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Feb. 2012 Bar Exam

CRIM - ELEMENTS OF ATTEMPT (i) specific intent to commit the crime; (ii) overt act in furtherance of that intent (beyond mere preparation)
CRIM - DEFENSES TO LIABILITY FOR ATTEMPT a. impossibility of success (legal impossibility is always a defense; factual impossibility is no defense) b. abandonment not a defense if the defendant has gone beyond preparation
CRIM - M'NAGHTEN RULE Defendant entitled to acquittal if proof establishes: a) disease of the mind b) caused a defect of reason c) such that defendant lacked ability at time his actions to either: 1) know the wrongfulness of his actions; or 2) understand nature & quality
CRIM - IRRESISTIBLE IMPULSE TEST defendant entitled to acquittal if he was unable to control his actions or to conform his conduct to the law
CRIM - DURHAM (NEW HAMPSHIRE) TEST defendant entitled to acquittal if his crime was "the product of mental disease or defect"
CRIM - A.L.I./MPC TEST defendant entitled to acquittal if the proof shows that he suffered from a mental disease or defect and as a result lacked substantial capacity to either: (i) appreciate the criminality of his conduct; or (ii) conform his conduct to the req. of the law
CRIM - BURDENS OF PERSUASION FOR INSANITY DEFENSE some jurisdictions - prosecution must prove sanity beyond a reasonable doubt some jurisdictions - defense must prove insanity by preponderance federal courts - defense must prove insanity by clear and convincing evidence
CRIM - DEFINITION OF INCOMPETENCY TO STAND TRIAL defendant is unable to: (i) understand the nature of the proceedings brought against him; or (ii) assist his lawyer in the preparation of his defense
CRIM - VOLUNTARY INTOXICATION a. defense to specific intent crimes b. no defense to crimes requiring malice or recklessness, or negligence, or crimes of strict liability c. defense to first degree murder, not second degree
CRIM - INVOLUNTARY INTOXICATION (i) without knowledge of nature; (ii) under direct duress imposed by another; or (iii) pursuant to medical advice while unaware of intoxicating effect may be treated as mental illness (so defendant entitled to acquittal if meets test for insanity)
CRIM - INFANCY (COMMON LAW) a. under 7 - no criminal liability b. under 14 - rebuttable presumption of no criminal liability (except conclusively presumed incapable of committing rape) c. over 14 - adult
CRIM - INFANCY (MODERN STATUTES) a. some have abolished presumptions b. juvenile delinquency laws
CRIM - SELF DEFENSE (NONDEADLY FORCE) individual without fault may use such force as reasonably appears necessary to protect herself from the imminent use of unlawful force upon her no duty to retreat
CRIM - SELF DEFENSE (DEADLY FORCE) may use deadly force if (i) without fault; (ii) confronted with unlawful force; and (iii) reasonably believes that she is threatened with imminent death or great bodily harm majority rule - no duty to retreat minority rule - no duty if cannot do sa
CRIM - RIGHT OF AGGRESSOR TO USE SELF DEFENSE 1) withdrawal has been attempted and communicated 2) other party suddenly escalates minor fight into major one
CRIM - DEFENSE OF OTHERS a. majority say no special relationship needed; minority say must be family or work relationship b. if person aided had no actual right to self defense, majority still say defense of that person ok because of reasonable appearance of right to use force
CRIM - DEFENSE OF DWELLING a. nondeadly force allowed if reasonable belief that such conduct necessary to terminate another's unlawful entry or attack b. deadly force allowed when: 1) tumultuous entry plus personal danger 2) felony
CRIM - DEFENSE OF OTHER PROPERTY a. nondeadly force allowed to prevent unlawful interference (entry, trespass, removal, damage) b. deadly force may not be used
CRIM - CRIME PREVENTION a. nondeadly force permitted to extent it reasonably appears necessary to prevent a felony, riot, or other serious breach of peace (any crime in CA) b. deadly force only allowed if preventing dangerous felony involving risk to human life
CRIM - USE OF FORCE TO EFFECTUATE ARREST a. by police officer - deadly force allowed only when felon threatens death or serious bodily harm b. private person - nondeadly if reasonable grounds to believe guilt; deadly allowed ONLY IF injured person was actually guilty
CRIM - DEFENSE OF DURESS person not guilty of an offense (other than homicide) if he performs an otherwise criminal act under the threat of imminent infliction of death or great bodily harm (or to a family member) excusable, not justifiable
CRIM - DEFENSES - MISTAKE OF FACT a. mistake must negate state of mind b. mistake must be reasonable for crimes that involve malice and general intent crimes; no reasonableness required for specific intent crimes c. mistake is no defense to strict liability crimes
CRIM - DEFENSES - MISTAKE OF LAW a. general rule - no defense b. may negate intent c. exceptions 1) statute not reasonably available 2) reasonable reliance on judicial decision 3) reasonable reliance on official interpretation or advice (not private counsel)
CRIM - DEFENSES - CONSENT a. may negate element of offense b. requirements of consent as defense: 1) freely given 2) legally capable of being given 3) no fraud
CRIM - DEFENSES - ENTRAPMENT elements: 1) criminal design must have originated with law enforcement 2) defendant must not have been predisposed to commit the crime prior to government interference not applicable to private citizens unavailable if offense denied
CRIM - BATTERY unlawful application of force to another resulting in bodily injury or offensive touching a. intent not required b. indirect application sufficient c. aggravated - 1) deadly weapon; 2) serious bodily injury; 3) victim is child, woman, or officer
CRIM - ASSAULT (i) an attempt to commit a battery; or (ii) the intentional creation - other than mere words - of a reasonable apprehension in the mind of the victim aggravated - 1) with a dangerous or deadly weapon; 2) with intent to rape, maim, or murder
CRIM - HOMICIDE (COMMON LAW) a. justifiable homicides (commanded or authorized by law) b. excusable homicides (defense to criminal liability) c. criminal homicides
CRIM - COMMON LAW CRIMINAL HOMICIDES a. Murder - unlawful killing of another human being with malice aforethought
CRIM - "MALICE AFORETHOUGHT" (i) intent to kill; (ii) intent to inflict great bodily harm; (iii) reckless indifference to an unjustifiably high risk to human life ("abandoned and malignant heart"); (iv) intent to commit a felony
CRIM - DEADLY WEAPON RULE use of a deadly weapon authorized a permissive inference of intent to kill
CRIM - "VOLUNTARY MANSLAUGHTER" killing that would otherwise be murder but is distinguishable from murder by the existence of "adequate provocation" -- killing in the heat of passion
