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CA BAR SLAP DOWNS > MBE RULES > Flashcards

MBE RULES Flashcards

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1
Q

Claim Preclusion Requirements

Civ Pro

A

Valid judgment on merits (substantive grounds)
Same claim
Same parties (or those in privity)

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2
Q

Merger of LSK

Property

A

All obligations in a LSK merge into the deed and can only be enforced if they are incorporated into the deed

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3
Q

Modified Comparative Negligence Recovery

Torts

A

Negligent P can recover unless % not more that D

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4
Q

Can states sue the government?

Con Law

A

No, the operations of the federal government (including agencies) are immune from state regulation unless Congress consents

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5
Q

Enforcement of a Final Judgment

Civil Procedure

A

Most judgments are stayed 30 days unless injunction, accounting in patent infringement - effective and enforced immediately

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6
Q

The CC grants congress broad authority to regulate interstate commerce which includes

Con Law

A

Channels
Instrumentalities
Persons/Things
Activities that substantially impact

10A limits power by prohibiting Congress from requiring state and local governments to enforce a fed law or enact state or local law

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7
Q

Expert Witnesses and Hypothetical Qs

Evidence

A

Allowed if it includes any undisputed material facts

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7
Q

Expert Witnesses and Hypothetical Qs

Evidence

A

Allowed if it includes any undisputed material facts

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8
Q

Ordinary vs Severe Burden

Con Law

A

Ordinary: challenging party must prove not rationally related to legit gove interest (RB)

Severe: state must show regulation is least restrictive means to achieve compelling state interest (SS)

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9
Q

When can a court reform a contract?

Contracts

A

When it fails to accurately express the parties’ agreement bc of a mistake by both parties as to its content or legal effect

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10
Q

SOF - Land Sale K

Contracts

A

Must be in writing, signed by the party against whom enforcement is sought, and all essential terms.

Time of performance is NOT an essential term and courts will assume “reasonable time” if not expressly stated

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11
Q

What do possession offenses require?

Crim

A

Knowingly received an illegal item or exercised dominion or control after learning item is illegal

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12
Q

11th Amendment

Con Law

A

Bars private parties and foreign governments from suing a state in federal court without the state’s consent.

Suits brought by the USA vs States is OK

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13
Q

Assuming the Mortgage

Real Property

A

A buyer who assumes the mortgage expressly agrees to become liable for the mortgage debt

They are primarily liable for paying any deficiency resulting from foreclosure

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14
Q

When does a seller deliver marketable title in an installment LSK?

Real Property

A

Once purchase price is fully paid

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15
Q

Political Question

Con Law

A

Contitution reserves the issue to a different branch of government and the court lacks judicially discoverable and manageable standards to resolve the issue

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16
Q

UCC Gap Fillers

Contracts

A

Court can gap fill unless parties, subject matter, quantity

Quantity must be certain or capable of being made certain

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17
Q

K Void - Unilateral Mistake

Contracts

A

Not grounds to void a k unless mistake would make enforcement unconscionable or nonmistaken party knew or had reason to know of mistake

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18
Q

Attorney/Client Priv Scope

Evidence

A

Confidential communications for the purpose of obtaining or providing legal advice to clients

Rendering business advice or opinions are NOT protected

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19
Q

Motion for Extraordinary Relief from Judgment

Civ Pro

A

Based on mistake, inadvertance, surprise or excusable neglect will be granted if moving party demonstrates meritorious defense

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20
Q

When can JMOL be filed?

Civ Pro

A

Before case submitted to jury but only after nonmovant party has had opportunity to present their case

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21
Q

Renewed JMOL

Civ Pro

A

Within 28 days after judgment to seek to overturn an adverse verdict

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22
Q

JMOL

Civ Pro

A

Used to remove a case from a jury’s consideration if there is legally insufficient evidence for a jury to find in the nonmovant’s favor

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23
Q

Cantractual Rights of a 3P Beneficiary

Contracts

A

Vests when the beneficiary
1. detrimentally relies
2. manifests assent to the k
3. files a lawsuit to enforce it

After vesting, any attempts to modify or rescind not allowed without 3P permission

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24
Q

Character Evidence in Civil Cases

Evidence

A

Ok if character is at issue or an essential element of the claim

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25
Q

Character Evidence in Criminal Cases

Evidence

A

The prosecution is generally not allowed to introduce bad character evidence about a defendant

