Bar exam Flashcards
Elements of a covenant
In writing,
Intent of original parties to bind successors,
Touch and concern,
Vertical privity,
For the burden - notice and horizontal privity
Horizontal privity
Original parties share some interest other than the promise
Equitable servitude elements
Writing
Intent of original parties to bind successors,
Touch and concern
Notice (if purchaser)
Meaning of taking property “subject to the mortgage”
Grantee does not agree to pay mortgage and is not personally liable for the debt
Meaning of assuming the mortgage
Grantee expressly agrees to pay and becomes personally liable for the debt
Fee simple subject to a condition subsequent
Fee simple is limited by specific conditional language, but terminates only if grantor affirmatively demonstrates intent to terminate
Fee simple subject to executory interest
Present fee simple limited by specific conditional language and automatically terminates upon stated event and passes to third party
Defeasible fee
Fee simple estate that may be terminated on occurrence of a stated event or condition
Language creating fee simple subject to a condition subsequent
“But if,” “provided that,” “on the condition that”
Language creating fee simple determinable or fee simple subject to executory limitation
“So long as”
Fee simple determinable
Fee simple estate that terminates automatically upon the occurrence of an event
Dormant commerce clause requirements
Statute must not discriminate against out-of-state commerce or put an undue burden on interstate commerce
Ex post facto clause
Government cannot enact criminal laws that have a retroactive punitive effect
Bill of attainder clause
The federal government cannot pass legislation that punishes a specific person or group without a trial
Standing requirements
Injury in fact
Causation
Redressability
Art IV Privileges and Immunities Clause
States cannot economically discriminate against out-of-state residents
Tenth Amendment
Congress cannot commandeer state or local governments by requiring them to enact or enfore certain laws
Eleventh Amendment
Foreign governments and private parties cannot sue a state in federal court without that state’s consent
Twenty-first Amendment
States have broad authority to regulate use of alcohol within their borders
What is a nonjusticiable political question?
When the Constitution has reserved decision-making on this matter to the executive or legislative branch, OR when ther is a lack of judicially discoverable and manageable standards to resolve the issue
Younger abstention
A federal court should abstain from granting declaratory or injunctive relief if:
The relief would interfere with a pending state proceeding,
On a criminal matter,
That involves an important state interest, AND
There is an adequate opportunity to litigate the federal issues
When can the government impose reasonable time, place or manner restrictions?
When the restriction is content-neutral, narrowly tailored to serve a substantial government interest, AND leaves open ample alternative channels of communication
Fifteenth Amendment
Voting rights - state and federal government cannot deny citizen the right to vote based on race
Factors determining the the amount of process due in notice and hearing?
The private interest affected,
The risk of erroneous deprivation and value of additional safeguards, AND
The government’s interest (including the burden/cost of additional process)
Four unities required for joint tenancy with right of survivorship
Possession: equal right to possess property
Interest: equal interest in the property
Time: interest simultaneously vests
Title: property interest received in same conveyance instrument
Deadline for filing appeal
30 days after final judgment
Requirements for final judgment
Decision fully resolve dispute on the merits and leaves nothing for the court to enforce but the judgment
Collateral-order doctrine requiremtns
The order conclusively resolves an important issue,
The issue is separate from the merits of the underlying claim, AND
The order cannot be effectively reviewed on appeal of a final judgment
Minimum contacts requirements
Purposeful availment, foreseeability, and relatedness (specific/general jurisdiction)
When does subject matter jurisdiction arise under the Class Action Fairness Act?
Class contains at least 100 members,
Minimal diversity, AND
Amount in controversy exceeds $5m in the aggregate
Where is venue proper?
Where any defendants reside if they all reside in the same state,
Where a substantial part of the events giving rise to the suit occurred, OR
Where any court has personal jurisdiction (if first two are inapplicable)
Removal requirements
Case could have orignally been brought in federal court,
All defendants agree to removal, AND
Motion for removal is filed within 30 days of receiving complaint setting out removable claim
Requirements for home-court advantage rule to apply
SMJ arises from diversity, AND
Defendant is a citizen of the state where the case is filed
Deadline for filing answer
21 days after service of process, OR 60 days if defendant waived service of process (90 if defendant is foreign)
Deadline for filing renewed motion for JMOL
28 days after entry of judgment
Deadline to respond to interrogatories
30 days after service
Deadline for pretrial disclosures
30 days before trial, BUT 90 days before trial for expert witness disclosures
Res judicata requirements
Valid final judgment on the merits,
Sufficiently identical claims, AND
Sufficiently identical parties
Collateral estoppel requirements
Same issue,
Same defendant,
The case was actually litigated,
There was a valid, final judgment, AND
The issue was essential to that judgment
When can a lawyer undertake representation if there is a concurrent COI?
