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CA Bar: Elements > Final Review > Flashcards

Final Review Flashcards

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1
Q

UCC Art. 9

Contracts / Property

A

UCC Art. 9 applies to security interests in TRADE fixtures

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2
Q

Agency Theory of Liability

Crim

A

Under the agency theory, a felon is only responsible for the deaths he caused or his accomplice caused, NOT deaths caused by other third parties; i.e., store clerk or police)

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3
Q

Proprietor Liability

Crim

A

Absent a statute, mere knowledge that crime MIGHT result from the sale of ordinary goods at ordinary prices is NOT enough to hold a proprietor under accomplice liability (because proprietor does NOT have the required intent)

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4
Q

False Pretenses

Crim

A

False pretenses = taking “title” (look to see what victim intended to convey; cash = title)

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5
Q

Burglary

Crim

A

Burglary is NOT just about theft, it is the intent to commit ANY felony

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6
Q

Show-Up / Line-Up & DP

Crim Pro

A

A “show-up” is a one-on-one confrontation between the witness and the suspect for the purpose of identification; A “line-up” or “show-up” violates DP when the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification (a very difficult test–must be extremely suggestive)

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7
Q

ID / Independent Source Factors

Crim Pro

A

Identification independent source factors include: (1) opportunity to observe defendant at the time of the crime; (2) ease in which witness can identify defendant; and (3) existence or absence of prior misidentifications.

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8
Q

First Degree Murder

Crim

A

First degree murder is committed with deliberation and premeditation

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9
Q

Voluntary Intoxication

Crim

A

It is generally geld that voluntary intoxication will NOT mitigate murder down to manslaughter

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10
Q

Insanity and Diminished Capacity

Crim

A

Include a “diminished capacity” analysis with any insanity analysis

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11
Q

Codicil

Wills

A

[“RAM”] A codicil is a testamentary instrument intended to modify, amend, or revoke an existing will

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12
Q

Consent & Necessity

Torts

A

Differentiate between defense of consent (defendant acts for the benefit of the plaintiff) and necessity (defendant acts for the benefit of others besides the plaintiff)

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13
Q

Superseding Factors

Torts

A

Superseding factors break the causal connection; defendant is NOT liable for unforeseeable results from foreseeable or unforeseeable forces

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14
Q

Accommodation

Contracts

A

Accommodation shipment rules apply only when shipment is used as a form of acceptance. Watch out for a fact pattern in which a party accepts an order by promising to ship, he then discovers he lacks the specified goods and ships “nonconforming goods”as “accommodation.” This is an acceptance and breach; NOT an accommodation. There was a contract at the promise of shipment. The shipment was NOT the acceptance and, thus, the accommodation is NOT possible.

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15
Q

SoF NOT req’d for Goods >$500

Contracts

A

[“SWAP”] When a writing signed by the party to be charged is NOT required for the sale of goods, even if $500 or more: (1) specially made goods; (2) written confirmation by a merchant; (3) admission in court; or (4) performance. These facts take the contract out of the SoF.

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16
Q

Mitigate

Contracts

A

The duty to mitigate only REDUCES a recovery; it does NOT prohibit recovery

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17
Q

Takings Clause

Con Law

A

Government must pay just compensation when it takes private property for public use

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18
Q

Government Takings

Con Law

A

(1) Possessory Taking (“Per Se” Taking);
(2) Regulatory Taking: (a) deprivation of all economic value (usually a taking); or (b) decrease in economic value–use balance test: (i) economic impact, against (ii) distinct, investment backed expectations (usually NOT a taking).

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19
Q

Taking for Public Use

Con Law

A

Government acts out of reasonable belief its actions will benefit the public

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20
Q

Just Compensation

Con Law

A

Government must pay fair market value (FMV) of what was taken, measured by loss to owner at time of taking

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21
Q

Piercing the Corporate Veil

Corps

A

[“After I Pierce - FU”] - May pierce the corporate veil to hold SH’s personally liable in the following situations to prevent Fraud or Unfairness: (1) Alter Ego (corporate formalities ignored AND injustice resulted); (2) Inadequate capitalization; or (3) to Prevent fraud. (Usually for tort cases; contract cases harder)

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22
Q

Derivative Suits

Corps

A

[“Sow D”] Requires: (1) Standing–ownership at the time of the wrong; AND (2) Demand requirements (written demand-90 day wait period). Will be dismissed if NOT in corp’s best interest; need court approval to discontinue or settle; and court may order payment of expenses.

