person AND their
heirs.
*Most states have abolished fee tail ownership.
Priority: N/A
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A conveyance of property that has conditions placed on it.
What is a Fee Simple Defeasible, and when is it
created?
It is created when the grantor uses express conditional
language to indicate that it will be terminated upon the
occurrence/non-occurrence of an event or condition.
*Reserves a future interest in the property in favor of either the grantor or a
third party.
Priority: Medium
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Fee Simple Subject to a Condition Subsequent – Grantor
retains a right of re-entry if a specified condition occurs.
What are the three types of
Fee Simple Defeasibles?
Fee Simple Determinable – Grantor retains possibility of
reverter. Created when grantor uses words of duration.
Fee Simple Subject to Executory Interest – reserves a future
interest in a third-party.
Priority: Medium
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A conveyance of real property where a specified lifetenant is entitled to possession of the property during
their lifetime.
What is a Life Estate?
Upon the life tenant’s death, the property transfers
outright to another party (the remainderman).
Priority: N/A
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Possibility of Reverter
vs.
Right of Re-entry
Possibility of Reverter: Creates a future interest of possession
in the grantor if a specified condition occurs (property
automatically vests to the grantor upon occurrence of the
condition).
Right of Re-entry: Creates a future interest in the grantor,
wherein the grantor has the right to re-enter and take the
property if a specified condition occurs.
Priority: Medium
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When the grantor attempts to restrict the alienability or
transferability of the land.
When does a restraint on alienation occur, and what
are the three types that exist?
The three types are: disabling, forfeiture, and promissory
restraints.
They are enforceable based on the interest conveyed and
whether it’s reasonable.
Priority: Medium
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Those with a Present Possessory Interest CANNOT
commit waste to the property.
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1) Affirmative – intentional/negligent.
2) Permissive – failure to make repairs.
3) Ameliorative – change in use that affects value.
What are the three types of waste that exist?
Priority: Low
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Vested remainder: A future interest in land that is given to an
identifiable person with NO conditions.
Vested Remainder
vs.
Contingent Remainder
Contingent remainder: A future interest in land that is
conditioned upon the occurrence (or non-occurrence) of a
specific event.
*In most jurisdictions, a future remainder interest is devisable and
passes to that person’s heirs.
Priority: N/A
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The default estate created by a conveyance/bequest of real
property to two or more people, unless:
What is Tenancy in Common?
a) There is express language stating that the parties have
survivorship rights (joint tenancy); OR
b) If the conveyance stated “as husband and wife” (creating
a tenancy by the entirety).
*Each tenant has an undivided interest and the right to use and enjoy
the property.
Priority: N/A
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What Four Unities must be present for a Joint
Tenancy to be created?
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1)
2)
3)
4)
The unity of time;
The unity of title;
The unity of interest; AND
The unity of possession.
There must be clear and express intent to create a joint tenancy.
Priority: HIGH
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When one joint tenant unilaterally transfers his
ownership interest in the real property.
When is a Joint Tenancy severed?
Upon severance, the tenants will hold the property as
tenants in common.
Priority: HIGH
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When:
Under what circumstances can an out-of-possession
co-tenant collect rent from an in-possession cotenant (who is in exclusive possession of the
property)?
a) There is an agreement stating as such; OR
b) The co-tenant seeking rent was wrongfully
ousted.
Priority: Medium
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Yes, UNLESS there has been a wrongful ouster.
Is a co-tenant entitled to reimbursement for the costs
of necessary repairs that the co-tenant paid for?
The amount is determined by the % share each co-tenant owns
in the property.
Priority: Medium
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When does an ouster occur?
When a co-tenant excludes another co-tenant from
possessing the property (the party wrongfully excluded
may bring an action to recover possession and
damages).
*All co-tenants have equal rights to possess the entire property.
Priority: Low
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ONLY IF there is a separate agreement stating as such.
When is a co-tenant entitled to reimbursement from
other co-tenants for improvements made to the
property?
BUT, if the property appreciated due to the improvements, only
the improving co-tenant is entitled to the increase in value.
Priority: Medium
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A lease provides the tenant with a present
possessory interest in the property and gives the
landlord a future interest.
What are the three types of Leaseholds?
1) Tenancy for Years – fixed period of time, automatically
terminates;
2) Periodic Tenancy – a specific period of time, terminated
by proper notice.
Created by: express agreement, implication, or by
law.
3) Tenancy at Will – continues until either party terminates
it, usually created by express agreement (termination
requires notice and reasonable time to quit the premises).
Priority: HIGH
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What can a Landlord do if a Tenant remains on the
property and does not pay rent?
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a) Initiate eviction proceedings; OR
b) Allow the tenant to remain on the property and
sue for damages.
Priority: Medium
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He may:
What are the Landlord’s two options if a tenant
holds over?
a) Evict the tenant; OR
b) Hold the tenant over (by holding the tenant over,
an implied month-to-month tenancy is created).
Priority: N/A
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Residential: Keep the rental property in habitable
condition, to repair common areas, and a duty to warn
of latent defects that create a risk of serious harm.
What is a Landlord’s duty to repair (residential and
commercial)?
Commercial: DO NOT have a duty to repair (but
authorities may require it in certain instances).
Priority: Low
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It’s implied in EVERY residential lease and requires the
Landlord to provide a place to live that is habitable (reasonably
suitable for human needs).
What is the Warranty of Habitability?
What can the Tenant due upon breach?
If breached, the Tenant may:
a)
b)
c)
d)
Move out and terminate the lease;
Withhold or reduce the rent;
Repair the issue and deduct the cost from the rent; OR
Remain on the premises and sue for damages.
Priority: HIGH
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When:
When does Constructive Eviction occur?
1) The landlord breached a duty to the tenant;
2) The landlord’s breach caused a loss of the substantial use
and enjoyment of the premises;
3) The tenant gave the landlord notice of the condition;
4) The landlord failed to remedy it in a reasonable time after
notice was given; AND
5) The tenant vacated the premises.
Priority: HIGH
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At common law, a landlord DID NOT have a duty to mitigate.
Does a Landlord have a duty to mitigate his
damages?
BUT, now most states DO impose a duty to take reasonable
steps to mitigate losses (i.e. attempting to lease to another
tenant).
*Mitigation doesn’t need to be successful to recover damages, and a
landlord is entitled to sue for the difference in rent between the new
and original tenant.
Priority: Medium
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Assignment of a Lease
When does an Assignment occur, and who is liable
to the Landlord for rent thereafter?
It occurs when the assignor transfers ALL of his remaining
interest in a lease to a third-party (the assignee).
The assignee AND the assignor both remain liable to the
landlord for rent and all other covenants that run with the land.
Priority: HIGH
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Assignment of a Lease
When a lease has a Silent Consent Clause, what two
approaches have been adopted by state courts to
determine how consent is given?
Most States, allow the landlord to withhold consent for any
reason (even if unreasonable).
Some States, require the landlord to have a reasonable basis for
withholding consent.
For example: Inability to fulfill lease terms,
financial irresponsibility, instability, etc.
Priority: N/A
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A sublease occurs when a sublessor transfers only SOME
of his remaining interest in a lease to a third-party.
What is a Sublease?
Is a Sublessee liable to the Landlord for rent?
The sublessee is NOT liable to the landlord for rent or other
covenants because there is no privity of estate with the
landlord.
Priority: Medium
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Termination of Leases
What is a Surrender?
An agreement between the landlord and the tenant to
end a lease early.
If accepted, the tenant’s duty to pay rent ends. If not
accepted and the tenant leaves anyway, they are
deemed to have abandoned the lease and are liable for
damages.
Priority: N/A
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What is a Real Covenant?
A non-possessory interest in land that obligates the
holder to either do something or refrain from doing
something to the land.
(The remedy is damages, unlike equitable servitudes)
Priority: HIGH
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There must be:
What must be present to enforce the benefit of a
Real Covenant?
1)
2)
3)
4)
A writing that satisfies the statue of frauds;
Intent that the covenant runs with the land;
Vertical privity between succeeding parties; AND
The covenant must touch and concern the land.
Priority: HIGH
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All of the requirements for enforcing the benefit PLUS:
What must be present to enforce the burden of a
Real Covenant?
1) Horizontal privity between the original parties;
AND
2) The new owner must have notice of the covenant
(actual, constructive, or inquiry notice).
Priority: HIGH
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What is an Equitable Servitude?
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Covenants that equity will enforce if the burdened
estate had notice of the covenants.
(The remedy is injunctive relief, rather than damages)
Priority: Medium
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There must be:
What must be present to enforce the benefit of an
Equitable Servitude?
1) A writing that satisfies the statue of frauds;
2) Intent for the servitude to be enforceable; AND
3) The servitude must touch and concern the land.
