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CEMENT Flashcards

FOR MORE MEMORIZED FACTS

1
Q

5

TRUSTEE’S DUTY OF CARE - TRUSTEE TRUST MUST ADMINISTER THE TRUST WITH THE

A
  1. REASONABLE CARE
  2. SKILL AND
  3. CAUTION
  4. REQUIRED UNDER THE CIRCUMSTANCES
  5. TO THE FULL EXTENT OF HIS ABILITIES
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2
Q

3

SCHOOL OFFICIALS - REASONABLE GROUNDS STANDARD FOR SEARCH

A
  1. MODERATE CHANCE OF FINDING EVIDENCE OF WRONGDOING
  2. PROCEDURE IS REASONABLY RELATED TO SEARCH OBJECTIVES
  3. NOT EXCESSIVELY INTRUSIVE SEARCH
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3
Q

2

DUTY OF PRUDENT INVESTOR - TRUSTEE MUST

IEB

A
  1. INVEST AND MANAGE TRUST ASSETS
  2. AS A PRUDENT INVESTOR WOULD
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4
Q

3

A REAL COVENANT MAY BE TERMINATED BY

A
  1. WRITTEN RELEASE
  2. MERGER OF BENEFITTED AND BURDENED ESTATES
  3. CONDEMNATION
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5
Q

4

AT EQUITY, THE PLAINTIF MAY USE PROMISSORY ESTOPPEL TO

A
  1. RECOVER THE VALUE OF THE PROMISE
  2. WHERE DEFENDANT MADE AN UNAMBIGOUS PROMISE
  3. ON WHICH PLAINTIFF REASONABLY AND FORESEEABLY RELIED
  4. CAUSING PLAINTIFF INJURY.
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6
Q

3

CLEAR AND CONVINCING EVIDENCE STANDARD - TRIER OF FACT MUST FIND

A
  1. A HIGH PROBABILITY OF THE FACT’S EXISTENCE
  2. LEVAING NO SUBSTANTIAL DOUBT
  3. AS TO THE FACT DEMONSTRATED BY THE EVIDENCE.
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7
Q

3

IMPLIED EQUAL PROTECTION CLAUSE FIFTH AMENDMENT - THE SUPREME COURT HAS HELD

A
  1. IMPLIED IN THE FIFTH AMENDMENT GUARANTEE THAT THE FEDERAL GOVERNMENT SHALL NOT DEPRIVE PERSONS OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS
  2. IS AN IMPLICIT GUARANTEE
  3. THAT EACH PERSON SHALL RECEIVE EQUAL PROTECTION OF THE LAW.
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8
Q

3

CREATION OF TYPES OF EXPRESS TRUST - THE TYPE OF EXPRESS TRUST CREATED IS CLASSIFIED BY

A
  1. THE PURPOSE OF TRUST
  2. THE TYPE OF BENEFICIARY
  3. OR THE TIME WHICH THE TRUST TAKES EFFECT
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9
Q

5

GROUNDS TO SUPPORT INVOLUNTARY DISSOLUTION OF A CORPORATION

A
  1. FRAUD, MISUSE
  2. CORP ABANDONED FOR OVER A YEAR
  3. INTERNAL DEADLOCK IN SHAREHOLDERS
  4. INTERNAL DEADLOCK IN BOARD
  5. PERIOD CORP WAS FORMED FOR HAS EXPIRED.
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10
Q

4

TERMINATION OF AGENCY RELATIONSHIP - AN AGENCY RELATIONSHIP IS TERMINABLE

A
  1. AT WILL
  2. BY EITHER PARTY
  3. UNLESS AGENCY IS COUPLED WITH INTEREST IN SUBJECT MATTER
  4. OR AGENCY POWER IS GIVEN FOR SECURITY.
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11
Q

2

EXPANDING OR CHANGING A TRUSTEE’S DUTY OF CARE

A
  1. A SETTLOR MAY EXPAND OR RESTRICT THE TRUSTEE’S DUTY OF CARE
  2. BUT HE CANNOT REMOVE THE REQUIREMENT THAT A TRUSTEE ACT IN GOOD FAITH.
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12
Q

4

TRUSTEE MUST INVEST TRUST ASSETS BY CONSIDERING THE

A
  1. PURPOSES,
  2. TERMS,
  3. DISTRIBUTION REQUIREMENTS AND OTHER
  4. CIRCUMSTANCES OF THE TRUST.
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13
Q

3

THE GOVERNMENT CAN REGULATE SYMBOLIC SPPECH WHERE

A
  1. REGULATIONS FURTHER AN IMPORTANT GOVERNMENT INTEREST
  2. UNRELATED TO SUPPRESSION OF THE MESSAGE
  3. THE REGULATION’S IMPACT ON SPEECH IS NO GREATER THAN NECESSARY TO FURTHER THE INTEREST.
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14
Q
A
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15
Q

2

UPIA - STRATEGY FOR TRUST INVESTMENTS

A
  1. THE STRATEGY OF RISK AND RETURN OBJECTIVE
  2. SHOULD BE REASONABLY SUITED TO THE NEEDS OF THE TRUST
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16
Q

4

REMEDIES FOR TRUSTEE BREACH

A
  1. IF A TRUSTEE COMMITS OR THREATENS TO COMMIT A BREACH
  2. A BENEFICIARY OR COTRUSTEE MAY PETITION THE COURT TO COMPEL, ENJOIN OR REMOVE THE TRUSTEE
  3. THE COURT MAY ALSO APPOINT A SPECIAL FIDUCIARY TO MANAGE TEH TRUST
  4. BENEFICIARIES MAY SEEK DAMAGES FROM TRUSTEE FOR BREACH AT EQUITY OR LAW.
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17
Q