Lawyer reasonably beleives she can competently and diligently represent each affected client,
Representation is not otherwise prohibited by law,
Reprsentation does not involve one client suing the other, AND
Each client gives informed consent
Fraud elements
D knowingly or recklessly misrepresented a material fact,
D intended to induce P’s reliance,
P reasonably relied on misrepresentation, AND
P suffered pecuniary loss as a result of the misrepresentation
False imprisonment elements
D intended to confine P,
D’s conduct caused confinement, AND
P is conscious of confinement
When can you infer negligence under res ipsa loquitur?
P’s harm normally would not occur without someone being negligent,
D had exclusive control over thing that caused harm, AND
P did nothing to cause the harm
PDPF elements
Publicity,
Given to highly offensive and private matter concerning P,
That if not of legitimate public concern, AND
Results in damages
Pure comparative negligence
P must subtract their own negligence from recovery (but can still recover if negligence exceeds 50%)
Modified comparative negligence
P may not recover if fault exceeds 50%
Attractive nuisance requirements
Artificial condition exists in place where landowner knows children are likely to trespass,
Landowner knows this condition poses an unreasonable risk of death or bodily harm to children,
Children don’t discover and can’t appreciate the danger presented by the condition because of their age,
Utility to landowner in maintaining condition is slight compared to risk of harm to children, AND
Landowner failed to exercise reasonable care to protect children
Negligence per se elements
D violated a statute,
Statute was intended to prevent the type of harm suffered by P, AND
P is within class of persons statute was intended ot protect
(Must still prove causation and damages)
When does zone of danger theory apply to NIED?
D’s negligent conduct put P in danger or fear of bodily harm, AND
The danger caused serious emotional distress to P
When does bystander theory allow a third party to make a NIED or IIED claim?
Third party contemporaneously perceived D’s conduct,
Third party was close relative of intended party, AND
D knew there was a close relation between third party and intended party
What is an offer?
An objective manifestation of a willingness by the offeror to enter into an agreement that creates the power of acceptance in the offeree
Battery elements
D intends to cause contact with P’s person,
D’s conduct causes such contact, AND
Contact causes bodily harm OR is offensive to P
Assault elements
D intends to cause P to anticipate contact that is imminent, harmful, and offensive, AND
D’s conduct causes P to reasonably anticipate imminent, harmful, and offensive contact
IIED elemeents
Intent or recklessness of D,
Extreme and outrageous conduct by D, AND
Conduct causes severe emotional harm beyond a reasonable person’s endurance or P’s heightened sensitivity (which D knows about)
Non-deadly force defense requirements
D reasonably believes that:
P’s force is intentional and unprivileged,
D’s force is proportional to P’s force, AND
D can prevent P’s force/threat only by immediately using force
Deadly force requirements
D reasonably believes that:
P’s force is intentional and unprivileged,
D is at risk of death, serious bodily harm, or rape, AND
D can only survive by using immediate deadly force
When can D use nondeadly force against P to protect bystander?
The force P is using against D is substantially greater than the force D uses against bystander, AND
D’s use of force against bystander is immediately necessary
When can D use force to protect third persons?
D reasonably believes that the defended party would be entitled to use force, AND
D’s use of force is immediately necessary
Nuisance elements
Substantial and unreasonable interference with another’s use or enjoyment of her land
Are parents vicariously liable for their minor children’s torts?
Only if the child acted as the parent’s agent.
Will only be found negligent if the parent failed to exercise reasonable care to prevent child from intentionally or negligently harming party if parent can control the child and knows the necessity and opportunity for exercising such cold
Elements of abnormally dangerous activity
Activity has a high risk of harm,
Is not comonly found in the community, AND
Has a risk that can’t be eliminated with due care
Elements of defamation claim NOT relating to matter of public concern or public figure?
Defamatory language,
Of or concerning P,
Publication to 3P who understands defamatory nature, AND
Fault at least amounting to negligence
(Truth provides affirmative defense for D, but P does not need to prove)
Elements of defamation claim for public figure or matter of public concern?
Defamatory language,
Of or concerning P,
Publication to 3P who understands defamatory nature,
Falsity,
Fault - actual malice for public figure; negligence OR actual malice for matter of public concern
But… need actual malice for private P to recover damages for matter of public concern
What statements count for slander per se?
