Rules I missed

Question 1

Corporation by estoppel

Answer 1

Parties who acted as if there were a corporation are estopped from denying the corp’s existence and cannot avoid liability in K (N/A to tort victims).

Question 2

A co-defendant’s confession cannot be addmited unless

Answer 2

1) All portions referring to the other defendant can be eliminated, or

2) The confessing defendant takes the stand and subjects themself to cross-examination OR

3) The confession of the non-testifying co-defendant is being used to rebut the defendant’s claim that their confession was obtained coercively

Question 3

Excited Utterances Exception / Spontaneous Statement

Answer 3

An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event (meaning, before the declarant had time to reflect upon it), is admissible

Question 4

HOA Rules must be

Answer 4

reasonably related to a legitimate purpose of the association

Question 5

products strict liability elements

Answer 5

1) D is a Commercial Supplier
2) Product is defective
3) The defective product was not substantially altered since leaving the defendant’s control
* If the product moved through normal channels of distribution, it will be inferred that the product was not altered
4) But for and proximate causation- The product caused an injury to plaintiff when it was making a foreseeable use of the product
5) Damages- NO pure econ loss, and no pure emotional damages (need actual damage to person or property)

Question 6

judical notice

Answer 6

Judicial Notice = recognition of a fact as true without formal presentation of evidence.

Rule: A court may take judicial notice of any fact that is “not subject to reasonable dispute” because:
1) The fact is generally known within the court’s jurisdiction or
2) The fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned

conclusive in civil case, NOT conclusive in crim case (CA conclusive in both)

Question 7

Common driveways, walls or fenses

Answer 7

imply mutual cross-easements of support

covenants to make common driveways, walls, fences run with the land if
* writting
* intent
* touch and concern (satisfied)
* Horizontal privity (satisfied) - implied cross-easements for support satisfy the horizontal privity requirement because they are mutual interests in the same property
* vertical privity
* notice if a BFP

Question 8

real covenant

Answer 8

A covenant is a written promise to do or not do something related to one’s own land (for example, to maintain a fence, or to not build a multifamily dwelling).

A covenant does NOT grant a property interest, rather it is a contractual limitation or promise regarding land. Real covenants are normally found in deeds

Question 9

Anti-SLAPP Motion to Strike

Answer 9

strategic lawsuits against public participation (“SLAPP”)- are suits brought to chill the valid exercise of First Amendment rights (for example, speech, petition of government).

How CA’s Anti-SLAPP law works
1. D must show that she was sued for an activity protected by the first amendment
2. then the burden shifts to the plaintiff to show a probability of winning the case on the merits

If P does not meet this, then motion to strike is granted

If court grants motion to strike, the D may file malicious persecution claim against the original P.

Question 10

can you recover for emotional distress in a negligance case?

Answer 10

Yes, BUT ONLY IF you also have a physical or property injury

Unless its an NEID claim

Question 11

CA has 2 additional hearsay exceptions that require the declarant be unavailable

Answer 11

1) past physical, mental, or emotional condition (Declarant must be unavailabnle and the condition must be at issue in the case)

2) Statements describing the infliction or threat of physical injury (NARROW)
* Declarant is unavilable
* statement describes the infliction or threat of physical injury
* Was made at or near the time of the infliction or threat;
* Was either (1) in writing, (2) recorded, or (3) made to a law enforcement official or medical personnel ( but look out for confrontation clause issue)

Question 12

Appealing the exclusion or admission of evidence

Answer 12

To preserve full appeal of wrongful admission→ the party opposing admission must make a timely objection to move to strike the evidence and state the correct ground for the objection

To preserve appeal of wrongful exclusion of evidence → the party must inform the court of the evidence’s substance by an offer of proof, unless its substance was apparent from the context.

if no proper objection –> plain error affecting substantive rights review

Question 13

water rights

Answer 13

navigatable watercorses
1) ripirian doctrine- owners of land that boarders the water have rights to use water
* reasonable use theory (majority)
* natural flow theory (minority)- riparian owner’s use is enjoinable if it results in substantial or material diminution of the water’s quantity, quality, or velocity
2) prior Appropriation doctrine - owner who makes first benifical use of watercourse has right to use it

Surface waters -
* A landowner can use surface water within their boundaries for any purpose they desire.
* A landowner can capture as much surface water as they wish (so long as no malice)
* liability for redirecting flow –> majority approach is Common Enemy theory - an owner can take any protective measures to get rid of the water or combat its flow. The rule has been modified by many courts to prohibit unnecessary damage to others’ lands. (compare to natural flow theory or reasonable use theory)

the surface owner can make reasonable use of the groundwater

Question 14

exclusionary rule does not apply to

Answer 14

grand jury proceedings (not ground to dismiss indictment), parole revocation proceedings, or for the purposes of impeachment

Question 15

Statement def

(hearsay def)

Answer 15

Statement = a person’s (1) oral or written assertion, or (2) nonverbal conduct intended as an assertion (like a nod of the head)

Question 16

rule 37 (discovery) sanctions

Answer 16

• Establishment order (establishes the facts as true)
• Strike pleading of the disobedient party as to issues of discovery
• Disallow evidence from the disobedient party as to issues re the discovery
• Dismiss Ps case (only if bad faith is shown)
• Enter default judgment against D (only if bad faith is shown)

ESI truly lost despite ligation hold
* May issue an adverse inference order
* May enter merits sanctions, but only if the party who lost the ESI acted with the intent to deprive the other party of the ESI
* May enter default judgment against D if she acted in bad faith

Question 17

motion for new trial

Answer 17

must move within 28 days of verdict/ judgment

A judge may exercise discretion to grant new trial based on any non-harmless error (can be sua sponte)

Standard on appeal -abuse of discretion → clear error
verdict will not be overturned unless it was against the clear weight of the evidence

ca- “that the error complained of has resulted in a miscarriage of justice.”

Question 18

Remand

Answer 18

(1)removal was improper (D is a citizen of the state, fed court lacks SMJ, or timing)
(2) P must move for remand within 30 days of notice of removal
EXCEPT lack of SMJ can be raised at any time

Question 19

ancient docs are authenticated when

Answer 19

1) 20+ years old (CA requires the doc to be 30+ years old)
2) Is in a condition that creates no suspicion as to authenticity (for example, there are no erasures on the document); and
3) Was found in a place where such a writing would likely be kept

Question 20

wild deed

Answer 20

A “wild deed” is a recorded deed that isn’t connected to the chain of title. It doesn’t impart constructive notice because a subsequent purchaser could not feasibly find it.

A wild deed is treated as if not recorded at all

Question 21

public nuisance

Answer 21

an unreasonable interference with the
health, safety, and morals of the community at large

Question 22

prior arrests are ____ to impeach

Answer 22

Inadmissible if they are prior arrests of the witness herself being used to attack credibility

BUT admissible if they are prior arrests of the defendant and are being used to impeach D’s character wittness

Question 23

Animal ownership strict liability

Answer 23

1) was the person a tresspasser –> if yes, NO SL, have to prove negligence

2) domestic animal –> owner will NOT be strictly liable for harm caused by the animal UNLESS the owner has knowledge of the animal’s abnormally vicious propensities.

3) wild animal –> strict liability

An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals (common law rule)
Irrelevant if owner acted with reasonable care to try to prevent trespass

Question 24

rehabilitation methods

Answer 24

1) Explanation on redirect - witness on redirect may explain or clarify facts brought out on cross-examination.

2) Reputation or Opinion evidence of Good Character for Truthfulness
– CANNOT testify about specific acts of truthful conduct by the impeached witness

3) Prior Consistent Statement

Question 25

Involuntary Intoxication=

Answer 25

taking of an intoxicating substance without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice while unaware of the substance’s intoxicating effect.

Involuntary intoxication may be treated as a mental illness, and the defendant is entitled to acquittal if they meet the jurisdiction’s insanity test

Question 26

Felony Murder

Answer 26

Any death—even an accidental death—caused in the commission of, or in an attempt to commit, a dangerous felony is murder.

Malice is implied from the intent to commit the underlying felony.

BARRK

the participant must be found guilty of the underlying felony
* felony must be distinct from the killing itself

Death must have been a foreseeable result of the felony

agency theory (majority) vs Prox cause view

The killing must occur while the felony is being committed

Question 27

Public figure =

Answer 27

pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy.

Question 28

Court’s enforcment of specific prefomance is feasible if

Answer 28

court has jurisdiction over the property and parties–> court can issue orders directly affecting the land and a party who refuses to obey can be held in contempt to obtain complaince.

Question 29

assignee can sue…

Answer 29

The obligor (party to orig contract that did not assign) if they KNEW about the assignment and paid the assignor instead + the assignment was for value (not gratuitous)
* If it was gratuitous then the assignment is revoked

If obligator is unaware of assignee and they pay the assignor, the obligator is not liable.

Or the assignor

Question 30

intervention

Answer 30

1) Is the Intervention of right or permissive?

An absentee has a right to intervention when…
* 1) The absentee’s interests may be harmed if she is not joined and
* 2) her interests are not adequately represented by existing parties
* (or theres a statutory right)

Permissive intervention- one common question of law or fact with the pending case.

2) The Fed court must also have SMJ over the intervenor’s claim

Question 31

scope for discovery

Answer 31

A party may seek to obtain any non-privileged matter that is relevant to a claim or defense of any party and proportional to the needs of the case

Information sought need not be admissible at trial to be discoverable as long as it is reasonably calculated to lead to the discovery of admissible evidence

CA- Scope of CA Discovery - A party may discover anything relevant to the subject matter involved in the pending action and that are reasonably calculated to lead to the discovery of admissible evidence

Question 32

delegation

Answer 32

Delegation means giving another person or agent the responsibility of exercising the performance agreed to in a contract.

Generally, all duties may be delegated without the other party’s consent

Exceptions:
(1) the duties involve personal judgment and skill;
(2) delegation would change the obligee’s expectancy (for example, requirements and output contracts);
(3) a special trust was reposed in the delegator by the other party to the contract; and
(4) there is a contractual restriction on delegation

Question 33

5th amendment priv against self incrim

Answer 33

A person may refuse to answer a question whenever their response might furnish a link in the chain of evidence needed to prosecute them.

Corporations and partnerships CANNOT assert

only applies to testimony - Does not apply to physical evidence or documents (unless act of production doctrine applies)

doesnt apply if
* witness is given “Use and derivative use” immunity
* No possibility of incrimination
* waiver - A criminal defendant, by taking the witness stand, waives the privilege to the extent necessary to subject them to any cross-examination.

Question 34

voice authentication

Answer 34

A voice can be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying.

opponent admission

telephone call - can be authenticated by any party to the call testifying that
* they recognized the other party’s voice OR
* the speaker had knowledge of certain facts that only a particular person would have OR
* they called a particular person’s number and a voice answered as that person or that person’s residence; OR
* they called a business and talked with the person answering the phone about matters relevant to the business.

Question 35

requirements for supplemental jurisdiction

Answer 35

• other claim has diversity or fed q smj
• arise from common nucleus of operative fact
• discretion (novel or complex issues of state law, State law issues predominate, The claim on which federal SMJ is based is dismissed early in the case (federal dog dies), in exceptional circumstances, other compelling reasons)

in diversity cases,
* the PLAINTIFF generally CANNOT invoke supplemental jurisdiction (unless amount in conteaversy exception)

Question 36

when are statements of a Co-conspiritor withing the opposing party admission exclusion/exception to hearsay?

Answer 36

When the co-conspiritor made the statements in the furtherance of the conspiracy

Question 37

what is required for police to make warrentless entry under exegent cirumstances?

Answer 37

Exigent Circumstances - An emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect, or destruction of evidence.

Police need
1) exigent circumstances +
2) probable cause

Hot pursuit, emergency aid, precenting destruction of evi, evervesent evi

Question 38

what is a breaking for burglary?

Answer 38

Actual breaking - creating or enlarging an opening by at least minimal force (counts even if door is unlocked)
- Common law rule- if you slide through open doors, never moving a door (even an internal door) and leave then no breaking, but if you push any door (even internal) then an actual breaking

constructive breaking- breaking by fraud or threat

Breaking requires a trespass - without consent

Question 39

test for 2nd amenment

Answer 39

is the reg consistent with this country’s history and tradition of firearms regulation ?
if no –> strict

limits on gun permits
* Can only be to carry outside the home
* Cannot give an official discretion to approve or deny - must have clear criteria
* Approval cannot be conditioned on a safety need

Question 40

Emergency aid exception

Answer 40

A police officer may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public.

Question 41

fruit of the poisionous tree doctrine

Answer 41

Fruit of the Poisonous Tree Doctrine= All evidence derived from excluded evidence will also be excluded unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct.

exceptions:
1) Fruits obtained through a NON-PURPOSEFUL violation of Miranda
2) Independent source
3) Attenuation—intervening act or circumstance
4) Inevitable discovery by police
5) Violations of no-knock entry rule
6) Live witness testimony
7) In-court identification

Question 42

A buyer may declare total breach of an installment contract only if

Answer 42

the breach substanitally impairs the value of the entire contract and cannot be cured

Buyer must accept the conforming units if not substantial quantity of non-conforming unit and seller gives assurances that cure is coming + buyer cannot cancel the rest of the contract

Question 43

Confrontation Clause application to Hearsay

Answer 43

A hearsay statement will not be admitted-even if it falls within a hearsay exception-when:
(i) the statement is offered against the accused in a criminal case;
(ii) the declarant is unavailable;
(iii) the statement was testimonial in nature; and
(iv) the accused had no opportunity to cross-examine the declarant’s “testimonial” statement prior to trial.

not testimonial if made to police in an ongoing emergency

Question 44

What have states waived and not waived soverign immunity for tort liability for?

Answer 44

Sovereign immunity is NOT waived for acts characterized as discretionary.

Immunity is waived for ministerial acts

Discretionary = acts involving economic or political policy

Ministerial = acts which are preformed at the operational level of government

Question 45

involuntary manslaughter

Answer 45

Involuntary Manslaughter = an unintentional killing that happens either:

(1) during the commission of a crime, which is not subject to the felony murder rule (misdemeanor murder rule) or

(2) is due to criminal negligence or recklessness
* manslaughter based on recklessness requires only a substantial risk of death. Unlike malignant heart murder or 2nd degree murder which require a high risk of death

Question 46

When does miranda apply?

Answer 46

1) Need government conduct
2) D must know the interrogation is by the police (does not apply if question is by an informant or parole officer)
3) D must be in custody
* 1- freedom of movement test- would reasonable person under the circumstances feel free to terminate interrogation and leave?
* 2- if not, is environment coercive?

4) interrogation = any words or conduct (not just questioning) by the police that they should know would likely elicit an incriminating response from the detainee.
* Miranda warnings are NOT required before spontaneous statements are made by a detainee.