CRIM - "ADEQUATE PROVOCATION" (COMMON LAW) a) provocation arouses "sudden and intense passion" b) defendant in fact provoked c) must not have been sufficient time to cool d) defendant in fact did not cool most frequently recognized in cases of serious battery, deadly force, or seeing adulter
CRIM - INVOLUNTARY MANSLAUGHTER 1) criminal negligence - greater deviation from the "reasonable person" standard than for civil liability 2) unlawful act manslaughter - "misdemeanor manslaughter rule" (killing during misdemeanor = manslaughter) and felonies not included in felony murde
CRIM - HOMICIDE CLASSIFICATIONS (MODERN) all murders 2nd degree unless grounds for 1st: a) deliberate and premeditated b) 1st degree felony murder - stated by statute (if not stated, then 2nd degree felony murder)
CRIM - FELONY MURDER - must convict of underlying felony - felony must be independent of killing - death must be foreseeable (but courts are likely to find this) - must be DURING the commission of the felony - killing of co-felon not basis for felony murder
CRIM - CAUSATION a. must be cause-in-fact AND proximate cause b. year-and-a-day rule @ common law c. intervening acts: 1) act of nature - insulates liability 2) act of 3rd party - depends on foreseeability (medical negligence) 3) acts by victim (depends on foreseeabi
CRIM - FALSE IMPRISONMENT (COMMON LAW) (i) unlawful (ii) confining of a person (iii) without his valid consent
CRIM - KIDNAPPING (COMMON LAW) forcible abduction or stealing away of a person from his own country and sending him to another
CRIM - KIDNAPPING (MODERN) confinement of a person that involves (a) asportation ("carrying away"); (b) concealment
CRIM - AGGRAVATED KIDNAPPING a. kidnapping for ransom b. kidnapping for commission of other crimes c. kidnapping for offensive purpose (sex) d. child stealing
CRIM - RAPE (COMMON LAW) unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent (modern statutes gender-neutral)
CRIM - RAPE (LACK OF EFFECTIVE CONSENT) a. intercourse accomplished by force b. intercourse accomplished by threats c. woman incapable of consenting d. consent obtained by fraud
CRIM - STATUTORY RAPE 1. carnal knowledge of a person under the age of consent 2. mistake as to age typically not a defense because strict liability
CRIM - ADULTERY (MODERN) any person who cohabits or has sexual intercourse with another not his spouse if: a. open and notorious b. person is married and sexual partner is not spouse c. person is not married but knows the other is
CRIM - FORNICATION (MODERN) sexual intercourse between or open and notorious cohabitation by unmarried couples
CRIM - INCEST marriage or sexual act between persons who are too closely related
CRIM - SEDUCTION male person induces an unmarried female of previously chaste character to engage in an act of intercourse on promise of marriage
CRIM - BIGAMY strict liability - marrying someone while having another living spouse
CRIM - LARCENY (COMMON LAW ELEMENTS) (i) a taking (ii) and carrying away (iii) of tangible personal property (iv) of another (v) by trespass (vi) with intent to permanently deprive the person of the interest in the property
CRIM - "LARCENY BY TRICK" victim consents to defendant's taking possession but this consent has been induced by a misrepresentation
CRIM - EMBEZZLEMENT (ELEMENTS) (i) the fraudulent (ii) conversion (iii) of property (iv) of another (v) by a person in lawful possession of that property
CRIM - FALSE PRETENSES (ELEMENTS) (i) obtaining title (ii) to the property of another (iii) by an intentional false statement of past or existing fact (iv) with intent to defraud the other
CRIM - ROBBERY (ELEMENTS) (i) a taking (ii) of personal property of another (iii) from the other's person or presence (iv) by force or intimidation (v) with the intent to permanently deprive him of it
CRIM - EXTORTION (COMMON LAW ELEMENTS) the corrupt collection of an unlawful fee by an officer under color of his office
CRIM - EXTORTION (MODERN BLACKMAIL) obtaining property from another by means of certain oral or written threats
CRIM - RECEIPT OF STOLEN PROPERTY (ELEMENTS) (i) receiving possession and control (ii) of "stolen" personal property (iii) known to have been obtained in a manner constituting a criminal offense (iv) by another person (v) with intent to permanently deprive owner of interest
CRIM - FORGERY (COMMON LAW ELEMENTS) a. making or altering b. of a false writing c. with intent to defraud
CRIM - UTTERING A FORGED INSTRUMENT (COMMON LAW ELEMENTS) a. offering as genuine b. an instrument that may be the subject of forgery and is false c. with intent to defraud
CRIM - MALICIOUS MISCHIEF (COMMON LAW ELEMENTS) (i) malicious (ii) destruction of or damage to (iii) property of another
CRIM - BURGLARY (COMMON LAW ELEMENTS) i. a breaking ii. and entry iii. of the dwelling iv. of another v. at nighttime vi. with the intent of committing a felony therein
CRIM - ARSON (COMMON LAW ELEMENTS) i. the malicious ii. burning iii. of the dwelling iv. of another
CRIM - HOUSEBURNING (COMMON LAW ELEMENTS) i. malicious ii. burning iii. of one's own dwelling iv. if the structure is situated either a. in a city or town; or b. so near to other houses as to create danger to them
CRIM - PERJURY (COMMON LAW ELEMENTS) willful and corrupt taking of a false oath in regard to a material matter in a proceeding
CRIM - BRIBERY (COMMON LAW ELEMENTS) corrupt payment or receipt of anything of value in return for official action
CRIM - COMPOUNDING A CRIME (COMMON LAW ELEMENTS) entering into an agreement for valuable consideration to not prosecute another for a felony or to conceal the commission of a felony or whereabouts of a felon
CRIMPRO - CONSTITUTIONAL REQ. BINDING ON STATES - 4TH 4th - prohibition against unreasonable searches and seizures
CRIMPRO - CONSTITUTIONAL REQ. BINDING ON STATES - 5TH 5th - privilege against self incrimination 5th - prohibition against double jeopardy
CRIMPRO - CONSTITUTIONAL REQ. BINDING ON STATES - 6TH 6th - speedy trial 6th - public trial 6th - trial by jury 6th - confront witnesses 6th - compulsory process for obtaining witnesses 6th - assistance of counsel
CRIMPRO - CONSTITUTIONAL REQ. BINDING ON STATES - 8TH 8th - prohibition against cruel and unusual punishment
CRIMPRO - CONSTITUTIONAL REQ. NOT BINDING ON STATES right to indictment by a grand jury for capital and infamous crimes; prohibition against excessive bail
CRIMPRO - FRUIT OF POISONOUS TREE - EXCEPTIONS independent source; intervening act of free will; inevitable discovery; live witness testimony; in-court identification
CRIMPRO - LIMITATIONS ON EXCLUSIONARY RULE inapplicable to grand juries; inapplicable to civil proceedings; inapplicable to violations of state law; inapplicable to internal agency rules; inapplicable in parole revocation; good faith exception; impeachment; knock-and-announce rule violations
CRIMPRO - HARMLESS ERROR TEST conviction can be upheld if prosecution can show that the conviction would have resulted despite the harmless error beyond a reasonable doubt