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23
Q

Fundamental Corporate Changes

Corps

A

Regular issues can be approved by a majority of the shares cast at a meeting, as long as there is a quorum; whereas a fundamental corporate change must be approved by a majority of all votes entitled to be cast–NOT just those case for a meeting.

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24
Q

Types of Fundamental Corp Changes

Corps

A

[“MAC SD”] - (1) Merger; (2) Amendments; (3) Consolidation; (4) Sale of substantially all of the assets; (5) Dissolution

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25
Q

Dissenters Appraisal

Corps

A

Dissenters from the fundamental corporate change have the right to force the corporation to buy back their shares at FMV. Must “perfect the right” by documenting their opposition, voting against the fundamental change, and making a written demand.

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26
Q

Rule 10b-5

Corp

A

[“IP’ed MF”] - Rule 10b-5 makes it illegal for any person to (i) use any means of Instrumentality of interstate commerce; (ii) in connection with the Purchase or sale of any security; (iii) to Employ any scheme to Defraud, make an untrue statement of Material fact (or omit a material fact), or engage in any practice that operates as Fraud. (Fraudulent conduct–(1) materiality and (2) scienter/intent.)

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27
Q

Rule 10b-5 “Insider Trading”

Corp

A

Insider info; breaches a duty of trust and confidence owed to (1) the issuer/corp; (2) SHs of the issuer; (3) in the case of misappropriators, another person who is the source of the material non-public info (insiders, tippers/tippees, misappropriations)

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28
Q 
Section 16(b)
(Corps)
A

(1) Director, officer, or SH owning more than 10% of a class of stock; (2) Purchase or sale of any equity security within SIX month period. Applies to publicly held corps with more than $10 million in assets AND (i) at least 2,000 SH or 500 unaccredited SH; (ii) whose shares are traded on a national exchange (STRICT LIABILITY)

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29
Q

Objections

Evidence

A

[“CANS LC”] (1) Calls for narrative; (2) Assumes facts NOT in evidence; (3) Nonresponsive; (4) Speculation; (5) Leading; (6) Compound

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30
Q

Legal Relevance Public Policy Exceptions

Evidence

A

[“I MRS. G’S”] (1) Liability insurance; (2) Subsequent remedial measures; (3) Settlement offers; (4) Payment or offer to pay medical expenses; (5) Guilty pleas; (6) CA only–Sympathy statements

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31
Q

NOT Hearsay

Evidence

A

[“LEND”] - (1) Legal operative facts; (2) Effect on hearer / listener; (3) Nonhuman declarations; (4) Declarant’s state of mind via circumstantial evidence

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32
Q

Non-Hearsay

Evidence

A

[“PA”] - (1) Prior Statements - (i) Prior Inconsistent Statements; (ii) Prior Consistent Statements; (iii) Prior Identifications; (2) Admissions - (i) Party; (ii) Vicarious; (iii) Adoptive (tacit / silent); (iv) Co-conspriators statements (watch Confrontation Clause)

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33
Q

Hearsay EXCEPTIONS

Evidence

A

[“UR DO”]

(1) Unavailability (“DDF”) - (a) Declarations against interest; (b) Dying declarations; c) Former testimony;
(2) Reliability (“EPBP”) - (a) Excited Utterance / Spontaneous Statement; (b) Present Sense Impression / Contemporaneous Statement; c) Bodily Condition; (d) Present State of Mind;
(3) Documentary (“OBP”) - (a) Official records; (b) Business records; c) Part recollection recorded
(4) Others (“LAF”) - (a) Ancient documents; (b) Learned treaties; c) Federal catch-all

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34
Q

Types of Leaseholds

Property

A

(1) Tenancy for Years; (2) Periodic Tenancy; (3) Tenancy at Will; (4) Tenancy at Sufferance

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35
Q

Termination of an Easement

Property

A

[“END CRAMP”] - (1) Estoppel; (2) Necessity; (3) Destruction; (4) Condemnation; (5) Release; (6) Abandonment; (7) Merger; (8) Prescription

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36
Q

Touch and Concern

Property

A

More VALUABLE and more USEFUL

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37
Q

General Warranty Deed

Property

A

(1) Present Covenants - (a) Seisen; (b) Right to Convey; c) Against Encumbrances;
(2) Future Covenants - (a) Quiet enjoyment; (b) General warranty; c) Further assurances

