Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

California Bar Exam > Bar Cards > Flashcards

Bar Cards Flashcards

Help remember legal principles

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Identify duty tests for torts

A

Cardozo - Duty owed zone of danger

Andrews - Duty owed to all foreseeable plaintiffs

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Negligence per se

A

Substitute statute for standard of care

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

UCC - what applies to

A

tangible, moveable goods

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Statute of Frauds

A

Any contract for goods valued at over $500 or services that can’t be performed within a year must be in writing.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Right on anticipatory breach

A

Ask for reassurance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Contract modification at common law requires

A

additional consideration; in writing if Statute of Frauds applies

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Proximate cause

A

Legal cause as opposed to cause in fact

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Proximate cause - crimes

A

Where danger known, criminal act does not breach chain of causation as superseding intervening cause.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Assault

A

Act that places person in reasonable fear of imminent harm or offensive contact; intent to do so; and causation. Also there must be some physical conduct not just words.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Duty to business invitee

A

To make safe or warn of danger. Highest duty by property owner.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Integration clause

A

No parole evidence of prior dealings unless ambiguity; parole evidence allowed re subsequent agreement.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Contract

A

Offer, acceptance, consideration

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Contract - time of performance

A

Normal - reasonable time; time of essence can change

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Estoppel

A

Where actions lead to detrimental reliance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Conversion vs Trespass to Chattel

A

Permanent taking vs. temporary

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Lawyer’s common ethical duties to client

A

Loyalty, competence, confidentiality, candor, reasonable care, financial responsibility

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Lawyer’s common duties to court, other side

A

Candor, fairness, decorum

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Exception to duty of confidentiality

A

Where serious bodily injury or death may result; ABA - also serious economic loss

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Trustee’s duties

A

Care; loyalty; communication

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Trustee’s duty of care

A

Prudent investing with ordinary care; includes preservation of capital; judge by investment of assets as whole (no longer each asset)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Pretermitted

A

Child or spouse not mentioned in will or trust prior to birth or marriage; entitled to intestate share

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Trustee’s duty of loyalty

A

Extends to both principle and remainder beneficiaries

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Taking out of Statute of Frauds

A

Unilateral acceptance; (also UCC)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Equitable defenses

A

Laches, Unjust enrichment, Unclean hands

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Illusory promise

A

No real consideration - defeats contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

5th amendment and property

A

No taking w/o just compensation; physical and regulatory - no per se regulatory unless 100 percent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Penn Central balancing test

A

a) NATURE OF GOVT ACTION
b) OWNERS REASONABLE INVESTMENT-BACKED EXPECTATIONS
c) LEVEL OF DIMINUTION OF PRIVATE PROPERTY’S VALUE

RE Property taking

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Denominator problem

A

Re taking - what portion of whole property affected - plays into determination of taking

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Applying Bill of Rights to States

A

through due process clause of 14th amendment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Debt and permanent separation exception

A

Other spouse remains responsible for debts dealing with necessities of life

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Community property spiel

A

California is a community property (CP) state. All property acquired during marriage is presumed to be CP. All property (and debt) acquired before marriage and after legal separation is deemed to be separate property (SP). All property acquired by gift, bequest and devise is also SP.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Prenuptial agreements - considerations for validity

A

Must be written, signed by both parties, each of whom were represented by counsel, with full disclosure of all assets and at least 7 days before signing. Voluntary, no undue influence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Transmutation

A

Transferring one spouse’s sp to the other spouse’s sp. (or to cp) after 1985 had to be done by writing if gift is of substantial value.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Partnership - default rules

A

profits and losses shared equally. each partner is an agent; fiduciary duties to each other

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

corporation

A

need articles of incorporation filed with sos, unlike partnership

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

Dissolution of partnership

A

money first go general creditors; then to general partners who contributed capital; then to partners

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

police checkpoint rules

A

must be nondiscriminatory and for purposes other than criminal investigation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

reasonable suspicion

A

requires more than a hunch; need articulated facts indicating criminal act is afoot

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

independent source doctrine

A

use of evidence admissible because police had independent constitutional source supporting its recovery.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

inevitable discovery doctrine

A

police would have discovered contriband anyway

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

attenuation of taint

A

admit if police can show taint is far afield and attenuated

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

withdrawal of guilty plea

A

needs to be knowing and voluntary and formalities followed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

formalities on guilty plea

A

defendant informed of max sentence; mandatory min sentence; right to atty right to a jury trial; right to plead not guilty. all on record