Question 47

Common non-truth purposes (non-hearsay)

Answer 47

(1) Verbal acts or legally operative language/ Independent legal significance
(2) Statements offered to show their effect on the listener or reader/ D’s knowledge
(3) Statements offered as circumstantial evidence of declarant’s state of mind (for example, when a party is trying to prove someone’s insanity or knowledge)

Question 48

CA versions of motions to dismiss

Answer 48

Motion to quash summons- lack of PJ, improper process and/or improper service of process
* must be must be made before or with demurrers, answer, or motion to strike because motion to quash is a “special appearance” —or waived!

General demurrers: failure to state facts sufficient for a claim, lack of SMJ

Special demurrers: pleading is ambiguous, lack of legal capacity to sue, misjoinder of parties (only available in an unlimited civil case)

Question 49

If the q says “traditional assumption of risk” or common law assumption of risk then…

Answer 49

assumption of the risk is a COMPLETE defense
(same as saying its a contributory negligence jurisdiction)

Question 50

A valid transmutation must

Answer 50

be in writting and expressly declare an intent to change ownership of the property

Question 51

easment will not prevent marketable title if

Answer 51

1) buyer knew about it
2) Easement is visible (should have known)
3) easment benifits the parcel being bought

note that if there is also a warrenty deed - most court will hold that the easement violates covenant against encumberances even if the buyer knew about it (unlike how easments are handled with implied warrenty of marketability)

Question 52

Valid delivery requires

Answer 52

Present intent to transfer

Acceptance

Question 53

motion to set aside default requires

Answer 53

D may move to set aside a default or default judgment by showing :
1) ground under 60b AND
* (1) mistake, inadvertence, surprise, or excusable neglect;
* (2) newly discovered evidence…
* 3) fraud, misrepresentation, or misconduct by opposing party;
* 4) the judgment is void (lacked PJ or SMJ)
* the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated
* (6) any other reason that justifies relief.

2) a viable merits defense to Ps claim

Question 54

Jail House informant

Answer 54

Does NOT violate D’s 5th amendment rights to counsel or remain silent

DOES violate 6th amendment right to counsel if POST-inditement

Question 55

embezzlement

Answer 55

1) the fraudulent = specific intent to defraud, must restore the literal same dollars to avoid

2) conversion = dealing with the property in a manner inconsistent with the arrangement by which defendant has possession

3) of the personal property of another

4) by a person in lawful possession of that property

Question 56

methods of authentication

Answer 56

• Opponent’s admission
• Eyewitness testimony
• Handwriting
• voice identification
• Reply Letter Doctrine
• Ancient Documents
• Photographs - Any person with personal knowledge of the scene can authenticate an ordinary photo as a fair and accurate depiction
• X-Rays - must be authenticated by a witness + custodial chain

Question 57

Does a deed in lieu of foreclosure estinguish jounior mortgages?

Answer 57

NO

Question 58

What does one need for a valid warrent

Answer 58

1) probable cause - to believe that seizable evidence will be found on the person or premises at the time the warrant is executed.- “totality of the circumstances”

2) particularity - A warrant must describe with particularity the place to be searched and items to be seized.

3) unbiased magistraite - probably cant be state AG

Question 59

protective order from discovery

Answer 59

If party thinks that discovery request subjects her to embarrassment, annoyance, undue burden or expense then she can move for a protective order.

The party seeking the order must certify in good faith that she met and conferred with the other side to try to resolve the issue without court involvement

Question 60

CL arson vs MPC Arson

Answer 60

CL - malicious burning of the dwelling of another

MPC Arson- the burning of a structure or dwelling

(mere charing is sufficent)

Question 61

If court compells a party to produce discovery the court must order the party to pay the other side’s fees associated with making the motion unless

Answer 61

(i) the movant filed the motion before attempting in good faith to obtain disclosure or discovery without court action
(ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances exist that make an award of expenses unjustified.

Question 62

defenses to enforcment of an equitable servitude

Answer 62

• unclean hands
• latches - unreasonably delayed asserting the claim to the detriment of the opposing party
• accquiessance to violation
• estoppel - P acted in a way that would lead a reasonable person to believe the covenant was abandoned
• changed neighborhood conditions - makes entire property unusable

Question 63

speech in schools

Answer 63

Speech in schools may be reasonably regulated to serve the school’s educational mission or if school officials conclude that the speech will materially and substantially disrupt work and discipline at school which includes protecting students safety
Schools generally cannot regulate off campus speech or speech that was outside of school hours

Question 64

necessity defense

torts

Answer 64

1) emergency makes D likely to be injured
2) the threatened injury is substantially more serious than the invasion of P’s real or personal property

Question 65

conditions on permits are NOT takings if

Answer 65

1) The government can show there is an essential nexus between the condition and the proposed development and

2) The adverse impact of the proposed development is **roughly proportional **to the loss caused to the property owner from the forced transfer.

Ex: the Supreme Court found a taking when a city refused to grant a permit to a landowner to pave a parking lot unless the landowner dedicated some of their land as a greenway and a bike path (nothing indicated a nexus between paving the lot and the need for a greenway or bike path).

Question 66

impeaching with a conviction fed rules

Answer 66

< 10 years old unless…
* (1) its probative value substantially outweighs its prejudicial effect AND
* (2) the proponent gives the adverse party reasonable written notice

conviction for any crime involving untruthfullness is admissible, no discretion to exclude

felony for crime NOT involving untruthfulness - admissible IF RELEVANT to impeach, but discretion to exclude (403 or if witness is a crim D, then prosection must show probative value outweighs unfair prejudice)

Question 67

Unconscionability

Answer 67

when one party has way more power and the contract is super one sidered that is a tip for unconscionability

Question 68

pretrial conference

pretrial order can be modified if

Answer 68

Requires attorneys to be prepared to make admissions and stipulations reasonably anticipated for discussion at the pretrial conference and particpate in good faith (otherwise court can sanction sua sponte)

can be modified necessary to prevent a manifest injustice, even if trial has already begun

Question 69

Attractive Nuisance Doctrine

Answer 69

1) trespasser was a child
2) An artificial dangerous condition on the land that the owner is or should be aware of
3) children trespassing is foreseeable - The owner knows or should know that children might trespass on the land
4) The condition is likely to cause injury b/c child will not appreciate the risk (and the child reasonably did not appreciate the risk)
5) The expense of remedying the situation is slight compared with the magnitude of the risk

Question 70

When can a person not recover for pure economic loss

Answer 70

strict liability torts

negligence torts

Question 71

in wills/ inheritance an “issue” is

Answer 71

A lineal descendant (does not include a parent)

Question 72

for the purposes of preclusion, a judgment is on the merits unless…

Answer 72

Court says “without prejudice” or

Dismissal was based on VIPS
* venue
* failure to join an Indespensible party
* Personal Jurisdiction
* SMJ
CA adds SOLs

Question 73

prosecutor must turn over what kind of evi (under DPC)

Answer 73

material exculpatory evi (which includes evi that would impeach a govt witness)

if they dont, then the conviction is reversed on appeal if there is a reasonable possibility that the case would have come out differently had the info been divulged ( prejudice has resulted)

Question 74

Limitations on monetary Rule 11 sanctions:

The court must NOT impose a monetary sanction:

Answer 74

Against a represented party for issues with the party’s legal or factual representations to the court (its the lawyer’s fault) or

On its own (sua sponte), UNLESS the court issued the show-cause order

Question 75

commercial speech

Answer 75

not protected by 1st am if false or misleading or risks deception
* Required Disclosures- The government may require commercial advertisers to make disclosures if the disclosures are not unduly burdensome and they are reasonably related to the state’s interest in preventing deception.

all other commercial speech –> reg must directly advance an important govt interest and be narrowly tailored
* Does NOT have to be the least restrictive means
* Complete bans on truthful advertisement of lawful products are very unlikely to be upheld due to a lack of tailoring.

Question 76

a testimonial statement (for the purposes of the confrontation clause) is

Answer 76

a statement that was made with the primary purpose of assisting with a police investigation or conviction

(exception on-going emergency)

Question 77

a tax on interstate commerce is valid if

Answer 77

1. the tax does not discriminate against interstate commerce/ unduly burden interstate commerce (and not preempted)
2. there is a substantial nexus between the activity taxed and the taxing state
3. the tax is fairly apportioned; and
4. he tax fairly relates to services or benefits provided by the state.

A substantial nexus exists when a business avails itself of the privilege of doing business in the state.

Question 78

mutual mistake

Answer 78

defense to formation if
1) concerns a basic assumption of the parties
2) mistake has material effect on the agreeed upon exchange
3) the party seeking avoidance did not assume the risk of the mistake

Question 79

Accord and Satisfaction

Answer 79

suspends the agreement until such time that the accord is either satisfied or not satisfied, neither party can enforce the original agreement during that time

diff from novation because the original duties under the contract are NOT immediately discharged, assume its an accord unless parties expressly agree to discharge original duties

cashed check qs

Question 80

Judgements hearsay exception

Answer 80

A judgment of a felony conviction is admissible in criminal and civil actions as an exception to the hearsay rule to prove any fact essential to the judgment.

In a criminal case, however, the government may use the judgment to prove facts only against the accused
* And in criminal cases, the government cannot offer the conviction of someone else to prove facts against a diff Defendant
* against others, it may be used only for impeachment purposes but not to prove truth of matter asserted

A civil judgment is inadmissible in a subsequent criminal proceeding because of the different standards of proof.
A civil judgment is generally also inadmissible in subsequent civil proceedings, subject to certain statutory exceptions
* Ex: a prior judgment may be admitted to prove matters of personal or family history, or boundaries of land.

Also a civil judgment that has res judicata or collateral estoppel effect is NOT hearsay because the document is not within the hearsay definition

Question 81

handwritting evi can be authenticated by

Answer 81

opinion of a lay witness (nonexpert) who had familiarity with the alleged writer’s handwriting before the litigation

expert

jury with samples

Question 82

hearsay exclusions

Answer 82

1) prior statement of a testifying witness
* prior identification b y testifying witness
* prior inconsitent statement of testifying witness if made under OATH or
* prior consitent statement of TW used to rehabilitate the witness

2) opposing party omission

Question 83

contract clause

Answer 83

public contract –> strict

Private contract–> state or local legislation that **substantially impairs **a party’s rights under an existing private contract is invalid unless the law is a reasonably and narrowly tailored means of promoting an important and legitimate public interest

Question 84

a waiver of a privlidge extends to undiclosed material ONLY if…

Answer 84

(1) the waiver was intentional,

(2) the disclosed and undisclosed material concern the same subject matter, and

(3) the material should be considered together to avoid unfairness.

Question 85

rule 11

Answer 85

Lawyer or pro se party certifies that after reasonable inquiry…
* The paper is not for an improper purpose
* Legal contentions are warranted or non-frivolous argument that the law should change
* Factual contentions (and denials of factual contentions) have evidentiary support or are likely to after further investigation

Before imposing sanctions the court must give the party the opportunity to be heard.
Safe harbor provision if on motion
* CA safe harbor provision applied both on motion and sua sponte

Question 86

impeaching with a conviction in CA

Answer 86

(1) to be admissible, conviction must be for a crime involving moral turpitude;
* “Crimes of moral turpitude” = crimes of lying, violence (but not simple assault), theft, extreme recklessness, or sexual misconduct.

(2) misdemeanor convictions are admissible in criminal cases only (because CEC excludes but prop 8 overpowers in crim case)

(3) the court always has discretion to exclude a qualifying conviction under 352

Question 87

what can passangers in a car challenge? (4th am)

Answer 87

Each passenger in a car has standing to challenge a stop of the car. If a stop is invalid, under the fruit of the poisonous tree doctrine, evidence obtained as a result of the invalid stop will be suppressed.

Cant challenge unlawful seizure of evidence from another passanger in the car or from the car itself because no standing (unless they owned the car), they can only challenge the stop

Question 88

kiddnapping

Answer 88

• Compel a ransom
• Terrorize or harm the victim
• Facilitate the commission of another felony
• Interfere with the performance of a political function

Aggravated kidnapping- kidnapping for ransom, kidnapping for the purpose of committing other crimes, kidnapping for offensive purposes, and child stealing

Question 89

a police officer does not need a warrent to arrest someone when

Answer 89

they have probable cause to believe a felony has been commited and the person commited the felony

Question 90

Variance

Answer 90

grants a landowner permission to depart from a zoning ordinance. Requirements:

1) Undue hardship
2) Owner did NOT cause the hardship (ex choosing to locate their home in a particular place within the lot)
3) variance will NOT result in a diminution of value of the neighboring properties

Question 91

assumption of the risk

Answer 91

1) P voluntarily assumed
2) A known risk

assumption of risk may be: express – by agreement; OR implied – where an average person would appreciate the risks involved.

Jury decides whether damages should be reduced or denied due to contributory negligence or assumption of the risk → so deny summary judgment even if u think that P assumed risk and that is a complete defense

Question 92

Probable cause

Answer 92

knowledge of sufficently trustworthy facts which would lead a reasonably prudent person to believe the suspect commited a crime for which arrest is authorized by law

totality of the circumstance test

Question 93

A defendant may be held liable in negligence case for crimes commited by third party if…

Answer 93

it was reasonably forseeable to the D at the time they commited the negligent act that their negligence would increase the risk of the crime occuring

Question 94

areas that are substantive under erie

Answer 94

• SOLs and tolling
• elements of a claim or defense
• choice of law
• standard for granting a new trial because the jury’s damages award was excessive or inadequate.

Question 95

Evanescent evidence

Answer 95

evidence likely to disappear before warrant can be obtained (such as samples from under a suspect’s fingernails)

Question 96

if somone obtains property through threat of future harm what crime?

Answer 96

not robbery

Could be extortion

Question 97

Evidentiary Presumptions

Answer 97

• Mail delivery - A letter, properly addressed, stamped, and mailed, is presumed to have been delivered.
• Presumed Dead after 7-Year Absence
• Against Suicide
• Presumption in favor of legitimacy
• Presumption of sanity
• Presumption that the owner was the driver or that the driver was the owner’s agent.

Question 98

title theory

Answer 98

title theory = a mortgage is an actual transfer of title to the property. Thus, a mortgage by one joint tenant transfers the legal title of the joint tenant to the mortgagee (the lender). This action destroys the unity of title and severs the joint tenancy. (lender owns the interest)

MINORITY View

Question 99

Does a employee have to be acting within the scope of their employment for the employer to be liable for negligent hiring?

Answer 99

NO, Negligent hiring is NOT vicarious liability

Ex: employer giving a security guard a gun without a background check makes the employer negligent in their own right, even if the employee commits intentional tort 5 states away.

