Bar Exam - Last Minute Points Flashcards
Pereira Method
SP business growth predominately one spouse’s labor and abilities.
SP business spouse entitled to original business value and 10% annual rate of return, both are SP. Remaining value is CP.
Van Camp Method
Value of SP business derived from character and nature of business itself.
Community is entitled to reasonable salary value of the spouse’s labor minus any amount received by the community and minus any community expenses paid. All else is SP.
Pre 1985 Transmutation
Oral transmutations of SP to CP, CP to SP, or SP of one spouse to other SP of other spouse is okay.
Post 1985 Transmutation
Must (i) be in writing, (ii) expressly declare that change in ownership is being made, (iii) have consent of spouse whose interest is adversely affected.
Exception to writing requirement: gifts of personal nature used solely or principally by spouse who received gift and insubstantial in value.
Educational Expenses - CP/SP
Old rule: No reimbursement @ dissolution for contributions made
New Rule: Upon dissolution/legal separation, community entitled to reimbursement w/ interest for community contributions that substantially enhanc earning capacity.
Defenses: 1) Community substantially benefited from education (presumed for education 10+ yrs ago; 2) Other spouse received community funded education; 3) need for spousal support reduced as result of training
Married Woman’s Presumption - Pre 1/1/75
Property acquired by married woman through written instrument presumed to be her SP unless instrument named both H and W
Rebutting Presumption - Rebuttable by H, but conclusive as to 3P. Rebutted by clear and convincing evidence tracing to CP source AND showing that H did not control/manage CP source.
3P BFP - Presumption of SP is conclusive as to 3P purchaser who dealt w/ married woman, legal rep or successors in good faith, paid value and took w/o notice of interest of husband
Lucas/Anti-Lucas
Lucas - H and W bought property as joint tenants/tenants in common w/ SP and CP, presumed gift to community and it is all CP. Rebut if prove parties agreed separate funds and SP. Applies at death and to property acquired prior to 1/1/1984
Anti-Lucas - At dissolution of marriage, still presumptively CP absent written agreement/express statement in deed/other title. But, spouse who contribute separate funds entitled to reimbursement w/o interest for contributions to down payments, improvements or principal payments on mortgage
Amend Complaint to add Defendant
1) Claim arises out of same transaction/occurrence as original complaint
2) New party knew of original actions w/in 120 days of filing
3) New party, but for mistake of identity of the party, should have been named as original party
Claim Preclusion (res judicata)
3 elements:
1) Same claim
2) Same parties
3) Final judgement on the merits
Issue Preclusion (collateral estoppel)
4 elements:
1) Final judgement on the merits
2) Issue actually litigated
3) Issue essential to judgment
4) Being used against one who was party in first case
ALSO:
Must be fair to preclude.
Personal Jurisdiction
General
1) Consent
2) Presence
3) Domiciled - Remember person vs. corporation
Specific
1) minimum contacts (purposefully availed and foreseeable)
2) Should not offend traditional notions of
3) Fair play and substantial justice
Subject Matter Jurisdiction
Federal Question - Federal law or substantial federal question
Diversity Jurisdiction:
- All plaintiffs diverse from all defendants
- Amount in controversy greater than or equal to $75,000
- Choice of Law: Erie - Substance vs. Procedure (When fed courts confronted w/ fed vs state law, apply state on substantive law and federal on procedural issue)
Venue
Proper when:
1) Where D resides (so long as all D reside in same state)
2) Substantial part of event/omission giving rise to claim occurred
3) Where D subject to personal jurisdiction
Supplemental Jurisdiction
So long as fed court has jurisdiction over one of plaintiff’s claims through fed question or diversity jurisdiction, court can hear other claims that arise out of same transaction/occurence.
Joinder
Compulsory - party is “necessary for just adjudication”.
“necessary” - have interest in suit, failure to join would adversely effect such parties’ interest; failure to join would lead to multiplicity of litigation
Permissive - party may be joined as P or D where claim at issue arises out of same series of occurrences/transactions and there is question of law/fact common to all parties
Joinder of Claims - allows plaintiff to join any number and type of claims against defendant. For diversity purposes, plaintiff may aggregate all claims to exceed $75k jurisdictional amount.
Threshold Issues
Always discuss!!