1

DIRECTOR DUTY OF LOYALTY REQUIRES THE DIRECTOR

A
  1. REFRAIN FROM ACTING IN HIS OWN INTEREST AT THE EXPENSE OF THE CORPORATION.
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18
Q

3

TRUSTEE’S DUTY OF LOYALTY

A
  1. NO SELF-DEALING
  2. NO CONFLICTS OF INTEREST
  3. TREAT ALL BENEFICIARIES EQUALLY
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19
Q

3

Wills - Slayer Statute Exceptions

A KILLER MAY STILL TAKE WHERE HE TAKES WITHOUT SIN

A
  1. perfect SELF-DEFENSE
  2. INSANITY
  3. NEGLIGENT homicide
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20
Q

3

A DIRECTOR MAY BREACH HIS DUTY OF LOYALTY BY

A
  1. USURPING A CORPORATE OPPORUNITY
  2. SELF- INTEREST DEALINGS
  3. COMPETING WITH THE CORPORATION.
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21
Q

6

NOTICE REQUIRED FOR CLASS ACTIONS WHERE QUESTIONS OF LAW PREDOMINATE - NOTICE MUST CONTAIN

(THE NOTICE IS A BAD CAN TO CONTAIN THE INFORMATION)

A
  1. BINDING EFFECT OF JUDGMENT ON CLASS MEMBERS
  2. ABILITY TO REQUEST EXCLUSION
  3. DEFINITION OF CERTIFIED CLASS
  4. CLASS CLAIMS, ISSUES, DEFENSES
  5. APPEARANCE ABILITY FOR CLASS MEMBER
  6. NATURE OF THE ACTION
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22
Q

6

UPIA - AND GUIDELINES FOR INVESTMENTS - CALIFORNIA HAS ADOPTED THE

A
  1. UNIFORM PRUDENT INVESTOR ACT
  2. PROVIDING TRUSTEES GUIDELINES ON HOW TRUST INVESTMENTS SHOULD BE MANAGED
  3. UNDER UPIA, A TRUST MUST INVEST AND MANAGE TRUST ASSETS
  4. AS A REASONABLY PRUDENT INVESTOR WOULD.
  5. THE STRATEGY OF RISK AND RETURN OBJECTIVE
  6. SHOULD BE REASONABLY SUITED TO THE TRUST.
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23
Q

3

PASSING ASSETS IN INTERVIVOS TRUST WITHOUT A WILL

A
  1. INTER VIVOS TRUST MAY PASS TRUST ASSETS TO BENEFICIARIES AT SETTLOR’‘S DEATH WITHOUT A WILL.
  2. SETTLOR MAY MAKE POUR OVER WILL THAT CATCHES ANY ASSETS NOT IN TRUST AT DEATH
  3. SO ASSETS WILL GO TO TRUST THROUGH PROBATE.
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24
Q

8

EXPERT WITNESS DISCLOSURE REQUIREMENTS - FEDERAL COURT

QuAC BEEFS

A
  1. QUALIFICATIONS
  2. AUTHORED PUBLICATIONS IN PAST TEN YEARSC
  3. COMPENSATION TO BE RECEIVED
  4. BASIS OF OPINIONS
  5. EXHIBITS
  6. EXPERT DESIGNATIONS FOR PAST FOUR YEARS
  7. FACTS AND DATA CONSIDERED
  8. STATEMENT OR REPORT OF OPINIONS
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25
Q

4

PRELIMINARY INJUNCTION - TO ORDER A PRELIMINARY INJUNCTION - THE PLAINTIFF MUST FIRST ESTABLISH:

A
  1. IRREPERABLE HARDSHIP IF STATUS QUO NOT PRESERVED BEFORE TRIAL
  2. BALANCE OF HARDSHIPS WEIGHS IN FAVOR OF PLAINTIFF
  3. LIKELIHOOD OF SUCCESS ON THE MERITS
  4. POST A BOND TO REIMBURSE DEFENDANT IF PLAINTIFF DOES NOT SUCCEED ON MERITS OF CLAIM.
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26
Q

1

TRESSPASS TO LAND - LIABILITY ARISES WHERE DEFENDANT

A
  1. INTENTIONALLY CAUSES ENTRY ONTO, UNDER, OR ABOVE PLAINTIFF’S LAND WITHOUT AUTHORIZATION
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27
Q

1

ALLEGATIONS OF MINOR CHILD CEC HEARSAY EXCEPTION

A
  1. EVIDENCE OF A STATEMENT BY A MINOR CHILD IF OFFERED IN CERTAIN ACTIONS AGAINST A PERSON ALLEGED TO HAVE INJURED THE CHILD.
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28
Q

2

ZONE OF DANGER IS THE ZONE WHERE

A
  1. PLAINTIFF WAS AT FORESEEABLY AT RISK
  2. FROM INJURY RESULTING FROM DEFENDANT’S CONDUCT.
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29
Q

5

TYPES OF EASEMENTS

A
  1. EXPRESS CREATION
  2. CREATION BY IMPLICATION
  3. CREATION BY NECESSITY
  4. CREATION BY PRESCRIPTION
  5. CREATION BY ESTOPPEL
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30
Q