Question 100

no death penelty under 8th Am if…

Answer 100

• Rape- disproportionate to the offense logic
• Insane (even if sane when committed crime)
• Intellectual disability (less than 70 IQ + margin cases require individualized determination)
• People under 18 when committed their offense

For accomplice to felony murder—death penalty permitted only if accomplice participated in a major way and acted with reckless disregard to the value of human life

co-conspiritors felont murder- death is an unconstitutional penalty for felony murder if the defendant did not himself kill, or attempt to take life, or intend that anyone be killed.

Eighth Amendment forbids the sentence of life imprisonment without parole for a minor who committed a non-homicide crime.
Minors who have committed homicide can be sentenced to life imprisonment without the possibility of parole, but the Eighth Amendment prohibits the use of a sentencing scheme that imposes mandatory life without parole.

Question 101

collateral order doctrine

Answer 101

A federal appeals court MAY review an interlocutory order that

1) is distinct from the merits of the case
2) involves an important legal question and
3) is essentially unreviewable if the parties await final judgment

Really just immunity and double jeopardy - and nothing else

Question 102

standard for leave to amend

Answer 102

when justice so requires

Factors:
* Length of delay
* Prejudice to the other party
* Futility of amendment

Question 103

rule for leading questions

Answer 103

leading q= question suggests the desired answer

generally only allowed on cross, and not on direct

Allowed on direct if:
* preliminary or introductory matter
* witness has a loss of memory,
* immaturity, or
* physical or mental weakness,
* witness is hostile or an adverse party

Question 104

damages for private nuisance

Answer 104

compensatory damages
* Most courts deny future damages –> split of authority

Injunction
* Inadequate remedy at law b/c injury to land and multiplicity of suits
* balacnce of harships - Some courts do not balance the hardships in nuisance cases because nuisance is usually intentional. Courts that do balance generally weigh such factors as
(1) relative uses of the land; (2) whether the decree would require the defendant to shut down a costly enterprise; (3) and injury to the public (loss of jobs, loss of a useful product, etc.).

Question 105

can supplamental jurisdiction be used for a permissive counter-claim or a cross claim?

Answer 105

SJ CANNOT be used for permissive counter claim

BUT may be used for a crossclaim

Question 106

terry frisk is limited to patdown of outside clothing unless

Answer 106

1) the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing, or

2) Plain feel doctrine

Question 107

Dying Declaration Exception

Answer 107

1) Homicide (manslaughter or murder) persecution or a civil case
* NOT crim case for attempted homicide
2) Declarant is unavailable
3) Declarant believed their death was imminent (does not have to have died under fed rules)
4) statement concerned the cause or circumstances of what the declarant believed to be their impending death
5) the statement must be based on the declarant’s perceptions and firsthand knowledge of what happened
* Meaning an unsupported opinion or speculation or guess will not qualify

CA distinctions
(1) Dying Declaration exception is allowed in any criminal or civil case
(2) Vic must have died

Question 108

withdraw from Accomplice liability

Answer 108

• If the person encouraged the crime, the person must repudiate the encouragement.
• If the person aided by providing assistance to the principal (such as giving materials), the person must do everything possible to attempt to neutralize the assistance
• Notifying the police or taking other action to prevent the crime is also sufficient.

A mere withdrawal from involvement without taking any additional action is NOT sufficient

Withdrawal must occur before the crime becomes unstoppable.

Question 109

Private Nuisance

Answer 109

substantial and unreasonable interference with another private individual’s use or enjoyment of their real property

1) Substantial interference - offensive or annoying to an average person in the community

2) Unreasonable = the severity of the inflicted injury must outweigh the utility of the defendant’s conduct

Question 110

what is a matter of public concern (for govt employees free speech)

Answer 110

The court’s definition of “matter of public concern” is speech that is of political, social, or other concern to the community, or that is a subject of legitimate news interest.

Question 111

primary rights doctrine

Answer 111

Primary Rights Doctrine- claims for property damage and personal injuries (bodily injury) may be asserted in separate cases without claim preclusion

Question 112

parole evi rule

Answer 112

when parties intended a writting to be the final integration of their agreement, oral or written statements made prior and oral statements made contemporaneously cannot be admitted to vary the terms of the writing

exceptions
* to clarify ambiguity
* conditions precedent to effectiveness
* evidence of formation defenses
* clerical error
* refomration motions
* subjequent modifications (just doesnt apply)

a partial integration can be supplamented but not contradicted, a final integration cant be supplamented or contradicted

UCC presumes all writings are partial integration

Question 113

Forum non Convien

Answer 113

1) another court in a diff judical system is the center of gravity in the case (considering private and pub factors)
2) The other court must be available and adequate
* Usually the other court will be adequate unless the plaintiff can get no remedy there

may either stay (hold in abeyance) or dismiss the case. The idea is that the P will then sue in the other court.

The original court may impose conditions on the party requesting FNC to facilitate Ps refiling, such as requiring D to waive service or to waive PJ

Question 114

interlocutory appeals act

Answer 114

• 1) the district judge certifies that it involves a controlling issue of law
• 2) as to which there is a substantial ground for difference of opinion
• 3) appeal would materially advance the case
• 4) the court of appeals agrees to hear it

Question 115

automobile exception

Answer 115

Rule: If the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle (includes trunk) and any container that might reasonably contain the item for which they had probable cause to search.

May search passengers belongings in the car

However, if the vehicle is parked within the curtilage (for example, the driveway) of a suspect’s home, the police may not search or seize the vehicle without a warrant.

Question 116

spousal immunity

Answer 116

In a CRIMINAL trial, prosecution cannot force a spouse to testify against their spouse’s interests
* Have to be married at time of trial (purpose is to promote marital harmony)
* doesnt have to have been confid
* one spouse cannot prevent other from testifying if she chooses to

Does NOT apply to
* Communications or acts in furtherance of a future joint crime or fraud;
* In legal actions between the spouses; or
* In cases where a spouse is charged with a crime against the testifying spouse or either spouse’s children

CA applies in both civil and crim cases

Question 117

impracticability

Answer 117

(1) extreme and unreasonable difficulty or expense
(2) the non-occurance of which was a basic assumption of the parties during formation

Question 118

contract with intoxicated persons

Answer 118

Contract made while intoxicated voidable ONLY if the other party had reason to know of the intoxication.

Question 119

Trespass to chattels requires

Answer 119

(i) an act of defendant that interferes with plaintiff’s right of possession in the chattel, (ii) intent to perform the act bringing about the interference with plaintiff’s right of possession, (iii) causation, and (iv) damages.

The act of interference may be either dispossession of or damage to the chattel. So a person in lawful posession can still commit tresspass to chattels by damaging the property

Question 120

terry frisk

Answer 120

Rule: can only terry frisk if the police officer reasonably believes the person is armed and dangerous

limited to outside of clothes pat down unless
* the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing, or
* Plain feel doctrine- During a patdown, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its “plain feel,” is a weapon or contraband

if a car is subject to an investagatory stop and then cop reasonably believes suspect is armed and dangerous the police can frisk the person and search car, so long as it is limited to the areas in which weapon may be placed (includes glove and passenger compartment compartment)

Question 121

temporary impracticability

Answer 121

only temporarily suspends contractual duties, they spring back after impracticability ends

However, if for some reason the burden on either party under the original terms has been substantially increased during the temp suspension then the duty will be excused

Question 122

accomplice liability

Answer 122

Accomplices are liable for:
1) the principal crime AND
2) for any other crimes committed in the course of the principle crime, as long as the other crimes were foreseeable.

Question 123

when can president make executive order?

Answer 123

express or implied authority of Congress → President’s actions likely are valid

Congress is silent → the action will be upheld unless it usurps the power of another branch or prevents another branch from carrying out its tasks and

If the President acts against the express will of Congress → the President has little authority, and the action likely is invalid

Question 124

60b motion to set aside judement- which grounds are limited to reasonable time not exceeding 1 year

Answer 124

• mistake, excusable neglect
• misconduct, fraud, misrepresentation by opposing party
• discovery of new evidence

NOT clerical error and NOT judgement is void

Question 125

can a negligence action be for pure economic loss/ harm?

Answer 125

NO!

Question 126

self-defense vs
defense of property

torts

Answer 126

Self defense
* D reasoanble believed that the plaintiff was going to harm him or another; AND
* used reasonable force that was necessary to protect himself or another.

defense of property
* (1) D reasonably believed that P was going to harm his property
* (2) A request to desist or leave must first be made unless it clearly would be futile or dangerous
* 3) D used reasonable force

Question 127

in fed court sitting in diversity, does state or fed law apply on issues of preclusion and privlidge?

Answer 127

state law

Fed common law applies state law (its not erie)

Question 128

content neutral restrictions must

Answer 128

1) advance important interests unrelated to the suppression of speech and

2) must not burden substantially more speech than necessary (or must be narrowly tailored) to further those interests.

Question 129

year and a day rule

Answer 129

Year and a Day Rule- At common law for a defendant to be liable for homicide, the death of the victim must occur within one year and one day from infliction of the injury or wound.

most jurisdictions have abolished

Question 130

vertical privity

Answer 130

new owner took land through non-hostile means + new owner owns the same interest as previous owner

Question 131

situations giving rise to imposibility

Answer 131

Death or physical incapacity of an essential person = duty is discharged only if
* personal service contract and
* goods/ services are unique and
* seller that died/ became physically incapacitated. Buyers (people with obligation to pay) are usually not excused when they die, their estate can pay

Supervening illegality - the subject matter of the contract has become illegal due to a subsequently enacted law

Destruction of the subject matter
* A contractor’s duty to construct a building is not discharged by destruction of the work in progress.

Question 132

to satisfy the SOF a land contract must

Answer 132

(i) a description of the property,
(ii) identification of the parties to the contract
(iii) the price, and
(iv) the signature of the party to be charged.

Question 133

fireman’s rule

Answer 133

Fireman’s Rule, a professional rescuer or firefighter CANNOT bring a cause of action against someone whose negligence caused injuries to the rescuer (i.e. a fire). The professional rescuer assumes the risks related to their job

Question 134

When do the fred rules of evi not apply?

Answer 134

grand jury

preliminary q of fact

misc proceedings (sentancing, warrant, bail, probation, etc)

EXCEPT the rules relating to privlidge, those always apply

Question 135

Fruit of the Poisonous Tree Doctrine

Answer 135

All evidence derived from excluded evidence will also be excluded unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct.

Question 136

how to tell if someone is an employee

Answer 136

does the employer control the manner and method by which the person does the task?

Question 137

Government may require licensing and permits prior to speech if

Answer 137

1) an important reason for licensing

2) clear criteria leaving almost no discretion to the licensing authority

3) procedural safeguards
* The standards must be narrowly drawn, reasonable, and definite
* It must be possible for an injunction to be promptly sought (judicial review)
* There must be prompt and final determination of the validity of the restraint.

Question 138

When is an expert witness competent

Answer 138

1) qualified = expert has special skill, knoweledge, education, or experience in area where they are testifying
2) expert’s specialized knowledge would be helpful to trier of fact
3) reasonably certin about their opinion
4) opinion is based on sufficient facts or data (can be personal observations, Facts made known to the expert at trial, or facts made available to expert outside of trial that are the kind reasonably relied on in their feild)
5) opinion is the product of reliable principles and methods and (dauburt)
6) the expert has reasonably applied the principles and methods to the facts of the case.

Question 139

when is a religious belief protected by the 1st AM?

Answer 139

SCOTUS has never defined what is a religious belief

it will be trated as a religious belief if it occupies a place in the person’s life parallel to religious belief

the 1st AM prohibits courts from determining the validity of a religious belief

SCOTUS has never found that a belief which was asserted to be religious is in fact non-religious

Question 140

within what time must venue be raised?

Answer 140

venue was improper, then the issue of venue must be raised in a pre-pleading motion or the answer, if D does not do this, the issue of venue is WAIVED.

Venue was proper→ No hard time limit on when venue issue must be raised

Question 141

if a contract is divisible then

Answer 141

If a contract is divisible and a party performs one of the units of the contract, they are entitled to the agreed-on equivalent for that unit even if they breach by failing to perform the other units

Question 142

false imprisionment

Answer 142

Unlawful confinement a person to a bounded area, from which there is no reasonable means of escape, without the person’s consent

confinement must “interfere substantially” with the victim’s liberty.

Question 143

Indemnity is ONLY available in

Answer 143

• vicarious liability situations- Principal gets 100% pay back from agent
• Under strict products liability for the non-manufacturer or Retailer gets 100% back from manufacturer
• Contract to indemnify

Otherwise its contribution

Question 144

what defenses can be made against third party benificiaries

Answer 144

their rights havent vested

if vested, could raise any defense that you could raise against the pther party to the contract (ex: impracticability, breach, etc)

Question 145

5 hearsay exceptions that require witness to be unavailable

Answer 145

1) statement against interest
2) dying declaration
3) prior testimony under oath + other party had opprotunity and similar motive to develop the declarant’s testimony in a prior proceeding
4) statements of personal or family history
5) statements offered agaisnt a party that precured the witness’s unavailability

Question 146

To get court to order a mental or physical exam under rule 35

Answer 146

he requesting party must show that the party’s mental or physical condition is at issue in the case and good cause.

Question 147

easement

Answer 147

easement is a grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land.

Question 148

caveat leasee

Answer 148

landlord was not liable for latent defects unless the landlord knew or had reason to know of the defect

exceptions
* known latent defects
* Common Areas
* Assumption of repairs
* short term furnished rental
* public use rental

modern ternd–> ordinary negligence if the landlord had notice of a defect and an opportunity to repair it.

Question 149

Under the Federal Rules, lay opinion testimony is admissible when

Answer 149

(i) it is rationally based on the perception of the witness;
(ii) it is helpful to a clear understanding of her testimony or to the determination of a fact in issue; and
(iii) it is not based on scientific, technical, or other specialized knowledge.

Question 150

standard for protective order

Answer 150

if party thinks that discovery request subjects her to embarrassment, annoyance, undue burden or expense then she can move for a protective order.

Party may object to ESI if undue burden or expense, but must state what specific sources are not accessible (same as fed court)

Question 151

respondeat superior

Answer 151

employer is vicariously liabile if:
1) employee- employer relationship existed at the time of the act
2) act was within the scope of the employment relationshp

Question 152

what is the remedy when impracticability or frustration of purpose excuses preformance?

Answer 152

Restitution

NOT expectation damages

Question 153

Sublesee has …

Answer 153

NO obligation to the landlord to pay rent, Sublesee and landlord are not in privity of anything

Question 154

ESI

Answer 154

On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause

Question 155

when can the government regulate expressive conduct?

Answer 155

government can regulate expressive conduct if

1) the regulation seeks to serve an important interest unrelated to the suppression of the message (in other words, independent of the speech aspects of the conduct) and

2) the impact on communication is no greater than necessary to achieve the government’s purpose.

