Most Important

Question 1

Logical and Legal Relevance

Answer 1

Only evidence that is both logically and legally relevant is admissible.

Logical relevance means that the evidence tends to prove or disprove a fact in dispute that is of consequence to the action.

Legal relevance means that the probative value of the evidence is not substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence.

Question 2

Reformation

Answer 2

Reformation is an equitable remedy that permits the court to rewrite the contract when it does not reflect the true agreement of the parties. It requires that there was a meeting of the minds, but that the contract does not reflect that agreement due to fraud or mistake.

Reformation will be granted when neither party to an agreement is aware that there is a discrepancy between the writing and their prior agreement.

Question 3

Rescission

Answer 3

Rescission is an equitable remedy in which the court invalidates a contract because there has been no meeting of the minds in contract formation. Grounds for rescission include: mutual mistake; unilateral mistake; fraud or misrepresentation; and misrepresentation of a material fact, even if the misrepresentation was not fraudulent. All courts grant rescission for mutual mistakes affecting the basis of the bargain (e.g., mistakes regarding the nature of the subject matter).

Question 4

Temporary Restraining Order (TRO) vs. Preliminary Injunction

Answer 4

A TRO is an equitable remedy in which the court orders a defendant to take an action, or refrain from taking an action, as a means to preserve the status quo for a short time, typically 10 days, until there can be a full hearing. A TRO will be granted where the plaintiff can establish: 1) she will suffer irreparable harm in the absence of the order, 2) she is likely to succeed on the merits of her claim, 3) the remedy at law is inadequate, 4) the balancing of the hardships to each party favors granting the TRO, and 5) there are no valid defenses. In special circumstances a TRO can be issued ex parte without notice to the defendant where the plaintiff can establish a good faith attempt at notice, or there is good cause to not provide notice.

Additionally, courts do not always require a balancing of the hardships to grant a TRO, as they do with a preliminary injunction.

Question 5

Preliminary Injunction

Answer 5

A preliminary injunction is similar to a TRO in that it is designed to preserve the status quo pending trial, but it is available for a longer duration than a TRO and will stay in place until there is a full trial on the merits. The test for a preliminary injunction is the same as that for a TRO and requires a showing of 1) irreparable harm, 2) likelihood of success on the merits, 3) inadequate legal remedy, 4) balancing of hardships favors plaintiff, and 5) there are no defenses.

Answer 6

To obtain a permanent injunction, a movant must establish all of the requirements for a TRO and/or preliminary injunction (see supra) and establish that the movant has a property right and that such an order is feasible for the court to enforce

Question 7

Specific Performance

Answer 7

Specific performance is an equitable remedy where the court orders a party to perform under a contract. To obtain specific performance, a party must establish a valid contract, all conditions imposed are satisfied, there must be an inadequate legal remedy, there is mutuality, the order is feasible to enforce, and no defenses apply.

Question 8

Duty of Loyalty – Conflicts with Current Clients

Answer 8

A lawyer owes his client a duty of loyalty and must avoid conflicts of interest.

A lawyer generally must not accept or continue representation of a current client if: (1) the representation of the client will be directly adverse to another client who the lawyer represents in the same or a separate matter; or (2) there is a significant risk that the representation of the client will be materially limited by the lawyer’s own interest or by the lawyer’s responsibilities to another client, a former client, or a third party.

Under the ABA Rules, a lawyer may still undertake the representation despite hte conflict if: (1) the lawyer reasonably believes that he can competently and diligently represent each affected client despite the conflict; (2) the representation is not prohibited by law; (3) the representation does not involve asserting a claim by one client against another client represented by the lawyer in the same proceeding; and (4) each affected client gives informed consent, confirmed in writing. The California Rule is the same, except that it requires “informed written consent” (that is, both the lawyer’s disclosure of the conflict and the client’s consent must be in writing).

Question 9

Conflict with a Former Client

Answer 9

A lawyer must not represent one client whose interests are materially adverse to those of a former client in a matter that is the same or substantially related to a matter in which the lawyer represented the former client–unless the former client gives informed consent, confirmed in writing (California requires informed written consent).

Question 10

Duty of Competence

Answer 10

The ABA Rules require that a lawyer must act competently, and represent their client with the legal skill, knowledge, preparation, and thoroughness reasonably necessary for the representation. In California, a lawyer is only subject to discipline if he intentionally, recklessly, with gross negligence, or repeatedly fails to provide legal services with competence.