2

UCC 2-201 SOF EXCEPTION FOR PARTIAL PERFORMANCE - GOODS HAVE BEEN

A
  1. ACCEPTED
  2. ACCEPTED AND PAID FOR
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31
Q

4

(IMPLIED SERVITUDE) A COMMON DEVELOPMENT SCHEME MAY BE FOUND WHERE

A
  1. APPEARANCE OF COMMON DEVELOPMENT SCHEME
  2. ORAL REPRESENTATIONS TO BUYERS
  3. STATEMENTS ON WRITTEN ADVERTISEMENTS, BROCHURES
  4. RECORDED PLAT MAPS OR DECLARATIONS
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32
Q

2

NEGATIVE RECIPROCAL EASEMENT

A
  1. LANDOWNER DIVIDES HIS LAND
  2. SELLS PARCELS TO GRANTEES WITH RESTRICTIONS
  3. RESTRICTIONS WILL APPLY TO OWNER’S REMAINING LAND TOO
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33
Q

2

UCC EXCEPTION TO PAROL EVIDENCE RULE

A
  1. PRIOR DEALINGS
  2. OR COURSE OF TRADE
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34
Q

1

EXCEPT TO THE NON-APPEALABILITLY OF REMAND ORDERS

A
  1. DISCRETIONARY EXERCISE OF SUPPLEMENTAL JURISDICTION
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35
Q

3

GOVERNMENT MAY DISCRIMINATE BY PASSING LAWS THAT ARE

A
  1. FACIAL DISCRIMINATORY
  2. HAVE A DISCRIMINATORY MOTIVE
  3. HAVE A DISCRIMINATORY APPLICATION

:

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36
Q

2

SUBSTANTIAL IMPAIRMENT STANDARD FOR REJECTING NON-CONFORMING GOODS IN AN INSTALLMENT CONTRACT

A
  1. ONLY SUBSTANTIAL IMPAIRMENT ALLOWS REJECTION
  2. BUYER MAY DEDUCT THE LOSSES CAUSED BY NON-CONFORMITY FROM AMOUNT OWED TO SELLER
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37
Q

1

A BUYER CAN CANCEL AN INSTALLMENT CONTRACT ONLY WHERE

A
  1. NONCONFORMITY WITH RESPECT TO ONE OR MORE INSTALLMENTS SUBSTANTIALLY IMPAIRS VALUE OF WHOLE CONTRACT.
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38
Q

1

INDEPENDENT MEDICAL EXAMS ARE CONSIDERED _____ BY FEDERAL COURTS AND WILL THEREFORE BE REQUIRED IN ALL FEDERAL CASES WHERE GOOD CAUSE AND OTHER APPLICABLE REASONS APPLY.

A
  1. PROCEDURAL LAW
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39
Q

1

SUBJECTIVE STANDARDS

A
  1. PLAINTIFF’S KNOWLEDGE AND APPRECIATION OF RISK FOR ASSUMPTION OF RISK
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40
Q

POOP

OBJECTIVE STANDARDS

A

OFFENSIVE NATURE OF TOUCHING FOR BATTERY

INTERFERENCE WITH PLAINTIFF’S USE AND ENJOYMENT OF HIS LAND FOR NUISANCE

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41
Q

4

Scope of Appellate Court’s Review:

A
  1. ERRORS MUST BE ON THE TRIAL RECORD TO BE REVIEWED.
  2. FACTUAL FINDINGS REVIEWED ONLY WHERE CLEAR ERRORS
  3. JUDGE’S OTHER DERMMINATIONS REVIEWED FOR ABUSE OF DISCRETION
  4. CONCLUSIONS OF LAW WILL BE REVIEWED DE NOVO
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42
Q

4

Constructive Trust:

A
  1. EQUITABLE REMEDY POSED WHERE LEGAL DAMAGES INSUFFICIENT
  2. PLAINTIFF CAN TRACE UNJUST GAIN AS SOLE SOURCE OF DEFENDANT’S TITLED PROEPRTY
  3. CONSTRUCTIVE TRUST TAKES LEGAL TITLE TO PROPERY
  4. DEFENDANT IS TRUSTEE FOR PURPOSE OF TRANSFERRING PROPERTY TO PLAINTIFF
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43
Q

2

DAMAGES FOR MISREPRESENATION REQUIRE PROOF OF

A
  1. ACTUAL DAMAGES
  2. CAUSED BY PLAINTIFF’S RELIANCE ON MISREPRESENTATION
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44
Q

2

DAMAGES FOR MISREPRESENATION ARE MEASURED BY

A
  1. PLAINTIFF’S PECUNIARY LOSS OR
  2. VALUE OF EXPECTED BENEFIT OF THE BARGAIN.
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45
Q

5

CONTROL BY COURT: TRIAL JUDGE HAS DISCRTION TO

A
  1. REGULATE MANNER AND ORDER OF PROOF
  2. EXERCISE REASONABLE CONTROL AS NEEDED
  3. MAKE INTERROGTAIONS AS EFFICIENT AND EFFECTIVE AS NEEDED
  4. FOR ASCERTAINMENT OF TRUTH AND
  5. PROTECTING WITNESSES FROM UNDUE EMBARASSMENT.
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46
Q