CRIMPRO - SEIZURE OF THE PERSON when a reasonable person would believe that she is not free to leave (physical force or submission to the officer's show of force)
CRIMPRO - ARREST police take a person into custody against her will for purposes of criminal prosecution or interrogation; requires probably cause; warrant generally not required in public place; reasonable grounds for felony or misdemeanor in presence;
CRIMPRO - INVESTIGATORY DETENTION must have reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime (totality of circumstances)
CRIMPRO - AUTOMOBILE STOPS reasonable suspicion; if no individual suspicion, must be a neutral articulable standard and must be designed to serve purposes closely related to a particular problem pertaining to automobiles (i.e. drunk driving)
CRIMPRO - PRETEXTUAL AUTOMOBILE STOPS ok if stop not beyond the time necessary to issue a ticket and conduct ordinary inquiries incident to such a stop
CRIMPRO - DETENTION TO OBTAIN WARRANT ok if necessary to prevent destruction of evidence
CRIMPRO - STATION HOUSE DETENTION requires full probable cause
CRIMPRO - LEGITIMATE EXPECTATIONS OF PRIVACY owned or had a right to possession; place searched was in fact her home; overnight guest
CRIMPRO - "OPEN FIELDS DOCTRINE" area outside the "curtilage" (dwelling house and outbuildings) are subject to police entry and search
CRIMPRO - REQUIREMENTS OF A WARRANT 1) issued by a neutral and detached magistrate; 2) based on probable cause; 3) particularly describe the place to be searched and the items to be seized
CRIMPRO - 3 REQUIREMENTS TO INVALIDATE A SEARCH WARRANT 1) false statement; 2) affiant intentionally or recklessly included false statement; 3) statement material to finding of probable cause (must prove all 3)
CRIMPRO - EXECUTION OF SEARCH WARRANT 1) must be by police (no 3rd parties unless used to identify); 2) no unreasonable delay; 3) announcement required; 4) seizure of unspecified property ok if fruits or instrumentalities; 5) cannot search persons not named in warrant; 6) may detain occupants
CRIMPRO - 6 EXCEPTIONS TO WARRANT REQUIREMENT 1) search incident to lawful arrest; 2) automobiles if probable cause; 3) plain view; 4) consent; 5) stop and frisk; 6) hot pursuit/emergency
CRIMPRO - WIRETAPING REQUIREMENTS 1) probable cause of specific crime; 2) suspected persons must be named; 3) describe with particularity the conversations; 4) short period of time; 5) provisions for termination; 6) return to court
CRIMPRO - 6TH AMENDMENT RIGHT TO COUNSEL violated when police deliberately elicit an incriminating statement from a defendant without first obtaining a waiver of defendant's right to counsel; limited to cases where adversarial judicial proceedings have been filed
CRIMPRO - MIRANDA WARNINGS (i) right to remain silent; (ii) anything you say can and will be used against you in court; (iii) right to presence of an attorney; (iv) if he cannot afford one, one will be appointed if he so desires
CRIMPRO - DUE PROCESS STANDARD FOR PRETRIAL IDENTIFICATION invalid if (i) unnecessarily suggestive; and (ii) strong likelihood of misidentification
CRIMPRO - "GERSTEIN" HEARINGS informal, ex parte, nonadversarial hearing to determine if probable cause exists to warrant detention; right applies if significant pretrial constraints on the defendant's liberty exist
CRIMPRO - WHEN RIGHT TO SPEEDY TRIAL VIOLATED consider: (i) length of the delay; (ii) reason for the delay; (iii) whether the defendant asserted his right; (iv) prejudice to the defendant
CRIMPRO - REVERSE CONVICTION FOR FAILURE TO TURN OVER EXCULPATORY EVIDENCE if (i) evidence is favorable to the defendant because it impeaches or is exculpatory; and (ii) prejudice has resulted (or a reasonable probability that it has)
CRIMPRO - INCOMPETENT TO STAND TRIAL STANDARD (i) lacks an understanding of the charges and proceedings; (ii) lacks sufficient ability to consult with lawyer
CRIMPRO - RIGHT TO JURY TRIAL - SERIOUS OFFENSES offenses that warrant imprisonment for more than six months
CRIMPRO - NUMBER OF JURORS no right to jury of 12, but must have at least 6
CRIMPRO - NO ABSOLUTE RIGHT TO UNANIMITY anything higher than 8-4 can be upheld; jury of 6 must be unanimous
CRIMPRO - PEREMPTORY STRIKES may be for any rational or irrational reason, but cannot be based on race or gender alone
CRIMPRO - 6TH AMENDMENT RIGHT TO CONFRONT WITNESSES (i) right to observe demeanor; (ii) right to cross-examine
CRIMPRO - WHEN IS PRIOR TESTIMONIAL EVIDENCE ADMISSIBLE? (i) declarant is unavailable; and (ii) defendant had opportunity to cross-examine declarant at time statement was made
CRIMPRO - TAKING A GUILTY PLEA must be "voluntary and intelligent;" must be on the record; defendant must understand (i) nature of charge; (ii) maximum penalty and mandatory minimum; (iii) right to plead not guilty and trial;
CRIMPRO - PROCEDURAL RIGHTS TO SENTENCING AND PUNISHMENT 1. right to counsel; 2. right to confrontation and cross-examination
CRIMPRO - CRUEL AND UNUSUAL PUNISHMENT a. punishment grossly disproportionate (but no right to compare to previous); b. death penalty for murder if judge has discretion; c. no death penalty for rape; no death penalty for felony murder where accomplice did not intend death (but ok if reck. indi
CRIMPRO - EXECUTION OF MINORS under 18 at time of crime = cruel and unusual
CRIMPRO - HABEAS CORPUS PROCEEDING indigent has no right to counsel to perfect petition; must be "in custody;" burden = preponderance; state may appeal
CRIMPRO - WHEN JEOPARDY ATTACHES jury trial - empaneling and swearing of jury; bench trials - first witness sworn; juvenile - commencement; not in civil proceedings
CRIMPRO - WHEN CAN STATE RETRY AFTER SUCCESSFUL APPEAL OF CONVICTION? only if reversal was not based on insufficient evidence to support guilty verdict
PROP - NONPOSSESSORY INTERESTS IN LAND easements, profits, covenants, and servitudes
PROP - FEE SIMPLE ABSOLUTE full possessory rights now and in the future (common law requirement of "heirs" language abolished)
PROP - FEE SIMPLE DETERMINABLE automatically terminates on the happening of a certain event and goes back to grantor
PROP - POSSIBILITY OF REVERTER land goes back to grantor upon happening of condition; need not be expressly stated
PROP - EXECUTORY INTEREST land goes to 3rd party upon happening of a condition (as opposed to grantor in a reverter situation)
PROP - FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT continues until the grantor exercises her power of termination (right of entry) by bringing suit or making reentry (must be expressly reserved) (grantor may later waive) (inaction not necessarily waiver, unless detrimental reliance)
PROP - RIGHT OF ENTRY devisable in most states; descend to owners' heirs in all states
PROP - F.S.DETER. VS. F.S.S.T.COND.SUB. if there is durational language and a power of termination, courts will typically construe it as a F.S.S.T.Cond.Sub.