Priority: Medium
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What must be present to enforce the burden of an
Equitable Servitude?
All of the requirements for enforcing the benefit,
PLUS:
1) The new owner must have notice of the servitude
(actual, constructive, or inquiry notice).
Priority: Medium
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A court will imply reciprocal restrictive covenants on parcels of
land in a subdivision sold by a developer if:
What is the Common Scheme or Plan Doctrine?
1) The developer had a common scheme or plan that all
parcels of land would be subject to at the time the
subdivision was sold; AND
2) The defendant land owner had actual, inquiry, or record
notice of the restriction.
Priority: Low
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A development or neighborhood in which individually owned
lots are burdened by a servitude that imposes an obligation to:
What is a Common Interest Community (CIC)?
a) Pay for or contribute to the maintenance held in common
by the individual owners; OR
b) Pay dues or assessments to an association that provides
services to the common areas or enforces the servitudes.
*CIC’s include Condo’s, Co-ops, and Home Owner Associations.
Priority: N/A
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A non-possessory interest in the use of someone else’s land.
Easements
Easement in Gross vs. Easement Appurtenant
Easement in Gross: Benefits a specific owner’s enjoyment,
and DOES NOT attach to the land. Doesn’t pass to subsequent
owners.
Easement Appurtenant: Benefits ANY owner’s enjoyment,
and DOES attach to the land. Passes to subsequent owners.
Priority: HIGH
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Easements
What is an Easement by Grant?
An express agreement by the grantor allowing the
easement, which must:
1) Be in writing signed by the grantor and satisfy the
statute of frauds;
2) Identify the land and parties involved; AND
3) Indicate the grantor’s intent to convey the
easement.
Priority: HIGH
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It’s created when the possessor’s use of the land is:
Easements
What is an Easement by Prescription?
1)
2)
3)
4)
Open and notorious;
Continuous;
Hostile; AND
For the statutory period.
Priority: HIGH
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It’s established when:
Easements
What is an Easement by Implication?
1) A single tract of land is divided by a common owner;
2) A pre-existing use by the grantor is established prior to
the land division;
3) A continuous and obvious indication that the use was
intended to be permanent;
4) The use affects the value of the land conveyed; AND
5) Such use is reasonably necessary for the owner’s use.
Priority: HIGH
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It’s created when:
Easements
What is an Easement by Necessity?
1) The original piece of land owned by the one
owner is subdivided; AND
2) Access is essential to the use of the property
because no other ingress or egress is available.
Priority: HIGH
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Easements
What are the ways an Easement can be Terminated?
1)
2)
3)
4)
5)
6)
7)
8)
Estoppel;
Termination of the necessity that created the easement;
Involuntary destruction of the servient estate;
Condemnation of the servient estate;
Written release;
Abandonment;
Merger; OR
By prescription
Priority: Medium
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It is a privilege to use another’s land in a particular
way.
What is a License?
It doesn’t need to be in writing, and may be revoked at
any time (although a licensor may be estopped from
revoking it if the licensee invested money/labor in
reasonable reliance).
Priority: Low
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What factors are considered to determine if an
item is a Fixture?
̹ƒ”–ƒ””‡’Ǥ ‘
1)
2)
3)
4)
The nature of the item;
The manner in which it’s attached;
The damage that would result if removed; AND
The extent to which the item is adapted to the
property.
*Under the trade fixture exception: an item attached to the property
for use in the tenant’s business is NOT a fixture unless removal
would cause substantial damage.
Priority: Low
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It allows someone who is in possession of land, owned by another, to
acquire title when the possession of the property is:
What are the elements of Adverse Possession?
1)
2)
3)
4)
5)
Continuous for the statutory period (i.e. 10 yrs);
Open and notorious;
Exclusive;
Actual; AND
Hostile and under a claim of right.
*Adverse possessors in privity may aggregate their years spent possessing
the property to meet the statutory period.
Priority: Low
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What is Constructive Adverse Possession?
When a person takes possession of only a portion of the
land covered under color of title Æ that possession
extends to the entire portion of the land described in the
title for adverse possession purposes.
Priority: N/A
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The contract must:
What are the elements of a valid Land Sale
Contract?
1)
2)
3)
4)
5)
Be in writing;
Describe the property;
Identify the parties involved;
Contain the purchase price; AND
Be signed by the grantor/grantee (depending on who
the contract will be enforced against).
Priority: Medium
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When can a seller revoke a land sale contract?
Once the contract is signed, they CANNOT revoke as the
buyer is already considered the owner.
However, if the land is conveyed through a deed, the seller
may revoke before the deed is effectively delivered.
Priority: Low
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A title that is FREE from any cloud or subject to any
adverse claims.
What is Marketable Title?
Title is unmarketable when it contains a substantial
defect (such as encumbrances, mortgages, liens, etc.).
Priority: Medium
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It splits ownership between the buyer and the seller. The buyer
has equitable title, while the seller has legal title and holds the
property in trust for the buyer.
What is the Equitable Conversion Doctrine?
*The buyer’s ownership is considered real property, while the
seller’s is considered personal property.
Priority: N/A
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It ensures that the buyer MUST perform on the closing
date.
What does a “time is of the essence” clause ensure?
If the buyer fails to perform, it will be deemed a
material breach and the seller may keep the buyer’s
down payment as liquidated damages.
Priority: N/A
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When monetary damages will not fully remedy a party’s
complaint.
When is Specific Performance appropriate?
Real property is ALWAYS considered unique, and specific
performance is ALWAYS an appropriate remedy.
Priority: N/A
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What is a Home Builder’s Implied Warranty?
̹ƒ”–ƒ””‡’Ǥ ‘
A warranty that protects a purchaser of a newly
constructed home against latent defects, AND warrants
that the building is safe and fit for human habitation at
the time of sale.
Priority: N/A
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A valid Deed must:
What are the requirements of a valid Deed?
1)
2)
3)
4)
5)
Be in writing;
Be signed by the grantor;
Identify the grantor and grantee;
Describe the property; AND
Indicate the grantor’s present intent to convey the land.
Priority: Medium
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̹ƒ”–ƒ””‡’Ǥ ‘
When there is:
When may land be conveyed without a contract?
1) Intent by the grantor to convey the property to the
grantee;
2) Delivery of a valid deed; AND
3) Acceptance by the grantee.
Priority: Medium
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The three present covenants are:
What are the six covenants of a General Warranty
Deed?
1) Seisin;
2) Right to convey;
3) Against encumbrances.
The three future covenants are:
1) Warranty;
2) Quiet enjoyment;
3) Further assurances.
Priority: Medium
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When does a constructive conveyance of a deed
occur?
̹ƒ”–ƒ””‡’Ǥ ‘
When the grantor gives the deed to a third-party who is
an agent of the grantee.
Priority: Low
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̹ƒ”–ƒ””‡’Ǥ ‘
What is a Special Warranty Deed?
It ONLY warrants that the seller has not breached the
covenants of title during his period of ownership (that
the seller hasn’t previously conveyed the property and
there are no encumbrances against the title).
Priority: Medium
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̹ƒ”–ƒ””‡’Ǥ ‘
What is a Quitclaim Deed?
A deed that DOES NOT contain any covenants or
promises to the buyer. It’s an “AS IS” deed leaving the
buyer with NO rights to sue.
Priority: Medium
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What happens if a land transfer is NOT recorded?
̹ƒ”–ƒ””‡’Ǥ ‘
It is considered a “wild” deed and is effective between
the parties, but will NOT put subsequent purchasers on
constructive notice because it’s outside the chain of
title.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
What are the three types of Recording Statutes?
̹ƒ”–ƒ””‡’Ǥ ‘
1) Notice statute – a subsequent bona fide purchaser will
prevail over prior grantee that failed to record.
2) Race statute – whomever records first prevails.
3) Race-notice statute – a subsequent bona fide purchaser
is protected ONLY IF he records before the prior grantee.
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
A person who:
What is a Bona Fide Purchaser (BFP)?
1) Takes real property without notice of a prior conveyance;
AND
2) Pays valuable consideration.
*Receipt of land by gift or bequest z BFP status.
*Shelter rule: a person who purchases from a BFP receives the same
status and rights as a BFP.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
The grantor of the real property MUST sign the deed, BUT
they may designate an agent to sign on their behalf.
Who must sign the deed?
If an entity is the grantor, then authorized persons must sign the
deed on behalf of the entity.
The grantee is NOT required to sign.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
It must be:
What is required for a valid Mortgage?
1) In writing;
2) Signed by the party to be charged; AND
3) Reasonably identify the parties and the land.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
It destroys junior mortgages, in that any mortgage
recorded after the mortgage being foreclosed on will be
extinguished.
