Most Frequently Tested CA Bar Rules Flashcards
Federal Subject Matter Jurisdiction
A federal court has federal question jurisdiction over the parties when the well-pleaded complaint arises under federal law
Diversity Jurisdiction
Diversity jurisdiction requires:
(1) complete diversity of citizenship between the parties;
and (2) the AIC must exceed 75K
*Citizenship for persons is based on the state of domicile (physical presence & intent to remain indefinitely) // citizenship for corporations is all states of inc and personal place of business
Removal
A defendant can remove a case from state court to federal court when (1) the case could have been initially filed in federal court, (2) if multiple defendants, all consent to removal, and (3) removed no later than 30 days after initial service of process
Personal Jurisdiction: Traditional Basis
Traditional basis is met when: (1) the party is domiciled in the forum, (2) presence in the forum when served, or (3) consent to jurisdiction
Personal Jurisdiction: Long Arm Statute & Constitutional Analysis
Long Arm Statute : Mechanism that provides the federal court to extend jurisdiction over non-residents. California’s long arm statute gives its courts power over any person or property which the state can constitutionally exercise jurisdiction.
Constitutional Analysis: (1) Minimum contacts (the party purposefully availed himself such that it is foreseeable to be hauled into the forum for litigation), (2) Fairness: Relatedness of Claim to Contact (Specific jx: claim arising from activity in the forum. General jx: systematic and continuous activity such that D is essentially at home in the forum), and (3) fairness: traditional notions of fair play and substantial justice (convenience, forum states interest, other factors) Minimum Contacts – “My Parents Frequently Forgot to Read Children Stories”
Scope of Discoverable Information
(1) Relevance
(2) Privileged Matters –Not discoverable
(3) Work Product -Protected from discovery if prepared in anticipation of litigation, unless there is a showing of (1) substantial need or (2) not otherwise available
(4) experts: production of into required about experts used at trial
Claim Preclusion
(1) Same Parties
(2) Valid final judgment on the merits
(3) same claim
(4) was actually litigated or could have been litigated
Issue Preclusion
(1) issue was actually litigated
(2) issue was essential to the judgment
(3) Case #1 ended in a valid final judgment on the merits
(4) collateral estoppel is being used against a party in case #1; and
(5) collateral estoppel is being used by a party (mutuality req.) or a nonparty so long as its fair
Community Property Guiding Principle
California is a community property state. All property acquired during marriage is presumed community property. All property acquired prior to marriage and after the end of economic community, as well as gifts and inheritance received during the marriage is presumed separate property.
Profits acquired during the marriage with the expenditure of separate funds and the rents, issue, and profits, derived from separate property are separate property.
Quasi-Community Property
Property acquired by either spouse while domiciled in a non-community property state that would be community property if the couple had been domiciled in California at the time of acquisition. At divorce, QCP is treated exactly as CP. At Death, the survivor has a ½ interest in the decedent’s QCP.
End of Economic Community
The marital economic community ends when the parties have permanent physical separation and intent not to resume the marriage, or death.
Equal Rights of Spouses to Manage Property & Transfers to Third-Parties
Management: Each spouse has exclusive management and control of his SP, and equal management and control of CP.
Transfers of Real Property: Both spouses must jointly execute a written instrument in order to validly convey community real property.
Personal Property: Cannot transfer personal belongings of one spouse without the other’s written consent.
Community Property – Personal Injury Recovery
Personal injury recovery caused by a 3P tortfeasor is the injured spouse’s SP before or after marriage, but tort recovery is CP if injury occurs during marriage.
Anti-Lucas Statute
Only applies to divorce or legal separation. If the marriage ends in death, then Lucas presumption of gift remains.
Transmutations
Transmutation is an agreement between spouses to change the character of an asset. A transmutation must be in writing signed by the adversely affected spouse and explicitly state a change in character is being made.
Substantive Due Process
Substantive DP applies if the law limits liberty of ALL persons to engage in some activity or a fundamental rights is denied to everyone.
(1) Rational Basis Test – All non fundamental rights (burden on challenger to show law is NOT rationally related to legitimate government interest)
(2) Strict Scrutiny – Fundamental Rights (burden on gov to show law is necessary to achieve a compelling interest and there is no less restrictive alternative to achieve objective)
Procedural Due Process
Requires the government to follow fair process (notice and hearing) when taking away life, liberty, or property interest.
Deprivation of Liberty – significant loss of freedom
Deprivation of Property – entitlement or reasonable expectation to continue receipt of benefits, and entitlement is not fulfilled. 3 prong test to determine what process is due: (1) importance to challenger, (2) value of procedural safeguard against, (3) gov interest in admin efficiency
Equal Protection
EPC of the 14th A guarantees that similarly situated people will be treated similarly. State and local government may not discriminate against individuals unless certain standards are met.
3 classes:
(1) Non-suspect class: All classes that do not involve race, national origin, ethnicity, gender, or legitimacy. Challenger must show the law is not rationally related to a legitimate government purpose.
(2) Quasi-Suspect: Gender and illegitimacy. When a suspect class is being discriminated against, the court will apply the intermediate scrutiny test which requires that the government to show that the law is substantially related to an important government interest
(3) suspect class – race, national origin, ethnicity – strict scrutiny: gov must show that the law is necessary to serve a compelling interest
Takings Clause
Provides that private property may not be taken for public use without just compensation
(1) possessory taking: gov takes or physically occupies property
(2) regulatory taking: gov regulation leaves no reasonable economic viable use of property
Not takings: temporary denial of prop use is not a per se taking, regulations that decrease prop value no taking
Defense to K Formation: Mutual Mistake
Both parties mistaken about existing material fact in the contract and the person seeking relief didn’t bear the risk of the mistake
K Defense: Unilateral Mistake
K not enforceable if non-mistaken party knew or should have known or other party’s mistake.
