Bar Cards Flashcards
Help remember legal principles
Identify duty tests for torts
Cardozo - Duty owed zone of danger
Andrews - Duty owed to all foreseeable plaintiffs
Negligence per se
Substitute statute for standard of care
UCC - what applies to
tangible, moveable goods
Statute of Frauds
Any contract for goods valued at over $500 or services that can’t be performed within a year must be in writing.
Right on anticipatory breach
Ask for reassurance
Contract modification at common law requires
additional consideration; in writing if Statute of Frauds applies
Proximate cause
Legal cause as opposed to cause in fact
Proximate cause - crimes
Where danger known, criminal act does not breach chain of causation as superseding intervening cause.
Assault
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.
Duty to business invitee
To make safe or warn of danger. Highest duty by property owner.
Integration clause
No parole evidence of prior dealings unless ambiguity; parole evidence allowed re subsequent agreement.
Contract
Offer, acceptance, consideration
Contract - time of performance
Normal - reasonable time; time of essence can change
Estoppel
Where actions lead to detrimental reliance
Conversion vs Trespass to Chattel
Permanent taking vs. temporary
Lawyer’s common ethical duties to client
Loyalty, competence, confidentiality, candor, reasonable care, financial responsibility
Lawyer’s common duties to court, other side
Candor, fairness, decorum
Exception to duty of confidentiality
Where serious bodily injury or death may result; ABA - also serious economic loss
Trustee’s duties
Care; loyalty; communication
Trustee’s duty of care
Prudent investing with ordinary care; includes preservation of capital; judge by investment of assets as whole (no longer each asset)
Pretermitted
Child or spouse not mentioned in will or trust prior to birth or marriage; entitled to intestate share
Trustee’s duty of loyalty
Extends to both principle and remainder beneficiaries
Taking out of Statute of Frauds
Unilateral acceptance; (also UCC)
Equitable defenses
Laches, Unjust enrichment, Unclean hands
Illusory promise
No real consideration - defeats contract
5th amendment and property
No taking w/o just compensation; physical and regulatory - no per se regulatory unless 100 percent
Penn Central balancing test
a) NATURE OF GOVT ACTION
b) OWNERS REASONABLE INVESTMENT-BACKED EXPECTATIONS
c) LEVEL OF DIMINUTION OF PRIVATE PROPERTY’S VALUE
RE Property taking
Denominator problem
Re taking - what portion of whole property affected - plays into determination of taking
Applying Bill of Rights to States
through due process clause of 14th amendment
Debt and permanent separation exception
Other spouse remains responsible for debts dealing with necessities of life
Community property spiel
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.
Prenuptial agreements - considerations for validity
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.
Transmutation
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.
Partnership - default rules
profits and losses shared equally. each partner is an agent; fiduciary duties to each other
corporation
need articles of incorporation filed with sos, unlike partnership
Dissolution of partnership
money first go general creditors; then to general partners who contributed capital; then to partners
police checkpoint rules
must be nondiscriminatory and for purposes other than criminal investigation
reasonable suspicion
requires more than a hunch; need articulated facts indicating criminal act is afoot
independent source doctrine
use of evidence admissible because police had independent constitutional source supporting its recovery.
inevitable discovery doctrine
police would have discovered contriband anyway
attenuation of taint
admit if police can show taint is far afield and attenuated
withdrawal of guilty plea
needs to be knowing and voluntary and formalities followed
formalities on guilty plea
defendant informed of max sentence; mandatory min sentence; right to atty right to a jury trial; right to plead not guilty. all on record
attempt
specific intent crime; common law - need dangerous proximity to committing a crime; substantial step in carrying it out
capacity to make will
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
dependent relevant revocation
revoked will in anticipation of another will may be admitted to probate if subsequent will turns out to be invalid
holographic will
need handwritten material provisions, need signature. can dispense with witness requirement. still need to consider capacity questions
common law lapse; CA’s anti lapse statute
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
strict scrutiny - constitutional law
(as in law impinging of bill of rights freedoms like free exercise of religion
necessary to establish a compelling state interest; any less (intrusive) means of achieving interest?
Equitable servitude and restrictive covenant
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
Easement
Non possessory interest in the use of someone else’s land; by grant (writing); prescriptive (use); necessity; implication
Easement appurtenant
involves 2 properties: dominent (benefitted) and burdened (servient)
Necessary for easement to be passed on
new owner has notice: record; inquiry or actual
standard of care - negligence case
that of a reasonably prudent person
breach of duty
falling below standard of care
battery
intentional, harmful or offensive contact, with plaintiff’s person
employer vs independent contractor factors
hourly or by the piece, degree of control, furnishing of tools, length of working relationship
fireman’s rule
engaged in hazardous occupation - cant sue for injuries arising from such hazards - police, firefighters
negligent infliction of emotional distress
negligent conduct; in plaintiff’s presence; resulting in emotional injury with physical manifestations
proxy
must be in writing, signed by party giving up vote; delivered to corporate secretary
duties of corporate directors
duties of care, loyalty and management of corp.
business judgment rule
protects directors who act reasonably in good faith, even if make innocent mistake
self interested transaction/ usurp corp opportunity, and director’s duty of loyalty
director must make full disclosure and obtain independent ratification
controlling shareholder
have fiduciary duty to other minority shareholders
fundamental corporate change requires
requires special shareholders meeting with notice; majority vote with dissenters’ rights
requirements of special meeting
notice of place, time, topic
dissenter rights
fundamental change - right to appraisal and buyout
irrevocable proxy
proxy is normally good for 11 months. if irrevocable must be labeled as such and coupled with an interest.