What does foreclosure do to a mortgage?
However, all prior recorded mortgages are NOT
affected.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What is a Purchase Money Mortgage?
When the seller is the lender who secures the
mortgage on the real property.
The buyer of the property is the borrower.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
Who does the holder of a Purchase Money
Mortgage have priority over?
̹ƒ”–ƒ””‡’Ǥ ‘
1) All claims and mortgages against the mortgagor
prior to the purchase of the property;
2) ALL subsequent claims and mortgages, unless
defeated by a recording statute.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
A loan in which the lender may provide future
payments under the original loan.
What is a Future Advance Mortgage?
The lender secures a mortgage on the real property for
the entire amount of the loan, including any future
advances.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
What parties are involved in a Deed of Trust?
̹ƒ”–ƒ””‡’Ǥ ‘
1) The borrower;
2) The lender; AND
3) A third-party trustee who holds title to the
property until the loan is paid off.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Express vs. Implied Mortgage Assumption
Express Assumption: There is an express agreement for the
grantee to take the real property and continue making payments
to the lender.
Implied Assumption: No express agreement exists; the grantee
pays the seller only the equity in the home, and the grantee
continues making payments to the lender for the balance.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
It is an exception to a zoning ordinance, and two types exist:
What is a Variance?
When may it be granted?
1) Use variance;
2) Area variance.
It may be granted if: (1) the owner suffers a hardship because
of the ordinance; AND (2) the variance would NOT damage or
harm the public welfare.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
What does the Doctrine of
Previous Non-Conforming Use allow?
̹ƒ”–ƒ””‡’Ǥ ‘
The landowner may continue to use his land that is in
violation of a later enacted zoning law. It will only be
grandfathered in if it remains in continuous use.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
YES, a landowner has the right to have her land supported by
adjoining land.
Does a landowner have the right to lateral support
by adjoining land?
When excavations cause a loss of support to adjoining land in its
natural state, a landowner is strictly liable for damages.
However, when the excavations cause a loss of support to
adjoining land that has been improved, a landowner is only
liable if she was negligent in the excavations.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Conflict of Laws
What is the situs rule for Real Property actions?
That the laws of the state where the real property is
located will generally govern (i.e. cases involving the title
or a contract for the sale of real property).
*States have a strong interest in actions that affect real property
within their state.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Conflict of Laws
When real property is incidental to a contract, what
tests are used to determine the applicable law?
1) Situs Rule – the laws of the state where the real property
is located will govern. (1st Restatement).
2) The state with the Most Significant Relationship to the
property will govern. (2nd Restatement).
3) Interest Analysis Test – situs rule will apply UNLESS
another state has a greater interest in having their law
applied.
*Apply the test that has been adopted by the jurisdiction.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Remedies
What legal remedies are available for a breach of
contract?
1)
2)
3)
4)
5)
Expectation damages
Reliance damages
Consequential damages
Incidental damages
Restitution damages
*Punitive damages are generally NOT available.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Damages that arise directly from the breach, and are an attempt
to put the non-breaching party in the same position it would
have been in but for the breach.
What are Expectation Damages?
When are they available?
To recover, damages must be:
1)
2)
3)
4)
Caused by the defendant;
Foreseeable;
Certain; AND
Unavoidable.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
The expenditures made by a party in reliance of the contract
and are an attempt to put the non-breaching party in the position
it would have been if the contract never existed.
What are Reliance Damages?
When are they available?
Available when:
1) Plaintiff acted in reliance on the defendant’s agreement
to perform; AND
2) The plaintiff’s reliance was foreseeable.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Damages that arise indirectly from the breach and are awarded
because of the injured party’s special circumstances.
What are Consequential Damages?
When are they recoverable?
To recover, damages MUST be:
1) Reasonably foreseeable at the time of contract formation;
2) Arise from the plaintiff’s special circumstances that the
defendant knew; AND
3) Certain (not speculative).
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What are Incidental Damages?
The reasonable costs incurred as a result of a breach of
contract (i.e. costs of returning non-conforming goods).
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
When is Restitution awarded?
̹ƒ”–ƒ””‡’Ǥ ‘
It is awarded to prevent unjust enrichment, and is
available when one party confers a benefit onto another
party.
Damages = based on value of benefit conferred.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If:
When will Liquidated Damages be enforced?
1) The amount of damages is difficult to estimate at the
time the contract was formed; AND
2) The amount is reasonable to the actual damages
suffered.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
What are the damages for breach of a land sale
contract?
̹ƒ”–ƒ””‡’Ǥ ‘
1) Any amount paid;
2) The difference between the fair market value at the time
of the breach and the contract price;
3) Expenses incurred in investigating title and preparing
necessary paperwork;
4) Expenses incurred in preparing to occupy the land;
5) Possible consequential damages; AND
6) Interest.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
a)
b)
c)
d)
e)
f)
Withhold delivery of the goods;
Cancel;
Recover cover damages;
Recover market damages;
Recover lost profits if the seller is a lost volume seller;
Stop delivery of the goods when he discovers buyer is
insolvent;
g) Stop delivery of a truckload when buyer breaches; OR
h) Replevy identified goods.
UCC Seller’s Remedies / Damages
Under the UCC, what remedies does a seller have if
a buyer breaches a contract for the sale of goods?
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
UCC Buyer’s Damages
Cover Damages
vs.
Market Damages
vs.
Loss-In-Value Damages
̹ƒ”–ƒ””‡’Ǥ ‘
Cover: Difference between the contract price and the price of
substitute goods (used if buyer covered in good faith).
Market: Difference between the market price and contract
price (used if the buyer did not cover in good faith or at all).
Loss-In-Value: Difference between the value as promised and
the value of the non-conforming goods (used if the buyer keeps
the non-conforming goods).
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
If:
When will a quasi-contract be created?
1) The plaintiff confers a benefit upon the defendant;
2) The plaintiff had a reasonable expectation he would
be compensated for the benefit;
3) The defendant requested the benefit; AND
4) The defendant would be unjustly enriched (if not
forced to compensate the plaintiff).
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
It allows a contract to be changed to conform to the
parties’ original intent.
How does Reformation allow a contract to be
changed, and when is it available?
It is available if a valid contract exists, BUT there was a
misrepresentation OR mutual mistake of material fact.
*Will not be reformed if a valid equitable defense exists.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
It is available when there was a problem with the formation
of a contract and treats the original contract as cancelled.
When is a Rescission of a contract an available
remedy?
BUT, a contract will NOT be rescinded if:
a) A valid equitable defense applies; OR
b) The plaintiff sued for damages under the contract in a
prior action.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
When is Specific Performance available?
1) A valid contract exists with clear and definite terms;
2) The plaintiff has performed under the contract or is
ready, willing, and able to perform;
3) Legal remedies are inadequate;
4) Enforcement is feasible for the court; AND
5) No valid equitable or contractual defenses exist.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
What are the available legal remedies in
tort actions?
̹ƒ”–ƒ””‡’Ǥ ‘
1)
2)
3)
4)
Compensatory damages
Nominal damages
Punitive damages
Restitution damages
Priority: Medium
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̹ƒ”–ƒ””‡’Ǥ ‘
Damages that are an attempt to put the injured party in the same
position it would have been in but for the injury.
What are Compensatory Damages?
To recover, damages must be:
1)
2)
3)
4)
Caused by the defendant;
Foreseeable;
Certain; AND
Unavoidable.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When the plaintiff has NOT suffered an actual injury,
but still wants to establish his rights.
When are Nominal Damages available in a tort
action?
*They are not available where either damages or actual
injury is an element to a cause of action.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
They are awarded to punish the defendant, and are available
if:
When are Punitive Damages available in a tort
action?
1) The plaintiff was awarded actual damages;
2) The punitive damages are proportional to the actual
damages; AND
3) The defendant’s conduct was willful, malicious, or
egregious (more than negligent).
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Either:
What are the damages awarded for Fraud?
a) The actual losses suffered (difference in what
the plaintiff gave and received); OR
b) The benefit of the bargain (difference in what he
received and what he was fraudulently led to
believe he would receive).
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Either:
What are the damages for conversion of property?
a) Possession of the property; OR
b) The fair market value of the property at the time
of the conversion.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Either:
What are damages for trespass to land?
a) The diminution in value of the property; OR
b) The cost to repair the property.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What is a Temporary Restraining Order (TRO)?
When is it available?
An emergency remedy used to maintain the status quo
pending the outcome of a hearing or application.
It is ONLY available when the plaintiff will suffer
immediate and irreparable harm.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
What must party show to receive a TRO?