If defendant introduces –> Opens the Door and P may:
1. Call a W to rebut (opinion or reputation)
2. Cross examine D’s character W (reputation, opinion, orspecific bad acts)

D introduces V’s character: only when relevant to defense. P may now:
1. introduce rebuttle evidence of V’s character (reputation/opinion)
2. Attack the D’s character for same trait

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26
Q

D’s Prior/Specific Bad Acts

Evidence

A

Prosecution may not introduce to prove character but can be admitted if MIMIC

  1. Motive
  2. Intent
  3. absense of Mistake
  4. Identity
  5. Common plan
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27
Q

Waiver of Conditions

Contracts

A

Non-occurence of a condition can be excused if the party who benefits waives by words or conduct

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28
Q

Delegating party after a delegation

Contracts

A

After a delegation, the delegating party remains liable unless the other party agrees to release and substitute

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29
Q

Attempt

Criminal Law

A

Defendant has the specific intent to commit the crime, performs an overt act in furtherence (mere prep not enough), and does not complete it

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30
Q

Attempt

Criminal Law

A

Defendant has the specific intent to commit the crime, performs an overt act in furtherence (mere prep not enough) or dangerously close, and does not complete it

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31
Q

Witness is generally presumed competent to testify if

Evidence

A
  1. Recall or narrarate the imressions of the occurence at issue
  2. Understand the importance of telling the truth
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32
Q

Expert Witness Qualifications

Evidence

A

Question for the court, not jury. Court is not bound by the rules of evidence

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33
Q

Difference between spousal immunity and marital communications

Evidence

A

SI: Shields witness from testifying about things that happened before or during marriage - witness spouse holds

MC: Protects confidential communications between spouses during marriage - both hold

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34
Q

Who do title insurance policies protect?

Property

A

Only named insurereds who are affected by an undisclosed title defect

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35
Q

Worthier Title Doctrine

Property

A

When a grantor makes an inter vivos conveyance to with a future interest in the grantor’s heirs, the future interest creates a reversion to the grantor not a remainder in the grantor’s heirs

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36
Q

Hospital DOC

Torts

A

Duty to exercise reasonable care to protect its patients from harm arising within the scope of a hospital patient relationship

37
Q

SPL imposed upon who?

Torts

A

ONLY commercial sellers, not casual sellers

38
Q

When is a defamatory statement privileged?

Torts

A

When the D reasonably believes that
1. the statement affects an important interest of the TP and
2. the communication is socially acceptable

This priv is lost if the D knows that statement is false or recklessly disregards that possiility

39
Q

Conversion Recovery

Torts

A

FMV at time of the conversion

40
Q

When does an easement terminate?

Property

A

Destruction of serviant estate
Abandonment
Merger
Prescription
Estoppel
Release (satisfy SOF)

41
Q

Wrongful Birth Claim

Torts

A

Allows parents to recover for the child’s life if they can show that
1. the doctor negligently failed to inform them of a substantial risk that the child might be born with a defect and
2. If they knew of the risk they would not have conceived the child

42
Q

Erie and Diversity Exception

Civil Procedure

A

A federal court sitting in diversity must apply state substantive law and federal procedural law unless a uniquely federal interest conflicts w the state law

43
Q

Contract Modifications

Contracts

A

CL ignores the “no oral modification” clauses and allows oral modifications of written contracts unless the modification is subject to the SOF

44
Q

The Spending Clause allows Congress to…

Con Law

A

place receipts on conditions of federal funds if conditions are
1. clearly stated
2. reasonably related to the purpose of the expenditure
3. do not induce unconstitutional behavior or
4. are not unduly coercive

45
Q

Subsequent Remedial Measures

Evidence

A

Not admissible to prove negligence or other culpable conduct. Admissible to
1. resolve a dispute as to the feasibility of remedial measures
2. prove ownership or control
3. to impeach a witness

46
Q

Motion to Strike

Civ Pro

A

Party can move to strike insufficient, immaterial, redundant, scandalous, impertinent matter or defense. Must make before responding to the pleading or within 21 days after being served if a response is not allowed

47
Q

Setting Aside Entry of Default

Civ Pro

A

Court can set aside if showing good cause
1. failure to timely respond was a result of the defendant’sexcusable neglect
2. defendant presented meritorious defense
3. plainitff not substantially prejudiced if case was reopened

48
Q

Congress can explicitly authorize states and municipalities to act in ways that would otherwise violate the dormant commerce clause

Con Law

A

Congress can explicityly authorize states and municipalities to act in ways that would otherwise violate the dormant commerce clause

49
Q

When can a party obtain extraordinary relief from judgment within a year of entry of the final judgment?