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38
Q

Former Government Lawyer

PR

A

ABA - If government lawyer worked “personally” and “substantially” on a “matter” (specific dispute, between specific people, over specific issue)

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39
Q

Organizational Representation

PR

A

ABA - Mandates “reporting up” and permits limited “reporting out”
CA - Permits “reporting up” but prohibits “reporting out” (but because of federal preemption, a CA lawyer cannot be disciplined for complying with federal law

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40
Q

Class Actions

Civ Pro

A

FIRST, Initial Requirements: (“CANT”) (1) Commonality–at least one question of law or fact is common to the class; (2) Adequacy of Representative–rep will fairly and adequately represent the class; note that court can remove adequacy problem by appointing another rep; (3) Numerosity–so numerous that joinder of all members would be impossible or impractical; (4) Typicality–reps claims / defenses are typical of those of the class.

SECOND, must fit into one of three categories: (“DIP”) (1) Damages–when the common questions of law and fact by the class predominate over individual differences and class action is the superior method to handle the suit (i.e., bus crash or cigarette cases); (2) Injunctive or Declarative Relief–if the entire class requests injunctive relief (i.e., employment discrimination or dumping in a pond); (3) Prejudice–class treatment necessary to avoid harm either to the class member or to the party opposing the class (i.e., limited funds)

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41
Q

CA Class Actions

Civ Pro

A

Must have: (1) Ascertainable class; (2) Well-defined community of interests (“CAB”)–(a) Commonality; (b) Adequate Class Rep; c) Whether certifying the class will result in a substantial Benefit to the court and parties

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42
Q

Motions to Dismiss

Civ Pro

A

Evidence viewed in the light most favorable to the moving party

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43
Q

Strict Products Liability (SPL)

Torts

A

SPL: (1) Defendant is a commercial supplier; (2) Defendant produced or sold a defective product; (3) the defective product was the actual and proximate cause of the Plaintiff’s injury; and (4) the Plaintiff suffered damages to person or property

(note: keep rules of SPL and NPL separate!)

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44
Q

Inadequate Warnings

Torts

A

Inadequate warnings are analyzed the same as design defects

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45
Q

Actual and Proximate Cause

Torts

A

Need actual and proximate cause for everything (SPL / NPL / Negligence)!

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46
Q

Expert Testimony

Evidence

A

Expert testimony factors (“HQ CFR”): (1) Helpful to a jury; (2) Qualified as an expert; (3) holds his opinion to a reasonable degree of Certainty; (4) opinion based on sufficient Facts or data; (5) opinion based on Reliable principles and method (FRE - Daubert; CA - Kelley/Frye)

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47
Q

Daubert Test

Evidence

A

(“PERR”) (1) Publication / peer review; (2) Error rate low; (3) Recently tested and can be retested; (4) Reasonable level of acceptance.

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48
Q

Kelley/Frye Test

Evidence

A

Generally accepted by the experts in the field

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49
Q

Real Covenants / Equitable Servitudes (Burden or Benefit)

Property

A

Burden: WITCH NV
Benefit: WITV
Equitable Servitude: TWIN

Remedies: RC=real cash; ES=injunction

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50
Q

Adverse Possession

Property

A

(“COAH”) (1) Continuous; (2) Open and notorious; (3) Actual, physical entry; (4) Hostile

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51
Q

Easements Types

Property

A

Easements are non-possessory and for another’s the use and enjoyment.

(“PING”) (1) Prescriptive; (2) Implied; (3) Necessary; or (4) Grant

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52
Q

Mutual Mistake

Contracts

A

(“BAM-ER”) Contract is voidable by adversely affected party if: (1) mistake concerns Basic Assumption on which contract was made; (2) mistake has a Material Effect; AND (3) party seeking avoidance did not assume Risk

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53
Q

Impossibility / Impracticability

Contracts

A 
Impossibility = Objective Test
Impracticability = Subjective Test
54
Q

Promissory Estoppel

Contracts

A

Contract still enforceable to prevent injustice, regardless of a lack of consideration IF: (1) the promisor should reasonable expect to induce action or forbearance, AND (2) such action or forbearance is in fact induced