Question 156

what inital disclosures are required

Answer 156

1) Identities of people with discoverable info, who the disclosing party may use to support her claims or defenses

2) Documents and “tangible things” that the disclosing party may use to support her case and are within the party’s control

3) Computation of relief sought and supporting documents

4) Insurance coverage

must be made within 14 days of the rule 26 scheduling conference

Penalty for failure to make initial disclosure- party cannot use the undisclosed material in the case unless failure to disclose was substantially justified or harmless

CA- The initial disclosures must be demanded by a party, and a response to the demand is required within 60 days (so not auto)
+ The parties must provide the names of witnesses and documentary evidence, including an insurance that is **relevant **to the action. (broader scope than fed)

Question 157

the good faith exception will not excuse an invalid warrent when

Answer 157

1) the affidavit was so lacking in probable cause that a reasonable officer would not have relied on it
2) the warrent was defective on its face
3) the officer obtaining the warrent lied to the magistrait
4) the magistrait was biased (wholy abandoned the judical role)

Question 158

interfereance with buisness tort

Answer 158

1) A valid contractual relationship or business expectancy of the plaintiff and a third party
2) the defendant’s knowledge of the relationship or expectancy
3) D intentionally and improperly interfered and induced a breach or termination of the relationship or expectancy
4) damages

Question 159

necessary parties

Answer 159

1) can the court afford complete relief without the paty?
2) ) will the absentee’s interests be harmed
3) is a party at risk of multiple obligations if the absentee is not joined?

Joint tortfeasors are NEVER necessary parties

if necessary–> are they subject to the court’s PJ over absentee and SMJ over claim made by/ against absentee? if yes –> join

if cannot be joined are they indespensible? (prejudice, alt forum available, likelihood of actual harm to the absentee, ability of the court to structure the relief to avoid harm)

Question 160

gratuitous assignments vs assignments for value (made to creditors/ for consideration)

Answer 160

Gratuitous assignments are revocable unless forseeable detrimental relaince has ensued

Assignments for value are irrevocable

Question 161

the transferee court must

Answer 161

• be a proper venue itself and
• have PJ over D without waiver
• have SMJ over the claim

Question 162

in crim case, Judge must give a requested jury instruction if

Answer 162

the instruction is correct, has not already been given, and is supported by some evidence.

Question 163

Assault is either

Answer 163

(1) attempt to commit a battery

(2) intenitonal creation of the reasonable apprehension in the mind of the victim of an imminent harmful

(need specific intent for BOTH)

NO felony murder for assault

Question 164

What consittuional amendment in CA that allows admission of evi in Crim cases?

+ exceptions

Answer 164

prop 8- allows the admission of all relevant evidence in criminal cases

exceptions: hearsay, character, privliege, secondary evi rule, CEC 352 rape-sheild law

Question 165

Handwritting vs voice identification authentication

Answer 165

handwriting - the lay witness must have had familiartiy prior to the litigation

voice - anyone can testify, and can become familiar with the voice for the purpose of testifying

Question 166

what damages must there be for negligence claim?

Answer 166

The plaintiff must show economic harm or physical injury to complete the prima facie case of negligence

If plaintiff suffered a physical injury may also recover damages for any resulting emotional distress. CANNOT recover for emotional distress ALONE under negligence theory unless NIED exception

P CANNOT recover for emotional distress for negligent harm to property (ex: someone kills your dog)

Question 167

actual causation

Answer 167

Actual causation = but for D’s conduct, P would not have been injured→ if something that is a substantial factor in bringing about the injury is an actual cause (even if the injury had multiple causes).

Question 168

right to speedy trial

Answer 168

6th am

LEAP

1) length of delay,
2) Explanation/ reason for delay
3) whether defendant asserted his rights
4) prejudice to defendant

The right to a speedy trial attaches when the defendant has been arrested or charged.

totality of the circumstances

Question 169

attempt defense

Answer 169

doctrine of transfered intent does NOT apply to attempt

Attempt is a specific intent crime so involuntary intoxication and unreasonable mistake of fact are available

abandonment
CL- Abandonment is NOT a defense once intent and overt act satisfied

MPC - recognizes abandonment as defense if
(i) fully voluntary and
(ii) complete (i.e., not a postponement due to unfavorable circumstances)

Question 170

issue preclusion

Answer 170

1) final and valid judgment on the merits in case 1
2) the issue P seeks to assert was actually and fully determined in case 1
3) the issue must have been essential to the judgment in case 1
4) same parties or privity
5) mutuality

Mutual- Issue preclusion can always be used by someone who was a party to case 1
Nonmutual - issue preclusion is being used by someone who was NOT a party in case 1 (offensive vs defensive)

Question 171

false pretenses

Answer 171

1) obtaining title
2) to the personal property of another
3) by intentional false statement of a past or existing fact (at common law, modern rule allows mistatement about future)
4) intent to defraud
5) Vic was defrauded (believed lie)

Question 172

what crimes merge?

Answer 172

at CL - all

MPC- only attempt and solicitation, but Attempt ONLY merges with the completed crime (so you can be found guilty of both attempt and conspiracy)

Question 173

If D resides outside of the US then venue is proper…

Answer 173

in any federal district

but if there is another D who does reside in the US then venue must be proper to her

Question 174

Third party beneficiary’s rights vest when they

Answer 174

(1) Know about the contract and manifest assent
(2) bring a suit to enforce the promise; or
(3)know about the contract and rely on the promise.

Question 175

A judgment is on the merits UNLESS:

Answer 175

dismissed for lack of PJ or SMJ, improper venue or failure to join an indespensible party (VIPS)

or without prejudice

Question 176

judge vs jury decideds which preliminary fact questions of evi

Answer 176

jury decides - preliminary facts relating to whether evidence is relevant at all.
* whether evidence is authentic
* whether a person was acting as a party’s agent in a breach of contract case, and
* whether a witness has personal knowledge of the facts of their testimony.

judge decides everything else- ex: Whether the federal rules of evidence permit the admission of some evidence
* judge can consider inadmissible evi in deciding preliminary Qs

Question 177

D must respond with answer or 12b motion within ____ days of service

Answer 177

fed- 21
* unless waived service then D gets 60 days
* if 12b motion is denied then D must respond within 14 days of denial

CA- 30

Question 178

de facto corporation

Answer 178

1) colorable/ good faith attempt to incproatie
2) eligible to incorporate
3) didnt know
4) held out as a corporation (acted like a corpoation, used the corporate name, observed corp formalities)

result is that the buisness is treated as a corporation

Question 179

duress defense to crim liability

Answer 179

1) D was threatened by a person that if they didnt commit the crime they or another would suffer imminent bodily harm or death

2) the defendant reasonably believed he was unable to avoid the harm by non-criminal conduct.

no duress defense to intentional homicide

Question 180

when can a buyer revoke acceptance

Answer 180

Even after acceptance a buyer may revoke acceptance if the goods have a defect that substantially impairs their value to the buyer and:
* They accepted the goods on the reasonable belief that the defect would be cured and it has not been OR
* difficulty of discovering the defects or
* because of the seller’s assurance that the goods conformed to the contract.

Revocation of acceptance must occur:
(1) within a reasonable time after the buyer discovers or should have discovered the defects; and
(2) before any substantial change in the goods occurs

Question 181

RAP applies to

Answer 181

• Contingent remainders
• Executory interests
• Vested remainders subject to open
• Unexercised options
• Right of first refusal
• Powers of apportionment - to A to be distributed as he sees fit

does not apply to
* Charity to charity transfers
* Option to purchase held by a tenant
* Future interests held by the grantor (reverter, reversion, right of entry)
* indefeasibly vested remainder
* vested remainder subject to total divestment (where only grantor has futer interest theres no lingering executory interest)

Question 182

all property accquired during the marrige is presumed to be CP except

Answer 182

property recieve by gift, inheritance or bequest
rents and profits of SP
property purchased with SP

Question 183

methods of service in fed court

Answer 183

Service on a person within the US
* Personal service- service is given personally to the P anywhere
* Substituted service - can be done ONLY when…
1) At D’s usual place of abode AND
2) process is given to someone who is of suitable age and discretion AND
3) the person resides there

• Service on Agent of D (if within scope)
• State Law Methods- in state that the court sits OR state where service is made

Service on a Business within the US may be served by…
* 1) delivering process to an officer (ex: president, treasurer, etc) or a manager or general agent OR
* 2) Using a method permitted by the state where the Fed court sits or state where service is made.

Question 184

A deed is voidable when…

A deed is void when…

Answer 184

voidable (it would be set aside only if the property had not been conveyed to a BFP) when deed is obtained through duress, undue influence, or mistake

void if forged, never delivered, or obtained by fraud in the factum

Question 185

in crim law, the doctrine of transfered intent does not apply to…

Answer 185

ATTEMPT

Question 186

buisensses owe what standard of care?

Answer 186

higher!

They have a duty to assist or aid patrons and prevent harm from third persons

Question 187

Hot Pursuit of a fleeting felon

Answer 187

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling (belonging to anyone, not just the suspect) and any evidence they see in plain view will be admissible.

totality of circumstances test

Question 188

when is an action within the scope of the employment relationship?

Answer 188

1) was the conduct of the same nature as or incident to that which the employee was authotized to prefomr?
2) was the employee substantially removed from the time and space limits of their employment ?
3) was the conduct at least in pary to serve the intertests of the employer?

Question 189

Equity Clean Up Doctrine

Answer 189

if the P seeks incidental damages, and those damages are incidental to an equity cause of action, then P has NO right to jury under CA law because the center of gravity of the case is the equity cause of action.

Question 190

lot owner owes the duty of an owner and occupier of land to those off the premises to protect from

Answer 190

unreasonably dangerous artificial conditions.

Question 191

Rule for govt regulation of speech in a non-public forum

Answer 191

Regulations will be upheld as long as they are (i) viewpoint neutral, and (ii) reasonably related to a legitimate government purpose

Question 192

defenses to defamation

Answer 192

1) consent

2) truth

3) absolute privlidge (between spouses, during judicial proceeding by legislators on the floor by federal executive officials, in “compelled” broadcasts)

4) Qualified privilege- one is permitted to make remarks that disparage another if in the public’s interest (ex: book review). can be lost through abuse

Question 193

remedies for strict liability

Answer 193

economic loss rule - you cannot recover for only the destruction of the defective product itself, in that case your remedy is contract rather than tort

Damages for personal injuries and property damage may be recovered.

Question 194

rescuers can sue…

Answer 194

the person who created the peril

danger invites rescue– so, a rescuer is a foreseeable plaintiff when the defendant negligently put themselves or a third person in peril

Question 195

proximate cause

Answer 195

Proximate causation = D’s conduct is the proximate cause when it was a foreseeable risk of the negligent conduct, or D’s conduct increased the risk that the harm P suffered would occur.

Question 196

forum selection clause

Answer 196

Forum selection clause- Federal courts will enforce forum selection clause (even when state courts would not), so long as the venue set forth in the contract is a proper venue.

When transfer is to enforce an FSC, then the transferee (receiving) court will apply its own choice of law rules.

Question 197

former testimony under oath exception

Answer 197

1) declarant is unavailable

2) testimony was given under oath AND

3) The party against whom the testimony is now being offered—or, in a civil case, the party’s predecessor in interest—had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding
* CA version is broader - party in prior action had similar interest (not limited to predessor in interest, it was offered by party its now being offered agaisnt in the prior action, deposition from the same civil case + Deponent is unavailable or lives >150 miles away

Question 198

priv and Immunities clause

Answer 198

1) The law discriminates against out-of-staters (non-residents)
2) The discrimination is with regard to fundamental rights or important economic activities (generally ability to earn a livelihood)
3) The party is proper (corporations and aliens cannot use the privileges and immunities clause)
4) Is the discrimination is necessary to achieve an important government purpose?
* state has to show that nonresidents either cause or are part of the problem the state is attempting to solve, and that there are no less restrictive means to solve the problem.

Question 199

CA service of process distinctions

Answer 199

Substituted service
1) personal service MUST be attempted FIRST
2) then can be left at D’s abode with someone who is OVER 18 and lives there and is informed of the contents and
3) Service must ALSO be MAILED

Service by mail w/ acknowledgement is permitted

Service by publication is permitted after reasonable dilligance to serve D another way

Question 200

The seller may be liable to the purchaser after the closing for defects if they

Answer 200

1) knowingly made a false statement of material fact that the buyer relied on OR
2) seller actively concealed a defect, OR
3) seller failed to disclose known serious defects in the property, which would have made a reasonable buyer reconsider purchase

Question 201

Negative Easement

Answer 201

A Negative Easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. (not v common)

Only 4 categories of negative easements are recognized
* Light
* Air
* Support
* Stream water from an artificial flow

Negative easements can ONLY be created by express grant in writing, signed by the grantor

Question 202

Forum selection clause

Answer 202

Federal courts will enforce forum selection clause (even when state courts would not), so long as the venue set forth in the contract is a proper venue.

When a FSC is valid, only public interest factors are considered in the transfer
When transfer is to enforce an FSC, then the transferee (receiving) court will apply its own choice of law rules.

Question 203

lawyer cannot be sanctioned under rule 11 if

Answer 203

Lawyer reasonably relied on affidavit or documents from client
(circumstances would have to suggest that relaince was unreasonable without further inquiry)

Question 204

Delivery is presumed if

Answer 204

• Grantee has possession of the deed
• Deed was handed to the grantee
• Acknowledged by the grantor in front of a notary, or
• Recorded

Question 205

Removal

Answer 205

(1) Fed court must have SMJ over every claim and
(2)D must file notice of removal within 30 days of service of the first paper that shows the case is removable (usually pleadings

Removal venue is the federal court that is geographically embracing the state court where the case was filed. (It does not matter if the venue would have been proper in the federal court originally.)

Removal based on diversity SMJ, CANNOT be after 1 year from filing

certain actions CANNOT be removed: worker’s compensation, some cases under the violence against women act, some cases against railroads

Question 206

5th amenemdnt priv against self incrimiantion

Answer 206

A person may refuse to answer a question whenever their response might furnish a link in the chain of evidence needed to prosecute them.

In civil trial or Grand Jury, the person must listen to the questions and specifically invoke the privilege for each q, cant avoid being called to stand

The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution.

cant aviod subponea for documents, unless act of production dotrine applies (police are not sure if the doc exists –> then turning over the doc is testimonial)

Corporations and partnerships CANNOT assert

Question 207

Peircing the corporate veil

Answer 207

Creditors may disregard corp protection and hold individuals (e.g., s/h active in operation of business) jointly and severally liable for corp obligations based on unity of interest + injustice or fraud

1) undercapitalization or
2) Alter ego
3) to prevent fraud

Courts are unlikely to peirce in contract cases because the contracting pary has the opprotunity to investigate the finances of the corporation. B/c arms length transaction courts give effect to parties reasonable expectations

Question 208

last clear chance doctrine

Answer 208

Contributory negligence does Not apply when D had last clear chance to avoid the harm to D

does not apply to comparative negligence states

Question 209

Assault TORT

Answer 209

either an attempt to commit battery OR the intentional creation of a reasonable apprehension in the mind of the plaintiff of imminent bodily harm OR offensive contact

Question 210

when may secondary evidence be offered in place of original?