Civ Pro

A

If the entry of judgment was made based on:
1. Mistake, inadvertance, surprise or excusable neglect of the parties or court,
2. Newly discovered evidence, or
3. Opposing counsel’s fraud, misrepresentation, misconduct

50
Q

When is mistake of fact a defense?

Crim

A

Never for SL
Belief would have justified the D’s criminal act had the belief been true or if it negates the requisite mens rea for the charged crime

51
Q

Are negligent intervening acts foreseaable?

Torts

A

Typically seen as foreseeable and so they do not reak the chain of causation (think med mal)

52
Q

11th Amendment

Con Law

A

Bans suits against state governments in federal court but does not extend to suing local governments like couties and municipalities

53
Q

When does spousal priv not apply?

Evidence

A

In federal cases where a spouse is being charged with a crime against spouse or their child/stepchild/spouse’s child

54
Q

What do you do when you receive pleadings that are vague and ambiguous?

Civ Pro

A

Move for a more definite statement

55
Q

Grand Jury Proceedings for Witnesses

Crim

A

W can consult with attorney outside jury room, but no 6th amendment right to counsel inside.

Exclusionary rule does not apply in grand jury proceedings

56
Q

Requirements Contract

Contracts

A

An exclusive agreement between a buyer and a seller for the sale of as many goods as the buyer requires for a certain period of time. UCC

The buyer’s failure to purchase violates implied duty of good faith and fair dealing and is breach of contract under the UCC

57
Q

Dormant Commerce Clause

Con Law

A

State laws that favor in state vs out of state economic interests violates the dormant commerce clause unless they further legit noneconomic state interest and no reasonable alternatives exist

Bars states from enacting non discrim regulations that unduly burden on IS commerce when the regulation clearly exceeds its local beneft

58
Q

Supremacy Clause

Con Law

A

A state law is void if it is expressly or impliedly preempted by federal law. All state laws must be at least reasonably related to a legit state interest to comply with due process

59
Q

UCC Statute of Frauds Exception

Contracts

A

When some amount of payment was made and accepted

60
Q

Intentional Infliction of Emotional Distress - Distress

Torts

A

Requires severe emotional distress or distress beyond what a reasonable person can endure. Severity depends on 1. intensity and duration, 2. D’s conduct, and 3. presence of bodily harm

61
Q

Trespass to Chattels

Torts

A

Intentional interference with another’s tanglible personal property through dispossession, use, or intermeddling. D’s erroneous belief because of a mistake of fact or law, that they were privileged to use, is not a defense

62
Q

When can Congress delegate?

Con Law

A

Congress can delegate incidental legislative powers if it provides an intelligible principle: Clear statements defining…

  1. the policy Congress seeks to advance
  2. the agency to carry out that policy
  3. the scope of the agency’s authority
63
Q

Writ of Habeus Corpus in Federal Court

Con Law

A

A court order that the person be brought to determine if their detention is legal.

If a person is in federal custody, only a federal court can issue the writ.

64
Q

First Amendment and Reporters

Con Law

A

The 1A protects the right of the press to publish lawfully obtained and truthful information about matters of public significance, but it does not shield them from general applicable laws in an effort to obtain the information

65
Q

Mootness

Con Law

A

A federal court may only hear the merits of cases that are actual cases or controversys capable of judicial resolution. If case or controversy ceases to exist or if legal proceedings will have no affect = MOOT (a cow’s opinion)

66
Q

Political Question Doctrine

Con Law

A

The PQ doctrine bars actions that require courts to resolve issues concerning diplomatic recognition of a foreign government

HOWEVER, courts have the authority to determine interbranch disputes when it concerns the validity of a statute

67
Q

What do the courts consider when determining if Congress can regulate an activity?