55
Q

Outside the Scope of Parol Evidence Rule

Contracts

A

“STARVIN” - validity / formation issues

56
Q

Discharge of Duties by Parties

Contracts

A

“MRNA” - Modification; Rescission; Novation; Accord and Satisfaction

57
Q

Unmarketable Title

Prop

A

(“DA FEZ”) - (1) Defects in record chain of title; (2) Adverse possession; (3) Future interests held by unborn or unascertainable persons; (4) Encumbrances; or (5) Zoning restrictions

58
Q

Mortgages Priorities

Prop

A

(1) Foreclosure expenses; (2) Legal fees / Court costs; (3) Principal; (4) Junior interets; (5) Mortgagor

59
Q

Water Rights

Prop

A

Water Front Property:
Riparian = domestic, reasonable use;
Prior Appropriations = “first in time, first in right” (beneficial use)

Ground Water:
Reasonable Use

Surface Water:
Common Enemy Rule = protective reasonable or unreasonable measures
Natural Flow = (majority) cannot alter natural drainage patterns

60
Q

Dormant Commerce Clause - Discriminatory on Its Face

Con Law

A

Invalid unless: (“MINE DAT”) (1) state Market participant; (2) law further an Important, Non-Economic interest and there are no reasonable Non-Discriminatory Alternatives; or (3) Traditional government function

61
Q

Dormant Commerce Clause - Non-Discriminatory Law

Con Law

A

If the law is discriminatory in its purpose or effect: (1) balance the state’s interest against the burden on interstate commerce; and (2) consider other less burdensome alternatives

62
Q 
Prior Restraints 
(Con Law)
A

If government prevents speech before it occurs, the government must show some societal harm due to the speech

Requirements: (“NIP”) - (1) Standards must be Narrowly drawn, reasonable, and definite; (2) an Injunction must promptly be sought; and (3) must be Prompt and final determination of validity of restraint

63
Q

Vagueness

Con Law

A

Reasonable person not given reasonable notice of what is prohibited

64
Q

Overbreadth

Con Law

A

Regulates both protected and unprotected speech

65
Q

Obscenity

Con Law

A

(“PP-Laps”) (1) appeals to the prurient interest (average contemporary community standard); (2) patently offensive (average contemporary community standard); (3) lacks literary, artistic, political or scientific value (national standard)

66
Q

Public Forums

Con Law

A

Government required to make available for speech (i.e., sidewalks, parks) (1) regulations must be subject matter and viewpoint neutral or SS must be met; (2) TPM regs must serve important government purpose, narrowly tailored, and leave open adequate alternative channels for communication

67
Q

TPM Regs

Con Law

A

(1) Content neutral; (2) Narrowly tailored; (3) Leaves open adequate alternative channels for communication

68
Q

Non-Public Forums

Con Law

A

Government may regulate as long as it is reasonable and viewpoint neutral

69
Q

Standing and State Action

Con Law

A

For Con Law essays, mention standing and state action if there is time

70
Q

Federal Questions - SMJ JDX

Civ Pro

A

FQ requires that the case arise from the laws, treaties, etc. of the US, as presented in the plaintiff’s well-pleaded complaint

71
Q

Agent Duties Owed to Principal

BA

A

(“LOE”) - (1) Loyalty (“SUS” - no Self-dealing; no Usurping; no Secret profits); (2) Obey reasonable instructions; (3) Exercise reasonable care

72
Q

Principal Duties Owed to Agent

BA

A

(“CCR”) - (1) Compensation (if not in agency agreement, than reasonable compensation); (2) Cooperation; (3) Reimbursement

73
Q

Partnership Duties

BA

A

GPs are fiduciaries of each other and the partnership. Partners owe a duty of loyalty (“SUS”)

74
Q

De Jure Corporation

Corps

A

(“A PAIN”) - (1) Authorized shares; (2) Purpose; (3) Agent; (4) Incorporators; (5) Name of Corp

File Articles of Incorporation with the Secretary of State

75
Q

De Facto Corporation

Corps

A

(“G CK”) - (1) Good faith, colorable attempt to comply with corporate formalities; and (2) no Knowledge of lack of corporate status

76
Q

Corporation by Estoppel

Corps

A

Estoppel rules - contract issue only

77
Q

Foreign Corporation

Corps

A

Requires a filing a Certificate of Authority that includes all the requirements of the AOI

