california bar exam primer checklists
These checklists were written by Travis Wise in 2000 for the 2000 California Bar Exam.
T O R T S
*INTENTIONAL: capacity (all), Act (in/direct), Intent (specific/subst.certain/transferred), Causation (liab for all conseq)
Battery: Unreasonably harmful or offensive contact with ’s person.
Assault: Reasonable apprehension of immediate harmful or offensive contact with ’s person.
False Imprisonment: Act or omission to confine or restrain to a bounded area, without reasonable means of escape.
Awareness or harm.
Trespass to land: Physical invasion of another’s land (on/above/below). Intentional=S/L for nominal+actual, negligent=actual,
unintentional (sleepwalker)=no liability.
Trespass to chattels: Interference with use or enjoyment of chattel (damage/possession). Liable for actual damages.
Conversion: Substantial interference with ’s use or enjoyment of chattel, higher degree than trespass, liable for full value.
*Intentional infliction of emotional distress: Unreasonably extreme and outrageous conduct causing severe emotional distress.
Less requirement for innkeepers, old, young, pregnant, hypersensitive if knows.
*Nuisance: Unreas interfrance w/health,safety,property of public, or ’s private use/enjoyment of land, even if acted reasonably.
*Consent: Knowing & voluntary, express or implied. Limited to scope, no criminal acts, fraud, incapacity (age/mental), duress.
Self-defense: Reasonable belief in attack = reasonable force necessary to protect from imminent body harm. Lethal only if
attacked with lethal. N/A to initial aggressor. Reasonable mistake allowed.
Defense of others: Only available if TP has right to use force. No mistake allowed (minority allows reasonable mistake).
Protection of property: Reas non-deadly force if reas. believed nec. N/A if taking privileged. Must warn. UD may req. for land.
Recapture of chattel: Reasonable nondeadly force incl. trespass to recover wrongfully obtained prop from culpable party. No
liability for damages. No mistake allowed.
Discipline: By parent or teacher.
Citizen arrest: Misd-breach of peace in presence. Felony-In fact committed; reasonably believes did it. Ddly frc if srs hrm
Police arrest: Misd-breach of peace in presence. Felony-Reas. believe committed; reas. believes did it. Deadly frc if srs harm
Necessity: Trespass necessary to avoid pers/prop injury from emergency situation. Abs priv for public nec; actual $ for prv nec.
Shopkeeper’s priv: Detain susp. shoplifter if reas. grounds, in reas. manner, for reas. time (<30 min). Liab for actual $.
Defamation: Defamatory lang., of or concerning , published to TP, result in damage (ex per se). Opt: Falsity and fault (malice/neg).
Defenses: Abs: Consent, truth, privilege. Qualif: Report official proc., fair comment opinion, socially useful purpose.
Public disclosure of private fact: Private facts, disclosure of which is highly objectionable to reasonable person. Def: Def. priv.
False light: puts in reasonably objectionable, false or misleading public light. Defense Defamation privileges.
Intentional intrusion on seclusion: Int. intruding into area of reas. expectation of privacy; highly offensive to reas person.
Commercial appropriation: Using name or likeness, without authorization, for ’s commercial advantage.
Fraud: Duty, int/reckless misrep, about past or present material fact, intent of deceiving , justifiably relies to detriment.
Malicious prosec: Instituting civ/crim proceedings, no probable cause, with malice, terminated in favor of . Prosec. immune.
Abuse of process: Using legal system against with malicious intent, to accomplish alterior purpose, regardless of who wins.
Interference w/K relations: Purposeful interference with existing K, even if not breached. Def: Protection of or TP interest.
Interference w/prospective advantage: Interf. w/future K by malice or fraud. Def: Competition.
Injurious falsehood: Trade libel. Reckless public. of false statement re: bus to create $ loss, with that result. Def priv apply.
Duty: Foreseeable ; standard of care (default: reasonable person)/omission when duty exists. Special standards for special ’s.
Breach: Negligence per se (statute), Res Ipsa Loquitor (not normal w/o negligence; exclusive control; not at fault)
Causation: Factual – But-for or substantial factor; burden shifts if one of many caused harm. Legal: Foreseeable result.
Damages: Actual damages required. liable for all damage, even egg-shell .
Negligent infliction of emotional distress: Threatened physical harm caused emotional injury which is physically manifested.
Contributory: ’s slight fault negates any recovery.
Last clear chance exception: had last clear chance and actual ability to avoid ’s prior negligence.
Assumption of risk: No recovery if voluntarily and knowingly exposes himself to risk.
Comparative: Apportions damage on degree of fault. Pure or modified.
STRICT LIABILITY: Duty (strict, to all foreseeable ), breach, causation (actual/legal), damages
Animals: All damage caused by propensities of wild animals; damage caused by known propensities of domestic animals.
Ultrahazardous activity: Can’t be entirely safe; serious harm is foreseeable; uncommon in local area.
Defenses: Assumption of risk; comparative negligence.
Defect: Manufacturing/design/inadequate warnings. Existed in ’s care. More dangerous than reasonable, or could make safe.
Strict liability: Duty of entire distribution chain; breach-unreas dangerous defect); causation (’s control); PI/property damage.
Negligence: Failure to exercise reasonable care in inspection or manufacturing (known way to make safer). Req PI/property dmg.
Warranties: Imp. for particular purpose, or merchantability (good for ordinary purpose); : Unreas. misuse, notice, privity.
*Vicarious liability: Respondeat superior (scope of emp, not frolic or indep K); joint venture/partnership; some car drivers;no parents
Indemnification/Contribution: vicariously liab is indemnified for damages by tortfeasor; multiple ’s apportion $ via contrib.
Joint tortfeasor liability: Everyone liable for whole amount, but only satisfied once.
E V I D E N C EPURPOSE
*Logical relevance: All relevant evidence admissible. Relev has tendency to make material fact more/less probable than w/o evid
Similar happenings: Adm if substantial identity of material circumstances as circumstantial evidence, incl habit and custom.
*Legal relevance: [adm to show agency, ownership, control, defect, impeachment] Unfair prej, confuse issues, mislead jury, waste time.
*Prejudicial impact: Otherwise relevant evid excluded if probative value substantially outweighed by prejudicial impact.^^
Liability insurance, subsequent remedial conduct & settlement offers (actual claim): Inadm to show negligence,
damages or liability, including connected statements of fact. Address public policy.
Medical expenses: Offer to pay inadmissible, but connected statements of fact are admissible. Address public policy.
Guilty pleas: Offer to plead guilty, withdrawn guilty plea and plea of nolo contender inadm. Guilty plea admissible.
Character: Inadm to prove conformity; adm if issue at issue (defam, neg entrust/hire, self def), MIMIC, impeach,
Civil: Generally inadmissible on both sides. No rape shield. ^ sex crimes in sex case
Criminal: can’t initiate; can use rep/op in defense, cross W (incl specific acts, no extrinsic) and rebut with bad
rep/op. can show bad rep/op of vctm when supports innocence; rebut w/good rep/op. Rape: Acts for semen, consent.
*MIMIC: Motive, Intent, absence of Mistake, Identity, Common plan/scheme.
Impeachment: Re: truth/veracity. Extrinsic evid ok unless noted; none on collateral matters. No bolstering until impeached.
Opinion & reputation: Witness can rebut w/ rep/op for truthfulness. Witness can be crossed re: specific acts.
Convictions: Any re: dishonesty/false statement (fraud), and any felony. 10yr limit. No foundation required.
Unconvicted acts: No extrinsic evidence. Must be probative on honesty/veracity and asked in good faith. Arrest not an act.
Bias/Motive/sensory defect: Foundation of inquiry. Expert W fee; W settled with opposing party, deal with PD, retarded...
Inconsistent statements: Made under oath (w/oppty to explain), or admission by party-opponent. Adm substantively.
Rehab: Explain on redirect; good rep/op; prior consistent statements to rebut lie or bias; no rehab inconsistent statement.
*Form: Leading on X, collateral, expert, difficult witness; not on direct. Compound or confusing Q’s. Address if counsel quoted.
*Competency: Everyone presumed competent; must have personal knowledge and take the oath.
*Personal knowledge: Required for most witnesses to testify.
Dead Man Statute (state): Interested party can’t testify abt transaction with deceased against his estate in civil case.
Document reliability: Writing must satisfy Authentication, Hearsay and Best Evidence Rule
*Authentication: Proponent must prove the evidence is what he purports it to be. W w/personal knowledge is best.
*Best Evidence Rule: Requires orig, copy or good explanation when doc has indep legal signif or testimony relies on doc
Lay Opinion: Disfavored, except if based on W’s perception, helpful to trier of fact, within range of common experience.
Expert Opinion: Reliable method, beyond common experience, helpful to trier of fact, special knowledge.
Basis: Hypo, personal knowledge, or facts outside courtroom (if experts in field usually rely).
Judicial Notice: Common knowledge, facts easily verified by sources of undisputed accuracy. Conclusive civil; permissive crim.
Burden of Proof: has burden of persuasion (preponderance/clear & convincing/reasonable doubt). B. of production shifts.
Refreshing recollection: Use anything to refresh memory, but can’t read into evidence. O/C has right to inspect and use for cross
Definition: Out of court statement offered to prove the truth of the matter asserted.
Exclusions: Verbal act, legally operative fact; dec showing state of mind of listener (notice)
Prior Statement: To impeach/rehab available W.Inconsistent under oath;consistent to rebut lie/bias;prior ID even extrinsic.