Con Law

A

Whether
1. Activity is economic in nature
2. Regulation contains a jurisdictional element
3. Congress made express findings as to the affect on IS commerce and
4. If there is a strong link between the activity and the affect

68
Q

When does the president have the authority to remove federal executive officers?

Con Law

A

Always with two exceptions

Congress cannot directly remove unless done through impeachment

69
Q

Principal Federal Officers

Con Law

A

Someone who holds continuing public office and has significant discretionary authority to administer or enforce laws

The president has power to appoint with advice and consent of the Senate

70
Q

When is a private action treated as a government action?

Con Law

A
  1. Private actor performs traditional and exclusive government function
  2. Gov is significantly involved in the private actor’s functions
71
Q

Who are immune from direct taxation unless Congress explicitly consents?

Con Law

A

The federal government, its agencies, and its instrumentalities

72
Q

When can a D remove to federal court?

Civ Pro

A

A D can remove from state to federal if federal allowed to hear because of subject matter jdx through diversity or federal question

73
Q

Waiver of Service on D

Civ Pro

A

A D is encouraged but not required to waive service of process by returning a signed waiver request. If D does not do so, P has to serve proper process before D answers

74
Q

TRO must contain…

Civ Pro

A
  1. Reasons why it was issued
  2. Reasonable description of prohibited or commanded acts (must be made without reference to another complaint or document)
  3. Specific terms
75
Q

Counterclaims

Civ Pro

A

A counterclaim is a claim for relief asserted against an opposing party in response to that party’s earlier claim.

Compulsory: STO as other party’s claim and does not require adding another party that the court cannot have jurisdiction over

Permissive: all other counterclaims which may be asserted in the pending lawsuit or future litigation

76
Q

Undue Influence

Contracts

A

K is voidable if assent stems from unfair or excessive persuasion by someone who dominates or holds a special relationship of trust and confidence with the assenting party

77
Q

Indefiniteness at Common Law

Contracts

A

At common law, all essential terms must be covered and must be sufficiently certain and definite for a k to be valid and enforceable

78
Q

Non-Disclosure of a Known Fact

Contracts

A

Treated as an untrue assertion of fact if the non disclosing party knows that the diclosure is necessary to preven a previous assertion of being a misrepresentation

79
Q

Anticipatory Repudiation

Contracts

A

When a party clearly and unequivocally communicates through words or conduct, that it does not intend to perform. Mere insecurity about a party’s inability to perform is not enough but enough to demand assurances

80
Q

Contract Modifications

Contracts

A

At CL, contract modifications must be supported by new consideration unless fair and reasonable in light of unanticipated circumstances and must have mutual assent to the modifications by both parties

81
Q

Evidence showing consciousness of guilt

Evidence

A

Relevant because it makes a material fact of the D being guilty more or less probable

82
Q

When is expert testimony admissible?

Evidence

A

If it will help the jury understand the evidence or determine a fact AND is based on sufficient facts or data and the product of principles or methods reliably applied by the expert

83
Q

How is a photograph authenticated?

Evidence

A

By testimony of a witness with personal knowledge of the thing depicted to be a fairly and accurate depiction of the thing

84
Q

What must the D have done to forfeit a hearsay or confrontation clause objection?

Evidence

A

D wrongfully caused W’s unavailability and done so for the purpose of them being unavailable to testify

85
Q

What must the D have done to forfeit a hearsay or confrontation clause objection?

Evidence

A

D wrongfully caused W’s unavailability and done so for the purpose of them being unavailable to testify

86
Q

When should a court allow lay witness testimony?

Evidence

A
  1. Rationally based on W’s perception
  2. Helpful to clearly understand W’s testimony or fact in issue
  3. Not based on scientific, technical, or other specialized knowledge
87
Q

Physical Objects being Admitted in Trial

Evidence

A

Must be authenticated through a prima facie showing that the object is what the proponent claims it to be - commonly done through testimony of someone with personal knowledge

88
Q

Extrinsic evidence to impeach

Evidence

A

Not allowed UNLESS
1. the W has a chance to explain, deny, and the opposing party can question
2. justice so requires

89
Q

Prior-Consistent Statement = Non-Hearsay when

Evidence

A
  1. Made by declarant who has testified and is subject to x
  2. Offered to rebut a charge of fabrication or improper influence

CA BAR SLAP DOWNS (16 decks)

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