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

attempt

A

specific intent crime; common law - need dangerous proximity to committing a crime; substantial step in carrying it out

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

capacity to make will

A

1) must be 18; 2) understand natural objects of her bounty; 3) understand value and nature of her property; 4) understand he or she is making will

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

dependent relevant revocation

A

revoked will in anticipation of another will may be admitted to probate if subsequent will turns out to be invalid

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

holographic will

A

need handwritten material provisions, need signature. can dispense with witness requirement. still need to consider capacity questions

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

common law lapse; CA’s anti lapse statute

A

lapse - beneficiary predeceases T, share goes to residuary. not so in California under anti-lapse statute if beneficiary is kin to the T or of T’s spouse, and if beneficiary leaves issue

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

strict scrutiny - constitutional law

(as in law impinging of bill of rights freedoms like free exercise of religion

A

necessary to establish a compelling state interest; any less (intrusive) means of achieving interest?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
50
Q

Equitable servitude and restrictive covenant

A

Promise in relation to land: runs with land if: writing; intent of parties to run; touches property; and within statute of frauds// enforced through equitable relief, not damages;; restrictive covenant - contract right - money damages possible

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
51
Q

Easement

A

Non possessory interest in the use of someone else’s land; by grant (writing); prescriptive (use); necessity; implication

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
52
Q

Easement appurtenant

A

involves 2 properties: dominent (benefitted) and burdened (servient)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
53
Q

Necessary for easement to be passed on

A

new owner has notice: record; inquiry or actual

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
54
Q

standard of care - negligence case

A

that of a reasonably prudent person

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
55
Q

breach of duty

A

falling below standard of care

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
56
Q

battery

A

intentional, harmful or offensive contact, with plaintiff’s person

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
57
Q

employer vs independent contractor factors

A

hourly or by the piece, degree of control, furnishing of tools, length of working relationship

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
58
Q

fireman’s rule

A

engaged in hazardous occupation - cant sue for injuries arising from such hazards - police, firefighters

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
59
Q

negligent infliction of emotional distress

A

negligent conduct; in plaintiff’s presence; resulting in emotional injury with physical manifestations

60
Q

proxy

A

must be in writing, signed by party giving up vote; delivered to corporate secretary

61
Q

duties of corporate directors

A

duties of care, loyalty and management of corp.

62
Q

business judgment rule

A

protects directors who act reasonably in good faith, even if make innocent mistake

63
Q

self interested transaction/ usurp corp opportunity, and director’s duty of loyalty

A

director must make full disclosure and obtain independent ratification

64
Q

controlling shareholder

A

have fiduciary duty to other minority shareholders

65
Q

fundamental corporate change requires

A

requires special shareholders meeting with notice; majority vote with dissenters’ rights

66
Q

requirements of special meeting

A

notice of place, time, topic

67
Q

dissenter rights

A

fundamental change - right to appraisal and buyout

68
Q

irrevocable proxy

A

proxy is normally good for 11 months. if irrevocable must be labeled as such and coupled with an interest.

69
Q

fundamental corporate change - what brings it about

A

merger, consolidation, amendment of articles of incorporation; sale of substantially all business assets

70
Q

decisions of corporate directors

A

must be at board meeting or by unanimous agreement in writing; meeting - quorum must be present

71
Q

conflict of interest transaction

A

if director. w/o approval, enters transaction for corp in which he has financial interest likely to affect his judgment, transaction can be rescinded and director held liable for losses to corporation

72
Q

representation of clients with conflicts of interest

A 
lawyer must (1) reasonably believe he can adequately represent each of them, (2) disclose the conflict, under the Cal RPC such disclosure must be in writing, and (3) must get the clients'
consent in writing.
73
Q

client waiver and conflicts

A

client can waive potential conflict; cannot waive actual conflict

74
Q

when is evidence relevant

A

when it tends to prove or disprove a disputed fact

75
Q

rescission of a contract is appropriate when

A

the contract lacked assent on a material term; or mutual mistake of fact

76
Q

burglary

A

traditional - breaking and entering of dwelling structure at night with intent to commit felony therein; now most states - any structure; some jurisdictions need not necessary be a felony

77
Q

breaking and entering

A

moving open door enough

78
Q

larceny

A

common law - trespassory taking or carrying away of personal property within intent to permanently deprive the victim of possession of the property

79
Q

trespassory

A

unprivileged; non-consensual

80
Q

carrying away

A

slight movement of property suffices

81
Q

robbery

A

taking or carrying away personal property of other from their person by force or threat of force with intent to permanently deprive them of the property

82
Q

battery

A

intentional, unlawful application of physical force to another person

83
Q

conspiracy

A

an agreement between two or more persons to achieve the same unlawful objective with intent to complete that objective

84
Q

inchoate

A

just begun

85
Q

accomplice

A

someone who aides, abets or encourages a principal to commit a crime with the intent that the principal succeed. in majority of jurisdictions accomplices are held liable for all reasonably foreseeable crimes committed by the principal.