78
Q

Meeting Notice

Corps

A

Meeting’s notice 10-60 days before

79
Q

Director’s Fiduciary Duties

Corps

A

(1) Care (prudence / BJR); (2) Loyalty (“SUS”)

80
Q

Controlling Shareholder’s Duty

Corps

A

Controlling SH has a fiduciary duty to minority SHs and must not sell to a “looter”

81
Q

Tender Offer

Corps

A

Widespread public offering to purchase a substantial percentage of the target’s shares; if more than 5%, must filed a Schedule 14D disclosure re: bidder’s identity, source of funds, past dealings with the target, and plans concerning the target; offer open for 20 days and revocable (Williams Act)

82
Q

Business Judgment Rule (BJR)

Corps

A

(“GBP”) - BJR generally protects directors from personal liability to corporation / SH; (1) director must act in Good faith; (2) with the care that an ordinary Prudent person in a like position would exercise; AND (3) in a manner reasonably believed to be in the Best interests of the corp

83
Q

Trustee Duties

Trusts

A

(“LIIL’ CA CD”) - (1) Loyalty; (2) Impartiality / Fairness; (3) Invest–(a) state lists / statutes; (b) CL prudent person test, each investment individually scrutinized; c) Uniform Prudent Investor Act, each investment NOT individually scrutinized; (d) duty to DIVERSIFY; (4) Duty to Label / Earmark; (5) Duty of Care; (6) Duty to Account; (7) Duty to NOT Commingle trust property; and (7) Duty to NOT Delegate

84
Q

Integration

Wills

A

(1) Intent to be part of the will; and (2) Presence

85
Q

Incorporation by Reference

Wills

A

(1) Document or writing; (2) In existence at time of execution; (3) Clearly ID’d in the will; AND (4) Intent to incorporate

86
Q

Acts of Independent Significance

Wills

A

“I leave my car at the time of my death to my son”

87
Q

Tchaskee Letters

Wills

A

(1) Referred to in the will, dated, signed, and handwritten; (2) Describes items / beneficiary with reasonable certainty; (3) Tangible personal property (NOT cash)–each item NOT more than $5k and NOT more than $25k in the aggregate

88
Q

UTATA

Wills

A

Pour over wills - Testator can make gifts by will to a trust, even a revocable and amendable trust, provided that the trust instrument was executed before or concurrently with the will and is adequately identified in the will

89
Q

CP Rules in General - SP clause

Comm Prop

A

SP (“GDB, RIP”) - “or acquired by gift, devise, or bequest with rents, issue, or profits thereon.”

90
Q

Marvin Actions

Comm Prop

A

Courts will enforce express contracts, unless the contract is for illegal sex services (arises in re Cohabitation issues or Domestic Partnerships)

91
Q

Valuing Assets Rule

Comm Prop

A

Courts will value assets and liabilities as close to the time of trial as possible.

92
Q

Lucas (Death)

Comm Prop

A

At death, Lucas applies. Under Lucas, when a married couple takes title in joint and equal form, it is inconsistent with the preservation of a SP interest in the asset. Any SP used to acquire the asset is presumed to be a gift of the SP to the community, unless there is an oral or written agreement to the contrary.

93
Q

Anti-Lucas (Divorce)

Comm Prop

A

At divorce, all property taken by a married couple in any joint form is presumed to be CP. Any SP used to acquire the jointly titled asset does NOT give the SP a pro rata ownership interest in the asset, but the spouse who contributed SP is entitled to reimbursement without interest or appreciation.

Put otherwise, the spouse who contributed SP will get back dollar-for-dollar off the top of SP put into CP for the Downpayment, Improvement, or Principle reduction of that property (but NOT interest, taxes, dividend, insurance, or maintenance). [“DIP”]

94
Q

Pereira Formula - Business

Comm Prop

A

Pereira accounting is used when the increase in value of an SP business is primarily the result of community labor (i.e., personal skill and effort caused the increase in value). Using Pereira, we first determine the value of the SP at the beginning of the business and give it a fair rate of return over the course of the marriage. Normally, this is the legal interest rate of 10%, calculated annually. The SP is then given the initial value plus the fair rate of return. The remainder is CP.