Answer 210

provides a satisfactory excuse for the original’s absence, including:
1) Loss or destruction of the original or
2) Original cannot be obtained by any available judicial process. or
3) The original is in the possession of an adversary who, after due notice, fails to produce the original.
→ party can use any secondary evidence to satisfy the best evidence rule (ex: oral testimony, handwritten copies, notes)

Question 211

court may/ must take judical notice when

Answer 211

1) generally known within the trial court’s jurisdiction or
2) can be readily and accurately determined from sources who’s accuracy cannot reasonably be questioned

must if party requested and meets the standard

Question 212

Court can grant relief from a final judgment if

Answer 212

(i) mistake, inadvertence, surprise, or excusable neglect
(ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial
(iii) fraud, misrepresentation, or other misconduct of an adverse party
(iv) the judgment is void
(v) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application
(vi) any other reason justifying relief from the operation of the judgment.

Question 213

statements against interest exception

Answer 213

1) declarant is unavailable AND
2) statement was against that person’s (pecuniary, property or penal) interest when made
3) declarant had personal knowledge
4) declarant was aware that the statement was against their interest when made

Question 214

breach occurs when

Answer 214

1) the promisor is under an absolute duty to perform, and
2) this absolute duty of performance has not been discharged

Question 215

To impeach with a prior bad act:

Answer 215

1) the prior bad act must involve untruthfulness
2) must only be with questioning, NO extrinsic evidence

Question 216

ex post facto laws

Answer 216

The government cannot pass a law that either:

1) criminally punishes conduct that was lawful when it was done or

2) increases punishment for a crime after it was committed or

3) reduces the evidence required to convict someone of a crime after it was committed.

Question 217

When is the seller’s preformance excused due to destruction of goods?

Answer 217

1) goods that were identified when the contract was made
2) are destroyed
2) without fault by either party and
3) before the risk of loss passes to the buyer,
→ seller’s performance is excused

If the goods were not identified until after the contract was made, the seller in this situation would have to prove impracticability.

Question 218

3 kinds of product defects

Answer 218

Manufacturing defect = the product “departs from it’s intended design,” came off the line different from and more dangerous than the other products that were made properly

Design Defect = there was a way to build the product that: (1) is safer; (2) is more practical (wouldn’t defeat the purpose of the product) AND (3) has a similar cost (economically feasible).

Failure to warn = When a product has hidden risks, the product is defective unless adequate warnings or instructions are given
* An adequate warning is Prominent (calculated to come to user’s attention) and Comprehensible

Question 219

interrogatories

Requests to produce

Answer 219

• can never be sent to nonparties
• max 25
• must be answered within 30 days
• A party must answer interogs based on information reasonably available to the party - if burden of searching buis records is substantially same for both parties it is a sufficient answer to an intergoatory provide the serving party reasonable opportunity to examine the records.
• Contention interrogatories (about legal contentions) are permitted
• cant be sent till after rule 26 conference

requiests to produce
* also cant be sent to non parties
* can be sent before rule 26 conference but party has until 30 days after conference to respond

Question 220

Where must a Disclaimer be to be effective?

Answer 220

the disclaimer has to be part of the bargin–> Most courts hold that most hold that a warranty disclaimer or limitation on remedy included inside the packaging of goods is not effective against the buyer.

so in a contract or on the outside of the box (unless clickwrap software)

Question 221

transfer (civ pro)

Answer 221

Transfer moves case from one fed court to other fed court

Transferee court must
1) be a proper venue
2) have PJ over D w/o waiver

Court must transfer or dismiss if venue was laid in properly (choice of law does not follow)

If orig. venue was proper –> court may transfer is another court is the center of gravity in the case (also choice of law follows)
* Public - what law applies, what community should be burdened by jury service, desire to keep local controversy local, interest of justice
* private factors: convience to the parties and witnesses

venue must be raised in pre-pleading motion or the answer, or is waived

Question 222

what makes a declarant unavailable?

Answer 222

• death or incapacity (physical or mental illness)
• refusal to testify despite court order
• Claims a privilege;
• Testify that they do not remember (not in CA unless total amnesia)
• Are absent (beyond the reach of the court’s subpoena)

not unavail if party opposing evi precured their unavailability

Question 223

when do informants tips give rise to reasoanble suspicion?

Answer 223

informant’s tips→ tips must be accompanied by indicia of reliability

anonymous tip with nothing more is insufficient, for an anonymous tip has to give more detail like predict some incriminating movement the D will do so we have corroborate evidence need

Question 224

limited vs unlimited civil case

Also reclassification

Answer 224

limited- amount in controversy does NOT exceed 35k
* limited discovery
* cannot file a special demure
* have expedited jury trial
* Cannot issue preliminary injunction
* Cannot issue a declaratory judgment
* Cannot determine title to land

Unlimited civil case- P seeks one of 3 things
* P seeks more than 35k in damages
* Title to land or
* P seeks general equitable relief - injunctions or declaratory relief

Every case is either entirely limited or unlimited, no mixed case
* So when you have multiple Plaintiffs, only one claim needs to meet the unlimited requirements for whole case to be unlimited

Rule: reclassification (on motion or sua sponte) from unlimited to limited is okay if…
* The case will necessarily result in a verdict of 35k or less OR More than 35k is virtually unobtainable
* The court CANNOT consider the merits when deciding whether to reclassify

Question 225

when is a clause limiting remedies unenforcable

Answer 225

when it unconsciousable

clause limiting remedies will generally not be found unconsciousable unless the clause is inconspicuous and the parties have unequal bargining power

Question 226

standard for searching a car incident to arrest

Answer 226

places into which the person arrested may have reached to dispose of evidence

gant rule - police can search the passanger compartment of a car if
* 1) suspect is unsecured and may regain acess to the vehical or
* 2) officer reasonably believes tha that the car contains evidence of crime for which the person was arrested

cannot search trunk incident to arrest

Question 227

party cannot move to compel discovery unless

Answer 227

good faith effort to meet and confer was made

Question 228

exceptions to anti-comendeering doctrine

Answer 228

1) congress can reg states as states to enforce 14th Am

2)Congress regulates an activity in which both the states and private actors engage.

3)Strings or conditional grants

4) Congress may prohibit harmful commercial activities by state governments without violating the Tenth Amendment.

Question 229

Extraordinary Writ of Mandamus or Prohibition

Answer 229

If the district court is violating a clear legal duty (ex you have a right to a jury trial and court is refusing) then the party can file an original proceeding in the court of appeals to compel the district court to make or vacate a particular order

Question 230

interlocutory appeals

Answer 230

as of right : Preliminary injunctions (or tro extended twice), patent, admiralty, appointments of recivers

discretionary
* Class action cert
* interlocutory appeals act
* collateral order doctrine
* Expressly directing entry of a final judgment
* Extraordinary Writ of Mandamus or Prohibition

Question 231

What is the remedy for breach of a contract warrenty?

Answer 231

money damages
* value of thing warrented - value of thing recieved

NOT recision of contract

Question 232

Duress defense to criminal liability

Answer 232

• D was threatened with imminent death or bodily harm if they didnt complete the crim and
• D reasoanbly believed that they or an immideate family member would suffer deaht or serious bodily harm if they didnt comply

Question 233

false pretenses

Answer 233

1) obtaining title

2) To personal property of another;

3) By an intentional false statement of a past or existing fact;
* MPC allows false statement of future

4) with intent to perm deprive

5) The victim must actually be deceived by, or act in reliance on, the misrepresentation,

Question 234

fixtures

Answer 234

fixtures are typically a permanent part of the realty such that damage would result if they were removed

factors:
* degree to which the item is attached
* damage if removed
* custom
* intent of buyer

landlord tenant –> not a fixture
* exception - acessions- a tenant cannot remove structural additions to the real property (Ex: a balcony, a deck, a loft, bricks, wall)

absent a statute, an adverse possessor or good faith trespasser cannot remove fixtures

Question 235

to be effective an assignment must

(in contracts)

Answer 235

1) make Present transfer- Immediately and completely transfer their rights (look out for present tense) A promise to assign is NOT an assignment and

2) The assignment cannot substantially change the obligor’s duty or risk

Question 236

D’s answer

Answer 236

1) admit or deny factual contentions in P’s complaint
2) raise affirmative defenses - may be waived if dont
* ca- d has to state ultimate facts supporting defense
3) may make counterclaims in answer
* CA - D cannot make counter claims in answer, must be in cross complaint, but cross complaint against orig P must be before or at same time as answer (against co-party or 3rd party can be raised at any point till trial)

Question 237

A profit

Answer 237

Profit entitles its holder to enter the servient land and take from it some resources or some product of the property (such as fish or game).

Profit appurtenant- the profit is designed to benefit the dominant tenement
* CANNOT be transferred to another person, it stays with the land
* If someone has a right to fish or hunt relating to their ownership of land thats still a profit

A profit in gross (designed to benefit a person and not the land) can be transferred

Terminated by same rules as easements - END CRAMP
* But unlike easements, a profit may be extinguished through surcharge (misuse that overly burdens the servient estate).

Question 238

Intentional infliction of emotional distress

Answer 238

(1) Intentional or reckless
(2) extreme and outrageous conduct= conduct that transcends all bounds of decency in a civilized society (Mere insults are not enough)
3) causes
4) the plaintiff to suffer severe emotional distress, Actual damages are required - Physical injury is not required but emotional distress must. be severe

Question 239

Imperfect self defense

Answer 239

if D had an honest but unreasonable belief that deadly force was necessary to protect themselves → voluntary manslaughter

Question 240

right to amend
vs.
leave to amend

Answer 240

both P and D have right to amend within 21 days of filing their respective pleadings
* If Ds first response was an answer then he may amend the answer to include any of the waivable 12(b) defenses within the 21 day period
* CA- before the defendant files an answer or demurrer, OR after the demurrer is filed but before hearing on the issue

leave to amend- the court will grant leave to amend when justice so requires. factors:
* length of delay
* futility
* Prejudice to the other party
Generally leave to amend is granted unless it would cause actual prejudice to the other party

Question 241

work product

Answer 241

Made by party or her agent in preparation for litigation cannot be discovered:
opinion wp–> absolute protection
qualified WP –> party can get if show substantial need and undue hardhsip in obtaining materials in another way

CA- the party preparing the doc must have been attorney or attorney’s agent otherwise not protected

Expert witnesses - Drafts of expert witness reports and the attorney’s conversation with lawyer are protected under work product doctrine except…
Qs about compensation of the expert witness
Qs about the facts and data the expert gave attorney

identities of people with knowledge of discoverable matters are discoverable, NOT WP, even if attorney identified people and prepared list in anticipation of litigation

Question 242

can the deadline for filing a renewed JMOL motion be extended?

Answer 242

NO

Question 243

issues the case law says are substantive

(erie)

Answer 243

• choice of law
• elements of claim or defenses
• SOL and tolling SOL
• remitture and additure

NOT relation back when SOL has run

Question 244

Self authenticating documents

Answer 244

• public documents bearing a seal
• Official publications (such as a government pamphlet);
• Certified copies of public records or private records on file in a public office;
• Newspapers and periodicals;
• Trade inscriptions and labels
• Acknowledged (notarized) documents;
• Commercial paper
• Business records, electronically generated records, and data copied from an electronic device, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection

Buis records and trade inscripitons are not self authenticating in CA

Question 245

anticapatory repudiation

Answer 245

1) promisor, prior to time set for preformance, uniquivocably states that he will not preform
2) bilateral contract with non-executed duties on both sides

–> non-breaching party can treat AR as breach and sue immediately

Question 246

who is liable to who after a delegation?

Answer 246

The delegating party ALWAYS remains liable to the obligee!

A delagee who gets consideration is liable to the delegator and the obligee
* The obligee is a third party beneficiary of the contract between the delegator and delegee

Question 247

which grounds for relief from judgment must be moved for within reasonable time not to exceed 1 year?

Answer 247

(i) mistake, inadvertence, surprise, or excusable neglect;
(ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial;
(iii) fraud, misrepresentation, or other misconduct of an adverse party;

There is no time limit to file a motion for relief from judgment to correct clerical mistakes

Question 248

A deed is not effective to transfer an interest in reality unless it has been

Answer 248

executed and delivered + acceptance by the grantee

Question 249

non mutual offensive use of issue preclusion

Answer 249

Nonmutual offensive issue preclusion - the person asserting issue preclusion was not a party to case 1 and is the plaintiff in case 2

Rule: fed courts allow non-mutual offensive collateral estoppel (many states do not) so long as it is fair and equitable.

Fairness factors
* full and fair opportunity to litigate in case 1
* strong incentive to litigate in case 1
* Could the party asserting issue preclusion have easily joined case 1?
* Are there many plaintiffs waiting in the wings?

Question 250

no warrent is needed for administratvie search if

Answer 250

• 1) Administrative searches of a business within a highly regulated industry
• 2) Inventory searches of arrestees or their vehicles
• 3) Prisoners
• 4) airline passengers prior to boarding
• 5) Mandatory drug testing—has been upheld when it serves a special need beyond the needs of law enforcement
• 6) government employees’ desks and file cabinets where the scope is reasonable and there is a work-related need or reasonable suspicion of work-related misconduct

Question 251

claim preclusion

Answer 251

1) same claimant is suing the same defendant as in case 1
2) Final valid judgement on the merits in case 1
3) P seeks to assert the same claim- claim is same if it arises from same translation or occurrence as claim in prior case (could have been brought then)

but primary rights approach (CA follows) = separate cause of action for each right invaded. So, personal injuries and property damage arising from the same T/O are separate causes of action

Question 252

harmless error test

Answer 252

If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond reasonable doubt that the error was harmless.

Question 253

when is a dog sniff not a search?

when is it a search?

Answer 253

not a search during a routine traffic stop or of bags in public
* if dog alerts –> proabable cause to search car under automobile warrent exception

is a search if police bring a dog up to the porch of suspected drug dealer

Question 254

Is the president obligated to spend funds allocated for a specific purpose by congres?