Standing - person is proper to present matter at issue to court for adjudication
Mootness - presents existing or live controversy or prejudice, moot if threat no longer exists
Ripeness - cannot approach before subject to prejudice/real threat of prejudice
State Action
Equal Protection Clause
14th Amendment
3 Levels of Classification:
- Strict Scrutiny - race, national origin
- Immediate Scrutiny - gender, legitimacy
- Rational Basis Test - everything else
Strict Scrutiny
Race, national origin <- Through Equal Protection Clause
Alienage, Fundamental Rights (voting, travel, privacy) <- Through Due Process Clause
Burden on the State
Compelling State Interest
Intermediate Scrutiny
Gender, Legitimacy <- Through Equal Protection Clause
Children of immigrants, right to public education
Burden is on the State
Substantial Relationship to Important Governmental Interest
Rational Basis Test
Everything Else
Burden on Plaintiff
Rationally related to legitimate state interest
Due Process
5th Amendment and 14th Amendment
Strict Scrutiny applies to fundamental rights (privacy, vote, interstate travel, 1st Amend, right to refuse medical treatment)
Rational Basis to all other rights
Dormant Commerce Clause
States can’t discriminate against interstate commerce/unreasonably burden interstate commerce.
Discriminate against interstate commerce - strict scrutiny
Burdens interstate commerce, but does not discriminate - okay if important state interest, does not impose unreasonable burden
Joint Tenancy
Each joint tenant shares in ownership of a single interest, each having same rights.
Key Feature: Right of Survivorship to surviving joint tenants
Creation: Unity of Time, Title, Interest, and Possession
Severance: Right of Survivorship cannot be severed by testamentary instrument, but can be severed by
- Inter Vivos Transfer - grantee and original tenants become tenants in common; creditor sale severs joint tenancy
- Mortgage
- Leases - split on if this constitutes severance, could be seen as temporary suspension
- Contract of Sale
Tenancy in Common
Concurrent estate, no right of survivorship
Creation: Any conveyance to multiple grantees which does not expressly indicate contrary intent
Each co-tenant holds separate undivided interest in property which is freely transferable at death or intervivos. Need not be prorata, but each has unrestricted right to possess entire property.
Fee Simple Absolute
“to A and his heirs”
Duration: Forever
Future Interests: None
Fee Simple Determinable
“to A and his heirs for as long as” or “until” or “while” or “during”
Duration: As long as condition is met. Automatically goes back to grantor.
Future Interest in Grantor: Possibility of Re-Enter
Fee Simple Subject to an Executory Interest
“to A and his heirs for so long as, and if not, to B”
Duration: As long as condition is met, then to third party
Future Interest in 3rd Party: Executory Interest
Fee Simple Subject to Condition Subsequent
“To A and his heirs, but if” or “Upon condition that” or “provided that”
Duration: Until happening of stated event, then reentry by grantor
Future Interest in Grantor: Right of Entry
Fee Tail
“to A and his bodily heirs”
Duration: Until A and his lineal heirs cease to exist
Future Interest in Grantor: Reversion
Life Estate
“to A for life” or “to A for the life of B” - until the end of the measuring life, future interest in grantor reversion
“to A for Life, then to B” - until the end of measuring life, future interest in 3rd party remainder
“to A for life, but if… to B” - until end of measuring life or happening of named event, future interest in grantor reversion, future interest in 3rd party executory interest
Types of Leasehold Estates
Tenancy for Years - Fixed, determinable period of time. Terminates naturally upon expiration of term.
Periodic Tenancies - Repeated, continuous periods with automatic renewal. Created by express agreement, or by inference if silent on duration but rent paid at specific periods, also “holdover tenant”. Terminate on proper notice.
Tenancy at Will - Terminable at will of either landlord/tenant w/o fixed duration. If lease gives landlord right to terminate, similar right implied in tenant. Created from parties entering into lease w/o agreement to duration or periodic rent basis. Notice not required under common law, can also terminate by death of either party.
Tenancy at Sufferance - Tenant holds over after expiration of leasehold. Landlord may treat as trespasser or elect to hold tenant to new tenancy. Majority of states - periodic tenancy created, period determined by original lease.
Tenant Responsibilities
Duty to Pay Rent
If can’t pay rent, can be evicted where Landlord has right to retake possession
No self help. Can recover possession by unlawful detainer or summary eviction statutes. (summary eviction - notice in writing demanding payment of overdue rent/possession of premises must be served on person owing rent)
Duty to Make Repairs
Keep premises in reasonably good repair, not commit waste on premises.
Landlord Responsibilities
- Duty to Deliver Possession
- Implied Covenant of Quiet Enjoyment
- Implied Warranty of Habitability
Implied Covenant of Quiet Enjoyment
Neither the landlord nor anyone claiming under him or having paramount title will substantially interfere with the lessee’s quiet enjoyment of the leased premises.