Question 11

Duty of Care (Corps.)

Answer 11

A director is a fiduciary of the corporation and owes the corporation a duty of care. A director must act in good faith and with the care that an ordinarily prudent person in a like position would exercise in similar circumstances, and in the best interest of the corporation.

Business Judgment Rule:
Directors who meet the duty of care standard of conduct will not be liable for corporate decisions that, in hindsight, turn out to be poor or erroneous (i.e., innocent mistakes of judgment).

Question 12

Duty to Avoid Prejudicial Extrajudicial Statements

Answer 12

A lawyer who is participating in the litigation of a case must not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing the proceedings. Prohibited statements include opinions as to the guilt or innocence of an opinion. However, a lawyer is permitted to state the offense or defense involved in the case, and the identity of the persons involved.

Question 13

Duty of Fairness to Opposing Party and Counsel

Answer 13

A lawyer owes a duty of fairness to the opposing party and counsel. Under the ABA and California rules, a lawyer must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, or counsel or assist another person to do any such act.

Question 14

Attested Will

Answer 14

For an attested will to be valid in Califronia it must be: (i) in writing; (ii) signed by the testator (or by another in his presence and at his direction); (iii) the testator’s signing or acknowledgment of his signature or will must occur in the joint presence of at least two witnesses who sign the insturment during the testator’s lifetime; and (iv) the witnesses must understand that the instrument is the testator’s will.

Question 15

Harmless Error Doctrine (Wills)

Answer 15

If a will is not executed in compliance with the witnessing requirements or other required formalities, it may nevertheless be admitted to probate if the proponent of the will establishes by clear and convincing evidence that at the time the testator signed the document he intended it to constitute his will. The harmless error doctrine is usually applied to formal attested will when a technical rule, such as the joint-presence witnessing requirement, is not complied with.

Question 16

Holographic Will

Answer 16

A holographic will is one that is handwritten and signed by the testator but has no witnesses. California recognizes holographic wills and codicils. A holographic will is valid so long as the signature and material provisions are in the testator’s handwriting. Dating the document is not a requirement for a valid holographic will, though it may helpful for making other determinations (e.g., capacity).

Question 17

Testamentary Capacity

Answer 17

California courts presume that the testator was sane, and the burden of introducing otherwise is on the contestant.

A testator must have mental capacity at the time the will was executed; capacity at any other time is not controlling.

The requirements for testamentary capacity is lower than that for contractual capacity. To have testamentary capacity, the testator must be at least 18 years old, and must have the ability to understand: (1) the nature of her act; (2) the extent of her property; and (3) the persons who are the natural objects of her bounty.

Question 18

Per Stirpes

Answer 18

Under a per stirpes distribution scheme, one share of the estate passes to each child of the decedent. If a child is deceased, that child’s share passes to her descendants by representation.

Question 19

Lapse/Anti-Lapse Statute

Answer 19

If a beneficiary predeceases the testator, the gift lapses and either falls into the residue or (if none) passes by intestacy. Under California’s anti-lapse statute, however, if the predeceasing beneficiary is kindred of the testator, the gift is saved for the beneficiary’s living descendants so long as there is no contrary will provision.

Question 20

California Omitted Child Statute

Answer 20

California’s omitted child statute applies only if the child was born or adopted after the execution of the testator’s testamentary instruments.

Question 21

Strict Products Liability

Answer 21

Strict Products Liability
A commercial seller who places a product in the stream of commerce may be strictly liable in tort for injuries caused by a defective product. To prevail on an SPL action, the plaintiff must show: (1) the defendant is a commercial supplier of a product; (2) production or sale of a product that was defective when it left defendant’s control; (3) actual and proximate causation; and (4) damages.

Commercial Supplier
A commercial seller may be liable for supplying unsafe products. Casual sellers are not held strictly liable. Whether or not contractual privity exists between the plaintiff and defendant does not matter, because any foreseeable plaintiff, including a bystander, can sue any commercial supplier in the chain of distribution regardless of whether there is a contractual relationship between them.

Production or Sale of a Product that Was Defective When it Left Defendant’s Control
The plaintiff need not prove that the defendant was at fault in selling or producing a defective product–only that the product was defective when it left the defendant’s control. Types of defects are manufacturing defect, design defect, and warning defect.