PROP - FEE SIMPLE SUBJECT TO AN EXECUTORY INTEREST upon the happening of a stated event, automatically divested in favor of a third person
PROP - LIFE ESTATE typically lasts for the life of the grantee, but may be defeasible
PROP - LIFE ESTATE PUR AUTRE VIE measured by the life of another
PROP - DOCTRINE OF WASTE life tenant may not injure the interests of the person who owns the remainder or reversion; if he does, he can be sued for damages or be enjoined from such acts
PROP - AFFIRMATIVE (VOLUNTARY) WASTE natural resources exception to doctrine of waste: (i) rsbl amounts for repair/maint.; (ii) right expressly given; (iii) exploitation occurred prior to grant; (iv) land is suitable only for such exploitation
PROP - OPEN MINES DOCTRINE if mining done before grant, life tenant may only use the existing mines, and may not open new ones
PROP - PERMISSIVE WASTE allowing land to fall into disrepair or failure to take rsbl steps to protect land
PROP - AMELIORATIVE WASTE acts that econ. benefit property; life tenant can subst. alter or demolish existing buildings if: (i) market value of future interests not diminished and either (ii) remaindermen do not object; or (iii) change in neighborhood deprived property of value
PROP - REVERSIONS transferable, devisable by will, descendible by inheritance
PROP - REMAINDERS must be expressly created in the instrument creating the intermediate possessory estate (rule of thumb: remainders always follow life estates) (can never follow a fee simple)
PROP - INDEFEASIBLY VESTED REMAINDER (i) can be created in and held by ascertained person or persons; (ii) must be certain to become possessory on termination of prior estates; (iii) must not be subject to being defeated or divested; (iv) must not be subject to being diminished in size
PROP - VESTED REMAINDER SUBJECT TO OPEN certain to take on the termination of the preceding estates, but is subject to dimunition by reason of other persons becoming entitled to share in the remainder (aka "vested remainder subject to partial divestment)
PROP - VESTED REMAINDER SUBJECT TO TOTAL DIVESTMENT when the remainderman is in existence and ascertained and his interest is not subject to any condition precedent, but his right to possession is subject to being defeated by the happening of some condition subsequent
PROP - CONTINGENT REMAINDER SUBJECT TO CONDITION PRECEDENT taking in possession subject to a condition precedent
PROP - CONTINGENT REMAINDER FOR UNBORN OR UNASCERTAINED PERSONS created in favor of unborn or unascertained persons
PROP - DOCTRINE OF MERGER when the same person acquires all of the existing interests in land, present and future
PROP - RULE IN SHELLEY'S CASE (RULE AGAINST REMAINDERS IN GRANTEE'S HEIRS) if life estate given to A and remainder to A's heirs, Rule operates to abolish purported remainder and A takes both
PROP - DOCTRINE OF WORTHIER TITLE a remainder limited to the grantor's heirs is invalid, and the grantor retains a reversion in the property
PROP - REMAINDERS AND EXECUTORY INTERESTS if it is not a remainder because the preceding estate is not a life estate, then it is an executory interest
PROP - SHIFTING EXECUTORY INTEREST divests the interest of another transferee
PROP - SPRINGING EXECUTORY INTEREST follows a gap in possession or divests the estate of the transferor
PROP - TRANSFERABILITY OF REMAINDERS AND EXECUTORY INTERESTS a. vested remainders are transferable, devisable, descendible; b. contingent remainders and executory interests are transferable inter vivos; c. contingent remainders and executory interests are usually devisable and descendible
PROP - RULE OF CONVENIENCE a class closes when some member of the class can call for a distribution of her share of the class gift provided this would not cause any undue inconvenience (rule of construction, not rule of law)
PROP - CHARITABLE TRUSTS must have an indefinite group of beneficiaries; Rule Against Perpetuities does not apply to trusts that are entirely charitable
PROP - CY PRES DOCTRINE if purposes of charitable trust are impossible to fulfill or are illegal or have already been fulfilled, court will redirect trust to a different purpose "as near as may be" to settlor's original intent
PROP - RULE AGAINST PERPETUITIES no interest in property is valid unless it must vest, if at all, not later than 21 years after one or more lives in being at the creation of the interest
PROP - RULE AGAINST PERPETUITIES APPLIES TO i. contingent remainders; ii. executory interests; iii. class gifts; iv. options and rights of first refusal; v. powers of appointment
PROP - WHEN AN INTEREST BECOMES "VESTED" when i. it becomes a present possessory estate, or; ii. it becomes an indefeasibly vested remainder or a vested remainder subject to total divestment
PROP - "INFECTIOUS INVALIDITY" if Rule Against Perpetuities would so undermine transferor's intent, then entire disposition is void (rather than leaving others intact)
PROP - BAD AS TO ONE BAD AS TO ALL RULE if it is possible that a disposition might vest remotely with respect to any member of the class, the entire class gift is invalid
PROP - THE RULE AGAINST RESTRAINTS ON ALIENATION as a general rule, any restriction on the transferability of a legal interest in property is void
PROP - TYPES OF RESTRAINTS ON ALIENATION i. disabling, under which any attempted transfer is ineffective; ii. forefeiture, under which an attempted transfer results in a forfeiture of the interest; and iii. promissory, under which an attempted transfer becomes a covenant
PROP - RESTRAINTS ON FEE SIMPLE a. total restraints void; b. partial restraints ok if rsbl (but cannot discriminate)
PROP - RESTRAINTS ON LIFE ESTATE a. legal life estate - forfeiture and promissory OK; b. equitable life estate - disabling OK
PROP - JOINT TENANCY marked by a right of survivorship
PROP - CREATION OF JOINT TENANCY 4 unities: time, title, interest, and possession (common law); express language required
PROP - SEVERANCE OF JOINT TENANCY 1. inter vivos transfer by one joint tenant; 2. contract to convey by one joint tenant; testamentary disposition has no effect
PROP - TENANCY BY THE ENTIRETY marital estate akin to joint tenancy between husband and wife (not recognized in community property states)
PROP - TENANCY IN COMMON concurrent estate with NO right of survivorship; each owner has a distinct, proportionate, undivided interest in the property