Answer 254

YES, pres has obligation to take care that the laws are faithfully anf fully executed. B/c appropriations are a valid exercise of Congress’s power, the president must abide by appropriation statute

Question 255

A felony not involving untruthfulness is ____ to impeach

Answer 255

Admissible, but subject to court’s discression (balancing)

Question 256

Default and Default judgment

Answer 256

1) d fails to answer in time
2) P moves for an entry of default, showing D failed to respond (D can still respond even if after time limit up until court enters defult)
3) Clerk enters defult cutting of Ds right to respond
4) clerk can enter Defult judgement if
* D failed to appear at all in the case
* The claim itself is for a certain sum of money
* Plaintiff gives a sworn affidavit that this is the sum owed
* D is not a minor or incompetent
5) If any of these are true, P must apply to the court for a default judgment + D gets notice of the hearing

Ps recovery is limited to what P pleaded in the complaint, cannot be more and cannot get a different kind of relief

CA- D gets notice regardless of whether he appeared

Question 257

products liability

Answer 257

1) D is a Commercial Supplier
2) Product is defective
3) The defective product was not substantially altered since leaving the defendant’s control
4) But for and proximate causation- The product caused an injury to plaintiff when it was making a foreseeable use of the product
5) Damages

Question 258

Impleader

Answer 258

1) Derivative liability?
2) same transaction or occurrence and
3) The court must have Fed SMJ over the impleader claim.
* Diversity is accessed for TPP (original defendant) and TPD (new party) because that is who the claim is between
* supp is available

Procedure:
* D files a third party complaint naming the TPD and has that complaint formally served on the TPD.
* D has a right to implead within 14 days of serving the answer after that court permission is needed.

Impleader is only allowed in situations of derivative liability - if I am liable to P, then this third party is liable to me. If D is asserting the a third party is entirely at fault, and therefore D is not liable at all, D is raising a defense and the third-party claim is not allowed

Look for claims of indemnity or contribution, look for subcontractors and employers (vicarious liability)

An impleader claim is permissive, the defendant could chose to bring same claim in another case

Question 259

Assumption of the risk is or is not a defense to intentional torts?

Answer 259

NOT

Question 260

consulting expert vs Testifying expert

Answer 260

A consulting expert is an expert that is used to help prepare the case but is not testifying at trial. The facts and opinions held by consulting experts are not discoverable absent exceptional circumstances under which it is impracticable to obtain facts by other means.

There are required disclosures for expert witness- report including experts opinion, facts upon which opinion is based, compensation, EWs qualifications

Earlier drafts of EW report and communications between the attorney and the expert are not discoverable as work product

Question 261

Interlocutory Appeals Act

Answer 261

The interlocutory appeals act allows appeal if…
1) the district judge certifies that it involves a controlling issue of law
2) as to which there is a substantial ground for differenceof opinion
3) appeal would materially advance the case
4) the court of appeals agrees to hear it

Question 262

insanity tests

Answer 262

irresistable impulse - mental illness causes D to be unable to control actions to conform conduct to law

M’Naghten Rule- mental illness caused a defect of reason such that the defendant lacked the ability at the time of their actions to either
* understand the wrongfulness of his actions or
* understand the quality and nature of his actions

ALI/ M.P.C. test - mental ilness made it so D was
* unable to conform conduct to the law or
* unable to appreciate the criminality of their conduct

on an essay also consider diminished capacity, most states recognize for specific intent crimes

Question 263

buisness record hearsay exception

Answer 263

if it was made in the course of a regularly conducted business activity and if it was customary to make the type of entry involved (i.e., the entrant must have had a duty to make the entry).

Question 264

fed court complaint must state
(ca distinctions)

Answer 264

1) grounds of SMJ

2) Short and plain statement of the claim
* Rule: the plaintiff must state sufficient facts to support a plausible claim (plausibility pleading)
* Exception: claims for FRAUD, mistake, defamation, and special damages must be plead with particularity and specificity

3) demand for relief

(notice pleading)

CA - ultimate facts + no demand is PI, wrongful death, or punative damages + dont have to state smj grounds

Question 265

When is retrial permitted after jeopardy attached?

Answer 265

1. hung jury
2. Mistrial for manifest necessity (at behest of D)
3. Retrial after successful appeal
   * D CANNOT be retried for more serious crime than crime convicted of in first trial
   * A harsher sentence may be imposed for reasons other than vindictiveness
4. Charges may be reinstated after a defendant breaches their plea bargain.
5. defendant elects to have the offenses tried separately,

Exception: New Evidence
if unlawful conduct that is subsequently used to prove the greater offense
* (1) has not occurred at the time of prosecution for the lesser offense or
* (2) has not been discovered despite due diligence.

Exception- victim dies (an element of the greater offense had not occurred at the time of the prosecution for the lesser offense)

Question 266

prior inconsistent statement

Answer 266

Can be offered to impeach
* extrinsic evi is allowed if foundation is laid (not collateral, ask witness about it at some point and other pary has opprotunity to question witness about it). No foundation required to impeach a hearsay declarant or opposing party admission

Can be offered to prove the truth of the matter asserted if within exclusion to the hearsay rule:
* testifying witness + statement was under oath

In CA this is a hearsay exception (still hearsay) and does NOT need to have been under oath

Question 267

Attempt requires

Answer 267

(1) specific intent to complete the target crime + (2) an overt act in furterance of the crime (substantial step test vs dangerous proximity test)

Question 268

choice of law on preclusion issues

Answer 268

If case 1 and case 2 are in different judicial systems then the case 2 court applies the preclusion law of the the judicial system that decided case 1

Fed court, sitting in diversity, would apply the state preclusion law of the state that decided case 1 under federal common law

Question 269

Substantial Prefomance

Answer 269

Substantial performance = meets the essential purpose of the contract (ie not a material breach)- obligee has received the substantial benefit of the bargain

Question 270

design defect

Answer 270

Design Defect = there was a way to build the product that: (1) is safer; (2) is more practical (wouldn’t defeat the purpose of the product) AND (3) has a similar cost (economically feasible).

Question 271

Cross claim

Answer 271

claim made by one co-party against another

1) must arise from same t/o
2) party is asserting derivative liability or claim, not just a defense saying that other party is fully liable and they are not at all
3) court msut have SMJ over the claim

Question 272

Contract made with a minor

Answer 272

If the minor makes a contract, the contract is voidable by the minor.

If minor keeps the thing after turning 18 then applied affirmation BUT
the plaintiff suing a minor to recover gets only restitution

Question 273

Expressly directing entry of a final judgment
(partial judement)

Answer 273

In a case with multiple parties or claims, the court may wrap up some claims or against some parties, but these orders are not considered final because there are other parties or claims. So the court may makes a direct entry of a final judgment as to a specific party or claim if the court makes an express finding that there is no reason to justify delay of appeal.

Question 274

notable CA choice of law rules

Answer 274

Conveyance of real property→ California will apply the law of the state in which the property is located.

Tort Actions → Governmental Interest Approach - if both fed and state govt have interest which is greater?

contracts actions
* choice of law clause in the contract is enforcible if– the chosen state’s law has a substantial relationship to the parties or their transaction or any other reasonable basis exists for the parties’ choice of law
* if choice of law caluse is enforcible acess whether it conflicts with CA policy
* If no choice of law clause or the clause is unenforceable then the governmental interest test (above) applies

Question 275

At common law, time is not of the essance unless

Answer 275

expressly stated in the contract

Question 276

unilateral mistake

Answer 276

can get recission if:
1) mistake had a material effect on the exchange
2) the mistaken party did not bear the risk
3) other party knew or had reason to know of the mistake

Question 277

Embezzlement

Answer 277

the fraudulent conversion of the personal property of another by a person in lawful possession of that property

embezzlement is NOT committed if the conversion is pursuant to a claim of right to the property.

conversion= dealing with the property in a manner inconsistent with the arrangement by which defendant has possession

Question 278

requirements to make a gift of land

Answer 278

(1) donative intent
(2) delivery, and
(3) acceptance.

Question 279

dormant commerce clause

Answer 279

Gen rule: States cannot pass regulations that discriminate against interstate commerce or unduly burden interstate commerce (burden > benefit) unless important noneconomic govt interest and no less restrictive means

EXCEPTIONS
* Congressional Approval
* Govt is preforming a Traditional Government Functions
* State as is acting as a “market participant”

Question 280

Voluntary manslaughter

Answer 280

an intentional killing in the heat of passion where the Defendant acts with adequate provocation

Question 281

false light

Answer 281

(1) widespread dissemination
(2) false light= something that would be highly offensive to a reasonable person (alleged that P took action or held views that P did not take or have)
(3) if a matter of public concern–> actual malice on the part of D

Question 282

classification on the basis of alienage

Answer 282

fed reg–> rational basis

state or local reg –> strict… unless….
* Only a rational basis test is used if discrimination relates to **self-government and the democratic process **(involves policymaking, or requires exercise of important discretionary power over citizens)

Thus, government can discriminate against non-citizens with regard to voting; police officers, public school teachers (not notaries)

Question 283

defedant lacks competency to stand trial if

Answer 283

1) Defendant lacks rational and factual understanding of the charges and proceedings or

2) Defendant lacks ability reasonably to consult with lawyer

state may place on the defendant the burden of proving incompetency by a preponderance of the evidence, but requiring the defendant to show incompetency by “clear and convincing” evidence is unconstitutional.

Question 284

Invasion of privacy

Answer 284

CLIP
C- Commerical appropriation of P’s likeness or name

L- False Light- (1) widespread dissemination of (2) false info about P (something that would be highly offensive to a reasonable person) and (3) actual malice (if matter of public concern

I- Intrusion of plaintiff’s private affairs or seclusion that would be highly offensive to a reasonable person

P- Public disclosure of private facts about the plaintiff = widespread dissemination of confidential info about P, not of legitimate public concern, and highly offensive to a reasonable person

Question 285

When is evidence NOT excluded at trial despite miranda violation?

Answer 285

1) non-testimonial fruits + miranda violation was non-purposeful

2) If detainee gives confession, then miranda warning, then repeats confession → confession is inadmissible if “question first, warn later” was intentional, but if inadvertent then admissible

3) Public safety exception → violation has no effect (Supreme Court has allowed interrogation without Miranda warnings when it was reasonably prompted by an ongoing concern for public safety)

4) impeachment

Harmless Error test applies on review

Question 286

Accessorry after the fact

Answer 286

assists a person who completed the crime, after the completion of the crime, with knowledge that the person did the crime, and intent to help them avoid punishment

Question 287

co-conspiritor liability

Answer 287

a conspiritor may be found liable of all crimes commited by co-conspiritors in futherance of the conspiracy whhich were forseeable

Question 288

Asserting Privilege During Discovery

Answer 288

the party MUST:
(1) expressly make the claim; AND
(2) describe the item or information
sufficiently (without revealing the privileged information) so that privilege can be assessed – a “privilege log”.

The failure to assert privilege properly MAY subject the party to sanctions or even waive the privilege.

Question 289

fighting words

Answer 289

Fighting words are personally abusive words that are likely to incite immediate physical retaliation in an average person

void for vaugeness and overbroad

Question 290

tearing down a building is not waste if

Answer 290

1) MKT value is not deminished and
2) either
* the remaindermen do not object; or
* A substantial and permanent change in the neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness.

If a structure is uninhabitable we allow the life tenant to tare it down (doctrine of changed conditions)

Question 291

Creditor Mortgagee can transfer their interest in the mortgage by

Answer 291

1) Endorsing the note and delivering it to the transferee (mortgage automatically follows the note) OR

2) Executing a separate document of assignment

Question 292

Acomplice cannot be sentanced to death unless

Answer 292

accomplice participated in a major way and acted with reckless disregard to the value of human life, otherwise violates the 8th Amendment

Question 293

relation back to add a D

Answer 293

1) same t/o

2) D recieved had knoeledge of case within 90 days of filing

3) D knew or should have known that but for a mistake she would have been named originally

Question 294

Common Law Breach

Answer 294

minor breach= obligee gains the substantial benefit of their bargain despite the obligor’s defective performance.

To determine if a breach was material courts consider
* totality of deviations
* The amount of benefit received by (or left to receive by) the nonbreaching party
* The adequacy of compensation for damages to the injured party
* The extent of part performance by the breaching party
* Hardship to the breaching party
* Negligent or willful behavior/ intentions of the breaching party
* The likelihood that the breaching party will perform the remainder of the contract

Question 295

Present state of mind hearsay exception

Answer 295

A statement of the declarant’s then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition is admissible.

includes statements of declarants intent to do something (I plan to…, I intend to…)

Question 296

gratuitous assignemnts are terminated by

Answer 296

(1) the death or bankruptcy of the assignor;
(2) notice of revocation by the assignor to the assignee or the obligor;
(3) the assignor taking performance directly from the obligor; or
(4) subsequent assignment of the same right by the assignor to another.

Question 297

if a grantee is dead when the deed is delivered…

Answer 297

the conveyance is VOID, b/c the deed is deemed to not adequately identify the parties

if there were 2 grantees and only 1 is dead, only half fails, so 1/2 reverts to grantor

Question 298

exceptions to fruit of the poisionous tree doctrine

Answer 298

Exceptions
1) Fruits obtained through a NON-PURPOSEFUL violation of Miranda
2) Independent source—evidence will be admitted if from a source independent of the unconstitutional conduct
3) Attenuation—intervening act or circumstance - Evidence for which the connection between the unconstitutional police conduct and the evidence is remote
4) Inevitable discovery by police
5) no knock violagions
6) Live witness testimony - if unlawful conduct leads to a witness it is very unlikely that the witness will be excluded
7) in-court identification

Also good faith exception, to impeach, grand juries (all the exceptions to the exlusionary rule)

Question 299

motion to dismiss for failure to state a claim
or
Motion for judgment on the pleadings (made after D answered)

Answer 299

Judge looks at P’s allegations of facts on the face of the complaint (not any evidence) and asks if these facts are true, do they state a plausible claim?
* The judge uses her relevant experience and common sense to see if the facts state a plausible claim
* Look out for fraud (higher pleading standard)

Abuse of discretion on appeal

Question 300

erie doctrine

Answer 300

1) fed court sitting in diversity?
2) is there a valid Fed rule/ law on this issue that directly conflicts with the state law ?
3) is the issue substantive or procedural ?
* there are 4 areas caselaw has established are substantive.
4) apply the mushy tests to determine if substance or procedure
* Outcome determinative: would applying or ignoring the state rule affect the outcome of the case? If yes→ substantive, state law
* Balance of interests: Does the fed or state system have the greater interest in the rule being applied?
* Avoid forum shopping- if the fed court ignores state law on the issue is it likely to encourage forum shopping? If yes → apply state law

Question 301

Confidential Marital Communications

Answer 301

= any civil or criminal case, confidential communications between spouses during a valid marriage are privileged
* have to be married at time of communication but dont have to be married at time of trial.
* have to be confidential - communications made in the known presence of a third party are NOT privileged
(exception for young kids)
* one spouse or former souse can prevent the other from testifying

does NOT apply to:
* Communications or acts in furtherance of a future joint crime or fraud;
* In legal actions between the spouses; or
* in cases where a spouse is charged with a crime against the testifying spouse or either spouse’s children
* + Threats or abusive language are NOT privileged.