Parol Evidence
Evidence of prior or contemporaneous negotiations and agreements, written or oral, that contradict or modify terms is inadmissible to vary the terms of the K if the written contract is a complete and final integration.
Exceptions:
(1) ambiguous terms
(2) subsequent modifications
(3) course of dealing (to explain)
(4) usage of trade (to explain)
(4) course of performance
Impossibility
Discharge of duty due to death or physical incapacity, illegality, destruction of subject matter
K Modification
If the modification would bring the contract within the SOF, the modification must be in writing. If it would not bring the K into SOF, no writing required.
Under common law – provisions requiring all modification to be in writing are not effective.
UCC – K provisions requiring written modifications are effective unless waived.
Minor Breach (Substantial Performance) v. Material Breach
If the promisor was under an absolute duty to perform, and this absolute duty of performance was not discharged, then the prromisor’s failure to perform in accordance w/ K terms will amount to a breach.
UCC: Perfect Tender Rule
Common law:
(1) minor breach: non-breaching party has substantial benefit of the bargain despite defective performance. Performance not excused.
(2) material breach: non-breaching party does not receive substantial benefit of her bargain. Performance excused.
Minor breach w/ anticipatory repudiation = material breach
material breach of divisible K = recovery available for substantial performance
Adequate Assurances
Insecurity: Words/conduct make it uncertain whether party will perform. Need reasonable grounds for insecurity.
Demand adequate assurances in writing and suspend performance if commercially reasonable until you receive assurance.
Treat K as repudiated if no adequate assurance within 30 days.
Contracts: Available Legal Remedies
Compensatory Damages (expectation / reliance)
Must be certain, causal, foreseeable and unavoidable
Consequential (in ucc, only buyer can recover)
Incidentals
Trust Formation
A valid trust requires (1) a settlor with intent (2) valid trust purpose, (3) trust property (4) trustee and (5) beneficiary
Cy Pres Doctrine
When the settlor’s charitable Intent becomes impossible or impractical to carry out, so long as the settlor has general charitable intent, the court will direct that the trust property be applied to another charitable purpose as closely related to the original one, rather than permit the trust to fail.
(1) general charitable intent (payable from general assets of estate)
(2) “as close as possible”
Trustee Duties Owed to Beneficiaries
(1) Duty of Care
(2) Duty of Loyalty
(3) Duty to Use Assets Productively
(4) Duty to Invest (3 types)
(5) Duty to Diversify
(6) Duty not to Speculate
(7) Duty to Earmark
(8) Duty to Segregate
(9) Duty not to Delegate
(10) Duty to Account
Will Execution Requirements
(1) In writing
(2) signed by testator (or 3rd party at T’s presence and direction, if T is incapacitated)
(3) in the joint presence of 2 witnesses who sign and understand what they are signing
Holographic Will
Valid if (1) signed by T and material provisions of will are in testators own handwriting.
Ca includes that holographic wills can revoke a codicil so long as the formalities of a holographic will are followed.
Acts of Independent Significance
Identity of beneficiary or gift may be supplied by facts of significance independent of T’S will. (Ask: without will, would this fact still exist?)
Incorporation by Reference
(1) Document
(2) must have been in existence when the will was executed
(3) document must be clearly defined in the will
(4) testator must have intended to incorporate into the will (elements 1-3 make 4 implied)
Revocation by Subsequent Will or Codicil
Revocation can be express (new will expressly revokes prior will), or implied. The revoking instrument must be executed with the same formalities required for execution of a will.
Testamentary Capacity
At time of execution: T must be (1) at least 18
(2) of sound mind (understand its a will, and the relationship between interested parties)
Omitted Child
An omitted child is one who was born after the will was executed. An omitted child will take an intestate share, unless: (1) omission is intentional, (2) left to parent of omitted child, or (3) provided for a transfer outside of will.
Intestate Distribution
When one dies without a valid will, the rules of intestate govern the distribution of the decedents estate. The surviving spouse inherits ½ of CP (so 100%), all of the SP if no issue, parent, or issue of parent, 50% of SP if one child or no child but surviving parent or issue of parents. ⅓ of SP when there is more than one child
Exclusionary Rule
Evidence obtained in violation of the 4th amendment is inadmissible.
Exceptions- Triple I’s
(1) independent source
(2) inevitable discovery
(3) intervening acts of free will by D
Authentication
Every item of non-testimonial evidence must be authenticated. It must be what the proponent claims it to be.
document can be authenticated by W’s admission, eyewitness testimony, or handwritten proof (by lay witness who knows the handwriting, expert W comparing, or by jury comparison of the disputed signature with the genuine handwriting)
Lay Witness Testimony & Opinion
Lay witness must have personal knowledge of the matter about which he is to testify.
Lay opinion is admissible if (1) rationally based on W’s perception, (2) helpful to fact finder, and (3) subject is proper for lay opinion (no scientific or specialized knowledge)
Hearsay Exception: Statement by a Party Opponent
A statement amounting to a prior acknowledgement of a relevant fact by one of the parties.
(1) vicarious admission
(2) adoptive statement
(3) co-conspirator admission
(4) admission by authorized agent
Attorney-Client Privilege
privilege extends to attorney’s agents, survives death and relationship. No priv if crime or malpractice