̹ƒ”–ƒ””‡’Ǥ ‘
1) A likely threat of irreparable harm;
2) A likelihood of success on the merits;
3) Balancing of hardships (in favor of the moving
party); AND
4) Posting of a bond.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
The application must:
What must be shown to receive an ex-parte TRO?
1) Provide specific facts in sworn statement that clearly
show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse
party can be heard in opposition; AND
2) Certify in writing any efforts made to give notice to
the adverse party or why notice should not be
required.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What must the moving party show for a
Preliminary Injunction?
1) A likelihood of success on the merits;
2) A likely threat of irreparable harm;
3) Balancing of hardships (in favor of the moving
party);
4) An injunction is in the public interest;
5) Notice to the adverse party; AND
6) Security (post a bond) in an amount the court
deems proper.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
What must be shown for a Permanent Injunction?
̹ƒ”–ƒ””‡’Ǥ ‘
1)
2)
3)
4)
5)
Inadequate legal remedies;
A protectable personal or property interest;
Feasibility of enforcement;
A balancing of hardships (to both parties); AND
No valid equitable defenses.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If a defendant:
When is an Equitable Lien available?
1) Wrongfully acquired title to property; AND
2) Would be unjustly enriched if allowed to keep the
property. (The court will force the sale of the
property and the plaintiff will receive the proceeds).
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If the defendant:
When is a Constructive Trust (used to prevent
unjust enrichment resulting from wrongful conduct)
available as a remedy?
1) Wrongfully acquired title to property; AND
2) Would be unjustly enriched if allowed to keep the
property.
*The court will require the defendant to hold the property
as a trustee, and then return it to the plaintiff.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If:
When is replevin (allows recovery of specific
personal property) available as a remedy?
1) The defendant is wrongfully withholding personal
property;
2) That the plaintiff has a right to possess.
*A plaintiff may recover property before trial IF there is a
preliminary judicial hearing and the plaintiff posts bond.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If:
When is Ejectment (recovery of specific real
property) available as a remedy?
1) The defendant has actual possession of the
property;
2) The defendant is wrongfully withholding the
property; AND
3) The plaintiff has a right to possess the property.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
When does a Purchase Money Resulting Trust
arise?
̹ƒ”–ƒ””‡’Ǥ ‘
When one party provides consideration for the purchase
of real property BUT titles it to another.
The party providing the consideration is the beneficiary
of the trust; the person holding title is the trustee.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
When does a Pro Rata Resulting Trust arise?
̹ƒ”–ƒ””‡’Ǥ ‘
When one party provides only partial consideration
for the purchase of real property AND the property is
titled in another party’s name.
The party providing the consideration is the beneficiary
of the trust; the person holding title is the trustee.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
When does the defense of Laches bar recovery?
1) There is an unreasonable delay between when the
plaintiff learned of the injury/breach and when
the action was brought; AND
2) The defendant is prejudiced by the delay.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
When does the doctrine of Unclean Hands bar
recovery?
̹ƒ”–ƒ””‡’Ǥ ‘
When a plaintiff is guilty of unethical, unlawful, or
otherwise improper conduct related to the subject of
the lawsuit.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
NO.
Can a plaintiff recover damages as a result of a
breach that could have been avoided?
Accordingly, a party must take reasonable steps to
mitigate their losses.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
What must a plaintiff show to state a prima facie
case for Intentional Misrepresentation?
̹ƒ”–ƒ””‡’Ǥ ‘
1) Misrepresentation of a material fact by the
defendant;
2) The defendant knew that the statement was false;
3) Intent of the defendant to induce the plaintiff
4) Actual and reasonable reliance by the plaintiff;
AND
5) Damages.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What must a plaintiff show to state a prima facie
case for Negligent Misrepresentation?
1) A misrepresentation by the defendant;
2) Supplied for guidance of others in a business transaction;
3) The defendant knew (or should have) that the
information was supplied to guide plaintiff in business
transactions;
4) The defendant was negligent in obtaining/communicating
the false information;
5) Actual and reasonable reliance by the plaintiff; AND
6) The false information proximately caused the plaintiff’s
damages.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Torts
What are the general elements for
Intentional Torts?
1) A voluntary act;
2) Committed with intent; AND
3) Causation.
Specific Intent = a desire for the action to cause resulting
circumstances.
General Intent = a person is substantially certain that conduct
will cause resulting circumstances.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When there is:
What are the elements of Battery?
4) An intentional,
5) Harmful or offensive contact,
6) With the plaintiff’s person.
Bodily harm is physical pain, illness, or impairment to another’s
body.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When there is:
What are the elements of Assault?
1) An intentional act,
2) That causes the plaintiff to be placed in reasonable
apprehension (aware of the act and believes that the
defendant is able to commit it),
3) Of imminent harm or offensive contact.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If it’s done:
When is an act deemed Intentional for the tort of
Assault?
a) For the purpose of causing apprehension; OR
b) With knowledge to a substantial certainty that such
apprehension will result.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When he:
When is a defendant liable for
False Imprisonment?
1) Intentionally acts (purposely or knowing that it’s
substantially likely to occur),
2) To restrain the plaintiff to fixed boundaries, AND
3) The plaintiff is conscious of the confinement OR is
harmed by it.
*The restraint may be threats and DOES NOT need to be physical or
stationary.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
What are the elements of
Intentional Infliction of Emotional Distress?
̹ƒ”–ƒ””‡’Ǥ ‘
1)
2)
3)
4)
The defendant acted intentionally or recklessly;
Their conduct was extreme and outrageous;
The act caused extreme emotional distress; AND
The plaintiff actually suffered severe emotional
distress.
*An act is reckless if it’s a deliberate disregard of a high risk that emotional
distress will follow.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
When is a defendant liable for Trespass to Land?
̹ƒ”–ƒ””‡’Ǥ ‘
1) When he intentionally,
2) Either:
a. Enters the land in possession of another;
b. Causes an object/third-person to enter;
c. Remains on the land; OR
d. Fails to remove an object he is under a duty to
remove.
*Intent to trespass is NOT required.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When he:
When is a person liable for Trespass to Chattels?
1) Intentionally interferes with another’s personal
property,
AND
2) The amount of damage is small.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When he:
When is a person liable for Conversion?
1) Intentionally interferes with another’s personal property,
AND
2) The amount of interference is substantial.
*Defendant will be liable for full market value of item.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
It’s transferred when:
Under the Doctrine of Transferred Intent, how can
the intent to harm one party be transferred to
another party that was injured?
1) The defendant had the intent to commit a tort against one
particular individual; AND
2) If in the act of trying to accomplish that tort either:
a. commits a different tort against that person; OR
b. another party is injured.
*Only applies to Battery, Assault, False Imprisonment, Trespass to
Land, & Trespass to Chattels.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Intentional Tort Defenses
Consent is a defense to intentional torts, and can be
express, apparent, or implied by law.
Apparent Consent vs. Implied by Law Consent
Apparent Consent: When words or conduct are
reasonably understood to be intended as consent (such as
customary practice or a person’s failure to object).
Implied by Law Consent: Occurs in special
circumstances, such as medical emergencies.
*Defendant’s actions CANNOT exceed the bounds of the consent
given.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Intentional Tort Defenses
What is the defense of Privilege?
It is conduct that under ordinary circumstances would
subject the actor to liability, BUT is excused under the
circumstances.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
A defense to false imprisonment.
Intentional Tort Defenses
Likely to occur if the crime is serious and the defendant
directly observed the crime when making the arrest.
What is the defense of Privilege to Arrest?
*To make a citizen’s arrest, the detainee must have committed an act
that breached the peace in front of the arresting citizen.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Intentional Tort Defenses
What is the defense of Self-defense?
Where a defendant is NOT liable if he:
1) Reasonably believed that the plaintiff was going
to harm another; AND
2) Used reasonable necessary force to protect
himself or another.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Intentional Tort Defenses
What is the Shopkeepers Privilege to Detain for
Investigation?
Shopkeepers have the privilege to:
1)
2)
3)
4)
Temporarily detain,
A person reasonably suspected of theft,
In or near their store,
For the purpose of an investigation.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Intentional Tort Defenses
What is the defense of Necessity?
Where a defendant is NOT liable for harm to a
plaintiff’s real property if his acts were:
1) Necessary,
2) To prevent serious harm to a person or property.
*Defense is ONLY applicable to intentional torts against property.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Privilege includes:
1)
2)
3)
4)
5)
6)
7)
Intentional Tort Defenses
What are the different Privilege defenses?
Necessity (acts were necessary to prevent serious harm).
Self-defense/defense of others.
Defense of property.
Recapture of chattels.
Detention for investigation.
Privilege to discipline children.
Privilege to arrest.
Priority: N/A
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To Whom a Duty is Owed
Andrews View
Andrews: A duty of care is owed to ALL foreseeable
plaintiffs.