Admissions: Prior acknowledgement by party of relevant fact. Party incl vicarious admission, co-conspirator, employer/ee
Adoptive: Silence to statement that was heard and understood; capable of denial; reasonable person would have denied.
Unavailability exceptions: Privilege, refusal under contempt, lack of memory, death, absence from jurisdiction.
Statement of personal or family history: Re: own family – birth, adoption, marriage, divorce, legitimacy, ancestry.
Declarations against interest: Knowingly against pecuniary, proprietary or penal interest when made.
Dying declarations: Made while declarant believed death was imminent; re: cause of death; used in homicide or civil case.
Former testimony: O/P was party in former action, O/P had opportunity and motive to cross, same subject matter.
Other exceptions (based on inherent reliability):
Excited utterances: Dec. re: startling event, made under stress of excitement, before declarant had time to reflect.
Present sense impression: Dec. made while perceiving an event or condition, or immediately after. No great excitement.
Present state of mind: Dec. re: state of mind, intent to do future act, physical or emotional condition, insanity, sensation.
Physical condition: Present bodily condition (It hurts). Past bodily condition (narrow) made to dr for treatment/diagnosis.
Past recollection recorded: W’s memory failed, had knowledge when written by W, accurate; W reads into evidence
Business records: Contemporanious, made by person w/knowledge & duty, in regular course of business. Auth custodian. Others:
Records: Public records (or absence); vital statistics; certified copy of judgment; family records; market reports; re: land.
Ancient documents: More than 20 yrs old
Learned treatises: Relied upon by expert; adm reliable by expert; or judicial ntc. Substantive and for impeachment.
*Federal catch-all: Circumstantial guarantees of trustworthiness; admission is strictly necessary; notice to adversary.
PRIVILEGES: State law controls in diversity cases, otherwise federal common law controls. can’t comment on use of privilege.
Elements: Confidential (no unnecessary TP’s) relationship (professional purpose). No: crime/fraud, clt vs. prof, PI suit (dr).
Professionals: Lawyers, Clergy, Psychotherapists, Doctors (state only)
Spousal: Married person can’t be compelled to testify against spouse in criminal case. Expires at divorce. Ex:Inter-family; crimes
Marital: Criminal/Civil case, communications between spouses protected. Survives divorce. Both spouses are holders. “””””””
Constitutional: Only applies to testimony; waived by testifying and with immunity.
C R I M I N A L L A W*Act + intent, concurrence, actual and proximate causation
Actus Reus: Voluntary, conscious and non-reflexive act by . Once completed, it cannot be undone.
Omission: Duty via parent, H/W, employer/ee, K, statute, created peril, assumed care; knowledge of facts; physical ability to act.
Specific Intent: had sp.int. to cause BAM ACTS: burg, assault, 1st murder, attempt, conspiracy, theft, solicitation. Intox and
mistake of fact negate intent.
Malice: Intentional or reckless conscious disregard of obvious high risk that result will occur. Arson and murder (CL/2nd)
General Intent: All other crimes, incl rape, battery, false imp, kidnap. Presumed to intend natural & prob result of conduct.
Transferred intent: Two crimes: actual crime against victim, plus attempted crime against intended victim.
Strict liability: No intent required. Any defense which negates intent is N/A. Incl statutory rape, bigamy, traffic offenses.
MPC: Purposely, knowingly (willfully), recklessly (conscious disregard of subst. risk), negligently (failure to be aware of risk)
Accomplice Liability: Liab for all foreseeable crimes if aids/encourages principal, and specifically intended to aid/encourage crime.
Defenses: Mere presence/knowledge; member of protected class; withdrawal.
Inchoate Offenses: Solicitation and attempt merge into target crime; conspiracy is an independent crime.
Solicitation: TP ≠ intent (cop ok). Merges to conspiracy on agrmnt. Liab for foreseeable crimes. Withdrawal to future crimes.
Conspiracy: Agrmnt 2+ people w/intent to agree and pursue crime + minor act in furtherance (prep). Withd. to future crimes.
Attempt: Specific intent to commit crime + substantial step (>prep). Factual impossibility is no defense
Murder: Homicide+malice aforethought (intent to kill; to inflict grave bodily injury; depraved heart; or during dang. felony)
Felony mrdr: Foreseeable death during (to safety) comm indep dangerous felony (burg,arson,rape). must be guilty of felony.
Voluntary manslaughter: Murder reduced by adeq provocation (loss of self-control; actual provocation; no reasonable cooling
off; no actual cooling off); or imperfect self-defense.
Involuntary manslaughter: Manslaughter with criminal negligence, or commission of misdemeanor or non-dangerous felony.
1st degree murder: Murder + premeditation & deliberation; or felony murder.
2nd degree murder: Common law murder (homicide + malice).
Larceny: Wrongful taking and carrying away of chattel of another by trespass or trick with spec int. to permanently deprive.
Larceny by trick gives possession, but not title, by misrepresentation.
Embezzlement: Fraudulent conversion or misapprop. of another’s chattel by one in lawful possession with sp int to deprive.
False pretenses: Getting V to transfer title to chattel by fraud or misrepresentation (V voluntarily gives title to item).
Robbery: Larceny from person (area of control) by force/intimidation (assault). V must be aware. Larc/asslt merge to robbery.
Extortion: Threats of future harm to compel payment or refrain from doing act. Claim of right may be a .
Forgery: Making of a false writing of an item in commerce with intent to defraud. May also trigger false pretenses.
Burglary: Breaking and entering into the dwelling house of another at night, with present intent to commit felony therein.
Receipt of stolen goods: Rx goods known stolen with intent to perm deprive. Goods must not be recovered, else only attempt.
Battery: Act of force to another person causing injury or offensive touching.
Assault: Maj: attempted battery (specific intent); min: intent to cause reas. apprehension of imminent harm (general intent)
False imprisonment: Unlawful confinement of a person without consent. Kidnapping: False imp + movement or concealment. Rape: Intercourse w/female other than wife, without consent. Any penetration. Statutory: Girl <18. Mistake of age no defense.
Arson: Malicious burning (at least charring of structure), of the dwelling of another.
Good faith belief of ownership is a defense to larceny and embezzlement.
Self-defense: Reasonably necessary to use reasonable force. Deadly in return of deadly. Unreas = voluntary mans. Maj no retreat.
Min requires retreat unless at home, rape or PD. Aggressor must withdrawal/retreat, but can defend escalation of force.
Defense of others: Maj allows if reasonably believed force necessary; min. allows only if TP privileged to use force.
Defense of property: Reasonable nondeadly force. No mistake allowed re: ownership. Must demand first. Deadly if self .
Crime prevention: Nondeadly force to prevent felony or breach of peace. Deadly if dangerous felony risking human life.
Arrest by PD: Nondeadly force normally; deadly force if reas. necessary to prevent dangerous felony or arrest felon.
Arrest – private: Nondeadly to prevent felony/breach of peace, or arrest crime actually committed and reasonably believes did
it; deadly to arrest/prevent dangerous felon who is actually guilty. May apply w/self defense or defense of others.
Resisting unlawful arrest: Nondeadly anytime (even against PD); deadly only if doesn’t know it’s PD.
Necessity: Avoid imminent public or private injury from no-fault emergency; benefit > harm. Kill 1 to save 2, but not just you.
Duress: Crime is only way to avoid threat of imminent serious bodily harm to self or family. No defense to murder.
Insanity: McNaughten (know it was wrong or understand act); Irres Imp (self control & free choice); Durham (conduct product
of mental illness); MPC (ability to appreciate criminality or conform conduct); Diminished capacity (no specific intent).
Intoxiation: Involuntary – use McNaughten insanity; Voluntary is defense to specific intent crimes, but no others.
Infancy: <7 irrebutably incapable; 7<14 rebuttable presumption lacking criminal capacity; >14 as adults. ML: Juvi court rehab.
Mistake of fact: to specific intent if honest (even unreas); to general intent if neg intent, honest & reas; no to strict liab.
Mistake of law: No unless crime requires “knowingly” do criminal act. Also some good faith reliances on statute or official.
Impossibility: Factual = attempt (murder of dead pers= attempted murder); legal is a (no crime even though thought it was).
Consent: only if it negates specific element (rape, kidnapping), minor battery & assault. No def to major battery or murder.
Negated by coercion, threats, deception, incapacity (drunk) or age.
Entrapment: Intent to commit crime originated with law enf, and was in no way predisposed to commit crime.
Withdrawal: to accomp liability, solicitation & conspiracy (future crimes only). Affirm notify co-s & neutralize assistance.
C R I M I N A L P R O C E D U R ESEARCH & SEIZURE: 4th Am: Government conduct + reasonable expectation of privacy (standing – ownership; not public)
Arrest: Probable cause, and warrant if at home.
Detention: Reasonable person not feel free to leave; Upon reasonable suspicion. Probable cause to take to stationhouse.
Vehicle stop ok w/wrongdoing; not random license/reg check. Random checkpoint ok.
Evesdropping: Warrant desc conversation, person; brief in time; return to court w/evidence. has risk that listener will squeel.
Search warrant: Probable cause, neutral & detached magistrate, reasonably precise; properly executed (announce; scope).
Airport: Requires only articulable suspicion, but detention must be brief; luggage seizure subject to 4th Am.
Border: No PC needed to search person and things, but needed to search vehicle. OK to stop for questioning for no reason.
Incident to lawful arrest: Contemporaneous w/lawful arrest, limit to wingspan and car passenger comp. Protective swp ok.
Automobile: Probable cause, scope is whole car incl packages that could contain item. Based on mobility and less privacy.
Plain view: Legitimately on premises; discovery of “readily apparent” evidence or contraband in plain view.
Consent: Voluntary (no threats of warrants) and intelligent; by someone with apparent authority. Revokable, limited in scope.
Stop & frisk: Reas articulable suspicion of weapons; frisk for weapons on person & passenger comp; contraband found ok.
Inventory: Upon booking of individual, or impounded car. Full search is ok.
Exigency: Hot pursuit; or delay would allow destruction of evidence.
Probable cause: Facts & circumstances such that reasonably prudent person would think has evidence/committed offense.
Due Process (14th): Must be voluntary (totality of circumstance – no coersion/threats, but deception ok).
Miranda: Custody (not free to leave) + interrogation (reas likely to get damaging statement) = warnings and waiver (voluntary
(totality of circumstances – not incl intoxication or retardation), intelligent, silence not enough)
Silence: Once invoked, no questioning until resumes. PD can question about unrelated crime after delay + rewarning.
Counsel (5th): Unambiguous request = all questioning stops until couns provided or reinitiates. Not offense specific.
Once 6th Am. right to counsel (during trial) attaches, confession w/o counsel is invalid, even if out on bail or in jail.
Defenses: Waiver, spontaneous statement (blurt!), non-custodial (traffic stop, probation interview), impeachment, informant,
public safety / on-scene factfinding.
5th Amend: Must be asserted else waived, even civil; app only to testimony. N/A if immunity, no poss incrimination, or waiver.
EXCLUSIONS (admissibility decided solely by judge; can testify w/o waiving 5th right; must establish adm by preponderance)
Remedy for: illegal search and seizure (violates fed const or statute) or coerced confession.
Exceptions: Grand jury; civil cases; habeas corpus; parole hearings; impeachment.
Good faith: reliance on case law later challenged; statute/ordinance later declared unconstitutional; defective search warrant
Negated by: Affidavit unreasonably lacking probable cause; warrant defective on face; affiant lied or misled
magistrate; magistrate wholly abandoned judicial role.
Fruit of poisonous tree: Excludes all evidence obtained/derived from illegal PD act.
Def: Inevitable discovery; independent acts of broke chain.
Harmless error: Adm of illegal evid nonreversible unless shows beyond reas doubt evid didn’t contribute to guilt. If
otherwise guilty, he’s SOL. Applies to confessions, and ___.
PRETRIAL ID: Excluded from trial if violated.
6th Right to Counsel: for post-charge lineup/showup (harmless error applies), but no rt for pretrial ID or merely showing photos.
Due process: Not unnecessarily suggestive; substantial likelihood of misidentification. Reliability based on totality of circumst.
Defenses: Independent source for in-court ID (usually opportunity to observe at time of crime).
TRIAL: Delayed until competent; must be public (unless it would violate ’s due proc); judge can’t have malice or financial interest.
Grand Jury: Federal felony right only; no right: exclusionary rule, counsel, to appear; cross-examine.
Speedy trial (6th): Eval. on totality of circ, including length of delay, reason ( cause?), assertion of right, prejudice.
must disclose exculpatory evidence, but not informant’s name if not a witness. must prove prejudice resulted.
Sentencing: Judge can consider hearsay, victim impact, & factors not in record. 8th Am. applies to DP if disproportionate (Rape +
RIGHT TO COUNSEL (6th Am) major participation + reckless disregard + FM death)
When applies: Critical stages of prosecution (after prelim hearing); but offense-specific. Can deny during recess, not overnight.
Waiver/right to defend self: Absolute right so long as knowing and intelligent waiver & court thinks competent.
Indigent: Right for all felonies; first appeal by right; misdemeanor where jail actually imposed (no jail if no atty).
Effective assistance: Unreasonably deficient performance; but for which proceeding would have been different.
JURY TRIAL: Conv must be reversed if juror has outside influence (media); juror misconduct – harmless error applies.
Elements: Req if jail >6 mos possibile; venire must be x-section of community; impartial (can exclude biased DP juror for cause
if views impair subst impair duties, but not if juror has mere scruples about DP). No racial/gender preemptory challenges.
Defenses: No federal right to unanimous state jury 9-3 is ok, min. 6 jurors (unanimous). Fed: 12 required; must be unanimous.
GUILTY PLEA: Waiver of 6th Am right to jury trial.
Voluntary: But can threaten more serious charges at trial.
Judge must address: Nature of charge, max auth and mandatory min sentences, rt to plead not guilty, waiving right to trial.
Collateral attacks: Involuntary plea; court lacked jurisdiction (statute of lim); ineffective assistance; failed to keep bargain
Defenses: No withdrawal after entry if intelligent choice; from among alternatives; on advice of competent attorney.
Habeas Corpus: must show present unlawful detention by preponderance of evidence. No rt to counsel. State can retry.
DOUBLE JEOPARDY (5th Am): Bars 2 punishments for same crime. Attaches when jury is sworn, or first witness if no jury.
Exception: 2 crimes not same if each has diff element than other (ABC, ABD), not lesser included offense. Separate sovereignty
Retrial: wins appeal (but no> offense or sentence); prior trial didnt end on merits (hung/ breach plea brgn)
P R O P E R T YSteps: Classify the interests. SOF complied with?
PRESENT POSSESSORY INTERESTS
Fee simple absolute: To X [and his heirs]. Max legal ownership.
Fee simple determinable: Automatically reverts to grantor upon happening of stated event (so long as, until, while, during).
Possibility of reverter in grantor. More than merely a statement of purpose or motive.
Fee simple subject to condition subsequent: Grantor may reenter land upon happening of stated event (but if, provided that).
Right of entry (power of termination) in grantor. If created in TP, it’s an executory interest.
Fee simple subject to executory limitation: Estate passes to TP upon happening of stated event. “but if…then to TP.”
Executory interest in TP: Always contingent, subject to RAP. Cuts short prior estate. EI often coupled with defeasible fee
Springing cuts short grantor’s reversion; shifting directly cuts short prior estate.
Fee tail: To X and the heirs of his body. ML treats as fee simple absolute.
Life estate: To X for life of X [or other life – per autre vie]; alienable to extent of interest. Normal land use; pay interest/taxes
Merger: ‘To B for life, then to B’s heirs’ merges into fee simple in B; subsequent contingent remainders destroyed.
Restraints on alienation: None on fee simple abs. Conditions ok, no rest. on actual transfer. Right of first refusal ok to grantor.
FUTURE INTERESTS: Includes possibility of reverter; right of entry; executory interest.
Reversion: What’s left over for grantor when he grants less than he owns.
Remainders: Express future grant to TP; possessory, if at all, at the natural expiration of prior estate.
Vested: Unconditional grant in existing person. Right against prior estate for waste, taxes, mortgage interest.
Absolute, class gift/subj to open/partial divestment, or subj to comp divestment (exec interest, cond subseq, etc.)
Contingent: Condition precedent, or unascertained/unborn person. RAP applies, no rights for waste/taxes.
Destructibility: If remainderman dies before vesting, his heirs take nothing. If contingent r.man isn’t yet eligible,
reversion to grantor with executory interest in r.man upon eligibility. If contingency fails, reversion to grantor.
Class gift: Some r.men not yet known. Class closes when any member entitled to take (usually when parent dies)
Waste: Tenant must maintain (repair, pay taxes/interest) estate; normal use. Liable to vested remainders for anything more/less.
Shelley’s Case: Life estate w/remainder in heirs = fee simple. Abolished in most states.
Doct. of Worthier Title: Remainder in grantor’s heirs = reversion to grantor. Only applies to inter vivos transfers.
RAP: Exec int, cont rem, class gifts, opt to purchase. Last named grantee, all priors, and next grantee takes, but no one else.
Dower: W absolute right to 1/3 of land H bought during marriage. Cursey: H gets all W’s fee simple land. ML=intestate succ.
JOINT TENANCIES: All tenants have right to possess the whole. No adv poss unless ouster.
J/T: Unity of time, title, interest & possession. Express “w/right of survivorship.” Conv to T/C @ severance of unity; partition.
T/C: Unity of possession. Freely transferable. No right of survivorship. Partition available.
T/E: Unity of time, title, interest, possession & person (H&W). Any transfer is void unless by both spouses. T/C at divorce.
Contribution: Liable for necessary repairs, mortgage, taxes, but not improvements (adjustment at sale).
Nature of leasehold: Tenancy for years (oral limited to 1 year by SOF), periodic tenancy, tenancy at will (rent conv. to periodic),
tenancy at sufferance/hold-over (LL can impose periodic and raise rent).
T’s duties: Pay rent (unless LL release, 100% condemnation, const evict); all repairs if expressed in lease (except wear and tear)
Abandonment: LL can accept, retake & terminate lease, or rerent and hold T for damages.
LL must deliver actual possession (CL contra – T has duty to evict, but no rent due) (damages = cost of moving, higher rent)
LL’s duty of quiet enjoyment: Total eviction, partial eviction (no rent due if by LL; partial rent if TP), constructive eviction (LL
fails to provide obligated service, subst. interf. w/T’s quiet enjoyment, T abandons w/in reas time, abate,or sue for damages)
Assignment/Sublease: LL can expressly prohibit but waiver lasts forever. Assmt 100% xfer; T2 liable for covenants w/touch &
concern (incl rent). Sublease <100% xfer; T2 ≠ privity of K or estate w/LL so only T1 liable on covenants.
LL tort liability: No CL duty; duty for known hidden defects, furnished rental; common passages; negligent repairs; public use.
Fixture: Intent, permanence, removal injury. No removal unless trade fixture (before end of lease). No mort. int. trade fixtures.
EASEMENT: Appurtenant: Dominant estate able to use servient estate. Gross: No dominant estate (no transfer unless commercial).
Affirmative: Non-possessory right to use land. Holder must repair; excessive use = injunction; servient owner may also use.
Negative: Prevents servient estate from doing something (air/light/lateral support, etc.)
Creation: Express (SOF), implication (use by common grantor of severed servient estate w/necessity), necessity (landlocked
severed estate), prescription (adverse possession).
Transfer: W/dominant estate, binding on subsequent serv BFPs if notice (actual/constructive/inquiry), intent, touch & concern.
Termination: Release, merger (no revival), condemnation, destruction, end necessity, prescription, abandonment+act or reliance.
LICENSES / PROFTS / COVENANTS / SERVITUDES: May also terminate w/substantial change in neighborhood.
License: Permission to enter land; personal/non-assignable; revocable (unless coupled with interest or reliance). Failed easement.
Profits: Right to go onto land and extract product, w/implied easement. Affirmative/negative/appurtenant/gross.
Covenants: Affirmative or negative (restrictive) promise enforced at law ($). Xfer req: Intent, notice, affect value/use, privity.
Equitable servitude: Affirmative or negative (restrictive) promise enforced at equity. Xfer req: Intent, affect value/use.
Reciprocal negative: Common plan, intent, notice. :Unclean hands,acquiescence, laches, estoppel. Diff public dedication.
LATERAL & SUBJACENT SUPPORT; WATER RIGHTS
Support of land: Strict liability in natural condition; negligence required for damage to artificial structures (analyze negligence).
Interference with waters: Riparian=any domestic use, reasonable non-domestic use. Underground: Reasonable use.
Surface water: Natural flow=no interference (or only reasonable interference); Common enemy: landowner can do anything.
Land sale K: Applies until closing. Must satisfy SOF, signed by , describe property; exception: part perform, but not tenancy
Marketable title: Implied in K; due at closing. Minor defects ok – reasonable buyer view. Extinguished by deed. may cure.
Deed: Execution (SOF, description); delivery (intent of seller).
Covenants of title: Now: Seisen, rt. to convey, against encumbrances. Future: Quiet enjoyment, warranty and further assurances.
Recording: CL: First in time first in right; ML: protect BFP w/race, race-notice, or notice.
Mortgages: Grantee not liable unless assumes, but foreclosure ok. Right of redemption until foreclosure, F/C by public sale.
Recording acts apply. Jr. interests eliminated by F/C if notice/joinder, Sr. interests not eliminated.
Remedies: Reduction in FMV caused by defect; injunction/specific performance always available.
HELUVA: Hostile, Excluding, Lasting (20), Use (ordinary), Visible, Actual (or claim of title/leased).
Disability only if @ time AP begins; no tacking. No A/P vs remainder until remainder possession.
C O N S T I T U T I O N A L L A WSMJ
Certiorary: 4 judges must agree. Right of appeal only injunctions by 3 judge district court panel.
Jurisdiction: Exclusive over cases between 2+ states. Appellate: Arising under, diversity, US as party, citizen v. diff. state.
Adequate/Independent state grounds: Decision wholly supported in good faith by state law, & interp fed law wouldn’t change.
Abstention: Won’t hear case pending in state court until resolved w/final judgment.
Congress’ power: Regulate appellate & original (ambassadors) jurisdiction to lower courts, no confer standing or eliminate SMJ.
11th Am: States can’t be sued, unless injunction against officer, waiver, or §5 of 14th Am by Congress.
Standing: Personal injury, or likelihood of future harm (injunction), which caused, which court can redress.
TP: has own standing; relationship; or TP can’t adequately protect interest.
Association: Member has standing; germane to purpose; individuals don’t have to participate.
Taxpayers: Not unless spending (not property) violates establishment clause.
Ripeness: Claim has not yet fully developed/pre-enforcement. Factors: hardship w/o review; fitness of issues/record for review
Mootness: Claim resolved; no controversy. Except: Collateral consequences; repetitive injury evading review; voluntary stop.
Political Question: Republican form of gvmt; const amend; foreign affairs; impeach; qualify. of congress.
Factors: Commit to other branch, no standards, policy, respect of branches, embarrassment of multiple pronouncements.
POWERS OF CONGRESS
Police power: Limited to (MILD): Military, Indians, Land/property, D.C. Must act for general welfare.
Major powers: Civil rights, elections, admiralty, tax/spend, eminent domain, defense, commerce, citizenship, foreign affairs
+Necessary & proper clause: Congress can do what is necessary and proper to implement enumerated powers.
Power to tax: Valid if proper regulation, intended to raise revenue, or results in raising revenue.
Power to spend: For general welfare; attaching strings ok if reasonable, legitimate power, unambiguous. Tell pres how to spend.
Commerce clause: Plenary power. Regulate channels, instrumentalities, persons & things in commerce. Cumulative affect.
10th Am: Reserves ungranted powers to the states/people. Cong. can’t compel states to act; can’t burden states w/o clear intent.
Delegation of powers: Fine to delegate to exec or judiciary; can’t take back. No legislative veto b/c bicameralism & presentment.
War: Declare war, raise & support troops, regulate economy (during and after), military courts.
POWERS OF PRESIDENT (impeached for treason, high crimes and misdemeanors – maj. house, 2/3 senate conviction)
Treaty: Pres negotiates; 2/3 senate approval. Const, recent fed law, other treaties supercede.
Exec agreement: Used for any purpose between nations; no senate approval. Superseded by federal law.
War: Pres always wins. Deploy troops; emergency powers; establish military gvmt in territories.
Appointment: Ambas, fed judge, hi officials w/2/3 senate appr. Cong delegate appt of lower officials to pres, dept head, courts.
Removal: Pres can fire, unless Cong requires good cause (job independence from pres desired – not cabinet).
Privilege: Immune for civ suits official acts; not for pre-office acts. Priv for military/dipl. secrets; others yield to imp gvt interest.
Pardon: For federal crimes, unless was impeached. No pardon for civil suits or civil contempt. Strings attached ok.
Veto: W/in 10 days, subject to 2/3 house override. Failure to act = law if Cong in session, veto if Cong not in session.
FEDERALISM Evaluate state law: Police power, violate DP/EP, interstate commerce.
Supremacy: Fed law preempts state if: Mutually exclusive, state impedes achievement, or clear fed intent to preempt.
Immunities: No direct taxation or regulation. Usually no suits against government unless waiver.
Dormant commerce clause: Law is ok if congress approves (broad commerce power), or state is market participant.
Discrimination against out-of-state interests: Must be necessary for imp. gvmt interest, least restrictive means.
Undue burden on interstate commerce: Illegal if burden > benefits.
Privileges & Immunities clause: No burden on imp. economic activities or civil liberties of out-of-state citizen, unless necessary
to achieve important gvmt interest w/least restrictive means.
14th Am. P&I: States can’t infringe on rights of U.S. citizen (mainly right to travel) – usually wrong, use EP/DP instead.
Taxing: No taxing goods in interstate cmrce; can’t favor in-state bus; no taxing unless nexus; tax must be fairly apportioned.
*State action: Direct; private funct of trad gvmt role; sig gvmt involvement in private conduct. Exc: commerce clause or 13th Am.
Prior restraint: Court order must meet strict scrutiny; procedurally ok order must be complied with.. Gag order unconst. License
only if no discretion in licensing authority; prompt determination and judicial review; clear criteria.
Facially invalid: Vague, overbroad, unfettered discretion in licensing official.
Content (subject matter/viewpoint) regulation: Must meet strict scrutiny. Some compelling state interests which satisfy the test:
Advocacy of unlawful conduct: Directed at producing imminent unlawful conduct & subst likely to produce conduct.
Defamation: Not protected; but if public official/figure/concern, must prove falsity and malice.
Obscenity: Purient interest & patently offensive (local); as whole lacks literary artistic political scientific value (national).
Right to possess in home; zoning ok; child access more restricted; child porn always illegal; business asset seizure ok.
Fighting words: Likely to provoke ord pers to violence. But always unconstitutionally vague and overbroad.
Commercial Speech: False & deceptive ads not protected; other comm. speech uses intermediate scrutiny.
Privacy: No liab for truthful reporting of info lawfully obtained from gvmt (child criminal name), but gvmt can nondisclose
Content neutral: Must meet intermediate scrutiny (but not least restrictive alternative), and be content & viewpoint neutral.
Public forums: Sidewalks and parks. Time, place & manner restr ok if imp gvmt interest and leave open alternatives.
Limited/designated pub forums: Once gvmt opens place to speech, treated as public forum, or close out all speech.
Nonpublic forums: Military, airports, PO sidewalk. Speech regulated if reasonable (rational basis), and viewpoint neutral.
Symbolic expression: Reg if important interest unrelated to suppres of msg, impact no greater than necessary for purpose.
Freedom of association: Strict scrutiny: Punish only pers actively affiliated; knowing illegal objectives; sp intent to further objective
Religion: Strict scrutiny applies to any preference or aid to one religion over another, or discrimination against religion.
Establishment: Test: Secular purpose, effect doesn’t advance/inhibit religion, no undue entanglement
Examples: No religion in public schools. Equal access to room/$ as non-relig groups. Gvmt disp ok if secular items mixed in. No direct $ to relig elem/hi sch; college & hosp ok. Indirect aid (bus, books) ok if also given to public, if not used for religion.
Free exercise: Can’t ever punish beliefs, only behavior. Law of general applicability ok unless bad motive. Can’t deny benefits.
K clause: State/local gvmt can’t subst impair existing K w/o intermed scrutiny+reas&narrowly tailored. St scrutiny for gvmt K’s.
Ex post facto laws: Legis can’t make something criminal after act, increase punishment, or reduce evidence req’d. N/A to civil.
Bills of attainder: Legislative punishment or adverse treatment w/o judicial trial. Usually appl to communism.
Equal protection: Law affects similarly situated people (or corporations) differently (discriminates). States via 14th; Fed via 5th.
Substantive due process: Law of general applicability infringing upon a right.
Strict Scrutiny: must show law necessary for compelling gvmt interest, and uses least restrictive means.
Fund. interest: Privacy: contracep, medical, marriage, procreate, raise/ed kid, relatives; Travel, religion, assoc, vote, speech
Abortion: No undue burden pre-viability; prohibit post-viability ok except mom’s life. No subsidy right. MD, consent, 24 hr ok.
Suspect class: Race, Alienage (citizenship), National Origin (facially, or impact + intent)Intermediate scrutiny: must show law substantially related to important government interest.
Quasi-suspect class: Gender or illegitimacy (facially, or impact + intent). Can’t give benefit to legitimate and deny illegit.Rational basis: must show law not rationally related to any legitimate government interest.
Everything else: Disc impact w/o intent; non-fund. rights (economics, educ); age, disability, $, gays; taxes; aliens re: gvmtProcedural due process: Intentional or reckless deprivation of liberty/property by gvmt requires due process. Less for emergency.
Liberty: Freedom, K, employment license, parental rights. Property: Entitlement – welfare, education, driver’s license.
Process: Balance importance of ’s interest, will process increase fact finding, efficiency/cost, to determine whether notice,
pre/post-hearing, or merely oppty to respond. Prisoners have less protection.
Takings: Any possess or reg (if destroys all value) taking must be public use & must pay just compensation (FMV), excpt PD power.
C O M M U N I T Y P R O P E R T YPRESUMPTIONS
CP: All property acquired while domiciled in CA during a valid marriage presumed CP. Acquisition when earned, not received.
SP: All property acquired before marriage, after permanent separation, or by gift, devise, bequest, or from SP, presumed SP.
Married woman’s presumption: Rebuttable presump that prop acq <1975 in woman’s name (not Mr/Mrs or JT) is her SP.
TRANSMUTATIONS: Agreement between spouses to change character of asset. No consideration needed.
Prenuptial: SOF applies unless oral fully performed. No child/spousal support mod.
Def: Not signed voluntarily. Unconscionable when made, no fair disclosure, no waiver of disclosure, no actual knowledge.
Postnuptial: Oral before ‘85, written after ’85 expressly stating change in ownership.
Married woman’s special presumption: Prop acq before ’75 titled in woman’s name is her SP, unless otherwise intended.
Gifts of a personal nature from one spouse to another, as long as not substantial in value.
MANAGEMENT AND CONTROL: Spouses have equal management and control of all CP during marriage. Exceptions:
Real property transfers: Both spouses must join. Screwed spouse can set aside deed, void tx w/in 1 year from conveyance.
Personal belongings: Voidable by other spouse at any time – BFP is SOL.
Spouse managing a business: Acts alone, but written notice before sale of substantial personal property of business.
Remedy for <FMV xfer of CP: Set aside 100% during donor life; ½ at donor death/reimb from estate; reimb ½ at divorce.
SPECIFIC TYPES OF ASSETS
Education: Reimb for ½ contributions if enhanced earning capacity. Def: 10 yr benefit; other spouse ed; reduc spousal supt.
PI awards: CP if COA during marriage, 100% award to injured spouse unless interest of justice req CP. SP if tort btwn spouses.
PI liability: If act benefit of community, CP liable then SP. If not benefit of community, ’s SP then CP. Other’s SP protected.
Pre-marital debt: CP liable, unless earnings of nondebtor spouse kept in separate account.
Retirement/pension: CP if earned during marriage. Time rule used (# yrs emp while married / # yrs emp total).
Disability & Worker’s Comp: CP or SP depending on wages they are designed to replace.
Severance pay: Split in juris: Some treat as replacement of future wages (SP); others treat as …???
Stock options: CP or SP determined using time rule: Months from award to separation / mos from award to exercise.
Business goodwill: CP if earned during marriage. Valued by expert, or capitalization (net return – services – interest x years)
Property acquired w/both CP & SP: Apportioned by contribution, including appreciation.
Property titled jointly: Death-Lucas says its CP, SP is gift. Divorce-After 84 CP; SP reimburse for Down Improve Principal
CP contrib to SP: If SP is of other spouse, gift presumed. If using CP to improve own SP, reimb for greater of $ or inc value.
SP contrib to CP: Anti-Lucas applies and SP reimburse for Down Improve Principal.
Commingled bank acct: SP burden to show exhaustion or direct tracing (SP $ available, intent to use). Fam exp presumption.
Property insurance: Same character as the property it replaced.
Life insurance: Whole: In proportion to payments. Term: Determined by last payment.
Increased business value: When CP labor increases value of business, CP entitled to share in increased value.
Pereira: Personal effort. Initial SP value + annual interest = SP; remainder is CP.
Van Camp: Valuable Company asset. (Fair salary) x (yrs of marriage) – (salary received) = CP; rest SP.
Credit purchases: CP in proportion to buy-in. If no joint title, presumptively CP, but SP if lender’s primary intent was SP.
Each asset divided equally, unless: misappropriation, liabilities>assets, school loan, family home w/children, PI award.
In that case, the assets are shifted around so that total division still 50/50.
Separation: Permanent physical separation with intent not to resume marital relations, communicated to other spouse.
Valuation as close to trial as possible.
Court retains jurisdiction on property not divided. MSA/Judgmt set aside in 6 mos if mistake; >6 mos only for extrinsic fraud.
Decedent can dispose of SP and ½ CP. If disposes of survivor’s CP, survivor must elect between CP and residual clause.
If intestate, survivor gets all CP and 1/3 to all of SP depending on # of survivors.
Quasi-CP: Prop acquired by couple living in other jurisdiction that would have been CP if domiciled in CA; or putitive spouse.
Divorce: Treated same as CP
Death: Surv spouse gets ½ QCP titled in decedent’s name. Decedent has no interest in QCP titled in survivor’s name.
SP: Federal homestead claims, Military life insurance benefits, US savings bonds, Social Security benefits
CP: Railroad retirement, military retirement, copyrights.
C O N T R A C T SContract = legally enforceable agreement.
Applicable Law: Common law is default; UCC A2 applies to sale of goods (more important part of K is goods).
Formation: Words (express) or action/conduct (implied). Mutual assent.
Bilateral is open as to method of acceptance. Unilateral results from offer requiring performance as method of acceptance.
Offer: Manifestation reas interpreted by offeree as present intent to K (promise, undertaking or commitment); comm. to offeree
Terms: Definite and certain. C/L required price; UCC implies reasonable $ but requires quantity (requirements/output ok)
Advertisement: Invitation to offer, unless specific quantity and who can accept.
Termination: Lapse of time, revocation (effective on rx); rejection (effective on rx); law (death, destruction, illegality).
Irrevocable offers: Option, merchant’s firm written offer, detrimental reliance, start performance of unilateral K.
Acceptance: Effective on tx by offeree, by manner authorized, else upon receipt. CL requires mirror image.
UCC: New terms = acceptance; part of K if btwn merchants w/o rejection/material change; btwn non-merch if accept.
Consideration or substitute: Bargained for exchange; legal detriment/benefit. Not past consideration or pre-existing duty.
Modification: CL required new consideration or commercial impracticability; UCC requires only good faith.
Part payment: Only consideration for release if debt was unliquidated: not yet due, or amount in dispute.
Subsitutes: Promissory estoppel (reliance); written promise to pay barred debt; complete performance.
Defenses: Capacity (except necessities), illegal subject matter, unconscionability @ time of K, duress (physical), fraud
SOF: Marriage, Year, Land, Executor, Guarantee, Sale of goods > $500. Satisfied by performance; memo between merch.
Mistake/ambig: Innocent party protected; no K if mutual (but value isn’t a mistake; can’t take advantage of obvious error).
Interpretation: Course of performance between parties; past dealings; custom & usage of industry.
Parole Evid: No prior/contemp agreement to change terms of written K intended as final expression. Add’l terms ok unless K
fully integrated (merger clause), and even then ok if normally not included in writing. Ok to show no K, error, defenses.
Conditions: Express (req strict compliance), constructive (CL req substantial; UCC strict), precedent, concurrent, subsequent.
Satisfaction; or Excuse: Failure to cooperate; breach/anticipatory repudiation; waiver.
Delivery: Seller bus, or loc of goods. FOB seller = seller ships & notifies buyer, risk on buyer. FOB buyer = risk on seller.
Risk of loss: K; breaching party; FOB term (above); if seller merchant, risk shift on buyer’s receipt (else when tendered).
Express warranty: Words (not puffery/opinion) or sample/model. Cannot be disclaimed, but remedy can be limited.
Imp W of merchantability: Merch seller, goods fit for ord purpose. Disc by “as is” or conspic lang mentioning merchantability.
Imp W of fitness for particular purpose: B’s reliance on S, S knows of reliance. Disc by “as is” or conspic lang.
UCC Cure: If time of performance has not yet expired; or if goods sent to accommodate seller w/reasonable belief that was ok.
Excuse of nonperformance: Failure of condition; other party’s breach (CL: only if major)
Impossibility: Death or physical incapacity (unless service K), illegality, destruction of subject matter resulting in imposs perf.
Impracticability: Extreme and unreasonable difficulty that was unforeseeable, makes performance impossible/impracticable.
Frustration of purpose: Unforeseen, post-K occurrence, eliminates purpose of performance.
Rescission: Cancels K, if performance not yet complete.
Novation: Agreement by both parties to substitute in a new party in place of one of the old parties.
Accord & satisfaction: New K (accord) extinguishes old K upon performance of new K (satisfaction). Ex: “payment in full”
Breach: UCC requires perfect goods at time of delivery (subst perf for installment K); CL allows substantial performance-minor brch.
Demand for adequate assurances: has reasonable grounds for insecurity and makes written demand. No resp = antic repud.
Anticipatory repudiation: ’s performance must be pending. Immediate COA; excuses P’s performance.
Rejection: Before acceptance; for any nonconformity (except subst perf ok on installment); must notify seller.
Acceptance: Express, or implied by retention w/o objection for reas. time; act inconsistent w/seller’s ownership.
Revocation: Nonconformity subst impairs value; ignorance of grounds for rejection; reasonable time; notify seller.
Remedies: Must be reasonably certain and not speculative.
Remedy limitation: Unconscionable if eliminates recovery for personal injury.
Compensatory: Expectation (benefit of bargain=replacement performance, lost profits); consequential $ if foreseeable.
UCC: Defective goods which buyer keeps = Perfect FMV – Delivered FMV. Buyer reject: FMV – K, or replacement – K.
Liquidated: Actual damages difficult to determine at K; amount foreseeable forecast of likely damages.
Punitive: Not allowed.
Specific performance: If no adequate remedy at law (land/art). Equitable defenses (laches, unclean hands) apply.
Duty to mitigate: No recovery for loss that could have reasonably been avoided. Burden of proof on .
Quasi-K: Equitable remedy for when K fails. Benefit; reas expectation of comp; at request of ; unjust enrichment result.
TP beneficiaries: Promisor and promisee K with intent to benefit TP. Intended benef. is named; incidental is not.
Rights vest: Detrimental reliance; filing a lawsuit; accept K in manner expressly invited by K. No changes once rights vest.
TP can sue promisor, subject to defenses against promisee. Creditor beneficiary TP can sue promisee on underlying debt.
Assignment of rights: Must be present, not future. Valid unless invalidated (not merely prohibited), or material alter duty or risk.
Revocate if oral and no consid, otherwise irrevocable. TP sue obligor, subject to . Obligor must perform to TP if knows assmt.
Original parties can mod K if obligor didn’t know of assmt & in good faith. Last gratuitous assmt wins; 1st for value wins.
Delegation of duties: Permitted unless K prohibits, personal judgment/skill, or change obligee’s obligations. Sue delegator or TP.
No duty unless consideration exists. If other party agrees, then it is a novation. Delgator = TP beneficiary
C I V I L P R O C E D U R EPersonal Jurisdiction: In personam, in rem (COA relates to property), or quasi in rem (incidental to property – use min contacts).
Statutory: Comply w/statute, present when served (personal, substituted, waived), consent, or domiciled in juris.
Consitutional due process: Min contacts (purposeful availment, reasonable anticipation); fairness (related, balance interests).
Forum non-conveniens: Dismiss if other forum is > convenient (balance pub & priv factors); no transfer b/c foreign jurisdiction.
SMJ: Determines federal vs state court; required for every claim.
Federal question: Federal statute plead in complaint.
Diversity: Btwn P’s & D’s when filed (domicile+intent); good faith allegation of damages >75k (aggregate D’s jointly liable).
Supplemental: Fed had discretion to hear claims from same T/O w/o fed ques or diversity. Pendent (by P), ancillary (anyone else).
Removal: D’s agree to remove state case to fed; venue in fed district embracing state court. Must have SMJ; 30 days aftr filing.
Venue: District where all D’s reside or where subst part of claim arose; or if none then any district where all D’s subject to PJ.
Domicile: Corporation resides where it is subject to PJ.
Transfer: Convenience; interests of justice. New court must have PJ. Use F2 law only if F1 improper; else use F1 law.
Erie Doctrine: Diversity cases fed courts apply state substantive law (subst determine outcome), but federal procedural rules on point.
Complaint: SMJ, notice of claim, demand for judgment.
Response: Rule 12 motion, or answer (admission, denial, lack of information, affirm defenses) w/in 20 days of complaint.
Counterclaim: Filed vs P with answer. Compulsory (same T/O), permissive (diff T/O). Supp. juris available for SMJ.
Cross-claims: Filed vs co-party, from same T/O as underlying suit. Not compulsory. Ancillary supp jurisdiction if needed.
Joinder of claims: Any claims even unrelated against O/P. Must have SMJ.
Amendment: Once before answer served; 20 day limit on both parties. Court will grant leave.
Relates back to date of orig pleading, even new D if D should have had notice, but for mistake, same T/C, w/in 120 days.
Rule 11: Atty says pleadings are not for improper purpose; warranted by law; evidentiary support. Notice to O/P; OSC sanctions.
Rule 12: More specific statement; strike immaterial alleg; lack of SMJ; failure to join indisp party; failure to state claim.
Waived if not plead first: PJ, venue, insufficient process.
Dismissal: Voluntary w/o prejudice before answer; w/prejudice second time.
Demurrer: Dismissal for failure to state a claim (no COA).
Summary judgment: No triable issue of material fact; entitled to judgment as matter of law. Denied if dispute of fact exists.
Default judgment: No response from D; amount of damages certain. D can set aside by showing good cause and viable defense.
Joinder: Permissive if same T/O & SMJ. Necessary parties must be; if not feasible, court must either proceed w/o or dismiss.
Class actions: Joinder impracticable b/c >P’s; common Q’s of law/fact; rep claim typical of class; rep will fairly & adequately
protect class interest. Type: Prejudice, injunction/declaratory, common ques. Only look at rep’s SMJ. Court ok settlemnt.
Intervention: TP wants to join as P or D if interests affected. Must have SMJ. But can’t be allowed to mess up diversity.
Impleader: Joinder of TP for indemnity or contribution w/in 10 days; P can then sue TPD and vice versa; must have SMJ.
Interpleader: Stakehldr brings clmnts into suit. Rule: SH must be diverse from all C’s; statutory: all C’s diverse; no SMJ/PJ req
Discovery: Depositions, interrogatories, requests to produce, physical/mental exam, request for admission. Duty to supplement.
Mandatory: ID of people w/info re facts; experts and reports; names of witnesses and documents.
Scope: Anything reasonably calculated to lead to admissible evidence. Not privileged matter.
Enforcement: Partial failure = motion to compel+costs. Violation of order or total failure = contempt, costs, fees, disallow
evidence, establish issue, strike pleadings, dismiss COA (bad faith), enter default judgment (bad faith).
Jury trial: Actions at law in 1791; not equity. If partially each, law/jury goes first.
Judgment as matter of law: Reasonable people could not disagree on results. Brought at close of P’s evid and close of all evid.
Judgment notwithstanding verdict: Same as above, but after jury verdict. Must have moved for above at end of all evidence.
Motion for new trial: Errors at trial (new evidence couldn’t be obtained before; misconduct of party/juror). Excessive verdict.
Final judgment rule: Final judgment required prior to appeal. Exceptions: Denial of motion for SJ or new trial; judge certifies;
pretrial orders involving temporary remedies, final judgment on collateral matters, interlocutory orders of great importance.
Res judicata: Same parties; same claim; final judgment on merits; prevents reassertion of claimant’s COA.
Collateral estoppel: Issues of fact actually litigated and essential to prior case judgment on merits. Asserted against party to prior
suit, by a party (mutual) or non-party (non-mutual).
C O R P O R A T I O N SOrganization & formation: Person, articles, filed w/SoS, organizational meeting.
Promoters: Liable until novation (not adoption), corp not liable until express or implied adoption. Liable for secret profits.
Articles: K btwn corp and SH, corp and state. Name (corp, co, inc, ltd), directors, purpose, capital structure.De facto: Good faith attempt to comply w/corp statute. Estoppel: TP dealing w/corp as corp can’t deny corp status and vice versa
Pierce corporate veil: Fraud, undercapitalization, alter ego
Ultra vires: Act outside of purpose specified in K (usually broad). SH can get injunction; person who caused act pers liable.
Capital stock structure
Authorized: Max # shares corp can issue; Issued: shares sold; Outstanding: sold and not reacquired.
Subscription agreements: Preincorporation irrevoc for 6 mos; postinc revocable until acceptance by BoD.
Consideration: Any except promissory notes & future servcs. Par=min issuance price/value; BoD/buyer liable for watered stock.
Redemptions and repurchases of stock
Controlling shareholder can sell at premium, but not to looters, can’t sell corporate office, can’t sell corporate asset.
Common law duty: Fraud. Nondisclosure of inside facts that reasonable person would consider important.
10b5: Interstate commerce, act of misrepresentation (intentional act/omission by someone w/duty); connection w/purchase or sale
Tipper/tippee: Must have scienter. Damages = price diff before/after news goes public.
Misappropriation of information also available.
§16b: Large corp (500 SH/$10M); D is officer/director/10% SH; purchase and sale w/in 6 mos period (high-low)
Shareholders: Liability limited to price of stock, unless corporate veil is pierced. Management only if close corp.
Piercing corporate veil: Abuse corp privilege by fraud. Alter ego-ignore formalities, commingling; undercapitalize @ formation.
Meetings: 100% written consent to no meeting vote; annual meeting required; special meeting called by BoD or 10% SH. Notice.Proxies: Written, signed, 11 month expiration unless says otherwise, revoke unless coupled w/interest
Action: Quorum of outstanding shares necessary (maj>1/3), majority of quorum wins, cumulative voting for directors only.
Agreements: Pooling agreements; voting trust if on file (10 yr expire); stock transfer restriction agreements if reasonable
Preemptive rights: Only applicable for new stock sold for cash. Holder has right to buy more to keep proportion of ownership.
Dividends: No right unless abuse; irrevocable once declared unless insolvent; payable out of earned surplus, not stated capital.
Inspect: Records, books, etc. for proper purpose, requires prior written demand.
Derivative suits: Shareholder at time of suit; prior demand to directors unless futile (ends at good faith ‘no’); recovery to corp.
Transfer restrictions: Corp can retain right of first refusal, if reasonable. BFP protected.
Directors: Need 1+; elected at annual meeting by SH (whole/staggered); removed w/o cause by majority outstanding shares.
Action: Meeting unless all consent; quorum; majority of quorum wins; voting agreement/proxies not allowed.
Vacancy: Fill by vote of other directors or shareholders
Indemnification: Reimbursement if D/O succeeds on merits; no reimb if found liable.
Duty of care: Act as prudent person would w/respect to own business affairs. Causation required for damages for loss.
Business judgment rule: Defense for misfeasance if decision made in good faith, reasonably informed, rational basis.
Duty of loyalty: Act in corp’s best interest. No insider trading; self-dealing; corporate opportunity; compete.
Self-dealing ok if fair, or approval after full disclosure by vote of disinterested directors or shares. Remedy recision/damages.
Corporate opportunity: D can’t take advantage of oppty corp would reasonably be interested in, unless disclosure.
Remedies are damages, constructive trust, oppt’y at cost.
Competing ventures: Remedies are damages and injunctive relief, constructive trust.
Officers: Selected and removed by directors, at will (but damages for breach of employment K). Duties same as directors.
Agents of corp: Bind by acts within authority. Actual: BoD approves; apparent: corp holds O out; or inherent to office.
Fundamental corporate changes: Merger/consolidation (not subsidiary), sale of assets, amend articles, dissolution/liquidation.
Requires: Board resolution; notice to SH; approval by maj of outstanding shares; articles filed w/state.
Dissenting shares have appraisal rights for merger and sale, unless public co:
Written obj before meeting; vote against or abstain; file written claim.
Merger/consolidiaton corp succeeds to prior liabilities; buyer of a corp doesn’t succeed to smaller unless continuation of smaller.
PROFESSIONAL RESPONSIBILITY“The lawyer owes a duty of ___ to ___.” Examine duties to each possible person, and conflicts. Discuss what L should have done.
Duty: Can’t use or reveal anything related to rep w/o consent. Continues indefinitely.
Privilege: Limit on gvmt ability to compel atty by subpoena/contempt to disclose confidential communication.
Corporate clt: EE talk w/lawyer at direction of super; for legal advice for corporation; topic w/in scope of employment.
Exceptions: Consent, conservatorship of clt (ABA only/not CA); crime/fraud, prevent death or subst body injury; defending self.
Loyalty: Imputed to entire firm/organization; remedy by blocking off related contact between conflicting atty and other lawyers.
Potential conflicts: No representation unless reasonable belief atty can represent client. Notice & written consent.
Actual conflicts: Must withdrawal.
Business w/clt if: Fair terms; fully discl in understandable writing; written advice to consult w/TP atty; clt consents in writing.
Interest in subject of litigation: No per ABA; CA requires disclosure. N/A to liens for fees or contingency fee.
Publication rights: ABA: None until case ends. CA: OK with notice and consent.
Loans: ABA: Prohibited except costs. CA: OK for costs, or with promissory note.
Gifts: Can’t draft legal instrument for non-relative if provides substantial gift to you or close relative.
Limiting malpractice: Can’t. No settlement of malpractice claim w/o written advice to clt to consult TP attorney.
Relationship w/OC: Conflict if OC is close family or boyfriend/girlfriend. Reasonable consent ok. Not imputed to firm.
Trial counsel witness: Only if mere formality, re: services, undue hardship for w/d, written consent of clt (CA), or only to judge.
Fee must be reasonable (CA: Not unconscionably high) – evaluate knowledge, experience, difficulty, time, sophistication.
Fee K: In writing, how fee calculated, what services/duties covered. Not needed if <$1k, regular client, or emergency.
Contingent fee K: Must include expenses to be deducted from recovery; % taken before or after expenses. CA: “% negotiable”
Fee split w/lawyers: Ok if in firm. External ABA: Total reasonable, consent, % to work done; no ref. fee. CA: Not
unconscionable, written disclosure/consent, no % requirement so ref. fee ok.
Trust account: Keep all property separate from own and identified; interest to state bar. Keep good records.
Competence: Act w/legal knowledge, skill, thoroughness and preparation reasonably necessary.
Violated by accepting a case atty can’t handle.
Criminal/fraudulent conduct: Can discuss, not recommend. Good faith challenge ok. Must w/d if use services for crime/fraud.
Malpractice: Civil liability based on intentional tort (fraud/misrep), breach of fiduciary duties, or breach of K.
Dilligence: Duty to act diligently, promptly, and zealously to pursue the case to completion. Use all lawful/ethical steps.
Communicate: Keep client informed; convey all crim offers and all significant oral or all written civil offers.
Withdrawal: Timely notice, return unspent $, return all papers and property even if bill not paid.
Mandatory: Rep would violate law or ethical rule.
Permissive w/d: $ burden, acts against judgment, illegal acts, refuses to cooperate. Ct may not allow if undue delay or disruption.
State law truthfully: Knowing false statements = discipline. Cite adverse controlling authority on point if O/C hasn’t.
No frivolous claims or defenses.
State evidence truthfully:
Clt perjury: Instruct to tell truth; attempt withdrawal; ABA says tell judge, CA says use narrative and don’t reference testimony.
If you learn past testimony is perjury, tell clt to recant. Can’t tell W to lie or be unavailable. Can’t put W perjury on stand.
Produce evidence: Can’t knowingly withhold or tamper w/phys evid. Must turn over contraband after inspection, incl drug cash.
Preserve decorum of tribunal: Expedite cases, no delays for personal gain, follow procedural rules, preserve juror impartiality
Uphold the law: May disclose intent to commit death/serious bodily harm. Wld if clt using services to commit crime/fraud.
Deal fairly w/others: No false statements of fact, embarrassing or burdening others, communic w/rep person/corp emp, threats.
Dealing w/press: Avoid statements w/substantial likelihood of material prejudice to case. Except public record, replies to attacks.
Duty of prosecutor: To seek justice. Must have probable cause, protect D’s constitutional rights, disclose exculpatory evidence.
Restrictions on advertising ok w/reg which directly advances a substantial gvmt interest, narrowly tailored.
Solicitation: Individual contact on phone or in person w/layperson initiated by lawyer enticing him to hire you for pecuniary gain
R E M E D I E STort Analysis
1. Legal Remedies
Money: Compensate P to return to pre-tort condition. Causation, foreseeabe , certain (not speculative), unavoidable (mitigation)
Nominal: Nominal amount of money available when no actual damages can be proved.
Punitive: Punish willful, wanton or malicious conduct; and deter.
Some proportionality between actual/nominal damages to punitive. D’s wealth is a factor.Restitution: Prevent unjust enrichment of D, even if no injury to P.
Money: Based on value of benefit to D. Can’t get both restitution and compensatory damages – evaluate both and elect.
Replevin: Recovery of specific personal property. Prelim hearing; P must post bond; D can defeat w/bond.
Ejectment: Remove trespassing D from land – recover specific real property. Coupled w/damages for loss of use.
Duty to reasonably mitigate
2. Equitable Remedies
Defenses: Laches (time); unclean hands; freedom of speech; criminal act; undue hardship.Restitution: Use if legal restitution inadequate if D can keep property by posting bond, or if sheriff can’t find property.
If property goes up in value, use constructive trust. If decreases in value, use equitable lien.
Constructive trust: Court-imposed obligation on D to convey specific property which D has title to P. $ must be traceable.
Equitable lien: Court-imposed security interest in specific property owned by D. Deficiency judgment ok. BFP wins.