2

LEAST RESTRICTIVE MEANS RULE - UNDER THE LEAST RESTRICTIVE MEANS RULE, A GOVERNMENT LAW MUST

A
  1. BE FRAMED TO IMPINGE ON TEH LEAST AMOUNT OF CIVIL LIBERTIES POSSIBLE
  2. WHILE ACHIEVING ITS OBJECTIVE.
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47
Q

5

SCOPE OF APPELLATE COURT’S REVIEW

A
  1. ERRORS MUST BE ON THE RECORD OF THE TRIAL COURT PROCEEDING
  2. FACTUAL FINDINGS REVIEWED ONLY WHERE CLEAR ERROR
  3. FACTS MAY BE REVIEWED IF BENCH TRIAL
  4. JUDGE’S OTHER DISCRETIONARY DETERMINATIONS ONLY WHERE CLEAR ABUSE OF DISCRETION
  5. CONCLUSIONS OF LAW REVIEWED DE NOVO
48
Q

4

RULE 11 - ATTORNEY WHO FILES A PLEADING IN FEDERAL COURT WARRANTS THE PLEADING

A
  1. HAS NOT BEEN FILED FOR AN IMPROPER PURPOSE
  2. SUPPORTED BY EXISTING LAW, SEEKS TO NONFRIVILOUSLY MODIFY LAW, OR MAKE NEW LAW
  3. CONTENTIONS ARE BASED ON EVIDENTIARY SUPPORT OR WILL LIKELY HAVE EVIDENTIARY SUPPORT AFTER FURTHER DISCOVERY
  4. DENIALS ARE WARRANTED BY EVIDENCE OR REASONABLY BASED ON LACK OF BELIEF OR INFORMATION.
49
Q

1

CONSEQUENCE OF FEDERAL LAW AND STATE LAW REGARDING COMMERCE BEING IN CONFLICT

A
  1. FEDERAL LAW INVALIDATES STATE LAW DUE TO SUPREMACY CLAUSE
50
Q

4

WHEN CAN A STATE LAW REGULATE COMMERCE

A
  1. LOCAL ASPECTS OF COMMERCE
  2. CONGRESS HAS BEEN SILENT ON THE MATTER
  3. REGULATION IS NOT DISCRIMINATORY
  4. DOES NOT UNDULY BURDEN INTERSTATE COMMERCE
51
Q

2

RACE STATUTE

A
  1. FIRST TO RECORD WINS
  2. NOTICE IS IRRELEVANT

On the MBE, a race statute will look as follows: “No conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded.

52
Q

POOP

DORMANT COMMERCE CLAUSE REVIEW STANDARDS

NON-DISCRIMINATORY STATE LAW REVIEW VS. FACIALLY DISCRIMINATORY STATE LAW REVIEW

A

NON-DISCRIMINATORY STATE LAW VIOLATES DCC IF IT

  1. BURDENS INTERSTATE COMMERCE
  2. BURDEN OUTWEIGHS BENEFITS

FACIALY DISCRIMINATORY STATE LAW VIOLATES DCC IF IT

  1. NOT NECESSARY TO ACHIEVE AN COMPELLING GOVT PURPOSE
  2. LESS DISCRIMINATORY MEANS ARE AVAILABLE
  3. STATE ISN’T A MARKET PARTICIPANT
53
Q

2

RACE-NOTICE STATUTE

A
  1. LAST BFP WITHOUT NOTICE OF PRIOR UNRECORDED INTEEST
  2. WHO RECORDS BEFORE PRIOR UNRECORDED INTEREST WINS.

On the MBE, a race-notice statute looks as follows: “No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded.

54
Q

1

NOTICE STATUTE

A
  1. LAST BFP WITHOUT NOTICE WINS

On the MBE, a notice statute will look as follows: “No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, unless it is recorded.”

55
Q

POOP

Evidence - Ways to Impeach - 2 I’s 4 Ceeing

A

I:Interest or bias
I:Inconsistent statement and conduct
C=Contradiction by other witness or evidence
C=Conviction of a crime
C=Character for truthfulness
C=Capacity to observe, recal, relate

56
Q

POOP

FOUR UNITIES FOR ADVERSE POSSESSION

PITT

A

POSSESSION

INTEREST

TITLE

TIME

57
Q

14

CRAPPED WITE FIB

CONGRESS’ ENUMERATED POWERS

A
  1. COMMERCE
  2. REVENUE RAISING BY TAX
  3. ALIEN NATURALIZATION
  4. POST OFFICE
  5. PROPERTY POWER
  6. ELECTIONS, FEDERAL
  7. DISTRICT OF COLUMBIA
  8. WAR POWERS
  9. INVESTIGATORY POWERS
  10. TREATY POWER (RATIFICATION)
  11. ENFORCEMENT OF CIVIL RIGHTS (13,14,15TH AMENDMENTS)
  12. FISCAL POWER
  13. INFERIOR COURT REGULATION
  14. BANKRUPTCY
58
Q

POOP

Congress requires a 2/3 vote only when drinking a TEA I.V.