PROP - OUSTER if one tenant wrongfully excludes another co-tenant from possession of the whole or any part of the whole of the premises, there is an ouster
PROP - REMEDY OF PARTITION joint tenant or tenant in common has a right to judicial partition either in kind or by sale and division of the proceeds
PROP - CONTRIBUTION BY CO-TENANTS can be compelled for repairs, taxes, and mortgages, but not for improvements
PROP - DUTY OF FAIR DEALING AMONG CO-TENANTS when one co-tenant acquires a lienholder's claim against the co-tenancy property, she must give others a rsbl time to pay their share and acquire proportionate interest
PROP - TENANCIES FOR YEARS (LEASE) a. fixed period of time; b. created by written leases (max 51 years for farm; 99 for urban prop. @ common law)
PROP - PERIODIC TENANCIES a. created by express agreement or implication or operation of law; b. termination requires notice
PROP - TENANCIES AT WILL estate in land that is terminable at the will of either the landlord or the tenant; if only landlord, similar right implied in favor of tenant (but not reverse)
PROP - TERMINATION OF A TENANCY AT WILL may be done by either party without notice, but must be rsbl demand to quit premises; terminates by operation of law if i. party dies; ii. tenant commits waste; iii. tenant tries to assign; iv. landlord transfer interest; v. landlord executes term lease
PROP - TENANCIES AT SUFFERANCE arises when tenant wrongfully remains in possession after the expiration of a lawful tenancy;
PROP - QUIET ENJOYMENT implied covenant that neither the landlord nor someone else with paramount title will interfere with the tenant's quiet enjoyment and possession of the premises; breached by actual eviction, partial actual eviction, or constructive eviction
PROP - IMPLIED WARRANT OF HABITABILITY rsbly suitable for human residence;
PROP - ASSIGNMENT AND SUBLEASES OF LEASEHOLD assignment if transfer of entire remaining term; sublease if any portion retained; tenant may freely do either unless express provision to the contrary; tenant may reserve right of entry for breach in assignment
PROP - COMMON OWNERSHIP FIXTURE - ANNEXOR'S INTENT DETERMINES objective intent of annexor determined by considering: i. nature of article; ii. manner in which attached; iii. amount of damage; iv. adaptation
PROP - EASEMENT right to use a tract of land for a special purpose, but has no right to possess and enjoy it
PROP - TYPES OF EASEMENTS a. affirmative - right to enter up and make an affirmative use; b. negative - right to prevent possessor from engaging in something;
PROP - EASEMENT APPURTENANT the right of special use benefits the holder of the easement in his physical use or enjoyment of another tract of land
PROP - EASEMENT IN GROSS holder of the easement interest acquires a right of special use in the servient tenement independent of his ownership or possession of another tract of land
PROP - CREATION OF EASEMENT a. express grant; b. express reservation - conveys land but retains right to continue use of tract; c. implication - preexisting use, profit a prendre, necessity; d. prescription - open and notorious, adverse, continuous & uninterrupted
PROP - TERMINATION OF EASEMENT a. stated conditions; b. unity of ownership; c. release; d. abandonment (intention never to make use of easement again); e. estoppel; f. prescription; g. necessity ends; h. condemnation; i. destruction of servient estate
PROP - PROFITS nonpossessory interest in land; holder is entitled to enter upon the servient tenement and take the soil or a substance of the soil
PROP - REQUIREMENTS FOR BURDEN TO RUN WITH LAND a. intent; b. notice; c. horizontal privity - original parties shared some interest in the land independent of the covenant; d. vertical privity - successor must hold entire durational interest; e. touch and concern
PROP - REQUIREMENTS FOR BENEFIT TO RUN WITH LAND a. intent; b. vertical privity; c. touch and concern
PROP - EQUITABLE SERVITUDES covenant that, regardless of whether it runs with the land, equity will enforce against the assignees of the burdened land who have notice of the covenant
PROP - ADVERSE POSSESSION results from the operation of the statute of limitations for trespass to real property; if an owner doesn't take legal action within statutory period to eject a possessor who claims adversely, the owner is thereafter barred from being suit for ejectment
PROP - REQUIREMENTS FOR ADVERSE POSSESSION i. actual entry giving exclusive possession; ii. open and notorious; iii. adverse; iv. continuous throughout statutory period
PROP - EFFECT OF DISABILITY ON ADVERSE POSSESSION if true owner under some disability to sue when the cause of action first accrued (i.e. inception of adverse possession), then the statute of limitations does not begin to run
PROP - WRITING REQUIREMENTS TO SATISFY STATUTE OF FRAUDS i. description of property; ii. parties involved; iii. price
PROP - DOCTRINE OF EQUITABLE CONVERSION once a contract is signed and each party is entitled to specific performance, equity regards the purchaser as the owner of the real property; seller's interest is personal property
PROP - MARKETABLE TITLE implied warrant in every land sale; title reasonably free from doubt; title acquired by adverse possession is unmarketable
PROP - EFFECTS OF ENCUMBRANCES ON MARKETABILITY OF TITLE generally, mortgages, liens, easements, and covenants render title unmarketable unless buyer waives them
PROP - VOID AND VOIDABLE DEEDS void implies that the deed will be set aside by the court even if the property has passed to a bona fide purchaser; voidable implies that the deed will be set aside only if the property has not passed to a bona fide purchaser
PROP - VOID DEEDS forged, never delivered, obtained by fraud
PROP - VOIDABLE DEEDS executed by persons younger than the age of majority or who otherwise lack capacity and deeds obtained through fraud in the inducement, duress, undue influence, mistake, and breach of fiduciary duty
PROP - "DELIVERY" refers to grantor's intent; satisfied by words or conduct evidencing the grantor's intention that the deed have some present operative effect, i.e. that title pass immediately and irrevocably, even though the right of possession may be postponed
PROP - WHEN DELIVERY IS PRESUMED i. handed to grantee; ii. acknowledged by grantor before notary; iii. recorded
PROP - RETENTION OF INTEREST BY GRANTOR OR CONDITIONAL DELIVERY a. no delivery - title does not pass; b. no recording - title passes; c. express condition of death of grantor creates future interest