Cardozo: A duty of care is only owed to foreseeable
plaintiffs who are within the zone of danger.
vs.
Cardozo View
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Priority: HIGH
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1) A duty owed to the plaintiff by the defendant;
2) A breach of that duty;
3) Causation (the breach was the actual and
proximate cause of the plaintiff’s injuries); AND
4) Damages.
What are the elements for a prima facie case of
Negligence?
Priority: HIGH
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If:
When will an Affirmative Duty to act arise?
a) There is a pre-existing relationship between the
parties;
b) The defendant put the plaintiff in peril;
c) The defendant has undertaken to render aid or
rescue the plaintiff; OR
d) A duty is imposed by law.
Priority: Medium
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If they fail to exercise reasonable care, AND:
When is a Rescuer liable for injuries caused to
another person?
a) The failure increased the risk of harm; OR
b) The harm is suffered because of reliance on the
person providing the aid.
**A rescuer is liable if the aid is discontinued
and the person is left in a worse position.
Priority: N/A
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What is the Reasonable Person Standard?
̹ƒ”–ƒ””‡’Ǥ ‘
Every person owes a duty to act as a reasonable
prudent person would act under similar circumstances.
(A reasonable person takes appropriate measures to
avoid foreseeable risks.)
Priority: HIGH
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What is the Standard of Care for Children?
̹ƒ”–ƒ””‡’Ǥ ‘
They are held to a standard of care a hypothetical child of
similar age, experience, and intelligence acting under
similar circumstances.
*If the child is engaged in an adult activity, they have the
duty to act as a reasonable ADULT would act under the
circumstances.
Priority: Medium
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̹ƒ”–ƒ””‡’Ǥ ‘
Held to the degree of care and skill of the average qualified
practitioner.
What is the Standard of Care for Medical Doctors?
Courts will analyze under National Standard rather than
local/community standards.
They have a duty to obtain informed consent before treatment
and disclose risks a reasonable patient would want to know.
Priority: Medium
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̹ƒ”–ƒ””‡’Ǥ ‘
What is the Standard of Care for Professionals?
A professional owes a duty to act with the knowledge
and skill as an average member of that profession
practicing in a similar community.
*A specialist is held to the care and skill of an average member of the
profession practicing the specialty.
Priority: Low
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They have to exercise reasonable care to ALL
entrants upon their land, and take appropriate
measures to avoid foreseeable risks.
What is the Standard of Care for Landowners?
*Some states determine the duty of care required based on the type of
entrant (trespasser, licensee, invitee).
Priority: Medium
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Undiscovered Trespasser (one who enters the land
without permission): NO duty is owed by the landowner.
Undiscovered Trespasser vs. Anticipated Trespasser
Anticipated Trespasser (enters without permission but
may be expected): The landowner must use reasonable
care in operations on the property AND warn of highly
dangerous artificial conditions that they know of.
Priority: Medium
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̹ƒ”–ƒ””‡’Ǥ ‘
Licensee vs. Invitee
Licensee (invited as social guests): Landowner must
exercise reasonable care AND warn of (make safe)
dangerous conditions the owner knows of but not apparent
to the guest.
Invitee (invited on the property for business): Landowner
owes all the duties he would to a Licensee, PLUS the duty
to make reasonable inspections of the property to find/make
safe non-obvious conditions.
Priority: Medium
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For child trespassers, landowners must make the premises
reasonably safe or warn of hidden dangers on their land.
Landowners are held liable for harm if:
What is the Attractive Nuisance Doctrine?
1)
2)
3)
4)
5)
They know the condition is likely to cause death;
They know that children frequent the area;
That children are likely to discover the condition;
The risk of harm outweighs the expense of repair; AND
They fail to exercise reasonable care in eliminating the
danger.
Priority: Low
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̹ƒ”–ƒ””‡’Ǥ ‘
When:
When does Negligence Per Se apply?
1) The statute’s purpose is to prevent the type of harm that
the plaintiff suffered; AND
2) The plaintiff is in the class of persons the statute seeks to
protect.
*If applicable, the duty and breach elements are established.
Two Exceptions: (1) When compliance with the statute would be more
dangerous; (2) Compliance is impossible.
Priority: HIGH
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Under the Traditional Test for Res Ipsa Loquitur,
what must the plaintiff show?
̹ƒ”–ƒ””‡’Ǥ ‘
1) That the injury typically does not occur in the absence of
negligence;
2) The instrumentality (thing/object) which caused the
injury was in the defendant’s exclusive control; AND
3) That Plaintiff not cause or contribute to the injury.
*If applicable, the breach element is established.
Priority: Low
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Under the Restatement (Second) Test for Res Ipsa
Loquitur, what must the plaintiff show?
̹ƒ”–ƒ””‡’Ǥ ‘
1) That the event typically does not occur in the absence of
negligence;
2) Other responsible causes are sufficiently eliminated by
the evidence (incl. plaintiff & third persons); AND
3) The negligence is within the scope of duty the defendant
owed the plaintiff.
*If applicable, the breach element is established.
Priority: Low
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Actual Cause: The “but for” cause.
Actual Cause vs. Proximate Cause
Under the substantial factor test Æ something that is a
substantial factor in bringing about the injury IS an
actual cause.
Proximate Cause: The legal cause, which means the
injury MUST have been a foreseeable result of the breach.
Priority: HIGH
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What is an Intervening Cause?
̹ƒ”–ƒ””‡’Ǥ ‘
Any act that occurs AFTER the defendant’s breach that
contributes to the harm.
*It absolves the defendant of liability if it resulted in an
unforeseeable/unexpected injury.
Priority: HIGH
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When:
When are Intervening Criminal Acts foreseeable?
a) The defendant should have anticipated the act;
OR
b) The defendant’s conduct makes the criminal act
more likely to occur.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
A tortfeasor takes his victim as he finds him.
What is the Eggshell Plaintiff Rule?
The tortfeasor is liable for ALL harm a plaintiff
suffers as a result of his conduct, even if plaintiff
suffered from a pre-existing condition making the harm
greater.
Priority: Medium
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̹ƒ”–ƒ””‡’Ǥ ‘
Pure Comparative Negligence
vs.
Partial Comparative Negligence
vs.
Contributory Negligence
̹ƒ”–ƒ””‡’Ǥ ‘
Pure: P’s negligence/assumption of risk will NOT bar recovery. P’s
damages are reduced by % at fault.
Partial: If less than 50% at fault, then P’s damages are reduced by %
at fault. If over 50% at fault, then P’s claim is barred.
Contributory: Plaintiff CANNOT recover if he contributed to his
own injury in any amount. P’s claim is barred.
Exceptions Æ when the defendant had the last opportunity to
avoid injury OR was reckless.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
If a plaintiff:
Negligence Defense
When does Assumption of Risk apply?
1) Voluntarily assumed;
2) A known risk.
May be express (by agreement) or implied.
*A professional rescuer or fireman CANNOT bring a cause of action
against someone whose negligence caused their injuries.
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
What are the 3 instances a plaintiff can recover for
Negligent Infliction of Emotional Distress?
1) Zone-of-Danger Case: D’s negligence, created
foreseeable risk of injury, P is in zone of danger, and P
manifests physical symptoms.
2) Bystander Claim: D’s negligence, P is contemporary
witness to injury to close family member, and P
manifests physical symptoms.
3) Rare Egregious Situations: Pre-existing relationship
between P and D, and negligent act foreseeably causes
distress.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Vicarious Liability
Employee
vs.
Independent Contractor
Employee: Employer controls manner/means of the employee’s
performance of work. Employer IS vicariously liable for
negligent acts of employee (within scope or employment).
Independent Contractor: A person NOT controlled or subject
to control with respect to performance (may or may not be an
agent). Principal/employer is generally NOT liable for torts
committed by a contractor.
Priority: Medium
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Vicarious Liability
Whether the principal had the right to control the manner and
method in which the job is performed.
What determines whether a person is an
Independent Contractor or Employee?
(If the principal had substantial control, it’s likely the person
will be deemed an employee).
Priority: Medium
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Vicarious Liability
Under respondeat superior, an employer is
vicariously liable for an employee’s negligent act if
the employee was acting within the scope of
employment.
When is an employee deemed to be acting within
that scope?
̹ƒ”–ƒ””‡’Ǥ ‘
When:
a) Performing work assigned by the employer; OR
b) Engaging in a course of conduct subject to the
employer’s control.
**Conduct is not outside the scope merely because an employee
disregards the employer’s instructions.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
Vicarious Liability – Respondeat Superior
Acts Within Scope of Employment
vs.
Acts Outside Scope of Employment
Within Scope: When preforming work assigned by the
employer OR engaging in conduct subject to the employer’s
control.