Question 302

max residency requirement to vote

Answer 302

50 days

otherwise chilld right to travel in violation og Priv or Imm clause and violates EPC

also violates 15 am

Question 303

political question doctrine

Answer 303

(1) constitutionally committed to another branch of government or
(2) inherently incapable of judicial resolution.

4 settled areas
* republican form of govt clause
* partisan gerrymandering
* impeachment and conviction for removal from office
* President’s conduct of forigen policy

a lawsuit challenging the validity of a federal statute should not be dismissed as a political question even if the case involves a dispute between branches of the federal government regarding foreign affairs.

Question 304

government speech

Answer 304

govt can speak its opions wihout violating 1st amenment

to determine if something is govt speech or private speech (protected by 1st am) factors include:
* The history of the expression at issue
* The public’s likely perception as to who (government or private person) is speaking
* The extent to which the government has shaped the message

Question 305

What is interpleader?

SMJ for interpleader?

Answer 305

a person to require two or more adverse plaintiffs to litigate their claims amongst themselves to determine who has the valid claim to the property the person possesses

Can be fed q or diversity (normal) or

Statutory interpleader (section 1335) - requires only diversity between 2 contending claimants and $500 to be at issue

Question 306

horizontal privity defintion

Answer 306

parties share some interest in the land seperate from the covenant

Question 307

rule 26 signing requirment

Answer 307

FRCP 26(f)- signing requirement for discovery- Parties sign substantive answers to discovery under oath, every discovery request and response signed by counsel is certifying that the request is
* Complete and correct as of time made
* warranted
* Not interposed for an improper purpose and
* Not unreasonable or unduly burdensome

duty to supplement
* CA there is NO DUTY to supplement - other party can seek supplemental discovery (supplemental interrogatory or supplemental demand for inspection) but ONLY TWICE before trial date is set and ONLY ONCE after that

Question 308

products liability Negligence Cause of action

Answer 308

1) Duty is owed to Any foreseeable Plaintiff (no privity required)
* D MUST act as a reasonably prudent supplier of the same type of product

2) Breach - A breach will be found when a supplier’s negligence results in the supply of a defective product
* The plaintiff may invoke res ipsa loquitur
* V difficult to hold intermediaries (assemblers and retailers) accountable because they can satisfy their obligations by a cursary inspection

3) causation same as strict liability

4) Damages are the same as in strict liability - Must have physical injury or property damages to recover, not pure economic loss

Question 309

defamation

Answer 309

1) A factual defamatory statement = adversly afffects reputation (either factual statement or statement of opinion with specific defamatory facts)
2) of or concerning the P = reasonable listener would understand that it refers to P (can establish through extrinsic evi)
3) publication to a third person who understood it
4) falsity
5) fault - if pub fig must prove actual malice by clear and convincing evi
6) damage to reputation

Actual malice = knowledge of falisity or recklesness as to the falsity (D must have had serious doubts as to the truthfulness of the statement)

Question 310

Immunity of state governments

Answer 310

The Eleventh Amendment bars suits against states in federal court

Sovereign immunity bars suits against states in state courts or federal agencies

exceptions
* Congress may authorize suits pursuant to federal laws adopted under sec. 5 of the 14th Amendment,
* waiver of tort immunity for minesterial acts
* Suits by the federal government against states
* Suits by other states against states
* Suits Based on the “Plan of the Convention”

Suits against State Officers are Allowed (a limited work around) if for injunctive relief or seek damages from officer personally

local governments and police departments are NOT protected by sovereign immunity

Question 311

Closure of a court in a criminal case out of concern for prejudice to D is…

Answer 311

very unlikely, the Supreme court has only allowed closure if closure is necessary to preserve an overriding interest and the closure order is narrowly tailored to serve the overriding interest, which it almost never is because the jury could be sequestered to prevent prejudice

Question 312

All contracts are assignable and delegable by default EXCEPT

Answer 312

Unique personal service contracts (simone biles) and
Long term requirements and outputs contract (unless good faith)

Question 313

Accessory after the fact

Answer 313

relieves, comforts, assists another in avoiging punishment, knowing that the person commited a felony,

Question 314

The confession of a co-defendant (even if it interlocks) with D’s own confession, is inadmissible UNLESS

Answer 314

1) All portions referring to the other defendant can be eliminated, or

2) The confessing defendant takes the stand and subjects themself to cross-examination OR

3) The confession of the non-testifying co-defendant is being used to rebut the defendant’s claim that their confession was obtained coercively

Question 315

which property interest / interests cannot be transfered intervivos?

Answer 315

right of entry (thats it)

Question 316

If one co-tenant wrongfully ousts another co-tenant from possession of the whole or any part of the premises, the ousted co-tenant is entitled to…

Answer 316

her share (like 1/2) of the fair rental value of the property for the time she was wrongfully deprived of possession.

Question 317

non-mutual defensive use of issue preclusion

Answer 317

Nonmutual defensive issue preclusion - person using issue preclusion was NOT a party in case 1 and is the defendant in case 2

Fed Rule: nonmutual defensive issue preclusion is okay as long as the person issue preclusion is being asserted against had a full chance to litigate in case 1

Question 318

racial gerrymandering

Answer 318

Race can be considered in drawing up new voting districts, but it cannot be the predominant factor

Question 319

congress’s power undr section 5 of the 14th amendment

Answer 319

law must be proportionate and congruent (narrowly tailored) to the rights provided by 14th Am.

Congress may not create new rights or expand the scope of rights under this provision; it may act only to prevent or remedy violations of rights recognized by the courts

Question 320

standards for taking the plea

Answer 320

1. Judge must determine that plea is voluntary and intelligent
2. Judge must address defendant personally on record to ensure defendant knows (judge or attorney can explain these):
   * Nature of charge and crucial elements
   * Maximum possible charge and mandatory minimum
   * The right not to plead guilty
   * By pleading guilty defendant waives right to trial and jury

Question 321

permissive joinder

Answer 321

1) arise from the same transaction or occurrence (t/o) AND
Or for D’s if Ds are joint and severally liable
2) raise at least one common question of law or fact
3) each claim needs fed SMJ

Question 322

abnormally dangerous activities

strict liability

Answer 322

1) the activity was abnormally dangerous: (2 requirements)
* 1) The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors
* 2) The activity is not a matter of common usage in the community

2) P was a foreseeable plaintiff

3) harm was of the kind anticipated from the abnormally dangerous activity itself

Question 323

establishment clause

Answer 323

1) is the law neutral towards religion?

2) if non neutral, court asks whether the government action accords with history and faithfully reflects the understanding of the Founding Fathers.

Govt aid to religious schools does NOT violate the establishment clause, so long as the funds are not actually used in religious instruction. Most of the time, programs that include both religious and secular private schools will be valid. And excluding religious schools from a benefit also violates free exercise

Question 324

A gift promise is

Answer 324

not enforcable unless promisory estappel applies

• the promisor should have reasonably forseen that the promise would induce reliance and
• such reliance was induced, so
• justice requires enforcing the promise despite the absence of consideration

Question 325

when can congress put conditional strings on funding?

Answer 325

1) not unduley coercive
2) related to the purpose of the program
3) clearly stated

Question 326

jointly and severally liablity

Answer 326

when two or more negligent acts combine to proximately cause an indivisible injury

Question 327

when does a municipality get soverign immunity (assuming it hasnt been abolished)

Answer 327

Where municipal immunity still exists, contrast “governmental” functions (functions that could only be performed adequately by the government) and “proprietary” functions (functions that might as well have been provided by a private corporation).

proprietary function → NO immunity

Governmental function → Immunity

Question 328

CAFA

Answer 328

Class Action Fairness Act (“CAFA”): SMJ is established if minimum diversity (any class member diverse from any Δ) + aggregate AIC > $5M + 100+ members in proposed class.

EXCEPTIONS: No federal court jurisdiction under CAFA if primary Δs are states, state officials, gov’t entities; or action relates to affairs of a corporation and is based on laws of state of incorporation; or action solely relates to federal securities laws

Question 329

ripeness

Answer 329

plaintiff generally is not entitled to review of his claim unless he has been harmed or there is an immediate threat of harm.

test for pre-enforcment review:
1) The hardship that will be suffered without pre-enforcement review AND
2) The fitness of the issues and the record for judicial review
* Is it a pure Q of law?

Question 330

implied warrenty of merchantability vs Implied warrenty of fitness for a particular purpose

Answer 330

implied warrenty of merchantability
* 1) merchant seller
* 2) who ordinarily deals in goods of the kind sold
–> goods must be fit for the ordinary purpose for which such goods are used

Implied Warranty of Fitness for a Particular Purpose
* (1) any seller (does NOT have to be a merchant) has reason to know the particular purpose for which the goods are to be used and that ​​the buyer is relying on the seller’s skill and judgment to select suitable goods; and
* (2) the buyer in fact relies on the seller’s skill or judgment.

implied warrenties can be desclimed by general disclaimer (express warrenties cannot)

Question 331

common plan or scheme

Answer 331

When a developer subdivides land into several parcels and some of the deeds contain negative covenants but some do not, negative equitable servitudes binding all the parcels in the subdivision may be implied if:
* (i) there exists a common scheme for development, and
* (ii) the grantee has notice of the covenant. The requisite notice may be acquired through actual notice (direct knowledge of the covenants in the prior deeds), inquiry notice (the neighborhood appears to conform to common restrictions), or record notice (if the prior deeds are in the grantee’s chain of title he will, under the recording acts, have constructive notice of their contents).

Question 332

when does the doctrine of lapse apply?

Answer 332

to wills and trusts, NOT to other remainders/ future interests

Question 333

battery (crim)

Answer 333

1) Unlawful application of force to another;
2) Resulting in bodily injury or offensive touching

There is NO attempted battery b/c that is assault

Question 334

warrentless search of public school student

Answer 334

only reasonable grounds for the search are necessary. A school search will be held to be reasonable only if:
* 1) It offers a moderate chance of finding evidence of wrongdoing
* 2) The measures adopted to carry out the search are reasonably related to the objectives of the search; and
* 3) The search is not excessively intrusive in light of the age and sex of the student and nature of the infraction

Question 335

Multiple assignments– which assignee gets to collect?

Answer 335

General rule: first assignee for value (w/ consideration) wins over all subsequent assignees (for value or gratuitous) and all previous gratuitous assignees

Exception: later assignee for value (consideration) will prevail over first assignee for value if…
1) later assignee for value doesn’t know of earlier assignments and
2) The later assignee is the first to get payment or judgment from the obligor or
(some other narrow exceptions)

Question 336

Voluntary intoxication has what effect in a murder case?

Answer 336

reduces from first degree murder to second degree mutrder b/c common law 2nd degree murder includes malice, to which voluntary intoxication is no defense

Question 337

Motion for summary judgement

Answer 337

Standard: when the evidence is viewed in the light most favorable to the non-movant, there is no triable issue of fact, and movant is entitled to judgment as a matter of law.

Court can only consider evidence that would be admissible (not pleadings, unless verified)

Summary judgment motion can be made as first response to the complaint (so long as there’s an affidavit to go with it)

Question 338

litigation hold

Answer 338

Litigation hold- when litigation is reasonably anticipated, parties must preserve info

If ESI is truly lost (cannot be recovered) because a party failed to take reasonable steps to preserve it then a court may order measures to cure the harm…
* May issue an adverse inference order - tells jury to presume the lost info would be unfavorable to the party
* May enter merits sanctions, but only if the party who lost the ESI acted with the intent to deprive the other party of the ESI
* May enter default judgment against D if she acted in bad faith

Question 339

venue in CA

Answer 339

Local action (case about interest in or tresspas to land) → venue is in the county where the land lies

If not a local action → transitory action and venue is proper…
* a CA county in which any defendant resides. Doesn’t matter if all defendants live in same state or county (unlike fed rule)
* If all Defendants are non-residents of CA, then venue is proper in any CA county
* If contract case, venue is ALSO proper where the contract was entered into or to be preformed
* In a personal injury case venue is also okay where the injury occurred

transfer is original venue was proper is allowed if
* There is reason to believe impartial trial cannot be held in the original venue
* Convenience of the witnesses or ends of justice would be promoted
* No judge is qualified to act in the present county

forum non conviens- “in the interest of substantial justice the action should be heard in a forum outside of CA”

Question 340

Assignee can sue ….

Answer 340

the assignor or

the obligor (party to orig contract that did not assign) but ONLY if
1) the obligor KNEW about the assignment and paid the assignor instead AND
2) the assignment was for value (not gratuitous)

If obligator is unaware of assignee and they pay the assignor, the obligator is not liable.

Question 341

Summary Judgment

Answer 341

1) there is no genuine dispute of material fact and
2) she is entitled to judgment as a matter of law
If these are true then court has the discretion to grant the motion
→ Subject to abuse of discretion standard on appeal

The pleadings are NOT evidence, because they are not under oath (unless a verified pleading)
* exception- if D made an admission by failing to deny something in the complaint

a judge may go behind the pleadings - even if it appears that the parties are in dispute about some material fact, the motion for summary judgment should be granted if the movant can show that the disputed factual issues in the pleadings are illusory

CA calls partial summary judgment, summary adjudication

Question 342

Executive privilege =

Answer 342

president can keep presidential papers and conversations confidential, however, that right must yield to important government interest (ex: a need for the information in criminal trials)
Congress must have a legitimate legislative purpose for subpoena

if the financial records are subpoenaed by a Congressional committee, the court must balance the competing interests.

Question 343

To depose an organization

Answer 343

a party serves notice on the organization + MUST describe the particular information sought

Question 344

Tenant’s defenses for failure to pay rent

Answer 344

1) failure to deliever posession
2) actual eviction (depends on if whole or partial and by whom)
3)constructive eviction - implied covenant of quiet enjoyment
4)breach of warrenty of habitability
5) breach of other express covenant in the lease (modern law treats the covenants as dependant)
6) LL accepted surrendur
7) impossibility
8) the tenant is out of posession and LL failed to mitigate damages

Question 345

when buyer sues for damages for breach under a land sale contract they can get

Answer 345

either:
1) benifit of the bargin damages (FMV - K) or
2) out of pocket losses compensated

Question 346

real evidence rule

Answer 346

real evidence must be
1) relevant and
2) authenticated by either:
* Testimony by witness that they recognize the item is what proponent claims it to be, but ONLY an option if the object has unique/ distinctive physical appearance…or
* Chain of Custody

Question 347

death escrow is…

valid if…

Answer 347

Death escrow- when a person delivers a deed to an executor and tells them to give it someone upon their death. does not have to be in writing, and valid if
1) only condition is death of the grantor AND
2) grantor does not retain legal right to take back the deed

Question 348

right to trial by jury

Answer 348

6th Am right to trial by jury applies ONLY to serious offenses ( imprisonment for more than six months is authorized)

Minimum 6 jurors (max 12)

Verdict must be unanimous

Standard to strike a juror for cause = whether the juror’s views would prevent or substantially impair the performance of their duties
* The state may not automatically exclude for cause all those who express a doubt or scruple about the death penalty, must determine impairment of duties
* A death sentence imposed by a jury from which a juror was improperly excluded is subject to automatic reversal.