A

T – For the Senate to ratify a Treaty
E – To Expel a member from either House of Congress
A – To propose an Amendment to the Constitution (2/3 vote in each House)
I – For the Senate to convict an Impeached official (2/3 of those present)
V – For both Houses to override a Presidential Veto

59
Q

POOP

CEC ALLOWS A PRIOR INCONSISTENT STATEMENT BE USED AS LONG AS

A

WITNESS HAS NOT BEEN EXCUSED

AND HAS AN OPPORTUNITY TO EXPLAIN OR DENY THE STATEMENT

60
Q

4

OFFENSIVE NON-MUTUAL COLLATERAL ESTOPPEL IS ALLOWED WHERE

A
  1. ISSUE WAS ACTUALLY AND NECESSARILY LITIGATED
  2. ISSUE WAS ESSENTIAL TO JUDGMENT
  3. FINAL JUDGMENT ON THE MERITS
  4. PARTY WHOM AGAINST PRECLUSION SOUGHT HAD FULL AND FAIR OPPORTUNITY TO LITIGATE THE ISSUE IN THE PREVIOUS LAWSUIT WITH THE SAME INCENTIVE TO LITIGATE.
61
Q

5

EXPECTATION DAMAGES

A
  1. EXPECTATION INTEREST
  2. PLUS CONSEQUENTIAL DAMAGES
  3. LESS PAYMENTS RECEIVED
  4. MONEY SAVED BY NON PERFORMANCE
  5. AND DUTY TO MITIGATE
62
Q

POOP

CORN

63
Q

POOP

Civil Procedure - reasons to grant Motion to Dismiss

In SIDEBAR, Plaintiff Finally admitted the claim should be dismissed.

A
  1. STATUTE of Frauds
  2. INFANCY or incompetency
  3. subject matter of claim DISCHARGED in bankruptcy proceeding
  4. ESTOPPEL (collateral estoppel or res judicata)
  5. claim BARRED by statute of limitations
  6. ARBITRATION and award
  7. RELEASE from claim by plaintiff
  8. PAYMENT by defendant
  9. FAILURE to state a claim upon which relief can be granted
64
Q

POOP

Civil Procedure - Objections To Method of Inquisition

Poorly phrased questions set off the BAC door ALARM.

A

overly BROAD question

AMBIGUOUS question

COMPOUND question

ARGUMENTATIVE badgering of witness

LEADING question on direct exam

ASSUMING fact not in evidence as part of question

REDUNDANT question requiring cumulative response

MISQUOTING prior statement by witness

65
Q

POOP

Civil Procedure - Sanctions during Discovery

This Judge DRIPS hot wax as a sanction for misbehavior.

A

order default JUDGMENT against defendant

DISMISS action in favor of defendant

force non-disclosing party to RESOLVE the issue causing non-disclosure

IMPOSE attorney fees, costs of suit and fines

PRECLUDE non-disclosing party from introducing related evidence

STRIKE non-disclosing party’s pleadings related to issues of non-discovery

66
Q

POOP

Evidence - Self-Authenticating Documents

OIL CANS are self-authenticating

A

OFFICIAL publications issued by public authority

INSTRUMENTS - negotiable and commercial paper

LABEL, tag or trademark affixed on item in regular course of business

CERTIFIED public documents (by clerk of agency or court that had custody)

ACKNOWLEDGED documents signed before notary, swore to truth, content and execution (except wills)

NEWSPAPERS and periodicals with reasonably wide circulation

SEALED documents (government certified)

67
Q

POOP

Evidence - Subject Outline Mnemonic

Follow RECIP(e) H to decide if the evidence is admissible.

A

Relevance

Extrinsic PUBLIC policies

Character evidence

Impeachment

Privileges

(e)

HEARSAY

68
Q

3

COLLATERAL ORDER DOCTRINE - THREE FACTORS REQUIRED TO SATISFY THE COLLATERAL ORDER DOCTRINE AND MAKE AN INTERLOCUTORY ORDER APPEALABLE

A
  1. CONCLUSIVELY DETERMINES DISPUTED QUESTION
  2. RESOLVES IMPORTANT ISSUE SEPARATE FROM THE MERITS OF THE ACTION
  3. EFFECTIELY REVIEWABLE UPON APPEAL FROM FINAL JUDGMENT.
69
Q

4

BUSINESS JUDGMENT RULE

A
  1. PRESUMPTION EXISTS DIRECTOR ACTED IN GOOD FAITH
  2. COURT WILL NOT FIND LIABILITY WHERE DIRECTOR, AFTER REASONABLE INQUIRTY
  3. ACTED WITH REASONABLE BELIEF ACTIONS WHERE IN THE BEST INTERESTS OF SHAREHOLDERS AND COPRORATION
  4. AS A REASONABLY PRUDENT PERSON WOULD IN THE SITUATION.
70
Q

3

RESTITUTION FOR PART PERFORMANCE - RESTITUTION WILL ENTITLE A BREACHING PARTY TO RESITUTION OF

A
  1. ANY BENEFIT THAT HE HAS CONFERRED IN THE WAY OF PART PERFORMANCE
  2. IN EXCESS OF ANY LOSS CAUSED TO NON-BREACHING PARTY BY THE BREACH.,
  3. VALUE OF THE BENEFIT CANNOT EXCEED CONTRACT PRICE FOR SERVICES
71
Q

3

SUPREMACY CLAUSE IS TRIGGERED BY A STATE LAW WHERE

A
  1. MUTUAL EXCLUSIVITY (STATE AND FEDERAL LAW IN CONFLICT)
  2. STATE LAW IMPEDES FEDERAL OBJECTIVE
  3. CONGRESS EXPRESSED CLEAR INTENT TO LEGISLATE EXCLUSIVELY ON AREA
72
Q

4

COURT’S HAS POWER TO TERMINATE TRUST WHERE THE TRUST IS GOING TO FALL OFF OF A CiLIF

A
  1. CHANGED CIRCUMSTANCES
  2. IMPOSSIBLITY
  3. ILLEGALITY
  4. FRUSTRATION OF PURPOSE
73
Q

4

AUTOMOBILE EXCEPTION. THE POLICE MAY SEARCH A CAR AFTER

A
  1. PROBABLE CAUSE EXISTS THAT A VEHICLE CONTAINS EVIDENCE OF A CRIME
  2. POLICE MAY SEARCH THE ENTIRE VEHICLE
  3. INCLUDING TRUNK, CONTAINERS LIKELY TO CONTAIN EVIDENCE
  4. PASSENGERS AND PASSENGER’S BELONGINGS.
74
Q

3

WHEN CAN A DEMURRER TO AN ANSWER BE FILED? WHEN THE ANSWER IS

A
  1. IS UNCERTAIN
  2. DOES NOT STATE FACTS SUFFICIENT TO CONSITUTE A DEFENSE
  3. BREACH OF CONTRACT ACTION - ANSWER DOES NOT CONTAIN FACTS SUFFICIENT TO ESTABLISH WHETHER CONTRACT WAS WRITTEN OR ORAL.
75
Q

2

SPECIAL APPEARANCE MADE BE MADE TO:

A
  1. FILE A PRE-ANSWER MOTION WITH THE COURT
  2. WITHOUT HAVING TO FILE A RESPONSIVE PLEADING AND MAKE A GENERAL APPEARANCE.
76
Q

3

A CA ANSWER MUST CONTAIN

A
  1. DENIALS OF MATERIAL ALLEGATIONS IN COMPLAINT THAT ARE CONTROVERTED
  2. ANY ALLEGATION NOT DENIED IS DEEMED ADMITTED
  3. STATEMENT OF AFFIRMATIE DEFENSES
77
Q

4

TYPES OF ERRORS AND RESULTING AVAILABILITY FOR APPEAL

A
  1. HARMLESS ERROR - OBJECTION MADE, IMPROPER RULING, HARM NONE.
  2. PREJUDICIAL ERROR - OBJECTION MADE, IMPROPER RULING, PREJUDICAL TO SUBSTANTIAL RIGHT.
  3. PLAIN ERROR - NO OBJECTION MADE, IMPROPER ADMISSION, PREJUDICAL TO SUBSTANTIAL RIGHT
  4. INVITED ERROR - NO OBJECTION MADE ON PURPOSE, STUCK WITH RESULT
78
Q

1

PRELIMINARY FACTS ARE FACT THAT MAY BE NECESSARY TO

A

ESTABLISH ADMISSIBLITY OF PROFFERED EVIDENCE

79
Q

2

AN EQUITABLE MORTGAGE IS CREATED BY

A
  1. CONVEYANCE OF AN ABSOLUTE DEED AS SECURITY FOR A LOAN
  2. ALONG WITH PROMISE BY GRANTEE TO RECONVEY DEED TO GRANTOR WHEN LOAN IS PAID OFF.
80
Q

2

SPECIAL WARRANTY - GRANTOR ASSURES

A
  1. LAND HAS NOT BEEN CONVEYED TO ANOTHER
  2. LAND IS FREE FROM GRANTOR’S ENCUMBRANCES
81
Q

2

REASONABLE USE THEORY

A
  1. RIPARIAN OWNERS SHARE RIGHTS TO REASONABLE WATER USE
  2. ONLY LIABLE WHERE USE UNREASONABLY INTEREFERERS WITH OTHER OWNER’S USE
82
Q

6

COVENANTS OF TITLE CONTAINED IN A DEED

A
  1. SEISIN - GRANTOR IS RIGHTFUL OWNER
  2. RIGHT TO CONVEY - GRANTOR HAS RIGHT TO CONVEY LAND
  3. AGAINST ENCUMBRANCES - TITLE IS FREE OF ENCUMBRANCES
  4. FURTHER ASSURANCES- GRANTOR WILL PERFORM FUTURE ACTS REASONABLY NECESSARY TO PERFECT CONVEYED TITLE
  5. QUIET ENJOYMENT - GRANTOR WILL NOT BE DISTURBED BY THIRD PARTY’S LAWFUL CLAIM OF TITLE
  6. WARRANTY - GRANTOR WILL DEFEND AGAINST THIRD PARTY CLAIMS AND COMPENSATE FOR LOSSES INCURRED BY SUCH CLAIMS
83
Q

2

SCIENTER FOR MISREPRENSTENTATION

A
  1. KNOWLEDGE THE STATEMENT WASN’T TRUE
  2. RECKLESS DISREGARD OF THE SUBSTANTIAL LIKELIHOOD STATEMENT WAS FALSE
84
Q

8

GROUNDS FOR RESCISSION

MILF CUM

A
  1. MISTAKE
  2. ILLEGALITY
  3. LACK OF CAPACITY
  4. FAILURE OF CONSIDERATION
  5. COERCION (DURESS)
  6. UNDUE INFLUENCE
  7. MISREPRESENTATION
85
Q

4

FEE SIMPLE DETERMINABLE IS CREATED WITH DURATIONAL WUDS

A
  1. WHILE
  2. UNTIL
  3. DURING
  4. SO LONG AS
86
Q

3

IN LAND SALE CONTRACT, THE SELLER CONVENANTS TO

A
  1. TO DELIVER MARKETABLE TITLE AT END OF CLOSING,
  2. MAKE NO MATERIAL MISREPRESENTATIONS AND
  3. DISCLOSE LATENT DEFECTS
87
Q

3

SCOPE OF DISCOVERY - FEDERAL DISCOVERY WILL INCLUDE

A
  1. ANY MATTER RELEVANT TO THE CLAIM OR DEFENSE OF ANY PARTY
  2. NOT UNREASONABLY BURDENSOME OR CUMULATIVE
  3. OR PRIVILEGED.
88
Q

4

QUORUM OF DIRECTORS IS ESTABLISHED BY THIS NUMBER OF DIRECTORS BEING PRESENT AT A BOARD MEETING

A
  1. MAJORITY OF AUTHORIZED DIRECTORS
  2. UNLESS OTHERWISE AUTHORIZED BY BYLAWS
  3. BYLAWS MAY NOT PROVIDE THAT QUORUM IS CREATED BY ONE LESS THAN ONE THIRD OF DIRECTORS
  4. OR FEWER THAN TWO.
89
Q

2

SUMMARY JUDGMENT IS ENTERED WHERE

A
  1. MOVING PARTY ESTABLISHES NO GENUINE ISSUE OF MATERIAL FACT
  2. COURT MUST ENTER JUDGMENT AS A MATTER OF LAW.
90
Q

5

CALIFORNIA - WRITS SEEKING EXTRAORDINARY RELIEF IS A

A
  1. PETITION TO THE APPEALS COURT
  2. SOUGHT AT STATUE OR USING EQUITY
  3. SEEKING EXTRAORDINARY RELIEF
  4. WHERE PARTY HAS NO OTHER PLAIN, SPEEDY, OR ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW
  5. AND WILL SUFFER IRRPERABLE INJURY IF RELIEF NOT GRANTED.
91
Q

3

QUALIFICATIONS FOR AN ORDER CERTIFYING APPEAL OF AN INTERLOCUTORY ORDER

A
  1. ORDER INVOLVES A CONTROLLING QUESTION OF LAW
  2. WHERE THERE ARE SUBSTANTIAL DIFFERENCES OF OPINION
  3. RULING ON LAW WILL MATERIALLY ADVANCE RESOLUTION OF THE ACTION.
92
Q

4

DETERMINING IF A STATE LAW CASE IS REMOVABLE TO THE FEDERAL SYSTEM

A
  1. CASE RAISES A FEDERAL ISSUE
  2. ISSUE IS ACTUALLY DISPUTED
  3. ISSUE IS SUBSTANTIAL TO THE FEDERAL JUSTICE SYSTEM
  4. EXERCISING FEDERAL JURSIDICTION DOES NOT DISTURB CONGRESSIONALLY APPROVED BALANCY OF FEDERAL AND STATE JUDICIAL SYSTEMS.
93
Q

1

COMMERCE CLAUSE - SUBSTANTIAL EFFECT DOCTRINE GIVES CONGRESS THE RIGHT TO LEGISLATE INTRASTATE COMMERCE WHERE

A
  1. INTRASTATE ACTIVITY HAS A CUMULATIVE, SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE
94
Q

3

IMPLIED WARRANT OF MERCHANTABILITY IS BREACHED WHERE

A
  1. MERCHANT SPECIALIZED IN THE TYPE OF GOODS SOLD
  2. GOODS ARE NOT OF THE AVERAGE ACCEPTABLE QUALITY
  3. OR NOT FIT FOR GENERAL INTENDED PURPOSE OF GOODS
95
Q

3

A LAY WITNESS MAY OFFER OPINION TESTIMONY WHERE

A
  1. RATIONALLY BASED ON WITNESS’ PERCEPTION
  2. HELPFUL TO TRIER OF FACT
  3. NOT BASED ON SPECIALIZED KNOWLEDGE
96
Q

2

WHAT TWO THINGS TO ARE NOT NEEDED FOR BENEFIT TO RUN WITH THE LAND?

A
  1. HORIZONTAL PRIVITY
  2. NOTICE
97
Q

2

CLASSIFICATION OF LIFETIME GIFTS RECEIVED BY BENEFICIARIES AND HEIRS THAT WILL AMOUNT TO THEM TAKING THEIR DEVISE OR INHERITANCE BEFORE THE TESTATOR/DECEDENT DIES

A
  1. WILL - ADEMPTION BY SATISFACTION
  2. INTESTATE SUCCESSION - ADVANCEMENT
98
Q

3

BOARD OF DIRECTORS MAY ELECT TO DISSOLVE THE CORPORATION WHERE

A
  1. CORPORATION HAS NOT YET ISSUED SHARES
  2. CORPORATION HAS DISPOSED OF ITS ASSETS AND HASN’T DONE BUSINESS FOR THE PAST FIVE YEARS
  3. CORPORATION IS ADJUDICATED BANKRUPT.
99
Q

4

PASSIVE USE OCCURS WHERE

A
  1. TRUSTEE HAS NO DUTY ASIDE FROM HOLDING LEGAL TITLE.
  2. TRUST PROPERTY IS SUBJECT TO TOTAL AND PRESENT USE BY BENEFICIARY
  3. TRUST TERMINATES AUTOMATICALLY
  4. VESTS TITLE IN BENEFICIARY.
100
Q