Outside Scope: Tort occurs within an independent course of
conduct AND is not intended by the employee to serve any
purpose of the employer.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Vicarious Liability
What causes an employee’s Intentional Torts to be
considered within the scope of employment?
The Act was:
a) specifically authorized by the employer;
b) driven by a desire to serve the employer; OR
c) the result of naturally occurring friction from the type
of employment.
Priority: HIGH
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When:
a) The employer intended the conduct or consequences;
b) The employer was negligent in selecting, training,
retaining, supervising, or controlling the employee;
c) The conduct involved a non-delegable duty to an injured
person with whom they had a special relationship; OR
d) The employee had apparent authority, their appearance of
authority enabled them to commit the tort, and a thirdparty reasonably relied on that authority.
Vicarious Liability
In what situations is an employer still liable despite
the doctrine of respondeat superior being
inapplicable?
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
If:
Vicarious Liability
When will a principal be liable for torts committed
by an Independent Contractor?
a) The contractor is engaged in an inherently hazardous
activity;
b) The duty owed by the principal is non-delegable; OR
c) Through the doctrine of estoppel:
The principal holds the contractor out as his agent
to a third-party, they reasonably relied on the
agent’s skill, and the third-party suffered harm as
a result.
Priority: N/A
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When is a defendant entitled to Indemnification?
̹ƒ”–ƒ””‡’Ǥ ‘
When the defendant is a passive tortfeasor AND seeks to assert
his claim against an active tortfeasor.
The defendant is entitled to recover the FULL amount he paid
the plaintiff from the active tortfeasor.
*Indemnification is available in vicarious liability situations or
by contract.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
When is a defendant entitled to Contribution?
̹ƒ”–ƒ””‡’Ǥ ‘
A joint tortfeasor may seek contribution from other joint
tortfeasors if he pays more than his percentage share of liability.
*The amount recoverable is based on PURE comparative fault – a
defendant CANNOT recover from another more than that person’s
percentage of fault.
Priority: N/A
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̹ƒ”–ƒ””‡’Ǥ ‘
It allows the jury to find ALL defendants liable if:
What is the Doctrine of Alternative Liability?
1) Multiple defendants are deemed negligent,
2) But it’s unclear which one caused the plaintiff’s
injury.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
What is the Doctrine of Joint Enterprise?
̹ƒ”–ƒ””‡’Ǥ ‘
It allows the negligence of one defendant to be imputed to other
defendants if:
1) Multiple defendants were engaged in a common project
or enterprise; AND
2) All defendants made an explicit/implied agreement to
engage in tortious conduct.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
ALL manufacturers are liable to their proportional share of the
market when the following factors are present:
What is the Doctrine of Market Share Liability?
1) All the named Ds are potential tortfeasors;
2) The harmful products are identical and share the same
defective qualities;
3) P is unable to identify which D caused the injury; AND
4) Substantially all of the manufacturers that created the
defective products during the relevant time period are
named as Ds.
Priority: N/A
̹ƒ”–ƒ””‡’Ǥ ‘
What is the liability of multiple defendants in a
jurisdiction permitting Joint and Several Liability?
̹ƒ”–ƒ””‡’Ǥ ‘
If multiple defendants are the proximate cause of a
single indivisible harm, then the plaintiff may recover
the ENTIRE amount of his damages from ANY single
defendant.
Priority: Medium
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̹ƒ”–ƒ””‡’Ǥ ‘
Defamation
What are the elements of Defamation?
1) A false defamatory statement,
2) Of and concerning the plaintiff made by the
defendant,
3) Publication by a defendant to a third party, AND
4) Damages.
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
Defamation
What are the four Slander Per Se categories?
1) Impugning the business integrity of the plaintiff.
2) A statement of unchastity about an unmarried
woman.
3) A statement that the plaintiff had/has a loathsome
disease.
4) Attributing a crime of moral turpitude to the
plaintiff.
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
Defamation
Who is deemed a Public Figure?
What heightened standard applies if plaintiff is a
Public Figure or Public Official?
Public Figure = Either (a) injected himself into a public
controversy; OR (b) having achieved widespread notoriety.
If person is a Public Figure or Official, then a heightened
defamation standard applies.
P must also prove: Actual malice – D spoke with
recklessness or knowledge of falsity.
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
Defamation
Plaintiff MUST ALSO PROVE:
That the speaker was negligent.
If plaintiff is a Private Figure on a Matter of Public
Concern, what standard applies?
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
Defamation
Qualified Privilege
vs.
Absolute Privilege
Qualified: A defense when the speech serves a
socially useful purpose. Speaker must be speaking in
good faith AND not be reckless.
Absolute: Defense for defamatory statements made
about/by parties in a judicial proceeding.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
What are the Invasion of Privacy torts?
̹ƒ”–ƒ””‡’Ǥ ‘
1)
2)
3)
4)
Misappropriation of Name or Picture.
False Light.
Intrusion of Privacy.
Public Disclosure of Private Facts.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When defendant:
What are the elements of
Misappropriation of Name or Picture?
1) Uses plaintiff’s name or likeness,
2) For defendant’s commercial advantage.
*Newsworthiness is a defense.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When defendant:
What are the elements of False Light?
1)
2)
3)
4)
Causes widespread dissemination,
Of plaintiff’s beliefs, thoughts, or actions,
In a false light,
That would be highly objectionable to a reasonable
person.
*If plaintiff is a public figure Æ must show actual malice.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
What are the elements of Intrusion of Privacy?
1) D intrudes into the private affairs of P;
2) P has a reasonable expectation of privacy; AND
3) The intrusion is highly objectionable to a
reasonable person.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When defendant:
What are the elements of
Public Disclosure of Private Facts?
1) Caused widespread dissemination,
2) Of truthful private information,
3) That would be highly objectionable to a
reasonable person.
*Newsworthiness is a defense unless actual malice is present.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
What are the elements of
Intentional Interference with Business Relations?
̹ƒ”–ƒ””‡’Ǥ ‘
1) There was a contract or business expectancy;
2) The defendant knows of the contract/expectancy;
3) The defendant intentionally induces another party
to breach or terminate the contract/relationship;
4) A breach occurs; AND
5) Plaintiff suffered damages.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Plaintiff must show:
What are the elements for
Intentional Misrepresentation?
1)
2)
3)
4)
5)
Misrepresentation of material facts by the defendant;
The defendant knew the statement was false;
Intent of the defendant to induce the plaintiff;
Actual and reasonable reliance by the plaintiff; AND
Damages.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Plaintiff must show:
What are the elements for
Negligent Misrepresentation?
1) A misrepresentation by the defendant;
2) Supplied for the guidance of others in a business transaction;
3) The defendant knew that the information was supplied to
guide the plaintiff in his business transactions;
4) The defendant was negligent in obtaining/communicating the
false information;
5) Actual and reasonable reliance by the plaintiff; AND
6) The false info proximately caused damages.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
When is an action for Abuse of Process available?
1) One party wrongfully uses the court process;
2) Against another for improper purpose;
3) An act or threat is used to accomplish that
purpose; AND
4) Damages result.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
What are the elements of Malicious Prosecution?
1) Initiation of criminal proceedings against a
plaintiff;
2) Claim was initiated for improper purpose;
3) The claim was not supported by probable cause;
4) The claim ended in the plaintiff’s favor; AND
5) The plaintiff suffered damages.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Public Nuisance
vs.
Private Nuisance
Public Nuisance: (1) an unreasonable interference, (2)
with the health, safety, or property rights, (3) of the
community.
To recover damages, the injured party must show
ACTUAL damages.
Private Nuisance: (1) a substantial and unreasonable
interference, (2) with a person’s use/enjoyment of her
property. (offensive/inconvenient/annoying)
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
An activity that:
A defendant engaging in an Abnormally Dangerous
Activity is subject to strict liability.
What is an Abnormally Dangerous Activity?
1) Is not of common usage in the community; AND
2) Creates a foreseeable and highly significant risk
of physical harm (even when reasonable care is
exercised).
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
What are the elements for Strict Products Liability?
̹ƒ”–ƒ””‡’Ǥ ‘
1) The product was defective (manufacturing defect,
design defect, or failure to warn);
2) The product was not altered when it reached the
plaintiff;
3) The product caused an injury when it was being used
in an intended use (or unintended foreseeable use);
AND
4) The defendant is a commercial supplier who
routinely deals in goods of this type.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Manufacturing Defect: Product differs from the intended
design AND is more dangerous than if made properly.
What 3 theories are available to prove Strict
Products Liability?
Failure to Warn: Plaintiff was not warned of the risks
regarding use, which are obvious to an ordinary user.
Design Defect: There was a way to build the product that was
safer, more practical, AND at a similar cost.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
What is the definition of a Commercial Supplier?