86
Q

accessory after the fact

A

someone who aids, abets, counsels or encourages a principal in avoiding apprehension; usually liability only for subsequent concealing, not for underlying crime also

87
Q

fencing

A

knowing receipt of stolen property

88
Q

vicarious liability and accomplice

A

accomplice is liable for reasonably foreseeable crimes of the principal

89
Q

scope of discovery

A

all non-privileged evidence that is relevant to issues or that may lead to discovery of relevant evidence

90
Q

objection during deposition

A

if not made during deposition, it is waived and same objection cannot be raised at trial. (not Illinois in discovery depositions); witness must still answer at dep - determine later whether objection will stick

91
Q

standard of care - professionals

A

look to that care that would be given by an average professional with similar skill, knowledge and experience in the area

92
Q

relation back to add new party allowed when

A

1) the claim arises out of the same transaction
or occurrence as the original complaint, 2) the new party knew of the original action
within 120 days of filing, and 3) the new party, but for the mistake, knew that they
should have been named as the original party.

93
Q

claim preclusion (res judicata)

A

must have: 1) same plaintiff and defendant in first case; 2) first case ended with valid final judgment on merits; 3) first case arose out of the same transaction or occurrence.

94
Q

issue preclusion (collateral estoppel)

A

1) valid final judgment in first case; 2) issue was litigated; 3) issue was essential to the judgment; 4) issue preclusion used against party who was a party in first case; 5) or, if it is fair, against a party who is a party in case two. (if CE asserted by defendant applies if plaintiff had full and fair opportunity to litigate issue in first case; if CE asserted by plaintiff, if several factors establish that fair (courts reluctant to do so), such as: could defendant have joined first action, was it aware of breadth of result, etc.

95
Q

relation back to add new claim

A

if new claim arose out of the same transaction or occurrence

96
Q

summary judgment standard

A

no genuine issue of material fact and movant is entitled to judgment as a matter of law

97
Q

Pereira analysis

A

at divorce, court assumes company’s success stems from hard work and skill of owner. owner spouse gets initial investment plus reasonable rate of interest; rest is community’s

98
Q

Van Camp analysis

A

increase in value due to lots of factors; community gets reasonable would-be wages; owner keeps rest as sp

99
Q

exception to transmutation rule on writing

A

insubstantial gifts from one spouse to other; otherwise writing required since 1985

100
Q

malicious prosecution

A

institution of case w/o probable cause, termination in favor of plaintiff, improper purpose, lack of probable cause

101
Q

rational basis review

A

law upheld if rationally related to achieving legitimate governmental interest

102
Q

types of due process

A

procedural (right to hearing); substantive (fundamental rights - free speech, religion, jury trial etc)

103
Q

liability insurance - use at trial

A

cant bring up except to show ownership and control

104
Q

offers to settle

A

not admissible, but spontaneous statements with no case pending are admissible admissions

105
Q

elements to transfer property

A

intent to do so, valid delivery of deed, valid acceptance of deed

106
Q

revocation of deed

A

valid anytime up to moment of acceptance; must comply with statute of frauds

107
Q

Murder

A

1st degree - with malice aforethought; 2nd degree - all other murder; provocation to drop it to voluntary manslaughter

108
Q

voluntary manslaughter

A

adequate provocation plus no opportunity to cool down

109
Q

lawyer’s dual representation ok if

A

subjectively believes that can represent both clients without compromising professional judgment; another lawyer would objectively find same. client signs agreement (in writing in California) after full disclosure

110
Q

SEC Rule 16(b)

A

Prohibits director, officer or 10 percent shareholder of publicly traded corporation of buying and selling securities of the corp within 6 months. corp entitled to recover maximum difference in turnabout

111
Q

SEC Rule 10(b)(5)

A

bars use of any interstate instrumentality in scheme to defraud in sale or purchase of a security, including purchases and sales based on inside information.