P committed crime,
Conduct reflecting poorly on P’s fitness to conduct trade or profession,
Loathsome disease,
Sexual misconduct
Intrusion elements
D intentionally intruded on P’s private affairs, AND
That intrusion was highly offensive to a reasonable person
PDPF elements
Public disclosure of private facts about P that would be highly offensive to a reasonable person and is not of legitimate concern to the public
Negligent misrepresentation elements
D provides false info to P as a result of negligence in the course of D’s profession,
P is member of limited group for whose benefit the info is supplied,
P justifiably relies on information,
P incurs pecuniary damages as a result
Intentional interference with contract elements
D knew of valid contractual relationship between P and third party,
D intentionally interfered with K in way that substantially exceeds fair competition,
D’s interference resulted in breach, AND
Breach caused damages to P
Meaning of actual malice?
D knows statement is false OR acts with reckless disregard of the truth
What is a defamatory statement?
A statement that harms someone’s reputation by diminishing their respect, esteem, or goodwill or deterring others from associating with them
Special damages requirements for slander
P must prove that 3P heard D’s defamatory comment and acted adversely to P
False light requirements
D must disclose actions or views to P that P did not take or hold,
Disclosure was highly offensive to reasonable person, AND
Actual malice (in most jurisdictions)
When is conduct extreme and outrageous for IIED claim?
When the conduct exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society
Requirements for preliminary injunction
P will suffer irreparable harm without the injunction (inadequate remedy at law),
P’s hardships are significantly greater than D’s (balance of equities),
P is likely to succeed on merits, AND
Enforcement is feasible
Permanent injunction requirements
P will suffer irreparable harm without injunction, AND
P’s hardships are significantly greater than D’s
Public nuisance requirements for private party
D’s actions unreasonably interfere with the health, safety, or property rights of the community, AND
P suffered unique damages not suffered by the public at large
Requirements for private necessity defense to trespass
Qualified privilege for D or limited number of people to enter land to protect their person or property from serious harm
P can still recover actual damages, but D will not be liable for trespass
When can the plaintiff recover under quasi-contract theory?
There was no contract with the defendant,
The plaintiff conferred a measurable benefit on the defendant,
The plaintiff acted without gratuitous intent, AND
It would be unfair to let the defendant retain the benefit (either because defendant did not take opportunity to decline benefit or plaintiff had reasonable excuse for not giving defendant opportunity to decline)
Plaintiff can recover restitutionary damages in amount equal to value of benefit conferred on defendant
When is there an implied-in-fact contract?
When the parties’ conduct indicates assent or agreement to a contract. This inference arises when a party:
Intentionally engages or fails to engage in certain conduct, AND
Knows that this conduct will cause the other person to understand that the party is assenting
When can a court rescind a contract?
In the case of fraud, mistake, duress, or undue influence
When can a court grant specific performance of a contract?
When money damages would be inadequate
There are definite and certain terms in the K,
Performance is feasible,
The party seeking performance performed their obligations under the K, AND
No defenses apply
When does the mistake defense apply?
When both parties are mistaken as to an essential element of the contract,
The mistake materially affects the parties’ performances, AND
The adversely affected party did not assume the risk
Defense to formation
What does MIMIC stand for?
Motive
Intent
Mistake (or absence of mistake)
Identity
Common plan or scheme
When can you use extrinsic evidence of a prior inconsistent statement to impeach a witness?
If justice so requires, OR
When the witness has an opportunity to explain or deny the statement, AND
The opposing party can question the witness about the statement
If statement was under oath at prior hearing, it might be admissible for substantive reasons AND impeachment reasons
When can you use MIMIC evidence?
To use prior bad acts to prove conforming conduct in criminal cases
When can you use a conviction from more than 10 years ago to impeach a witness?
If the probative value substantially outweighs the prejudicial effect, and the defendant is given reasonable notice
When can you use a conviction for a felony/crime NOT related to dishonesty to impeach a criminal defendant?
Only if the probative value outweighs the prejudicial effect
When can you use a conviction for a felony not related to dishonesty to impeach a witness who is not a criminal defendant?
The evidence is admissible unless the prejudicial effect substantially outweighs the probative value
When is evidence logically relevant under the FRE?
When the evidence is probative of a material fact at issue
When is expert witness testimony admissible?
Under Daubert, the testimony must be:
Qualified by knowledge, skill, training, experience, or education,
Based on sufficient facts or data personally observed or made aware of,
The product of reliable methods reasonably relied on by experts in the field,
Methods are applied reliably to the facts, AND
Expert is reasonably certain in her opinion (no guessing)
When does spousal immunity apply?