Breach of this covenant amounting to an eviction or constructive eviction is a defense to an action for rent if the tenant vacates and chooses to assert that defense.
Proper defense to withholding rent requires vacating w/in reasonable time (30 days)
Constructive Eviction
1) Tenant must show landlord has done (or failed to do) something that made the premises uninhabitable or unusable
2) There must be substantial interference
3) Tenant must abandon premises after reasonable time
Implied Warranty of Habitability
Requirement that premises be fit for basic human dwelling purposes
Easement Appurtenant
Benefits the land, default type of easement.
Dominant tenement has benefit, second tract is servient tenement.
Succession: passes with the possession of the dominant tenement
Creation of Easements
RIPEN
Reservation - owner of present possessory interest conveys title by reserves right to continue to use tract for special purpose after conveyance
Implication - property divided and facts and circumstance indicate prior use that is reasonably necessary.
Prescription - similar to adverse possession. (1) continuous (2) hostile (3) actual (4) open and notorious (5) continue for statutory period.
Express Grant - created by conveyance, must comply w/ formal requisites of deed and include Statute of Frauds
Necessity - Created out of necessity, when owner of a tract of land sells a part of the land w/ no outlet to a road
Real Covenant
Runs w/ the land when the burdens and/or benefits of covenant pass to succeeding holders of estate of original covenanting parties
TIPS
Requirements for Creation:
- “Touch and Concern the Land” - must benefit covenantee and successors in use and enjoyment of land
- Intent - parties intend that covenant run w/ land
- Privity of Estate - must be “succession of estate” between covenantor and covenantee for covenant to be created
- A Writing - covenant created by writing which satisfies Statute of Frauds
Equitable Servitude
Restriction on owner’s use of land
TINS
- Touch and concern
- Intent
- Notice
- Statute of Frauds
Specific Performace
P must show:
1) Valid contract
2) all conditions have been met and P has performed or is ready to perform
3) legal remedy inadequate
4) feasible for court to enter decree for specific perf
5) D does not have any defenses
Termination of Easements
SURENAP
- Stated Conditions
- Unity of Ownership - if ownership of two comes together in one person
- Release - owner of easement may terminate by giving release; requires concurrence of both owners and must be executed w/ formalities required for creation of easement
- Estoppel - Reasonable reliance and change of position of owner of servient tenement, based on assertions/conduct of easement holder
- Necessity - easement by necessity expires as soon as necessity ends
- Abandonment - owner of privilege demonstrates by physical action a manifest intention
- Prescription - analogous to creation of easement by prescription - open, notorious, continuous, uninterrupted and w/ claim of right for period of 20 yrs
Contracts Essay Approach
Applicable Law - UCC/Common Law
Formation - Offer, Acceptance, and/or Consideration
Terms - “Definite and Certain”
Performance - Conditions, Parole Evidence Rule, Time is of the Essence
Excuse to Performance - Impossibility, Impracticability, Frustration of Purpose
Breach - Material, Minor or Anticipatory
Remedies - Expectation Damages, Consequential damages, Special Performance, (Incidental Damages, Restitution, Reformation, Rescission, Specific Performance)
Contracts - Additional or Added Terms
- Common law - rejection and counter-offer
- Modern - only acceptances which are conditional on asset are counter-offers and rejection
- UCC - Battle of Forms - acceptance even though terms added; if conditions on acceptance, then counter-offer
- Both parties merchants - part of k unless (i) offer limits acceptance (ii) materially alters k (iii) offeror notifies objection
Parole Evidence Rule
Limits extent to which evidence of discussions/writings made before or contemporaneously w/ signed k can be considered part of k
Does not bar evidence regarding interpretation of ambiguous k terms
Expectation Damages
Compensate for value of benefit P expected to receive from k
Put P in position would have been in if k was performed
Consequential damages
Compensate P for damages direct and foreseeable consequence of k and are unique to each P
Hearsay Exceptions - Availability Immaterial
Present Sense Impression
Excited Utterance
Then Existing Mental, Emotional, Physical condition
Statements for Purposes of Medical Diagnosis or Treatment
Recorded Recollection
Business Records
Public Records and Reports
Records relating to births/deaths/marriages statistics or certifying
California exceptions:
Admission by a party opponent
Contemporaneous statement
Hearsay Exceptions - Unavailable to Testify
Former Testimony - at another hearing in same/diff proceeding or deposition, provided party had opportunity to question/cross-examine
Statement Made Under the Belief of Impending Death
Statement Against Declarant’s Interest