PROP - "RELATION BACK" DOCTRINE in an escrow transaction, title does not pass to the grantee until performance of the named conditions; however, title of the grantee will "relate back" to the time of the deposit of the deed in escrow
PROP - RECORDING "recording acts" require a grantee to make some sort of recordation so as to give "notice to the world" that tile to certain property has already been conveyed; proper recording prevents subsequent BFPs
PROP - WHAT CAN BE RECORDED practically every kind of deed, mortgage, contract to convey, or other instrument affecting an interest in land
PROP - NOTICE STATUTES subsequent BFP prevails over a prior grantee who failed to record (BFP must not have had notice)
PROP - RACE-NOTICE STATUTES subsequent BFP is protected only if she records before the prior grantee
PROP - RACE STATUTES whoever records first wins; actual notice is irrelevant (very few states have this)
PROP - REQUIREMENTS OF A BONA FIDE PURCHASER i. purchaser; ii. without notice; iii. pay valuable consideration
PROP - SHELTER RULE person who takes from a BFP will prevail against any interest that the transferor-BFP would have prevailed against; true even where transferee had actual knowledge of the prior unrecorded interest
PROP - "WILD DEEDS" recorded deed that is not connected to the chain of sale; does not give constructive notice
TORTS - PRIMA FACIE CASE FOR INTENTIONAL TORTS i. act by defendant; ii. intent; iii. causation
TORTS - TRANSFERRED INTENT intent to commit a tort against one person is transferred to the other tort or to the injured person
TORTS - LIMITATIONS ON TRANSFERRED INTENT a. assault; b. battery; c. false imprisonment; d. trespass to land; e. trespass to chattels
TORTS - INTENT - MINORS AND INCOMPETENTS minors and incompetents will be liable for their intentional torts
TORTS - PRIMA FACIE CASE FOR BATTERY i. harmful or offensive contact to plaintiff's person; ii. intent to bring about that harm; iii. causation
TORTS - PRIMA FACIE CASE FOR ASSAULT i. act by defendant creates reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff's person; ii. intent; iii. causation
TORTS - ASSAULT - CONSTRUCTION OF "APPREHENSION" a. must be an expectation, not just fear; b. knowledge of act required; c. knowledge of identity not required; d. defendant's apparent ability is sufficient; e. words alone not enough, must have overt act too
TORTS - PRIMA FACIE CASE FOR FALSE IMPRISONMENT i. act that confines or restrains the plaintiff to bounded area; ii. intent; iii. causation
TORTS - FALSE IMPRISONMENT - SUFFICIENT METHODS OF CONFINEMENT OR RESTRAINT 1. physical barriers; 2. physical force; 3. direct threats of force; 4. indirect threats of force; 5. failure to provide means of escape; 6. invalid use of legal authority
TORTS - PRIMA FACIE CASE FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS i. extreme/outrageous conduct; ii. intent to cause plaintiff severe emotional distress or recklessness on defendant's part; iii. causation; iv. damages--severe emotional distress
TORTS - WHAT CONSTITUTES "EXTREME/OUTRAGEOUS" CONDUCT? conduct that transcends all bounds of decency
TORTS - INTENT/CAUSATION REQUIREMENTS IN BYSTANDER CASE i. plaintiff was present when injury occurred; ii. plaintiff was close relative of injured person; iii. defendant knew that plaintiff was present and a close relative
TORTS - PRIMA FACIE CASE FOR TRESPASS TO LAND i. act of physical invasion to plaintiff's real property; ii. intent to bring about physical invasion; iii. causation
TORTS - PRIMA FACIE CASE FOR TRESPASS TO CHATTELS i. act of defendant interferes with plaintiff's right of possession in the chattel; ii. intent to perform the act; iii. causation; iv. damages
TORTS - TRESPASS TO CHATTELS - FORMS OF INTERFERENCE 1. intermeddling - direct damage; 2. dispossession - dispossesses plaintiff of right of lawful possession
TORTS - PRIMA FACIE CASE FOR CONVERSION i. act by defendant interfering with plaintiff's right of possession in chattle that is serious enough in nature to warrant defendant pay full value; ii. intent; iii. causation
TORTS - DEFENSES TO INTENTIONAL TORTS 1. consent; 2. self defense; 3. defense of others; 4. defense of prop.; 5. reentry onto land; 6. recapture of chattels; 7. privilege of arrest; 8. necessity; 9. discipline of children
TORTS - PRIMA FACIE CASE FOR DEFAMATION i. defamatory language; ii. "of or concerning" plaintiff; iii. publication; iv. damage to reputation; (for public figures - v. falsity; vi. fault)
TORTS - DEFAMATION - WHAT IS PUBLICATION? communication to a third party who understood it
TORTS - LIBEL defamatory statement recorded in writing or some other permanent form
TORTS - SLANDER spoken defamation, injury not presumed and must be shown
TORTS - SLANDER PER SE (INJURY PRESUMED) 1. business or profession; 2. loathsome disease; 3. crime involving moral turpitude; 4. unchastity of a woman
TORTS - DEFAMATION - PUBLIC FIGURES malice required (knowledge that statement is false or reckless disregard for truth)
TORTS - DEFENSES TO DEFAMATION a. consent; b. truth; c. absolute privilege; d. qualified privilege
TORTS - INVASION OF RIGHT TO PRIVACY i. appropriation by defendant of plaintiff's picture or name for defendant's commercial advantage; ii. intrusion into plaintiff's affairs or seclusion; iii. publication in false light; iv. public disclosure of private facts
TORTS - APPROPRIATION OF PLAINTIFF'S PICTURE OR NAME (PRIMA FACIE) unauthorized use for commercial advantage (limited to promotion of product/services)
TORTS - INTRUSION ON AFFAIRS OR SECLUSION (PRIMA FACIE) 1. act of prying or intruding; 2. highly offensive to rsbl person; 3. thing is private
TORTS - FALSE LIGHT (PRIMA FACIE) 1. facts about plaintiff putting him in false light in public eye; 2. highly offensive to rsbl person; 3. malice if matter is of public interest
TORTS - WHAT IS 'FALSE LIGHT'? i. view that he does not hold; ii. actions he did not take
TORTS - PUBLIC DISCLOSURE OF PRIVATE FACTS (PRIMA FACIE CASE) i. publication or disclosure of private information; ii. highly offensive to rsbl person
TORTS - PRIMA FACIE CASE FOR INTENTIONAL MISREPRESENTATION (FRAUD, DECEIT) 1. misrepresentation; 2. scienter; 3. intent to induce reliance; 4. causation; 5. justifiable reliance; 6. damages
TORTS - PRIMA FACIE CASE FOR NEGLIGENT MISREPRESENTATION 1. misrepresentation made in business or professional capacity; 2. breach of duty; 3. causation; 4. justifiable reliance; 5. damages
TORTS - PRIMA FACIE CASE FOR INTERFERENCE WITH BUSINESS RELATIONS i. valid contractual relationship or business expectancy; ii. defendant's knowledge of that relationship; iii. intentional interference that induces a breach or termination; iv. damage
TORTS - PRIMA FACIE CASE FOR MALICIOUS PROSECUTION i. institution of criminal proceedings; ii. termination favorable to plaintiff; iii. absence of probable cause; iv. improper purpose of defendant; v. damages
TORTS - PRIMA FACIE CASE FOR NEGLIGENCE i. duty; ii. breach; iii. causation; iv. proximate cause; v. damages
TORTS - NEGLIGENCE - GENERAL DUTY OF CARE ordinary, prudent, reasonable person
TORTS - NEGLIGENCE - SPECIAL STANDARDS OF CONDUCT professionals - required to possess and exercise knowledge of a member of the profession; children - like age, education, intelligence, and experience (must be at least 4)
TORTS - DUTY OF LANDOWNER TO THOSE OFF PREMISES a. natural conditions - no duty; b. artificial conditions - no duty unless unrsbly dangerous
TORTS - DUTY OWED TO TRESPASSERS undiscovered - no duty; discovered - warn or make safe artificial conditions that risk death or harm
TORTS - ATTRACTIVE NUISANCE DOCTRINE ordinary care owed to children if: i. aware of dangerous condition; ii. children will frequent; iii. likely to cause injury; iv. expense is slight compared to magnitude of risk
TORTS - DUTY OWED TO LICENSEE (licensee = own purpose or business) duty to warn of known conditions (social guests are licensees)
TORTS - DUTY OWED TO INVITEE (invitee = open to public or connected with business, churches, museums, store customers) same duty owed to licensees + duty to inspect
TORTS - FIREFIGHTERS' RULE police and firefighters treated as licensees rather than invitees
TORTS - EFFECT OF VIOLATING STATUTE RE: DUTY OF CARE presumption of breach of duty
TORTS - DUTY REGARDING NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS i. plaintiff must be within zone of danger; ii. plaintiff must suffer physical symptoms from distress (exception - bystander is family member who is there and sees accident happen)
TORTS - RES IPSA LOQUITOR where facts are such as to strongly indicate that plaintiff's injuries resulted from defendant's negligence, the trier of fact may be permitted to infer defendant's liability
TORTS - NEGLIGENCE - ACTUAL CAUSE (CAUSATION IN FACT) a. but for test; b. joint causes - substantial factor test; c. alternative causes - burden shifts to defendants
TORTS - PROXIMATE CAUSE normal incidents of and within the increased risk caused by defendant; test based on foreseeability; direct causes - defendant liable if foreseeable harmful result; indirect - def. liab. for foreseeable results caused by foreseeable interven. forces
TORTS - DEFENSES TO NEGLIGENCE 1. contributory negligence; 2. assumption of risk; 3. comparative negligence
TORTS - CONTRIBUTORY NEGLIGENCE (EFFECT) at common law, completely bars right to recover
TORTS - ASSUMPTION OF RISK plaintiff must have known of risk and voluntarily assumed it
TORTS - COMPARATIVE NEGLIGENCE compare %'s; partial - recovery barred if plaintiff > 50%; pure - no threshold
TORTS - PRIMA FACIE CASE FOR STRICT LIABILITY 1. nature of def. activity imposes absolute duty to make safe; ii. activity is actual and proximate cause; iii. damage suffered
TORTS - LIABILITY FOR ANIMALS trespassing animals - liable if foreseeable; wild animals - strict liability; domestic - only if knowledge of dangerous propensity
TORTS - STRICT LIABILITY FOR ABNORMALLY DANGEROUS ACTIVITIES test - i. foreseeable risk of serious harm even when rsbl care exercised; ii. not a matter of common usage
TORTS - PRODUCTS LIABILITY - THEORIES OF LIABILITY i. intent; ii. negligence; iii. strict liability; iv. implied warranties of merchantability; v. representation theories (misrep. and express warranty)
TORTS - PRODUCTS LIABILITY - TYPES OF DEFECTS manufacturing defects; design defects; inadequate warnings
TORTS - PRODUCTS LIABILITY - PRIMA FACIE CASE FOR STRICT LIABILITY a. commercial supplier; b. defective product; c. actual and proximate cause; d. damages
TORTS - IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS "merchantable" means goods are of a quality equal to that generally acceptable among those who deal in similar goods and are generally fit for the ordinary purposes for which such goods are sold
TORTS - PRODUCTS LIABILITY - REPRESENTATION THEORIES (EXPRESS WARRANTY AND MISREP.) express warranty must be "basis of bargain"; misrepresentation must be to a material fact, and must be justifiable reliance by plaintiff
TORTS - PRIVATE NUISANCE substantial, unreasonable interference with another private individual's use or enjoyment of property he possesses
TORTS - PUBLIC NUISANCE unrsbl interference with health, safety, or property rights of community
TORTS - VICARIOUS LIABILITY respondeat superior - employer liable if within scope of employment relationship; independent contractor - only if inherently dangerous
TORTS - JOINT AND SEVERAL LIABILITY if indivisible injury to plaintiff, each is liable for entire damage
EVID - MATERIALITY materiality exists when the proffered evidence relates to one of the substantive legal issues in the case
EVID - RELEVANCE probative evidence contributes to proving or disproving a material issue
EVID - COMPETENT EVIDENCE material and relevant evidence is admissible if competent, i.e. if it does not violate an exclusionary rule
EVID - DIRECT EVIDENCE goes directly to a material issue without intervention of an inferential process
EVID - CIRCUMSTANTIAL EVIDENCE indirect and relies on inference
EVID - TESTIMONIAL EVIDENCE oral evidence given under oath
EVID - DOCUMENTARY EVIDENCE in the form of a writing
EVID - REAL EVIDENCE things versus assertions about things
EVID - GENERAL RULE OF RELEVANCE must relate to time, event, or person in controversy
EVID - EXCEPTIONS TO GENERAL RULE OF RELEVANCE - CERTAIN SIMILAR OCCURRENCES RELEVANT a. causation; b. prior false claims or same bodily injury; c. similar accidents or injuries caused by same event - to prove defective condition existed, or def. had knowledge, or defect was cause; d. previous similar acts to prove intent; g. habit
EVID - DISCRETIONARY EXCLUSION OF RELEVANT EVIDENCE trial judge has discretion to exclude relevant evidence if probative value substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or undue delay or unfair surprise
