Prep One Flashcards
RAP 18.9(a) Frivolous appeal
authorizes the appellate court, on its own initiated or motion of a party, to order a party or counsel who files a frivolous appeal to pay sanctions, including award of attorney fees and costs to the opposing party.
An appeal is frivolous if there are no debatable issues on which reasonable minds might differ and it is so totally devoid of merit that there is no reasonable possibility of reversal
Sixth Amendment
a defendant has a right to a fair and impartial jury as well as the right to a trial process free from discrimination
peremptory challenge
There is no right under US Constitution or WA state Constitution, so a loss of a peremptory challenge does not undermine the fundamental judicial process and is not a per se reversible error. Tradition, statutes, and court rules created peremptory challenges.
Sicth Amendment
Guarantees the right to effective assistance of counsel
To succeed on a claim of ineffective assistance of appellate counsel, the petitioner mush demonstrate that defense counsel’s representation fell below an objective standard of reasonableness and the deficient representation resulted in prejudice
prejudice
requires that there is a reasonable probability that except for counsel’s unprofessional errors, the result of the proceeding would have been different.
First Amendment
True threats are not protected by the First Amendment.
persuasive authority
Persuasive authority refers to cases, statutes, regulations, or secondary sources that the court may follow but does not have to follow. Thus, the holding from a court in another jurisdiction or a lower court in the same jurisdiction is persuasive authority.
Fifteenth Amendment
In part: a prohibition on denying or abridging the right to vote on account of race… grants protection to all persons, not just members of a particular race.
Declaration of Intent (legislative)
Only serve as an important guide in determining the intended effect of the operative sections.
Abridgment of the right to vote
likely to be found if voting registration administered literacy test to Mexican American class more frequently, more carefully, and more stringently than they have administered them to other persons.
Equal Protection Clause - Fourteenth Amendment
strict scrutiny; rational basis review
Rational basis review
Satisfied if there is a rational relationship between the WVRA (example) and any legitimate government interests.
Proper service
when a defendant raises a challenge of service of process, plaintiff has the burden to show service was proper. burden can shift to defendant by clear and convincing evidence that service was improper
Corporate service of process
RCW 4.28.080:
If against a company or corporation other than those designated in subsections
(1) through (8) of this section, to the president or other head of the company
or corporation, the registered agent, secretary, cashier or managing agent
thereof or to the secretary, stenographer or office assistant of the president
or other head of the company or corporation, registered agent, secretary,
cashier or managing agent.
For more than 100 years, the list of authorized persons has included the corporation’s president or other head of the company, secretary, cashier, and managing agent.
Managing Agent: managerial authority
CR 56
“Summary judgment is
appropriate when there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law.” Lakehaven Water & Sewer Dist.
v. City of Federal Way, 195 Wn.2d 742, 752, 466 P.3d 213 (2020)
If reasonable minds could
differ on facts controlling the outcome of the litigation, then there is a genuine
issue of material fact and summary judgment is inappropriate. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008).
Contracts - unconscionable
A contract provision is unenforceable it if is deemed unconscionable. WA recognizes two forms: substantive and procedural.
Substantive: provision shocking to the conscience, monstrously harsh, exceedingly calloused to define unconscionable.
Procedural: equity between the contracting parties at the time of the contract’s formation. described as the lack of meaningful choice, considering all the circumstances surrounding the transaction.
Criminal competence (RCW 10.77.060 et seq.)
(1) Able to understand the nature of the charges against them; and
(2) able to assist in their own defense.
If either party raises competence under RCW 10.77 and is in custody, evaluation must take 14 days to complete
Corporation formation
Articles of incorporation are filed with the secretary of state and must include:
(1) name of corporation;
(2) Maximum number of shares the corporation is authorized to issue; and
(3) the initial registered agent.
Amendments to articles of incorporation
may be amended if there is a majority vote from directors and shareholders. Minor changes may be made by Board of Directors without shareholder approval.
piercing the corporate veil
ability to hold a shareholder liable for the debts of the corporation if:
(1) “Alter Ego”;
(2) Lack of corporate formalities;
(3) undercapitalized; OR
(4) fraud / illegality
Corporate shareholder liability
typically not liable for the debts of the corporation; review piercing the corporate veil
Duty of care
Making sure directors and officers are exercising reasonable care when making business decisions. Prevent negligence. Manage corporation’s management; ensure corporate proposals are in the interest of the company; disclose material information to the Board of Directors; make reasonably informed decisions
Duty of loyalty
Intentional wrongful conduct. Conflicting interest transaction, for example parent company and shareholder on both sides of the deal. Benefiting oneself over the corporation.
business judgment rule
creates a presumption that the directors acted in good faith, on an informed basis, and in the honest belief that the action in corporation’s best interest
EXCEPTIONS to duty of loyalty owed to corporation
(1) When shareholders approved the conflicting interest transaction;
(2) Disinterested directors approve the conflicting interest transaction; OR
(3) The conflicting interest transaction is fair to the corporation.
Duty of Care - Special relationship
Basis: liable party’s assumption of responsibility for the safety of another.
Exists where:
(1) the DEF has a special relationship with the tortfeasor that imposes a duty to control that person’s conduct; OR
(2) the DEF has a special relationship with the victim that gives the victim a right to protection.
FOR EXAMPLE: a school and its students because a student is placed under the control and protection of the other party (the school) with resulting loss of control to protect himself or herself.
FOR EXAMPLE: a group home and highly vulnerable residents because a nursing home’s function is to provide care for those who are unable because of physical or mental impairment to provide care for themselves.
INSTITUTIONAL DEF: not involved in “on-the-ground control of operations, an instutitional DEF is not in a position to provide protection from physical danger such as a school or group home.
Spearin Doctrine
United States v. Spearin (1918)
Doctrine holds: where a contractor is required to build in accordance with plans and specifications furnished by the owner, the owner impliedly guarantees that the plans are workable and sufficient.
Affirmative Defense to breach of contract claim
“Person of Interest in any will”
a person interested is one who has a direct, immediate, and legally ascertained pecuniary interest in the devolution of the testator’s estate, such as would be impaired or defeated by the probate of the will or benefited by the declaration that it is invalid.
“The contestant must stand to lose directly in a financial way if the will which he seeks to attack is permitted to stand.”
Undue influence
Term of art in common law.
In contracts: undue influence is unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relation between them is justified in assuming that that person will not act in a manner inconsistent with his welfare.
Must prove BOTH: a qualifying relationship AND contract was induced by unfair persuasion.
Litigation privilege
Judicially created privilege that protects participants including attorneys, parties, and witnesses in a judicial proceeding against civil liability for statements they make in the course of that proceeding. Statements are absolutely privileged if they are pertinent or material to the redress or relief sought, whether or not the statements are legally sufficient to obtain that relief.
Witness immunity
As a general rule, witnesses in judicial proceedings are absolutely immune from suit based on their testimony. Statements are absolutely privileged if they are pertinent or material to the redress or relief sought, whether or not the statements are legally sufficient to obtain that relief.
First Amendment right to privacy
Under the Public Records Act, the First Amendment right to privacy protects against state action compelling disclosure of political beliefs and associations.
Thus, only if the State actor demonstrates a compelling interest in disclosure, and that interest is sufficiently related to the disclosure, can the state actor lawfully disclose the Does’ identities in the investigatory records.
nonconforming use
a use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the district in which it is situated.
A common law principle; “ a lot, use, building or structure which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but which fails by reason of such adoption, revision or amendment to conform to the current requirements of the zoning district.
NEGLIGENCE
(1) existence of a duty owed;
(2) breach of that duty;
(3) a resulting injury; AND
(4) proximate cause between the breach and the injury.
negligence liability to invitees
for the possessor of land to be liable to invitees for the unsafe condition o his land, he must have actual or constructive notice of that unsafe condition.
Contracts
6 MAJOR Parts of contracts
(1) Formation: Do we actually have a contract?
At least 90% of bar exam questions WILL have formation issues
(2) Clarifying the Terms: Parole Evidence Rule; ambiguity; mistake
At least 12% of bar exam questions WILL have Terms issues
(3)
Terminology for contracts
Parole Evidence Rule
Writings to be final and complete; four corners of the writings; final and complete expression on the subject
UCC 1-203
Good faith required in EVERY section
Merchants are required to operate honest in fact and complies with the reasonable standard of the trade
UCC 2-104
Merchant’s DEFINED:
(1) one who deals in goods of the kind or
(2) by his or her occupation has knowledge particular to this kind of transaction; or (3) one who hires an intermediary on their behalf.
UCC 2-201(1) - Statute of Frauds
Statute of Frauds: $500 Rule.
Sale of goods of $500 or more, dependent on the price NOT the value, needs to be in writing to be enforceable
Writing needs to show intent to contract
Quantity of goods
Signature or anything that stands for a signature
Mistakes are not fatal
UCC 2-201: Statute of Frauds between merchants
HIGHLY TESTED
If one merchant sends written confirmation of a contract; and what is sent is sufficient against the sender; actually received; within a reasonable time; the person in receipt had reason to know of the contents; objection is not given within 10 days of receipt; THEN contract is presumed accepted
UCC 2-207: Acceptances with Proposals
UCC 2-209: Modifications
No consideration is required for modification
Consumer must initial a
S of Frauds rule applies to modificaitons for products $500 and over
Failed modification might serve as a waiver
Waivers are revocable
UCC 2-305: Open Price Term (Reasonable Price)
Parties have said nothing about the price
Parties
Parties relied on 3rd party publication, and such publication no longer exists
When price is to be set by one of the parties, price should be set in good faith, not just any ol’ price they want
UCC 2-306: Output Contracts
UCC 2-313: WARRANTIES
Express Warranty
UCC 2-314: Implied Warranty
Product is fit for ordinary use
UCC 2-315: Implied Warranty
Product is fit for particular purpose
UCC 2-609: Further Assurances
Reasonable grounds for insecurity
Can make a WRITTEN demand for further assurances
Can suspend counterperformance if it is commercially reasonable to do so
Response time, but LESS THAN OR EQUAL to 30 days
If you do not get the further assurances = repudiation
Repudiation of Contract
Breach
UCC 2-615: Commercial Impracticability
Occurrence of an event, the non-occurrence of which was presumed by the parties that may create commercial impracticability; OR if you have to comply with a government order
A simple increase in cost is not commercial impracticability
However: an increase in cost due to
war, embargo, crop failure, unforeseeable shot down of factories or manufacturers MAY produce commercial impracticability
Contract Offer (formation)
Interested parties: contracting parties and general public (transactions in commerce)
Describing the bargain and proposing that we have intent of public enforcement. Reasonable person buyer conveys bargain and intent to reasonable person seller.
Buyer makes a promise to seller, merely quoting a price is not a promise, giving an opinion is not a promise, placing an ad is not a promise
OBJECTIVE STANDARD
Bargain (of offer - contract formation)
(1) Parties
(2) Price
(3) Subject matter: what is the item and what is the quantity (UCC - sales of goods)
(4) time for performance
Implied acceptance (contract formation)
(1) If you send goods that are not quite correct product, but send similar product to accommodate the request and buyer keeps the product, that is acceptance.
(2) Performance: completing the terms of the contract prior to returning the contract to offeror
Offer termination - 7 ways (contract formation)
(1) Rejection or counter offer
(2) Lapse of time
(3) Offeror died or incompetent
(4) Offeror revoked
(5) destruction of subject matter
(6) Non-occurrence of condition precedent to acceptance
(7) Supervening illegality
Condition precedent (contract formation)
Option Contract
Paid to keep the offer open
Counter offer does not terminate the option
Termination of an Option Contract
(1) expired option
(2) Destruction of subject matter
(3) Non-occurrence of condition precedent to acceptance
(4) supervening illegality
Contract Acceptance (formation)
Agreement: second party says yes
Acceptance is effective when they are dispatched.
OBJECTIVE STANDARD
Rejection of a counter offer
effective upon receipt
Substantial performance
HIGHLY TESTED
Objective manifestation theory (CONTRACTS)
parties intent is determined by focusing on the objective manifestations of the agreement, rather than on the unexpressed subjective intent of the parties. The ultimate goal is to determine the parties’ intent at the time they executed the contract rather than the “interpretations the parties are advocating at the time of the litigation”.
