Rules I missed Flashcards
Corporation by estoppel
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).
A co-defendant’s confession cannot be addmited unless
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
Excited Utterances Exception / Spontaneous Statement
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
HOA Rules must be
reasonably related to a legitimate purpose of the association
products strict liability elements
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)
judical notice
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)
Common driveways, walls or fenses
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
real covenant
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
Anti-SLAPP Motion to Strike
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.
can you recover for emotional distress in a negligance case?
Yes, BUT ONLY IF you also have a physical or property injury
Unless its an NEID claim
CA has 2 additional hearsay exceptions that require the declarant be unavailable
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)
Appealing the exclusion or admission of evidence
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
water rights
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
exclusionary rule does not apply to
grand jury proceedings (not ground to dismiss indictment), parole revocation proceedings, or for the purposes of impeachment
Statement def
(hearsay def)
Statement = a person’s (1) oral or written assertion, or (2) nonverbal conduct intended as an assertion (like a nod of the head)
rule 37 (discovery) sanctions
- 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
motion for new trial
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.”
Remand
(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
ancient docs are authenticated when
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
wild deed
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
public nuisance
an unreasonable interference with the
health, safety, and morals of the community at large
prior arrests are ____ to impeach
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
Animal ownership strict liability
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
rehabilitation methods
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