112
Q

constructive trust

A

equitable remedy where court orders party who was unjustly enriched at the expense of another to return property or assets for the benefit of the wronged person

113
Q

laches

A

unreasonable delay causing harm or prejudice to the other party

114
Q

invasion of privacy branches

A

misappropriation, intrusion into seclusion, false light

115
Q

putative spouse

A

apparent spouse - would-be spouse who mistakenly believed in good faith that was married may be treated as though she was, in fact married/ or contract theory. No common law marriage in California/ entitled to quasi marital property

116
Q

permanent separation

A

occurs when living apart and one spouse wishes to end the marriage

117
Q

Marvin relationship

A

court may enforce contracts between people who are not married as long as they are not expressly based on performance of illicit sexual acts

118
Q

quasi community property

A

treated as sp for purposes of management and control; otherwise cp vis a vis death, divorce and rights of creditors

119
Q

novation

A

where two parties agree to substitute in third party under contract. (where not done, assigning lease to other does not get lesee off hook

120
Q

material breach of contract

A

wipe out value of contract or at least substantially affects it. if minor breach - no contract out for breachee!

121
Q

wife/children intestate share

A

50/50 if one child 1/3rd wife/ 2/3ds children if 2+ children

122
Q

pretermitted child

A

takes intestate share if born afterwards or adopted; otherwise nothing

123
Q

cy pres

A

applies when bequest to charitable trust frustrated and there’s an equivalent substitute

124
Q

if witness to will takes

A

that person’s interest is invalidated; not necessarily whole will; presumption of improper influence which can be overcome of natural heir/wife etc

125
Q

Warranties - product

A

implied warranty of merchantability; implied warranty for fitness of use

126
Q

types of defects

A

manufacturing; design; or failure to warn

127
Q

ex spouse and will

A

CA - normally ex spouse will not take under will signed at time of marriage

128
Q

spouse’s intestate share of estate

A

half of all community property; 1/3rd of estate if more than one child

129
Q

FRCP - venue

A

proper where all defendants reside or where substantial portion of claim arose; also need subject matter jurisdiction over claim and personal jurisdiction over parties

130
Q

jurisdiction - general and specific

A

general - substantial, systematic and continuous contacts; specific - minimum contacts so as to not offend traditional understandings of fair play and justice

131
Q

residency - districts under frcp

A

people - what district they live in; corporations - wherever there is personal jurisdiction

132
Q

spousal privilege

A

must be married at time of trial; privilege belongs to testifying spouse - can assert it or not under CA law

133
Q

confidential marital communications privilege

A

either spouse can assert; applies to confidential statements even after marriage over

134
Q

statement against interest

A

must be against penal interest; declarant must be unavailable

135
Q

frustration of purpose

A

purpose known to plaintiff; circumstances changed w/o fault of defendant; purpose cannot be achieved

136
Q

impracticality

A

circumstances changed; no fault of defendant; undue hardship - more than just unprofitable - like it will put him out of business

137
Q

defeats parol evidence rule re contracts

A

Extrinsic evidence shows (1) fraud, (2)
subsequent modification of the contract, (3) absence of consideration and other
formation defects, (4) to interpret ambiguities, (5) to show a collateral agreement,
(6) to show the existence of a condition precedent.

138
Q

ultra-hazardous activity

A

strict liability tort; applies where activity is not a matter of common usage in community and danger cannot be mitigated even with exercise of reasonable care

139
Q

elements to malicious prosecution complaint

A

1) institution of prior proceeding against plaintiff; 2) terminated in plaintiff’s favor; 3) lack of probable cause; 4) improper purpose

140
Q

duty of prosecutor

A

to divulge exculpatory evidence to defense

141
Q

duties of prosecutor

A

to divulge exculpatory evidence to defense; to not proceed without probable cause

142
Q

duty of prosecutor

A

to divulge exculpatory evidence to defense

143
Q

duress

A

forced to commit crime

144
Q

obscene material

A

There is a three-part test to determine whether material is obscene: 1) it appeals to the
prurient interests of people in the community; 2) it is patently offensive to people in the
community; and 3) based on a national standard, it lacks any redeeming artistic, literary,
or scientific value.

145
Q

loans to client

A

ABA and CA - ok for litigation expenses; must state whether percentage fee taken from gross or net after recovery; ABA - no loan beyond litigation expenses;
CA - loan ok, but need separate agreement

California Bar Exam (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions