Rules 15%-19% Flashcards
Personal Jurisdiction: Traditional Bases
1) Domicile
2) Service (transient jurisdiction)
3) Consent
4) Waiver
Quasi-Community Property
Property acquired while living in a non-CP state that would be considered CP if the spouses had been living in California.
Treated as separate property UNTIL divorce/death/dissolution of marriage.
Personal Injury Awards & Settlements - Community Property
If the Cause of Action arose during marriage, the PI awards and settlements are CP.
At divorce, assigned entirely to the injured spouse, unless the funds were commingled or there was economic hardship.
Hearsay Exception: Statement Against Interest
A statement against interest is an admissible hearsay exception when:
1) It is a statement against the declarant’s penal, proprietary, or pecuniary interest when made (criminal/property/civil liability)
2) Declarant has firsthand knowledge
3) A reasonable person in the declarant’s position would have made the statement only if they believed it to be true
AND
4) the Declarant is unavailable.
Hearsay Exception: Business Records
Business Record is Admissible if it is:
1) a record of events, conditions, opinions, or diagnoses;
2) kept in the regular course of business;
3) made at or near the time of the matter described;
4) made by a person with knowledge of the matter;
5) is the regular practice of the business to make such a record
AND
6) the opponent-party does not show circumstances indicating a lack of trustworthiness.
Duty of Communication
A lawyer must keep the client reasonably informed about any significant developments relating to the representation.
The Duty to Communicate includes:
1) promptly informing the client of any situation where the client’s informed consent is required;
2) keeping the client reasonably informed on the status of the matter;
3) promptly complying with requests for information;
4) consulting with the client about strategy decisions and any matters requiring the client’s consent;
AND
5) advising the client when the lawyer knows that the client expects assistance not permitted by ethical rules.
Filing Frivolous Claims
A lawyer has a duty to investigate the claims/defenses/arguments filed on behalf of a client, and CANNOT file frivolous positions with the Court.
A good faith argument for an extension, modification, or reversal of existing law is NOT deemed frivolous.
Consequential Damages
Consequential damages arise indirectly from the breach, and are awarded because of special circumstances (like lost profits).
Damages MUST be:
1) Reasonably foreseeable
2) Caused by the plaintiff’s circumstances that the Defendant knew or had reason to know of
AND
3) reasonably certain (not speculative)
Incidental Damages
Reasonable costs incurred as a result of a breach of contract.
Restitution Damages
An award to prevent unjust enrichment, available when one party confers benefit onto another party (even if there is no enforceable contract)
A party CANNOT recover both expectation and restitution damages.
Duty - Torts
Minority View - Andrews - Duty owed to all foreseeable plaintiffs.
Majority View - Cardozo - Duty owed to all foreseeable plaintiffs within the zone of danger.
Equal Rights of Spouses to Manage Property & Transfers to Third Parties
Each Spouse has equal rights to manage and control Community Property.
A spouse may sell, encumber, or otherwise dispose of CP without the other’s consent.
BUT
-Cannot dispose of property for less than fair and reasonable value.
-Transfers of Community Real property require both spouses to join the transaction.
Equal Protection Analysis
To determine if a discriminatory classification against a group of people exists, one of the following must be shown:
(a) the law is discriminatory on its face;
(b) the law is facially neutral but applied in a discriminatory manner;
OR
c) the law has a discriminatory motive.
Scrutiny
When the government makes laws that classify people into groups, the constitutionality of the law will be considered using one of three different levels of scrutiny:
a) Rational Basis;
b) Intermediate Scrutiny;
c) Strict Scrutiny
Under Strict Scrutiny, the government must show that a classification is necessary to serve a compelling government interest.
Takings
Under the Takings Clause of the 5th Amendment, the government may take private property for public use if it provides just compensation.
Public Use - reasonable belief that it will benefit the public.
Just Compensation - fair market value of the property at THE TIME of the taking.
Murder
The unlawful killing of a person with malice aforethought.
Malice Aforethought is established by showing:
(a) an intent to kill;
(b) an intent to inflict great bodily injury;
(c) a reckless disregard of an extreme risk
OR
(d) intent to commit a felony
Warrant Requirement for Searches
In order for a search warrant to be valid:
1) there must have been probable cause;
2) the warrant must state with particularity the place to be searched and the items to be seized;
AND
3) it must be issued by a neutral and detached magistrate.
California Proposition 8
Under Proposition 8 of the California Constitution, all relevant evidence is ADMISSIBLE in a criminal trial.
Such evidence is still subject to balancing - is the probative value substantially outweighed by the risk of unfair prejudice, confusion of issues, misleading the jury, or needlessly cumulative.
Proposition 8 does not affect the following: (1) exclusionary rules based upon the U.S. Constitution; (2) the secondary/best evidence rule; (3) hearsay exclusions; (4) privilege exclusions; (5) evidence barred under rape-shield statutes; (6) limits on prosecution from offering specific character evidence (prior to defendant “opening the door”).
Hearsay Exception: Declarant Unavailable Requirement
A declarant is deemed unavailable as a witness if they:
(a) are exempted from testifying due to privilege;
(b) refuse to testify despite a court order to do so;
(c) testify that they do not remember the subject matter;
(d) cannot be present to testify because of death or illness
OR
(e) are beyond the reach of a court’s subpoena and attendance cannot be procured by reasonable means.
Conflict of Interest: Former Clients
Unless given informed consent, a lawyer cannot represent another person in the same or a substantially related matter, when the interests are materially adverse to the interests of the former client.
Mandatory Withdrawal
A lawyer must withdraw from representing a client if
(a) discharged;
(b) a physical or mental condition exists;
OR
(c) representation will result in a violation of an ethics rule or other law.
Amount of Lawyer’s Fees
A lawyer’s fee must be reasonable, and in CA cannot be unconscionable or illegal.
Contingency Fee Agreements
A contingency fee agreement MUST:
1) be in writing signed by the client;
2) include percentage of recovery lawyer will take, expenses that will be removed, and detail about whether lawyer’s fee is pre or post expenses;
3) how work or expenses not explicitly covered by the contingency fee will be charged;
AND
4) a disclaimer that the fee is not set by law and is negotiable.
When Contingency Fee Agreements are Prohibited
1) Domestic Relations matters
2) Criminal Defense
Public and Private Nuisance (Real Property)
A Public Nuisance is:
1) an unreasonable interference
2) with the health, safety, or property rights;
3) of the community.
A Private Nuisance is:
1) a substantial and unreasonable interference;
2) with a person’s use or enjoyment of her property.
Tort of Intentional Misrepresentation
To state a prima facie case for intentional misrepresentation, plaintiff must show:
1) Misrepresentation of a material fact by the defendant;
2) the Defendant knew it was false (scienter);
3) the intent of the Defendant to induce the plaintiff;
4) actual and reasonable reliance by the plaintiff;
AND
5) Damages
Tort of Negligent Misrepresentation
To state a prima facie case for negligent misrepresentation, plaintiff must show:
1) Misrepresentation;
2) Supplied for guidance of others in a business transaction;
3) Defendant knew/should have known info would relay to Plaintiff
4) Defendant was negligent in obtaining or communicating the false information
5) Actual and reasonable reliance by the Plaintiff;
6) The False information proximately caused plaintiff’s damages
Reasonable Person Standard
A reasonably prudent person takes appropriate measures to avoid foreseeable risks under like circumstances.
Trust Formation Elements
A valid express trust requires:
1) a definitive beneficiary;
2) a settlor with capacity;
3) an intent to create a trust
4) a trustee
5) a valid trust purpose
6) trust property
AND
7) compliance with state formalities
Intestate Distribution - Community Property
A surviving spouse is entitled to one-half of the decedent’s community property AND quasi community property.
(the remaining one-half is already owned by the surviving spouse)