Spouses may not be required to testify each other about communications during the marriage in criminal cases
Majority rule: witness spouse holds the privilege and may still choose to testify
Privilege expires if marriage ends in divorce or annulment
When does marital communications privilege apply?
Confidential communications between spouses during the marriage are privileged
Applies to civil AND criminal cases
Majority rule is that both spouses hold the privilege
Does NOT expire upon divorce
When can a plaintiff pierce the corporate veil?
Alter ego,
Undercapitalization, OR
Fraud
When is agency relationship created?
ABC: assent, benefit, and control
When does the agent have apparent authority?
When the P causes the 3P to reasonably believe that A has the authority to act
What are non-delegable duties?
Duty of landowner to maintain safe conditions on premises, AND
Duty to safely perform activities that:
Are abnormally or highly dangerous,
Infringe on private property rights,
Are regulated by law, OR
Are conducted in a public place
When is a spontaneous statement admissible?
When the statement describes an event perceived by the declarant, AND
The statement was made spontaneously while the declarant was under the stress of excitement caused by the event
When can a recorded recollection be read into evidence?
When the record:
Concerns a matter the witness once knew but can’t recall,
Was made or adopted by the witness when the matter was fresh in their mind, AND
Accurately reflects the witness’s personal knowledge at the time it was made
When does the business records exception apply?
The record was made in the regular course of business,
At or near the time of the act,
A custodian or other qualified witness testifies to its identity and mode of preparation, AND
The sources of information about the methods and time of preparation indicate its trustworthiness
When can the prosecution offer evidence of victim’s good character?
When the defendant has introduced evidence of the victim’s bad character, OR
When defendant has argued self-defense, introducing evidence that the victim was the first aggressor
What evidence can prosecution offer after the defendant has “opened the door” by offering character evidence that D’s character is inconsistent with crime?
Prosecution may cross examine witness testifying about D’s good character about a specific act committed by D relating to the trait in question, OR
Call another witness to provide reputation or opinion testimony on D’s corresponding bad character trait
Pereira Formula
SP = value of SP business at marriage + (value of SP business x RoR x years of marriage)
CP = FMV of business at divorce - SP
Van Camp formula
CP = (Reasonable value of services - annual family expenses) x years of marriage
SP = FMV of business at divorce - CP
When to use Pereira vs. Van Camp?
Pereira should be applied when the business’s increase of value can be attributed to the managing spouse’s skills and effort
Van Camp should apply when the increase of value should be attributed to the nature of the SP business, rather than the spouse’s labor
Requirements for attested will
Writing signed by testator (or someone in testator’s presence at her direction)
Intent (testator intends the instrument to be her will),
Capacity, AND
Witnesses (will signed in the rpesence of at least
Requirements for holographic will
Material provisions must be in the handwriting of the testator,
Signature,
Must be clear that document was intended as testator’s will
Factors to consider if will should be invalidated because of undue influence
The victim’s vulnerability,
The influencer’s apparent authority,
The influencer’s actions or tactics, AND
The equity of the result
By statute, California invalidates any provision in a will that makes a gift to:
The drafter,
A person who transcribed the will and was in a fiduciary relationship with the testator at the time, OR
Any care custodian of a dependent testator
When does presumption of undue influence arise?
When the beneficiary:
Has a confidential relationship to the testator,
Participated in executing the will, AND
Received an “unnatural” gift
Requirements for trusts
Settlor intends to create a trust,
Ascertainable beneficiary,
Trust is funded with identifiable trust property (trust res), AND
Trust is made for valid purpose (not illegal or contrary to public policy)
Requirements for charitable trust
Charitable purpose, AND
Large class of unidentifiable beneficiaries
Cy pres doctrine
If the specific charitable purpose indicated by the settlor becomes impossible or impractical, then the court may direct the trust property be applied to another charitable purpose that is “as near as possible” to the original purpose
When can an omitted spouse get intestate share?
If marriage happened after will was executed, the omitted spouse will get what they would have received intestate, UNLESS:
The will’s terms indicate the omission was intentional,
The spouse was provided for outside the will, OR
The spouse is party to a valid prenuptial agreement
When is there a presumption for omitted children to be included in will?
If the testator did not provide for a child born or adopted after the will is executed, OR did not know about a child or thought the child was deceased, the child may take what they would have received intestate UNLESS:
Omission from the will was intentional,
The testator had other children when the will was executed and left most or all of the estate to the other parent, OR
The testator otherwise provided for the child outside of the will with the intent that it be in lieu of a testamentary gift