Injunction: Negative (refrain from doing something) or mandatory order. Punishment is contempt.
Breach; inadequate legal remedies; property right (ML: personal right ok); feasible (not too much supervision);
balancing of hardships (esp. nuisance); defenses.
Money inadequate if: Too small or unavailable; damages speculative; multiplicity of suits; irreparable injury.Contract Analysis
1. Legal Remedies
Expectation: Benefit P expected to get out of the K.
K not yet started: K price – cost of performance (lost profits)
Partially performed: K price – costs saved (promisee’s breach), or cost of completion – payments due (promisor’s breach)
Fully performed: K price
Defect: Diminution in value or cost of repairs
Consequential: Special damages in addition to expectation. Must be foreseeable at time K was entered into.
Liquidated: Specified in K. Actual $ must be difficult to calculate, $ must be reasonable approximation. No penalty.
Restitution (quasi-K or quantum meruit; unenforceable K). Available even to D (breaching party).
Money: Value of benefit unjustly retained by D when K is void or unenforceable, or P chooses not to sue in K.
Replevin: Recovery of specific personal property, if it is unique or D is insolvent.
Ejectment: Remove trespassing D from land – recover specific real property. Coupled w/damages for loss of use.
Duty to reasonably mitigate
2. Equitable Remedies
Defenses: Laches (time); unclean hands; freedom of speech; criminal act; undue hardship.Restitution: Use if legal restitution is inadequate if D can keep property by posting bond, or if sheriff can’t find property.
If property goes up in value, use constructive trust. If decreases in value, use equitable lien.
Constructive trust: Court-imposed obligation on D to convey specific property which D has title to P. $ must be traceable
Equitable lien: Court-imposed security interest in specific property owned by D. Deficiency judgment ok. BFP wins.
Injunction: Negative (refrain from doing something) or mandatory order or decree (K). Punishment is contempt.
Breach; inadequate legal remedies; property right (ML: personal right ok); feasible (not too much supervision);
balancing of hardships (esp. nuisance); defenses.
Money inadequate if: Too small or unavailable; damages speculative; multiplicity of suits; irreparable injury.No specific performance to perform personal services K, but available to enjoin from doing other work (covenant not to
compete) if legitimate interest and reasonable in duration and geography.Rescission: K is void, and deal is called off. Used with misrepresentation and mutual or should-have-known mistake.
Reformation: K is valid, but written form is wrong. K is rewritten correctly and enforced. Mistake of material fact; unilateral
mistake; no mutual assent.
T R U S T SValidity
Requirements: Settlor, trustee, beneficiary, intent, property, legitimate purpose
Corpus: Property must be delivered to trustee (funding), and be a present interest (not future).
Intent: That trustee take control of present property must be manifested in language, otherwise may be gift.
Lawful purpose: And not against public policy. Unlawful cond subsequent stricken; unlawful cond precedent invalidates trust.
Inter vivos: Created during life of settlor for benefit of TP; either express or implied. Settlor or TP may be trustee.
Testamentary: Created in will
Totten: Bank account with beneficiary named. Avoids probate.
Secret: No mention of trust in will; constructive trust imposed in favor of beneficiary by extrinsic evidence.
Semi-secret: Trustee in will, but not beneficiaries. Constructive trust created by extrinsic evidence, or resulting trust to settlor.
Spendthrift: Restraint on alienation of res. No creditors except necessaries, taxes, child support; N/A for settlor’s benefit.
Charitable: Benefits society, not settlor. RAP n/a. Cy Pres: Original purpose fails, so change beneficiary to similar goal.
Honorary: Trust for pet. Limited to 21 years; upheld so long as trustee willing.
Resulting: Equitable remedy to pass trust to settlor when trust fails.
Constructive: Equitable remedy to avoid unjust enrichment of TP. Trustee must convey property and give up profits.
Discretionary: Trustee has discretion to pay out; creditors attach only if trustee elects distribution; must provide for B’s support.
Support: Trustee must pay out enough to sustain B’s support at level accustomed to.
Settlor: Has title to property, divides legal title to trust; equitable title to beneficiary.
Trustee: Must be named, or court will designate for testamentary trust. Must be a competent person. Fiduciary relationship w/B.
Implied powers: Broad; borrow $, buy property. Personally liable for K and torts, indemnified if not at fault & w/in powers.
Duty of care, skill, prudence: No delegation of discretionary powers (ministerial k). Removal by court for breech of duties.
Duty of loyalty: Provide accounting, follow instructions, no self dealing, segregate assets from personal property
Prudent investor rule: Must invest for prudent preservation of capital; reasonable return. Liable for imprudent losses. Diversity.
Defenses: Laches, SOL. BFP’s protected.
Beneficiaries: RAP applies; definite & ascertainable (class ok). If also trustee, merger and trust evaporates.
Powers (alienation): Interests are alienable unless spendthrift clause.
Expenses: Ordinary paid from income; extraordinary paid from corpus. Dividends to income; cap gains and profits to corpus.
Modification and termination
By settlor: OK if revocable. Court can modify as necessary to achieve goals.
Beneficiary: Terminate if all B’s agree, unless trust prevents (spendthrift or age limit, unless court overrides).
Dependent Relative Revocation: Revocation of trust reversed if subsequent related transfer fails.
W I L L SValidity
Formalities: Writing, signed, signature or authentication in presence of two witnesses, who know it’s T’s will.
Holographic: Gift, beneficiary and signature in T’s handwriting (some require intent and dates in handwriting too).
Interested W: Rebuttable presump that W takes less of bequest or intestate, unless 2 oth W’s. No $ if actual duress/fraud.
Capacity: 18 yrs old; understand extent of property; know who children are; understand nature of testamentary act
Insane delusion: False belief, product of sick mind, no evidence supporting T’sbelief, affects disposition. Invalidates will.
Undue influence: Susceptible T, wrongdoer’s active participation, wrongdoer benefits, unnatural result. Presumption vs D.
Fraud: In execution (forgery – will invalid), or inducement (material fact, affects disposition, invalidates that part).
Mistake: Accid omission SOL, accid inclusion stricken out; signing wrong document not probated unless reciprocal wills.
Ambiguity: Extrinsic evidence admissible to clarify.
Choice of law: Probate in CA if valid in CA, laws of state where executed, or laws of state where T domiciled while written.
K to make/not make will: SOF applies; no breach until one party dies. Remedies: Sp. perf; breach of K; constructive trust.
Codicils: In writing, signed. Republishes will (solves pretermitted child prob); cumulative to will, not a substitute unless intent.
Integration: Referenced document is physically present with will.
Incorporation by reference: Writing, in existence when will published, clearly identified in will, with intent to incorporate.
Independent legal signif: Identity of B (member of a class) can be explained by extrinsic evidence which has an indep purpose.
Physical act: Slight burning; tearing; canceling; destroying; coupled with simultaneous intent to revoke.
Interlineation: Not valid unless meets req for will (i.e. holographic). DRR will revive what’s crossed out if replacement fails.
Instrument: Express or implied, i.e. “revoke prior wills” clause in subsequent will.
Dependent relative revocation: Revocation followed by new disposition which fails – revocation reversed b/c dependent intent.
Codicil: Revoking codicil doesn’t revoke will; revoking will revokes codicil, unless T didn’t intent.
Surviving spouse: If T gives away SS’s ½ CP/QCP, SS must elect between her CP or express devise in will.
Waiver of CP by signed writing: discl of $; knew finances; settlement that is fair; or gifts automatically revoked by dissolution.
Pretermission: Spouse/child after will written (omitted) gets full intestate sh (+CP/QCP). Incl child T mistakenly thought dead.
Takes unless: Intent to disinherit in will (not extrinsic); provided for outside will; leaves property to surviving parent of child;
or treated same as all other children. Codicil republishes will and takes care of child.
Unworthy heir: Feloniously & intentionally kill T; convicted or proven in probate ct by preponderance. No anti-lapse–kids SOL.
Charity: No limits. Not even a pretermitted child can take against a charity.
Gifts: Specific (unique), general (cash), demonstrative (specifically described cash/investment), residuary.
Abatement: Gifts are pro rata reduced to satisfy claim of omitted heir/debts. Residuary, general, then specific; N/A unique item.
Ademption: If specific bequest no longer exists, B is SOL. If general bequest, B takes similar property. Argue for general.
Advancement (satisfaction): Inter vivos gift of devise. Reduces inheritance only if contemporaneous writing by T or ack by B.
Exoneration: When a house subject to mortgage is devised, the mortgage is paid off from estate cash. N/A in CA.
Lapse/Anti-lapse: Dead people named in will can’t inherit unless anti-lapse statute allows them to (then only blood relative).
Pour-over: Incorporates existing trust by reference, independent legal significance if properly funded, or uniform act.
Simultaneous death: Presumption that T outlived B, so lapse applies. For intestacy, B must outlive T by 120 hours.
Consanguity: Issue; parents and their issue; grandp’s and their issue; issue of predeceased spouse; next of kin; state.
Surviving spouse: 100% CP/QCP. SP: 100% if no issue; 50% if one child/grandchild/parent/sibling; 33% > 1 child/grandchild.
1. Go to first generation where someone outlived D.
2. At that generation, each living member, and each dead member who has living issue, receives equal portions of the estate.
3. For dead member w/living issue, his portion is distributed through his estate, divided equally among surviving issue.