Manufacturing Defect
If a product emerges from manufacturing different from or more dangerous than the products made properly, it has a manufacturing test. One way to prove a manufacturing test is using the Consumer Expectation Test.

The consumer expectation test say that a defendant will be liable if a plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (defendant must expect reasonable use, including foreseeable misuse).

Design Defect
For a design defect, plaintiff will use the Feasible Alternative Test to establish the existence of a design defect. Under this test, plaintiff must show that the defendant could have made the product safer without seriously impacting the product’s price or utility.

Warning Defect
A product may be defective as a result of the manufacturer’s failure to give adequate warnings as to the risk involved in using the product. For liability to attach the danger must not be apparent to users.

Government Safety Standards
A product’s noncompliance with government safety standards establishes that it is defective, while compliance with safety standards is evidence–but not conclusive–that the product is not defective.

Actual Cause
To show actual cause, plaintiff must show that the defect existed when the product left defendant’s control.

Proximate Cause
The type of injury must have been foreseeable at the time the product was placed in the stream of commerce. Defendant will not be held liable for dangers not foreseeable at the time of marketing.

Damages
[Here, P suffered XYZ . . . ]

DEFENSES

Assumption of the Risk
Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant’s act. Plaintiff must have known of the risk and voluntarily proceeded in the face of the known risk.

Contributory/Comparative Negligence
Contributory negligence is not a recognized defense to strict products liability in many jurisdictions. Modernly, most jurisdictions follow either partial or pure comparative negligence.

Question 22

Defamation (Template)

Answer 22

Defamation
Defamation is a false defamatory statement made by the defendant with fault of or concerning the P, published to a third party, that causes damages to P.

Defamatory Statement
A defamatory statement is one that tends to lower P’s reputation within the community.

Of or Concerning P
A reasonable person must have understood that the statement was of or concerning the P.

Published to a Third Party
The statement must have been published to a third party who understood the statement.

Damages
General damages are presumed for libel per se and slander per se. Libel is written defamation.

Falsity
Plaintiff is required to prove falsity of the statement.

Fault (Constitutional Requirement)
If plaintiff is a public figure, he must prove malice, which requires a showing of knowledge that the statement was false or reckless disregard as to its falsity. A public figure is one who achieves fame or notoriety or is in government office.

If the plaintiff is a private figure speaking on a matter of public concern, then he must prove negligence regarding the falsity of the statement. Where defendant is only negligent, only actual injury damages are recoverable.

Defenses/Privileges

Consent
Consent is a complete defense to defamation.

Truth
Where plaintiff does not need to prove falsity as an element, defendant may prove truth as a complete defense.

Absolute Privilege
Defendant may be protected by an absolute privilege for the following: remarks made during judicial proceedings, by legislators in debate, by federal executive officials, in “compelled” broadcasts, and between spouses. An absolute privilege can never be lost.

Qualified Privilege
Speakers may have a qualified privilege for reports of official proceedings; statements in the interest of the publisher, such as defense of one’s actions, reputation, or property; statements in the interest of the recipient; and statements in the common interest of the publisher and recipient.

This privilege may be lost if (i) the statement is not within the scope of the privilege, or (ii) it is shown that the speaker acted with malice.

Question 23

Negligence (Template)

Answer 23

NEGLIGENCE
Establishing negligence requires P to show that: (i) D owed P a duty of care; (ii) D breached that duty of care; (iii) the breach of duty was the actual and proximate cause of the harm, and (iv) P suffered damages.

Duty of Care Owed to Foreseeable Plaintiff
People owe a general duty of care to act as a reasonably prudent person to all foreseeable plaintiffs. Under the majority (Cardozo) view, the plaintiff must be within the foreseeable zone of danger created by the defendant’s conduct to be owed a duty of care. Under the minority (Andrews) view, the duty of care is owed to everyone.

[Relevant Standard of Care – Application of Statute/Landlord Liability]
The general standard of care is that of a reasonably prudent person under the same or similar circumstances.

Breach of Duty
When D’s conduct falls below the level of care required by the applicable standard, he has breached his duty.

Actual Cause
Actual cause exists when the injury would not have occurred but for D’s conduct.

Proximate Cause
D is liable for all harmful results that are the natural incidents of and within the increased risk caused by his conduct.

Damages
A tortfeasor takes his victim as he finds him. Thus, P is entitled for recovery for all her damages, even if the extent or severity of the harm is unforeseeable.

Defenses