Statement of Personal or Family History
Negligence - Premises Liability
Standard of care owed to:
Undiscovered trespasser - not owed any duty of care
Discovered trespasser - must warn or make safe any unreasonable dangerous, concealed, artificial conditions that they know of
Licensee - warn or make safe all concealed dangers that they know of
Invitee - worn or make safe all dangers that they know of or should know of
Negligence Per Se
P may sue if can show:
1) D violated statute w/o excuse
2) P was in class of ppl statute aimed to protect
3) P received injury that statute aimed to prevent
Then duty and breach established. (Must still prove causation and harm)
Nuisance
Private Nuisance - substantial, unreasonable interference w/ P’s use or enjoyment
Public Nuisance - unreasonably interferes w/ health, safety, or morals of community and P suffered unique damages
Defenses to Negligence
Contributory Negligence
Assumption of Risk - 1) P knew of risk 2) P voluntarily assumed risk
Comparative Negligence - Judge/jury weighs P’s negligence against D’s. Percentages of fault asigned
Statement Against Interest - Hearsay Exception
FRE:
1) Declarant unavailable
2) Statement against declarant’s pecuniary, proprietary, penal interest
3) Against declarant’s interest when made
4) Declarant knew it was against his interest when made
CEC:
Also admissible if it is against declarant’s social interest because risks making declarant object of hatred, ridicule or social disgrace
Present Sense Impression - Hearsay Exception
FRE:
Declarant describes or explains event while event is occurring or immediately thereafter.
CEC instead has contemporaneous statement:
Declarant makes statement to explain, qualify or make understandable their own conduct, and statement made while declarant engaged in that conduct.
Admission - Exclusion vs. Exception
FRE: Nonhearsay
CEC: Hearsay
Prior Inconsistent Statement - CEC vs FRE
FRE:
1) Statement made under oath at formal trial, hearing, deposition
2) Inconsistent w/ statement at trial
3) Declarant testifying at trial/hearing and is subject to cross exam concerning statement
CEC:
1) Inconsistent w/ statement at trial and
2) Declarant testifying at trial/hearing and is subject to cross exam concerning statement
Actual Authority
Express - agent is expressly given authority to act for principal
Implied - principal’s conduct led agent to believe it has authority
Apparent Authority
1) Person dealing w/ agent must do so w/ reasonable belief in agent’s authority
2) Believe must be generated by some act/neglect on part of principal
Vicarious Liability
Principal is liable in tort if:
1) Agent acting in scope of employment or
2) Agent made minor deviation from employment or
3) Agent committed intentional tort (only if for principal’s benefit, because principal authorized, or arose naturally due to nature of employment)
Partnership
Formed when two or more persons carry on as co-owners of business for profit, whether intended to form one or not.
Profit sharing creates presumption that partnership has been formed.
Liability: Jointly and severally liable for all torts committed by employees/partners in ordinary course of business or w/ authority of partnership
10(b)5
Catch-all fraud provision, prohibits manipulative or deceptive devise in connection w/ purchase or sale of any security.
Prohibits scheme to defraud, misrepresentation, or nondisclosure of material facts.
- Materiality - whether there is substantial likelihood reasonable person would attach importance to information in determining his course of action
16(b)
Short swing regulation of federal law.
Strict liability - insider must disgorge profits made on short-swing sales/purchases within six months.
Business Judgment Rule
Insulates directors from liability for losses suffered by corporation b/c of bad board decisions.
Director not liabe for any action taken at properly convented meetings if he performed his duties:
1) in good faith
2) care that ordinarily prudent person in similar position would exercise
3) in manner reasonably believes to be in best interests of corporation
Fiduciary Obligations of Directors:
Duty of Loyalty - breaches usually involve contracts and interested directors, usurpation of corporate opportunities, question of executive compensation, and using corporate assets to retain control
Duty of Care - director held to standard of care that an ordinarily prudent person would exercise in his own personal affairs. Gross negligence must be shown for breach.
Promoter Liability
Promoter helps get corporation into existence by locating inventory, property, personnel
Contractual Liabilities - depends on intent of contracting parties, presumptively bound.
Fiduciary obligations - can’t make secret profits on promotional activities, such as kick-backs on contracts
Watered Stock Liability - if things offered are not equal in value to the par or stated value of stock, liable for difference to creditors or corporation
Potential Liability to:
1) third parties on contractual obligations
2) Corporation for secret profits or watered stock
3) creditors of corporation for watered stock