̹ƒ”–ƒ””‡’Ǥ ‘
Any person/entity who is engaged in selling goods of
the type (routinely sells such goods).
*A strict products liability suit may ONLY be brought against a
commercial supplier of goods.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Products Liability – Breach of Warranty
What is the Implied Warranty of Merchantability?
It requires that ALL goods sold by a merchant be fit for
their ordinary purpose.
*The only issue to determine is whether the product was
merchantable when sold.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
Products Liability – Breach of Warranty
When is an Implied Warranty of Fitness for a
Particular Purpose created?
1) A seller knows or has reason to know of the
buyer’s particular purpose for which the goods
are required; AND
2) The buyer relies on the seller’s skill/judgment to
select suitable goods.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When:
Products Liability – Breach of Warranty
When is an Express Warranty created?
1) A seller makes an affirmation of fact, promise, or
description, OR provides a sample;
2) Which relates to the goods; AND
3) It becomes part of the basis of the bargain.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Trusts
What are the elements to form a valid Trust?
1)
2)
3)
4)
5)
6)
Definitive beneficiary;
Settlor with capacity;
Intent to create a trust;
Trustee;
Valid trust purpose; AND
Compliance with any State formalities.
*A trust will NOT fail solely because the appointed trustee dies, is removes,
or refuses to act as trustee. Court will appoint a new trustee.
Priority: HIGH
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Yes, by default (unless stated otherwise).
Are trusts revocable?
An irrevocable trust CANNOT be modified or revoked
by the settlor after its creation.
Priority: Medium
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
Testamentary Trust
vs.
Inter Vivos Trust
Testamentary: A Trust created through the provisions
of a Settlor’s Will, which does not take effect until the
Settlor’s death.
Inter Vivos: A trust created during the settlor’s
lifetime
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
One created by a Settlor to confer a substantial benefit to
society (charitable purpose).
(The rule against perpetuities DOES NOT apply here)
What is a Charitable Trust?
Even if a Charitable Trust fails to state a specific purpose or
beneficiary, the trust will NOT fail. Instead, the court will
select a purpose/beneficiary consistent with the Settlor’s
intent.
Priority: Medium
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When a Trustee has absolute discretion and power to
determine when and how much of the trust property is
distributed to the beneficiaries.
What is a Discretionary Trust?
The exercise of discretion must be in good faith.
Priority: Low
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A trust implied by law based upon the presumed intent of the
parties. It may arise when:
What is a Resulting Trust?
When does it arise?
a) A private express trust has NO beneficiary or is missing a
provision concerning the handling of trust property;
b) A charitable trust ends because of impossibility or
impartibility;
c) A purchase money resulting trust; OR
d) A semi-secret trust.
Priority: Low
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An equitable doctrine that applies to charitable bequests and
charitable trusts.
What is the Cy Pres Doctrine, and when will courts
apply it?
Courts will apply it to modify a Charitable Trust to be consistent
with and “as near as possible” with the settlor’s or testator’s
intent (if the purpose of the trust or bequest is frustrated).
*Only applies if the testator had a general charitable intent.
Priority: HIGH
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A provision that prevents the transfer of a beneficiary’s
interest, and it is valid ONLY IF it restrains both
voluntary AND involuntary transfers.
What is a Spendthrift Provision?
When is it valid?
*A spendthrift interest means that the interest CANNOT be sold or
assigned by the income beneficiary, nor may any creditors reach it.
Priority: Low
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What are the 5 Exceptions allowing a creditor to
reach a beneficiary’s income interest despite a
Spendthrift Provision?
1) A judgment creditor who has provided services for the
protection of a beneficiary’s interest;
2) A creditor who furnishes necessities;
3) An Order for child support or alimony;
4) Any claim by the state/federal government; OR
5) A self-settled trust where the settlor retains an interest.
*Spendthrift Trusts DO NOT provide protection for mandatory
distributions of trust property.
Priority: Low
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It can be modified by the Settlor:
When may a trust be modified by the Settlor?
a) Who expressly reserved the power to modify the
trust; OR
b) Who has power to revoke the trust (including power
to amend).
Priority: Low
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When may an Irrevocable Trust be terminated?
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a) The settlor and all of the beneficiaries agree to do so
while the settlor is still alive;
b) All of the beneficiaries agree, and it will not frustrate the
purpose of the trust; OR
c) By operation of law through merger (trustee is sole
beneficiary) or passive trust (all trust property has been
transferred to the beneficiary).
Priority: Medium
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How may a Revocable Trust be revoked?
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a) Compliance with any method of revocation provided
in the trust instrument; OR
b) If the instrument doesn’t provide a method, then the
trust can be revoked by a writing signed by the settlor
and delivered to the trustee during the lifetime of the
settlor.
Priority: Low
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What does the Duty of Care require of the Trustee?
To manage the trust as a reasonably prudent person
would in his own dealings.
Priority: HIGH
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What does the Duty of Loyalty require of the
Trustee?
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1) To refrain from self-dealing;
2) Administer the trust in the best interest of the
beneficiaries; AND
3) Give the same care and deference to each
beneficiary.
Priority: HIGH
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Their powers can be expressly granted in the trust OR
implied.
How is a Trustee given powers?
*A Trustee has a duty to distribute the trust income and
assets in accordance with the directions in the trust
instrument.
Priority: Medium
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What does the Prudent Investor Rule require a
Trustee to do?
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To exercise the degree of care, skill, and prudence of a
reasonable investor investing in his own property.
This includes diversifying assets, avoiding risky
investments, and keeping trust assets productive.
Priority: Medium
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What factors does a court consider in assessing
whether a Trustee abided by the Prudent Investor
Rule?
1) The distribution requirements of the trust;
2) The general economic conditions;
3) The role the investment plays in the trust’s overall
investment portfolio; and
4) The trust’s need for liquidity, regularity of income,
and preservation of capital.
Priority: Medium
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If she:
When is a Co-Trustee liable for wrongful acts of
another Co-Trustee?
a) Participates in, approves of, or conceals breach of trust
by a co-trustee;
b) Negligently enables a co-trustee to commit a breach;
c) Fails to take reasonable steps to compel a co-trustee to
redress a breach of trust; OR
d) Improperly delegates the administration of the trust to a
co-trustee.
Priority: Low
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She may be removed AND held liable for:
What is the remedy against a Trustee that breaches
her duties?
1) Any loss/depreciation in the value of the trust;
2) Any profit made by her through the breach; AND
3) Any profit that would have accrued to the trust but
for the breach.
Priority: Medium
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Wills & Estates
If it’s valid under:
When is a Will valid in California?
a) California Law;
b) The law of the state where the will was executed;
OR
c) The law of the state where the testator is
domiciled at the time of his death.
Priority: Medium
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What are the Will execution requirements?
1)
2)
3)
4)
A writing concerning the distribution of property;
Signed by the testator;
Witnessed by two disinterested persons;
The witnesses must sign during the testator’s
lifetime; AND
5) The witnesses MUST understand that they signed the
testator’s will.
Priority: HIGH
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What is a Holographic Will?
A will that is handwritten and signed by the
testator, but NOT witnessed.
*It is valid if:
1) Signed by testator; AND
2) All material terms are in testator’s handwriting.
Priority: HIGH
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When:
Under what circumstances does a lack of date for a
Holographic Will affect its validity?
a) There is an issue with testamentary capacity; OR
b) There is a possibility that two or more wills
should be probated that are inconsistent.
a. In this instance, the holographic will is
invalid in the extent of the inconsistency.
Priority: HIGH
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If the testator:
Under the Doctrine of Integration, when is a
document integrated into a Will?
1) Intended it to be part of the will; AND
2) The document was physically present (existed) at the
time of the will’s execution.
*Integration may be proven by extrinsic evidence or witness
testimony.
Priority: Low
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An instrument made AFTER a will is executed that
modifies, amends, or revokes portions of a will (a codicil
MUST satisfy the same formalities as a will to be valid).
What is a Codicil?
*Execution of a codicil republishes the will and cures any interested
witness problems.
Priority: HIGH
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When is a Holographic Will or Codicil valid under
California law?
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If it is signed by the testator AND all material terms of
the will are in the testator’s handwriting.
(Material terms include the name of the beneficiaries
and the gifts they will receive)
Priority: HIGH
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If it:
When will a document/writing be
Incorporated by Reference into a Will?
1) Was in existence at the time the will was executed;
2) Is sufficiently described in the will; AND
3) The testator intended to incorporate it into the will.
*To incorporate into the will, it must be signed by the testator AND
describe the item and the recipients.
Priority: Medium
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If the testator:
When is a Will revoked by physical act?