Question 349

If an amount owed is disputed and a party tenders a check that says “payment in full….”

Answer 349

its an accord and satsifaction–> discharges the original debt if check is cashed

Question 350

buisness records hearsay exception

Answer 350

1) Business (includes nonprofits and illegal buisnesses)
2) Entry Made in Regular Course of Business and the business regularly keeps such records
* Entrant must have had a business duty to make the entry (within the scope of their normal job)
3) Entry Made Near Time of Event
4) Personal Knowledge

Authentication Requirement- the authenticity of the business record must be established by a sponsoring witness, who can be a custodian of records or any person in the business (insider) who is knowledgeable about the business’s recordkeeping (it does not need to be the author) whom either (1) testifies or (2) certifies the record in writing

Question 351

Pleadings standards
(Fed and CA)

Answer 351

Fed plausibility pleading - enough facts to allege a plausible claim

CA- fact pleading - must plead ultimate facts supporting the cause of action

heightened pleading (pleading with particularity) would be required for:
* fraud, mistake , special damages (not anticipated for the type of claim asserted) or conditions precedent not being satisfied

Question 352

limits on remedies for confession from failure to mirandize

Answer 352

• can still be used for impeachment
• if failure to mirandize was non-purposeful –> nontestimonial fruits are not excluded
• Public safety exception → violation has no effect
• if person confessed, then was mirandized, then confessed again –> confession is admitted unless intentional

Question 353

best evidence rule/ secondary evidence rule

Answer 353

When seeking to prove the content of a writing, photo, or recording in a case where the terms are material, the original must be produced unless the original is not available

applies when
* 1) When a writing, recording, or photo itself is being entered into evidence and goes to a material issue (the document is central to the case)
* 2) if a witness is testifying about a legally operative or dispositive instrument (the writing itself creates rights or obligations) OR
* 3) if a witness is testifying about a writing/photo/video AND the knowledge of a witness concerning a fact results from having read it in the writing

Exceptions to the best evidence rule
* Summaries of Voluminous Records
* Certified Public Records
* Writing Is Collateral to Litigated Issue

Duplicates made by mechanical processes are admissible in place of original unless
* 1) there is a genuine question as to the authenticity of the original or
* 2) unfair
CA duplicates are NOT admissible unless satisfactory excuse

Secondary evidence rule is exempt from Prop. 8

Question 354

one person one vote

Answer 354

State’s drawing of Fed Congressional Districts –> math equality required

Local and state elections –> substantial equality of districts is required –> A state must show that a deviation from mathematical equality is reasonable and tailored to promote a legitimate state interest (for example, preserving political subdivisions), although a 10% variance is presumptively valid.

exceptions to one person one vote
* At large elections are constitutional unless proof of discriminatory purpose
* Special purpose election- like electing the water comissioner - can be tied to land

Question 355

Public records exception

Answer 355

1) in 1/3 categories: (CA doesnt require this)
* Records of the office’s activities or describing the policies of the pub office
* Records of matters observed pursuant to a duty imposed by law (for example, weather bureau records of temperature), but NOT including police observations in criminal cases;
* In civil actions and against the government in criminal cases—but not against the defendant in a criminal case—records of factual findings resulting from an investigation authorized by law

2) made by and within the scope of the duty of the public employee, and

3) it must have been made at or near the time of the event.

Statement of Absence from a public record is admissible

Question 356

Dauburt standard

Answer 356

What are reliable principles and methods?

1) whether the method has been tested
2) peer reviewed?
3) error rate?
4) existence and maintenance of standards controlling its operation
5) generally accepted in the relevant field

Flexible (dont need all 5)

Compare Kelly-Frye standard (CA) - the opinion must be based on principles that are generally accepted by experts in the field. (inflexible)

Question 357

Class actions

Answer 357

1. Commonality
2. Adequacy
3. numerosity
4. typicality

Prejudice Class Action - Class treatment is necessary to avoid prejudice (no right to notice nor opt out)

Injunctive or Declaratory Relief (no right to notice nor opt out)

**Damages class action **
* predominance
* class action is the superior method
* must have notice and 1 opt out (may bet second option to opt out after agreement is reached but not required)

class cert order must appoint class counsel, define class and claims

court must hold hearing and approve settlement - fair reasonable and adequate

CA class actions
1) An ascertainable class
2) A well-defined community of interest – courts look at…
(1) common questions predominate;
(2) the representative is adequate; and
(3) the class will result in substantial benefit to parties and court.

Question 358

Kinds of opposing party statements

Answer 358

1) Opponent said the thing
2) judical admission by opponent in prior case (or this one)
3) Adoptive statements (can be express adoption or implied - silence in in the face of an accusatory statement counts if
* opponent heard and understood the statement
* opponent was capable of denying the statement and
* a reaonable person would have denied

4) Vicarious Statements = statements of another person can be opposing party statements based on the relationship between the opposing party and the speaker:
* authorized spokesperson
* agents and employees - statement concerned a matter within the scope of employment/ agency and during the existance of the employment/ agency relationship
* co-conspirators- statement made in furtherance of the conspiracy
* NOT co-parties
* NOT predessessors in interest of property (CA allows this)

Question 359

robbery

Answer 359

1. a taking and carrying away
2. of personal property of another
3. from the other’s person or presence
4. by force or threats of immediate death or bodily injury
5. with intent to permanently deprive

Question 360

what must you show to get a scheduling order modified
vs
standard to modify a final pretrial order

Answer 360

scheduling order –> good cause
* then if good cause is shown, the party opposing the motion has to show prejudice

Final pretrial order –> necessary to prevent a manifest injustice

Question 361

CA versions of JMOL and RJMOL

Answer 361

JMOL-
* motion for nonsuit- If the defendant moves for this at the close of the plaintiff’s opening statement or at the close of the plaintiff’s evidence at trial
* directed verdict- parties move after the close of all evidence.

RJMOL - motion for judgment notwithstanding the verdict

Question 362

modification of contracts (Modern rule)

Answer 362

Prexisting duty rule requires consideration but

No consideration is needed under modern rule if:
1) fair and equitable
2) in light of unanticipated circumstances that make preformance more difficult or expensive
3) executory duties remain on both sides at time

mistake of one party can be an unanticipated circumstance allowing mod

Question 363

Profit appurtenant

Answer 363

the profit is designed to benefit the dominant tenement (non-transferable)

profit in gross (designed to benefit a person and not the land) can be transferred

Question 364

Conspiracy

Answer 364

1) agreement between 2 or more persons
2) to complete a crime
3) intent (both as to the agreement and as to the completed crime)
4) an overt act in furtherance of the conspiracy (under modern rule)

Intent can be IMPLIED from joint action (even if someone says they dont want to be involved or no express agreement in facts)

Question 365

learned treeatise exception

Answer 365

Relaibility of treatise is established by
* judical notice
* asking expert on cross
* direct testimony of the expert

impeachment - learned treatise can be used to impeach expert witness if reliability is authenticated

Hearsay exception- treatise can be addmited as substantive evi if:
* reliability is established and
* the excerpt is relied upon by an expert during direct examination or brought to an expert’s attention on cross-examination.
–> parts of treatise can be read into evi, cannot be admited

CA a learned treatise is admissible only to show “facts of general notoriety or interest” found in published maps or charts, or in books of history, science, or art. (NARROW)

Question 366

what can the prosecution do once the defendant has opened the character door?

Answer 366

1) call a witness to give reputation or opinion testimony of Defendant’s Bad Character on the same pertinent trait

2) Prosecution can ask D’s character witness ON CROSS about specific instances of D’s bad character
* BUT only to IMPEACH D’s character witness
* NOT admissible to prove the defendant’s character or conduct in conformity

Question 367

Easment’s burden will run if

Answer 367

BFP of servient property had notice (can be actual, record or constructive)

record notice is satisfied if the easement is recorded

Question 368

14 Am requires that line ups are not

Answer 368

1) unecessarily sugessitive and
2) there was a substantial liklihood of misidentification

Question 369

products liability express warrenty violation

Answer 369

(1) a seller makes an affirmation of fact, promise, or description, or provides a sample,
(2)which relates to the goods, and
(3) it becomes part of the basis of the bargain.

Express warranties cannot be disclaimed

Question 370

Does a fee simple subject to an executory interest teminate automatically or upon the future interest holder exercising right?

Answer 370

AUTOMATIC

3rd party has a shifting executory interest

Question 371

remainder

Answer 371

A remainder is a future interest in a third person that can become possessory upon the natural expiration of the preceding estate.
* cant follow a gap in time from preceeding estate
* vs an executory interest- non-grantor cuts short some interest of someone else,

Contingent remainder - (1) it’s created in unborn or unascertained persons, or (2) it’s subject to a condition precedent (person has to do something before they can take, grantor has a possibility of reverter)

indefeasibly vested remainder

vested remainder subject to complete defeasance- Diff from contingent remainder because remainder man is NOT subject to a condition on his eligibility to take, but rather, there is a condition that stays on the remainderman even after he takes that could divest him
* tends to appear after the language introducing the remainderman

vested remainder subject to open- identified remainderman who is certain to take, but their share is subject to dimminuation by more ppl entering the class

Question 372

alternatives to RAP

Answer 372

Wait and See” or “Second Look” Doctrine (majority) = the validity of any suspect future interest is determined on the basis of the facts as they exist at the conclusion of our measuring life.

Uniform Statutory Rule Against Perpetuities (USRAP)= This codifies the common law RAP and, in addition, provides for an alternative 90-year vesting period.

Cy Pres Doctrine (“As Near As Possible”) = Under the Cy Pres doctrine the court has equitable powers to redraft the grant to be as near as possible to the grantor’s intent while complying with RAP

Question 373

special RAP rules

Answer 373

options or rights of first refusal that are not personal to the holder (that is, which are extended to the holder’s heirs and assigns) will violate RAP b/c they might be exercised later than the end of the perpetuities period.
* RAP does not apply to option or Right of first refusal held by tenant

A gift to an open class conditioned on members surviving beyond age 21 violates the Rule.

If there is a gift to a class and then to a subclass the gift to the subclass is invalid

Question 374

joint tenancy mortgages

Answer 374

One joint tenant can take out mortgage without the consent or knowledge of the other

Lien theory - a mortgage is a lien on title and does not sever a joint tenancy. Severance occurs only if the mortgage is foreclosed and the property is sold
* After foreclosure, the other joint tenant (who didn’t take out the mortgage) is a tenant in common with ½ undivided interest unless move for partition

Title theory- minority- if one joint tenant mortgages their interest, the mortgage severs joint tenancy

Question 375

tenancy by entirety

Answer 375

A protected marital interest between spouses with the right of survivorship

Created by- arises presumptively in any conveyance to married partners unless the language of the grant clearly indicates otherwise.

Creditors of one spouse cannot touch the property for satisfaction of the debt

NO Unilateral Conveyance or Encumbrance

Severance- Only death, divorce, mutual agreement, or execution by a joint creditor of both the spouses can sever a tenancy by the entirety.
* On divorce, the tenancy by the entirety becomes a tenancy in common.

Question 376

co-tenants obligation to pay carrying costs

Answer 376

carrying costs = taxes, mortgage, insurance

pay in proportion to ownership unless
* one TIC is in sole posession residing on the property–> then they have obligation to pay up to fair rental value of the land
* if one TIC is using the land for profit –> they have obligation to pay carrying costs up to amount of their profits

Question 377

tenancy for years

Answer 377

lease for a fixed, determined period of time.

Terminates automatically

A term of years greater than one year must be in writing to be enforceable under the Statute of Frauds.

Question 378

periodic tenancy

Answer 378

A periodic tenancy is a lease which continues for successive intervals (for example, month to month) until either the landlord or the tenant gives proper notice of termination.

arises by implication if
* Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals.
* An oral term of years
* hold over tenant and LL accepts rent

Period tenancy is continuous until properly terminated by notice- Notice must be at least equal to the length of the period itself, unless otherwise agreed.

Question 379

Tenancy at Sufferance

Answer 379

A tenancy at sufferance is created when a tenant wrongfully holds over, meaning they remain in possession past the expiration of the lease. In such cases, we give this wrongdoer a leasehold estate (the tenancy at sufferance) to permit the landlord to recover rent.

only until the landlord either evicts the tenant or elects to hold the tenant to a new tenancy.

Question 380

covenant against assignment or sublease in a lease

Answer 380

Traditional / Majority View, allow the landlord to withhold consent for any reason (even if unreasonable).

Modern / Emerging View, require the landlord to have a reasonable basis for withholding consent.

Question 381

Caveat leasee

Answer 381

Gen rule- At common law, landlords are not liable for latent defects unless the landlord knew or had reason to know of the defect

subject to 5 exceptions: (CLAPS)
* Common Areas
* Latent Defects - A landlord must warn a tenant of hidden defects (meaning, a dangerous condition that the tenant couldn’t discover by reasonable inspection) of which the landlord has knowledge or reason to know. If T accepts after disclosure she assumed the risk.
* Assumption of repairs - tried to repair and did so negligently
* Public use rental- is liable for any defects on the premises that cause injury to members of the public (whether or not they knew of the defect)
* Short term furnished rental- liable for any defective condition which proximately injures a tenant (whether or not they knew of the defect)

Question 382

land sale K is taken out of the SOF if

Answer 382

1) The oral contract is certain and clear, and

2) The acts of partial performance clearly (unequivocally) prove the existence of a contract- need 2 of the 3
* Buyer has taken possession of the property
* Buyer has paid the purchase price or a significant portion of the purchase price
* Buyer has made substantial improvements to the premises

Question 383

2 promises implied in every land sale contract

Answer 383

1) Seller will provide Marketable Title
2) Seller will not make false statement of material fact

Question 384

warrenty deed

Answer 384

present covenants
* covenant of sessin - own it
* covenant of right to convey- owner has power to transfer
* covenant against encumberances - still breached if buyer knew of the encumberance

Makes 3 future covenants
* The covenant for quiet enjoyment - Grantor promises that grantee will not be disturbed in possession by a third party’s lawful claim of title.
* The covenant of warranty: Grantor promises to defend against reasonable claims of title by a third party and to compensate the grantee for any loss sustained by the claim of superior title.
* Further assurances- promises to perfect title

Question 385

exoneration

Answer 385

At common law and in some states, the devisee of specific property is entitled to have the land “exonerated” by the payment of liens and mortgages from the testator’s residuary estate (the personal property part)

applies on MBE, not essays

Question 386

Battle of the Forms applies if

Answer 386

1) Both parties are merchants
2) not a material alteration
3) no objection to the term within a reasonable time