Community Benefits:

[( ii x 10%) x # of years] + ii = SP; remainder = CP

95
Q

Van Camp Formula - Business

Comm Prop

A

Van Camp accounting is used when the increase in value of a business is primarily the result of the unique nature of the SP asset. Using Van Camp, we first determine a fair salary for the community labor. Multiply that by the years of the marriage. Subtract any salary already received and any amounts paid for community expenses. The result is the CP share. The rest is SP.

Separate Prop Spouse Benefits:

(FMV of salary x # of years of marriage) - salary / expenses already paid to CP = CP; remainder = SP

96
Q

Distribution at Divorce / Equal Division Rule

Comm Prop

A

The basic rule at divorce is to divide each community asset equally in kind. Thus, each spouse is given 1/2 of each community asset.

97
Q

Hug Formula - Stocks

Comm Prop

A

If the divorce court determines that the stock options were awarded primarily to REWARD spouse for his PAST services, as a form of deferred compensation; the court should employ the Hug Formula, under which the starting point for both the numerator and denominator of the fraction is the date of EMPLOYMENT. The fraction is then multiplied by the number of shares of stock that can be purchased under the options

[Date of Employment - Date of Separation] / [Date of Employment - Date of Vesting] = CP

98
Q

Nelson Formula - Stocks

Comm Prop

A

If the divorce court determines that the stock options were awarded primarily to ENCOURAGE spouse to remain with the company; the court should employ the Nelson Formula, under which the starting point for both the numerator and denominator of the fraction is the date the options are GRANTED. The fraction is then multiplied by the number of shares of stock that can be purchased under the options

[Date of Granting - Date of Separation] / [Date of Granting - Date of Vesting] = CP

99
Q

Brown Formula - Retirement Plans

Comm Prop

A

Pro rata rule:

of months employed whiled married / # of months employed (i.e., date of employment to date of retirement)

100
Q

Gilmore Formula - Retirement Plans

Comm Prop

A

(Use if spouse continues to work AFTER date of maturity; operates as an election for the unemployed spouse–available after maturity):

of months employed while married / total # of months employed until Gilmore election = CP % that the spouse must pay OUT OF POCKET

101
Q

Fiduciary Duties of Spouses

Comm Prop

A

(1) Loyalty; (2) NO Reckless Investments; (3) NO Undue Influence; AND (4) Post-marriage, disclose ALL assets

102
Q

Restitution Unavailability

Remedies

A

Restitution / unjust enrichment is NOT applicable to encroachment or nuisance

103
Q

Replevin and Damages

Remedies

A

Replevin is almost ALWAYS coupled with damages for lost use and benefit

104
Q

Ejectment Availability

Remedies

A

Ejectment is available only against a defendant who has possession of property (i.e, an adverse possessor or holdover tenant; NOT a trespasser).

Also, almost ALWAYS coupled with damages for lost use or profits

105
Q

Equitable Restitution Applicability

Remedies

A

Apply equitable restitutionary remedies when defendant has taken TITLE to the property

106
Q

Constructive Trust Applicability

Remedies

A

Apply CT when defendant has taken TITLE to the property and it INCREASES in value

107
Q

Equitable Liens Effect

Remedies

A

Equitable liens = immediate, court directed sale

Apply EL when defendant has taken TITLE to the property and it DECREASES in value

108
Q

Preliminary Injunction Elements

Remedies

A

(“I Bake Like Nine Breads”) - (1) Irreparable harm; (2) Balance the hardships; (2) Likelihood of success on the merits; (3) Noticed hearing; (5) Bond requirement

109
Q

TRO Elements

Remedies

A

(1) Immediate irreparable harm; (2) Ex parte (but good faith to provide notice and chance to appear); (3) Limited duration (CA - 10 days; FED - 14 days)

110
Q

Permanent Injunction - Balance of Hardships Element

Remedies

A

(Permanent Injunction = “I Prefer Free Base Drugs”)

Balance of hardships element: there will be NO balancing if the defendant’s conduct is WILLFUL (but balancing is ALMOST always a primary discussion with TORT nuisance or trespass to land)

111
Q

Erroneous Injunctions

Remedies

A

An erroneous injunction must be obeyed until modified or dissolved

112
Q

Liquidated Damages and SP

Remedies

A

A valid liquidated damages clause will NOT prevent a plaintiff from getting Specific Performance

113
Q

Quasi-K (Plaintiff Breaching Party)

Remedies

A

(Modern) If plaintiff is the breaching party for a Quasi-K, recovery is allowed but will be reduced by any damages suffered by the defendant and CANNOT be greater than the contract rate

(Traditional) No recovery

114
Q

Forfeiture Clauses - Equity Maxin

Remedies

A

“Equity Abhors Forfeitures”

115
Q

Specific Performance - Unique Prop

Remedies

A

Unique property will satisfy the inadequate legal remedy element. Land is ALWAYS unique.