4

INTERLOCUTORY APPEALS MAY OCCUR BY

A
  1. EXTRAORDINARY RIGHT
  2. CERTIFIED ORDERS
  3. COLLATERAL ORDER DOCTRINE
  4. APPEALS AS MATTER OF RIGHT.
101
Q

3

INDIVISILBE INJURY DOCTRINE ALLOWS PLAINTIFFS TO

A
  1. HOLD MULTIPLE TORTFEASORS JOINTLY AND SEVERALLY LIABLE
  2. WHERE THEIR NEGLIGENCE COMBINES TO CREATE AN INJURY
  3. NOT SUSCEPTIBLE TO DIVISION ON ANY RATIONAL BASIS.
102
Q

2

DIFFERENCE BETWEEN ADVISORY OPINIONS AND DECLATORY JUDGMENTS - IN A DECLATORY RELIEF ACTION THERE IS AN

A
  1. ACTUAL CONTROVERSY
  2. LITIGANTS ARE AT LEAST NOMINALLY ADVERSE
103
Q

4

MUTUAL MISTAKE OF MATERIAL FACT VS. MISUNDERSTANDING OF MATERIAL FACT

A
  1. MUTUAL MISTAKE OCCURS WHEN PARTIES ENTER A CONTRACT WITH MISTAKEN ASSUMPTION ABOUT THE CIRCUMSTANCES OF A CONTRACT.
  2. CONTRACT IS VOIDABLE BY INJURED PARTY.
  3. (CONTRACT FOR PRIZE COW, BUT THEY DON’T KNOW COW IS DEAD)
  4. MISUNDERSTANDING IS WHEN PARTIES ENTER THE CONTRACT WITH A MUTUAL MISUNDERSTANDING OF A MEANING.
  5. CONTRACT IS VOID.
  6. (CONTRACT FOR FARMER’S PRIZE BROWN COW, HE HAS TWO PRIZE COWS AND EACH PARTY THINK THE CONTRACT IS REFERRING TO A DIFFERENT COW.)
104
Q

2

DESIGNATION OF TREATING PHYSICIANS AS AS EXPERTS

A
  1. FRE - NON-REPORTING EXPERT
  2. CEC - NON-RETAINED EXPERT
105
Q

3

A COMMON INTEREST COMMUNITY IS A

A
  1. HOUSING DEVELOPMENT WHERE INDIVIDUAL OWNERS SHARE FINANCIAL RESPONSIBLITY FOR COMMON AREAS
  2. MANAGED BY HOMEOWNERS ASSOCIATIONS
  3. MAY BE RESIDENTIAL, COMMERCIAL OR MIXED-USE
106
Q

5

LUCAS

A
  1. PRE 1984
  2. OR AFTER DEATH
  3. PROPERTY HELD JOINTLY PRESUMED CP
  4. UNLESS AGREEMENT TO CONTRARY
  5. NO REIMBURSEMENT OF SP USED FOR CP
107
Q

3

MERGER APPROVAL REQUIREMENTS

A
  1. REQUIRES SHAREHOLDER APPROVAL
  2. SHAREHOLDER APPROVAL NOT NEEDED WHERE CHANGE NOT SIGNFICANT
  3. SHORT FORM MERGER OK WHERE 90 PERCENT OWNED OR MORE SUBSIDIARY MERGES INTO ANOTHER
108
Q

4

STEPS REQUIRED FOR MERGER

A
  1. BOARD NEGOTIATES TERMS WITH AQUIRING CORPORATION
  2. BOARD RECOMMENDS MERGER TO SHAREHOLDERS
  3. SHAREHOLDERS APPROVE BY MAJORITY OR 2/3 VOTE
  4. CERTIFICATE OF MERGER IS FILED WITH SOS
109
Q

3

SHORT FORM MERGER MAY OCCUR WHERE

A
  1. PARENT COMPANY IS MERGING WITH A SUBSIDIARY
  2. ALREADY OWNS LARGE STAKE IN SUBSIDIARY
  3. NO SHAREHOLDER VOTE REQUIRED
110
Q

1

DEADLINE FOR AN APPLICATION TO CERTIFY AN INTERLOCUTORY ORDER FOR APPEAL IS

111
Q

1

TO DETERMINE IF INTRASTATE COMMERCE HAS A CUMULATIVE, SUSTANTIAL EFFECT ON INTERSTATE COMMERCE

A
  1. CONSIDER AGGREGATE EFFECT OF MULTIPLE INSTANCES OF THESE ACTIONS
112
Q

2

TO EXCUSE PERFORMANCE THROUGH IMPOSSIBILITY OR IMPRACTICABILITY, THE EVENT MUST BE

A
  1. UNFORESEEN
  2. THE NONOCCURENCE OF WHICH WAS A BASIC ASSUMPTION OF THE PARTIES
113
Q

2

IMPOSSIBLE VS. IMPRACTICABLE

A
  1. PERFORMANCES IS OBJECTIVELY IMPOSSIBLE VS.
  2. PERFORRMANCE IS ONLY POSSIBLE WITH UNREASONABLE DIFFICULTY OR EXPENSE
114
Q

1

WHERE A LAW MAKES PERFORMANCE AGAINST THE LAW, THE EXCUSE OF IMPOSSIBILITY WILL DEPEND ON

A
  1. SUPERVENING ILLEGALITY
115
Q

1

CONTRACT OBLIGATIONS WILL USUALLY SURVIVE DEATH OF A PARTY UNLESS

A
  1. THE CONTRACT WAS FOR UNIQUE PERSONAL SERVICES

CA Bar Outlined and Numbered (with prompts) (43 decks)

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