fundamental corporate change - what brings it about
merger, consolidation, amendment of articles of incorporation; sale of substantially all business assets
decisions of corporate directors
must be at board meeting or by unanimous agreement in writing; meeting - quorum must be present
conflict of interest transaction
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
representation of clients with conflicts of interest
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.
client waiver and conflicts
client can waive potential conflict; cannot waive actual conflict
when is evidence relevant
when it tends to prove or disprove a disputed fact
rescission of a contract is appropriate when
the contract lacked assent on a material term; or mutual mistake of fact
burglary
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
breaking and entering
moving open door enough
larceny
common law - trespassory taking or carrying away of personal property within intent to permanently deprive the victim of possession of the property
trespassory
unprivileged; non-consensual
carrying away
slight movement of property suffices
robbery
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
battery
intentional, unlawful application of physical force to another person
conspiracy
an agreement between two or more persons to achieve the same unlawful objective with intent to complete that objective
inchoate
just begun
accomplice
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.
accessory after the fact
someone who aids, abets, counsels or encourages a principal in avoiding apprehension; usually liability only for subsequent concealing, not for underlying crime also
fencing
knowing receipt of stolen property
vicarious liability and accomplice
accomplice is liable for reasonably foreseeable crimes of the principal
scope of discovery
all non-privileged evidence that is relevant to issues or that may lead to discovery of relevant evidence
objection during deposition
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
standard of care - professionals
look to that care that would be given by an average professional with similar skill, knowledge and experience in the area
relation back to add new party allowed when
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.
claim preclusion (res judicata)
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.
issue preclusion (collateral estoppel)
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.
relation back to add new claim
if new claim arose out of the same transaction or occurrence
summary judgment standard
no genuine issue of material fact and movant is entitled to judgment as a matter of law
Pereira analysis
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
Van Camp analysis
increase in value due to lots of factors; community gets reasonable would-be wages; owner keeps rest as sp
exception to transmutation rule on writing
insubstantial gifts from one spouse to other; otherwise writing required since 1985
malicious prosecution
institution of case w/o probable cause, termination in favor of plaintiff, improper purpose, lack of probable cause
rational basis review
law upheld if rationally related to achieving legitimate governmental interest
types of due process
procedural (right to hearing); substantive (fundamental rights - free speech, religion, jury trial etc)
liability insurance - use at trial
cant bring up except to show ownership and control
offers to settle
not admissible, but spontaneous statements with no case pending are admissible admissions
elements to transfer property
intent to do so, valid delivery of deed, valid acceptance of deed
revocation of deed
valid anytime up to moment of acceptance; must comply with statute of frauds
Murder
1st degree - with malice aforethought; 2nd degree - all other murder; provocation to drop it to voluntary manslaughter
voluntary manslaughter
adequate provocation plus no opportunity to cool down
lawyer’s dual representation ok if
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
SEC Rule 16(b)
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
SEC Rule 10(b)(5)
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.
constructive trust
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
laches
unreasonable delay causing harm or prejudice to the other party
invasion of privacy branches
misappropriation, intrusion into seclusion, false light
putative spouse
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
permanent separation
occurs when living apart and one spouse wishes to end the marriage
Marvin relationship
court may enforce contracts between people who are not married as long as they are not expressly based on performance of illicit sexual acts
quasi community property
treated as sp for purposes of management and control; otherwise cp vis a vis death, divorce and rights of creditors
novation
where two parties agree to substitute in third party under contract. (where not done, assigning lease to other does not get lesee off hook
material breach of contract
wipe out value of contract or at least substantially affects it. if minor breach - no contract out for breachee!
wife/children intestate share
50/50 if one child 1/3rd wife/ 2/3ds children if 2+ children
pretermitted child
takes intestate share if born afterwards or adopted; otherwise nothing
cy pres
applies when bequest to charitable trust frustrated and there’s an equivalent substitute
if witness to will takes
that person’s interest is invalidated; not necessarily whole will; presumption of improper influence which can be overcome of natural heir/wife etc
Warranties - product
implied warranty of merchantability; implied warranty for fitness of use
types of defects
manufacturing; design; or failure to warn
ex spouse and will
CA - normally ex spouse will not take under will signed at time of marriage
spouse’s intestate share of estate
half of all community property; 1/3rd of estate if more than one child
FRCP - venue
proper where all defendants reside or where substantial portion of claim arose; also need subject matter jurisdiction over claim and personal jurisdiction over parties
jurisdiction - general and specific
general - substantial, systematic and continuous contacts; specific - minimum contacts so as to not offend traditional understandings of fair play and justice
residency - districts under frcp
people - what district they live in; corporations - wherever there is personal jurisdiction
spousal privilege
must be married at time of trial; privilege belongs to testifying spouse - can assert it or not under CA law
confidential marital communications privilege
either spouse can assert; applies to confidential statements even after marriage over
statement against interest
must be against penal interest; declarant must be unavailable
frustration of purpose
purpose known to plaintiff; circumstances changed w/o fault of defendant; purpose cannot be achieved
impracticality
circumstances changed; no fault of defendant; undue hardship - more than just unprofitable - like it will put him out of business
defeats parol evidence rule re contracts
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.
ultra-hazardous activity
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
elements to malicious prosecution complaint
1) institution of prior proceeding against plaintiff; 2) terminated in plaintiff’s favor; 3) lack of probable cause; 4) improper purpose
duty of prosecutor
to divulge exculpatory evidence to defense
duties of prosecutor
to divulge exculpatory evidence to defense; to not proceed without probable cause
duty of prosecutor
to divulge exculpatory evidence to defense
duress
forced to commit crime
obscene material
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.
loans to client
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