116
Q

Specific Performance - Plaintiff’s Condition Satisfied

Remedies

A

Plaintiff must be able to show his contract conditions have been fulfilled (i.e., already perfumed; ready and able to perform; or excused from performance).

117
Q

Specific Performance - Defect

Remedies

A

If you decide that SP should be granted even though a defect exists, you MUST note that the court will ABATE the purchase price to account for the defect

118
Q

Unclean Hands and Laches

Remedies

A

Unclean hands and laches are defenses to almost ALL equitable remedies

119
Q

Covenant NOT to Compete

Remedies

A

Enforceable if: (1) the services are UNIQUE; (2) the SCOPE (geographic and duration) is reasonable.

120
Q

Unconscionability

Remedies

A

Unconscionability must be procedural and substantive

121
Q

Rescission

Remedies

A

If plaintiff sues for damages FIRST, this is considered an affirmation of the contract and rescission is NO LONGER available (note: still can sue for BOTH rescission and damages, just choose rescission first).

122
Q

Unilateral Mistake

Remedies

A

Unlike the unilateral mistake exception for rescission, the non-mistaken party must actually know of the mistake (NOT “should have known”)

123
Q

Non-Defenses to Reformation

Remedies

A

(1) Negligence; (2) SoF; (3) PER

124
Q

Purchase Money Resulting Trust

Remedies

A

A court may impose a PMRT after a sale of property in which one person takes title in the property and another person supplies consideration before or at the same time the other person takes title. The person who obtained legal title is deemed the trustee of a resulting trust, and the person who furnished consideration is deemed the beneficiary. The trustee’s sole duty is to convey his title to the beneficiary. However, where the beneficiary pays only part of the purchase price, the resulting trust in her favor will be for only a pro rata portion of the title. Because resulting trusts are implied by the court, NO writing is necessary.

125
Q

Mercy Rule - Defendant’s Character

Evidence

A

A defendant may introduce evidence of his GOOD character in the form of reputation or opinion evidence. The prosecution may rebut by (1) calling additional witnesses who can testify in the form of reputation or opinion evidence to the defendant’s BAD character; or (2) CROSS-exam the defendant’s witnesses with specific instances of conduct.

[*CA - only allows reputation and opinion evidence on direct and cross]

126
Q

First Aggressor Rule - Victim’s Character

Evidence

A

A defendant may introduce reputation and opinion evidence of a BAD character trait of the victim. The prosecution may rebut by (1) calling additional witnesses who can testify in the form of reputation or opinion evidence to the (a) DEFENDANT’s same BAD character; or (b) the VICTIM’S same GOOD character; or (2) CROSS-exam with specific instances of conduct.

[*CA - allows reputation, opinion, AND specific instances on direct AND cross, but only allows evidence of victim’s character for violence]

127
Q

CA Statement Describing Threat of Physical Injury

Evidence

A

(aka “OJ Exception”) - UNAVAILABLE declarant describes or explains the infliction or threat of physical injury upon the declarant. For the exception to apply, the statement must be (1) made at or near the time of the infliction or threat; (2) made under circumstances that indicate its trustworthiness; and (3) in writing or made to law enforcement or medical personnel.

128
Q

Excited Utterance / Spontaneous Statement

Evidence

A

Look for exclamation points in the statement!

129
Q

Limited Admissibility

Evidence

A

May be admissible for one purpose, even though it is inadmissible for another purpose, as long as the judge gives the jury a limited instruction. This rule is subject to 403 / 352 balance test

130
Q

Authentication of a Telephone Call

Evidence

A

(1) Witness recognizes the speaker’s voice; (2) speaker has knowledge of certain facts that only a particular person would have; or (3) the speaker has ID’d himself.

131
Q

Lay Opinion

Evidence

A

(1) Rationally based on perception; AND (2) Helpful to a clear understanding of her testimony or to the determination of a fact in issue (CANNOT be based on specialized skill or scientific data)

CA Bar: Elements (7 decks)

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