1) Intended to revoke the will; AND
2) The will is burned, torn, destroyed, or cancelled by
the testator.
*A will executed in duplicate, is ALSO revoked if ONE of the
duplicates is revoked by physical act.
Priority: Medium
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Only:
What property may a married person “gift” in their
Will?
1) their share of the community property; and
2) any separate property they own (i.e. acquired
prior to marriage or inheritance).
Priority: Medium
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How may a testator revoke a will?
̹ƒ”–ƒ””‡’Ǥ ‘
By executing a subsequent valid will or codicil.
Priority: HIGH
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What is the Dependent Relevant Revocation
Doctrine, and when does it apply?
̹ƒ”–ƒ””‡’Ǥ ‘
It cancels a previous revocation that was made under a
mistaken belief of law or fact by the testator.
The doctrine applies when the testator would not have
revoked his original will but for the mistaken belief that
another will would be valid.
Priority: Medium
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Revival of Revoked Wills
By Physical Act
vs.
Physical Act: Will be revived if a testator shows intent
for its revival.
Subsequent Instrument: Revived if the testator
republishes the will by a subsequent will or codicil that
complies with the will execution formalities.
Subsequent Instrument
Priority: Medium
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How may a testator make a partial revocation of a
will?
̹ƒ”–ƒ””‡’Ǥ ‘
By lining through or crossing out a portion of it.
However, they cannot increase a gift in a will by partial
cancellation.
*Partial revocation of a holographic will is done through
interlineation (writing between the lines).
Priority: Low
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How is an estate divided using
Per Capita by Representation Distribution?
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It’s divided into as many equal shares as there are:
1) Surviving descendants in the generation nearest to the
decedent; AND
2) Deceased descendants in the same generation who left
surviving descendants (if any).
Each surviving descendant in the nearest generation is allocated
one share. The remaining shares of each deceased member of
that generation are divided in the same manner among the
then living issue.
Priority: Medium
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The estate is divided equally among beneficiaries.
How is an estate divided using
Per Stirpes Distribution?
If the beneficiary predeceased the testator: Their share
passes to any surviving descendants (divided equally
among them), if no descendants then the share goes to
the other beneficiaries equally.
Priority: Low
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A gift will NOT lapse (return to the residuary estate to be
distributed under intestate succession rules) but instead pass to
the deceased beneficiary’s issue.
What is an Anti-Lapse Statute, and when does it
apply?
Applies only if the deceased beneficiary:
1) Was related by blood to the testator;
2) Was survived by issue; AND
3) There is no contrary intent.
Priority: Medium
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When does a specific gift fail by extinction?
(Ademption)
If the testator DOES NOT own it at the time of death.
Occurs if they make a specific gift, but the property is
later destroyed or sold before their death (does not
apply to general or demonstrative gifts).
*In CA, a specific gift is adeemed only if the testator intended the gift
to fail.
Priority: Medium
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What are the 4 exceptions when property will NOT
be adeemed?
1) When stock is changed to another form of stock (i.e.
merger);
2) When the executor sells the property;
3) When the testator receives condemnation
proceedings and there is no issue of traceability; and
4) If the specific gift is destroyed, the beneficiary is
entitled to unpaid insurance/recovery for injury to
the property.
Priority: Medium
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What is Abatement?
What is the Abatement order?
The process of reducing gifts when assets are
insufficient to cover debts, expenses, and gifts.
A testator’s property abates as follows:
1) Residuary gifts
2) General gifts
3) Specific gifts
Priority: Medium
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What is a Residual Gift?
A gift of any property remaining after the distribution
of the estate to the identified beneficiaries.
Priority: Medium
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Specific Gift
vs.
General Gift
vs.
Demonstrative Gift
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Are gifts to an Interested Witness valid?
Specific Gift: One that is specifically identified (i.e. real or
personal property).
General Gift: Nonspecific, and can be satisfied from any funds
remaining in the testator’s estate.
Demonstrative Gift: A hybrid, and occurs when the testator
makes a general gift, but also identifies a specific source that the
gift should come from.
Priority: Medium/Low
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Gifts to and interested witness (a beneficiary under the
will) are presumed invalid.
*If an interested witness cannot overcome this presumption, he will
only take his intestate share of the estate.
Priority: Medium
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How do Adopted Children inherit from their
parents?
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They inherit as if they were natural born children.
Priority: Medium
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What is an Omitted Spouse entitled to?
(Omitted Spouse = surviving spouse not mentioned
in a will executed before the marriage began)
1) One-half of decedent’s community property and
quasi-community property; AND
2) Intestate share of separate property (but not
more than one-half).
*The other half of community/quasi-community property
already belongs to surviving spouse.
Priority: HIGH
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When is an Omitted Spouse not entitled to an
Intestate Share of the estate?
̹ƒ”–ƒ””‡’Ǥ ‘
a) The spouse was intentionally omitted;
b) The spouse was given property outside of the will
(in lieu of a disposition); OR
c) The omission was consistent with a valid
prenuptial agreement.
Priority: HIGH
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How is the estate distributed under Intestacy to a
Surviving Spouse?
̹ƒ”–ƒ””‡’Ǥ ‘
Community Property: One-half of decedent’s community property and
quasi-community property.
*The other half of community/quasi-community property already
belongs to surviving spouse.
Separate Property: Goes to surviving spouse as follows:
x Entire Share – if no surviving issue, parent, siblings, or issue of
siblings.
x One-Half – if decedent leaves (a) only 1 child or issue of 1 child, or
(b) no issue, but parent or their issue.
x One-Third – if decedent leaves (a) 2+ children, (b) 1 child and
issue of 1+ deceased children, or (c) issue of 2+ deceased children.
Priority: HIGH
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Shares pass to decedent’s issue either:
Under Intestacy, how are shares NOT going to the
Surviving Spouse distributed?
a) Equally – if all in same degree of kinship; OR
b) Per Capita by Representation.
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
A testator must:
1) Be at least 18 years old;
2) Understand the nature and extent of her property;
AND
3) Understand the natural objects of her bounty
(relatives/friends).
When does a testator have sufficient
Testamentary Capacity?
*Appointment of a conservator alone DOES NOT prove lack of capacity.
Priority: HIGH
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If:
1) Testator had a weakness that made him susceptible to
influence;
2) Wrongdoer had access to the testator and an opportunity
to exert influence;
3) Wrongdoer actively participated in drafting the will;
AND
4) There is an unnatural (unexpected) result.
What are the elements of Undue Influence?
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
If:
How is the common law presumption of Undue
Influence established?
1) A confidential relationship existed between the
testator and the wrongdoer;
2) The wrongdoer actively participated in the drafting
of the will; AND
3) There is an unnatural result.
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
If the testator makes a donative transfer to:
In California, how is the statutory presumption of
Undue Influence established?
1)
2)
3)
4)
Person who drafted the will;
A care custodian of a testator who is a “dependent adult”;
A person in a fiduciary relationship with the testator;
A spouse, domestic partner, employee, or related by
blood to one of the previous three circumstances; OR
5) A partner, shareholder, or employee of the firm who
drafted the will (or a fiduciary relationship with an
ownership interest).
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
If a person:
When is a will deemed Fraudulent?
6) Intentionally made a misrepresentation;
7) Of material fact;
8) In order to induce the testator to either sign the will
or change the contents; AND
9) The testator did so.
Priority: Low
̹ƒ”–ƒ””‡’Ǥ ‘
̹ƒ”–ƒ””‡’Ǥ ‘
When the testator:
A will is invalid if it’s the result of an Insane
Delusion that caused an unnatural result.
When does an Insane Delusion occur?
Has a false idea that is not supported by facts;
and
2) Refuses to accept evidence contrary to this
idea.
1)
Priority: Low
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When are the terms of a Will given effect?
̹ƒ”–ƒ””‡’Ǥ ‘
At the time the will is probated OR after the testator’s
death.
Priority: Medium
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A child that is NOT mentioned in the will, because it
was executed before the child’s birth or adoption.
How is a “Pretermitted Child” defined?
*They are presumed to have been omitted accidentally,
and thus are entitled to an intestate share of the
testator’s estate.
Priority: HIGH
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̹ƒ”–ƒ””‡’Ǥ ‘
If:
When is a Pretermitted Child NOT entitled to an
intestate share of the estate?
1) The child was intentionally omitted;
2) The child is supported by transfers outside the
will; OR
3) The testator had more than one child and left all
(or substantially all) of his estate with the parent
of the omitted child.
Priority: HIGH
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When is an Intentionally Omitted Child entitled to a
share of the decedent’s estate?
̹ƒ”–ƒ””‡’Ǥ ‘
If the child was omitted because the decedent was
unaware of the child’s existence or believed the child
was dead.
Priority: HIGH
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