Objective manifestation theory (CONTRACTS)
parties intent is determined by focusing on the objective manifestations of the agreement, rather than on the unexpressed subjective intent of the parties. The ultimate goal is to determine the parties’ intent at the time they executed the contract rather than the “interpretations the parties are advocating at the time of the ligtiation”.
patent ambiguity (CONTRACTS)
when it appears on the face of a document. Must resort to extrinsic evidence to determine the intent of the documents.
latent ambiguity (CONTRACTS)
one that becomes apparent when the instrument’s provisions are sought to be applied
Community Property agreement (CPA)
Enforceable contracts that are not wills and are not governed by the laws relating to wills. They are completely executed when one of the parties to the recorded contract dies. Title to the community property, thereupon, vests as the sole and separate property of the survivor. Unless such a recorded contract is rescinded by the parties, it constitutes a conveyance by the decent to a surviving spouse. The property covered by it cannot be devised or bequeathed by will by either spouse while it remains in effect.
Basic damages principle of double recover
That there shall NOT be double recovery for the same injury
Defendant’s youth factors
Houston-Sconiers
(1) The juvenile’s age;
(2) the nature of the juveniles family circumstances and surrounding enfironments;
(3) juvenile’s participation in the crime and the effect of any family or peer pressure
(4) how the juvenile’s youth impacted the legal defense; and
(5) juvenile’s chances of being successfully rehabilitated
Hearsay
An out of court statement offered to prove the truth of the matter asserted.
Recreational immunity under RCW 4.24.210
the landowner shall not be liable for unintentional injuries to such users (hikers campers fishers, etc.). landowner must establish that the land at tissue was:
(1) open to members of the public;
(2) for recreational purposes; AND
(3) that no fee was charged.
Affirmative defense - landowner bears the burden of proving that entitlement to that immunity
Recreational immunity EXCEPTION
Injuries from a known, dangerous, artificial, latent condition for which there are no conspicuous signs, then the land owner is liable. ALL MUST BE PRESENT FOR THE EXCEPTION TO APPLY. The landowner need only show that the injury-causing condition lacks just ONE of the four characteristics to be immune from liability.
Injury-causing condition
is a specific object or instrumentality that cause d the injury, viewed in relation to other external circumstances in which the instrumentality is situation or operates.
DUE PROCESS - competency / incapacity
Criminal defendant has a fundamental right not to be tried while incompetent to stand trial. WA RCW 10.77.050: no incompetent person shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues. The failure to follow these procedures to protect this right is a denial of due process.
Prosecutorial misconduct
Defendant must establish that the prosecutor’s conduct was both improper and prejudicial in the context of the entire record and the circumstances at trial.
Community custody condition is void for vagueness IF
(1) it does not sufficiently define the proscribed conduct so an ordinary person can understand the prohibition or (2) it does not provide sufficiently ascertainable standards to protect against arbitrary enforcement.
sua sponte
voluntarily; of one’s own accord
The Sixth Amendment to the United States Constitution
Guarantees effective assistance of counsel. To prevail on an ineffective assistance of counsel claim, a defendant must prove that (1) his or her counsel performed deficiently, and (2) counsel’s deficient performance resulted in prejudice. Performance is deficient if it falls below an objective standard
of reasonableness.
Equitable tolling
PLAINTIFF must demonstrate:
(1) PLTF exercised diligence;
(2) DEF’s bad faith, false assurances, or deception interfered with the plaintiff’s timely filing;
(3) tolling is consistent with the purpose of the underlying statute and the purpose of the statute of limitations; AND
(4) justice requires tolling the statute of limitations.
Extraordinary form of relief and is appropriate only when it is consistent with the purposes underlying the governing statutory rules and when justice demands a departure from those rules.
doctrine of equitable estoppel
deed of trust
Written contracts statute of limitations
six year statute of limitations
Quiet title complaint
Seeks to remove liens on real property. Property “owner” may maintain an action to quiet title against the lien of a mortgage or deed of trust on the real estate where an action to foreclose such mortgage or deed of trust would be barred by the statute of limitations.
installment contract (UCC 2-612)
a single contract that ins completed by a series of performances, such as payments, performance of a service, or delivery of goods rather than being performed all at one time.
litigation privilege
immunizes participants from civil liability based on stateme