EVID - EXCLUSION OF RELEVANT EVIDENCE FOR PUBLIC POLICY REASONS 1. liability insurance; 2. subsequent remedial measures; 3. settlement offers; 4. withdrawn guilty pleas and offers to plead guilty; 5. payment of medical expenses
EVID - CHARACTER EVIDENCE admissible: when character itself ultimate issue; to serve as circumstantial evidence of how a person prob. acted; to impeach witness; generally not admissible in civil cases; admissible in criminal case, but accused must initiate
EVID - CHARACTER EVIDENCE - VICTIMS IN CRIMINAL CASE def. may introduce reputation or opinion evidence of a bad character trait of alleged victim when relevant to showing def.'s innocence, but MAY NOT introduce for rape victims (rape shield)
EVID - EXCEPTIONS TO RAPE SHIELD 1. criminal - to show source of semen, injury, or other physical evidence; 2. civil - if allowable under criminal and probative > prejudicial (must be disclosed 14 days before and in camera hearing)
EVID - CHARACTER EVIDENCE - SPECIFIC ACTS OF MISCONDUCT generally inadmissible unless independently relevant (see exceptions)
EVID - CHARACTER EVIDENCE - EXAMPLES OF RELEVANT PRIOR MISCONDUCT a. motive; b. intent; c. absence of mistake or accident; d. identity; e. preparation; f. opportunity, knowledge
EVID - PRIOR ACTS OF SEXUAL ASSAULT OR CHILD MOLESTATION admissible in civil or criminal cases where defendant is accused of committing an act of sexual assault or child molestation (must be disclosed 15 days before trial)
EVID - JUDICIAL NOTICE recognition of a fact as true without formal presentation of evidence; must be i. generally known within jurisdiction; or ii. capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned
EVID - FACTS APPROPRIATE FOR JUDICIAL NOTICE a. matters of common knowledge in the community; b. manifest facts; c. scientific principles;
EVID - JUDICIAL NOTICE - PROCEDURAL ASPECTS a. must be a request; b. appellate court can take judicial notice and required to assume prior judicial notice; c. judicial notice conclusive in civil cases but not in criminal
EVID - JUDICIAL NOTICE OF LAW mandatory - a. federal public law; b. state public law; c. official regulations; permissive - municipal ordinances, private acts of Congress and state legislature, foreign laws
EVID - GENERAL CONDITIONS OF ADMISSIBILITY OF REAL EVIDENCE 1. authentication (recognition testimony or chain of custody)
EVID - REPRODUCTIONS AND EXPLANATORY REAL EVIDENCE reproductions admissible if authenticated and probative > prej; explanatory evidence permitted at trial but not admitted into evidence (jury doesn't see them)
EVID - DOCUMENTARY EVIDENCE - AUTHENTICATION a. admissions; b. testimony of eyewitness; c. handwriting verifications (nonexpert with knowledge or expert comparison); d. ancient documents (at least 20yo, free from suspicion, found in place); e. reply letter doctrine
EVID - DOCUMENTARY EVIDENCE - SELF-AUTHENTICATING DOCUMENTS a. certified public records; b. official publications; c. newspapers/periodicals; d. trade inscriptions; e. documents with certificate of acknowledgement; f. commercial paper; g. business records
EVID - BEST EVIDENCE RULE in proving the terms of a writing, where the terms are material, the original writing must be produced; testimonial evidence of it only permitted of original proven to be unavailable (duplicates admissible if exact copies of original)
EVID - PAROL EVIDENCE RULE if an agreement is reduced to writing, that writing is the agreement and constitutes the only evidence of it (prior or contemporaneous negotiations merged into written agreement)
EVID - EXCEPTION TO PAROL EVID RULE - CHALLENGE TO VALIDITY OF CONTRACT parol evidence admissible to show: 1. fraud, duress, undue influence in consenting; 2. lack of consideration; 3. illegality of subject matter; 4. material alteration; 5. nondelivery; condition precedent not fulfilled
EVID - TESTIMONIAL EVIDENCE - BASIC TESTIMONIAL QUALIFICATIONS a. ability to observe; b. ability to remember; c. ability to relate (communicate; d. appreciation of oath obligation
EVID - DEAD MAN ACTS (NOT IN F.R.E., BUT INCORPORATED IN DIVERSITY BECAUSE OF STATE LAW) a party or person interested in the event, or his predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased
EVID - FORM OF EXAMINATION OF WITNESS - LEADING QUESTIONS generally objectionable, permitted on cross, or if no objection made and used in: i. preliminary or introductory matter; ii. witness needs aid to respond; iii. witness is hostile or adverse
EVID - FORM OF EXAMINATION OF WITNESS - IMPROPER QUESTIONS AND ANSWERS a. misleading; b. compound; c. argumentative; d. conclusionary; e. assuming facts not in evidence; f. cumulative (asked and answered); g. harassing or embarrassing; h. calls for narrative/speculation; i. lack of found.; k. nonresponsive
EVID - FORM OF EXAMINATION OF WITNESS - USE OF MEMORANDA a. present recollection refreshed; b. past recollection recorded - foundation must be laid that: 1. witness at one time had personal knowledge; 2. writing made by witness or under direction of W; 3. timely made; 4. accurate; 5. W has insufficient recollec
EVID - OPINION TESTIMONY BY LAY WITNESSES a. generally inadmissible; b. when admissible - based on W's perception; helpful to clear understanding; and not based on scientific, technical, or specialized knowledge
EVID - SITUATIONS WHERE OPINIONS OF LAY WITNESSES ADMISSIBLE 1. general appearance or condition of a person; 2. state of emotion; 3. matters involving sense recognition; 4. voice/handwriting recog; 5. speed of moving object; 6. value of own services; 7. rationality/irrat. of another's conduct; 8. intoxication
EVID - OPINION TESTIMONY BY EXPERT WITNESSES requirements: 1. subj. matter approp. for expert test.; 2. W must be qual. as expert; 3. expert must possess rsbl prob. re: opinion; 4. opinion must be supported by proper factual basis
EVID - IMPEACHMENT METHODS a. prior inconsistent statements (if foundation laid); b. bias or interest; c. conviction of crime involving dishonesty (or felony if not too remote [10 years]); d. opinion/reputation for truthfulness; e. sensory deficiencies
EVID - SPECIFICITY OF OBJECTIONS 1. general obj. sustained - upheld if any ground; 2. general obj. overruled - not avail. on appeal unless evid. not admissible under any circumstances; 3. spec. obj. sustained - upheld on appeal only if ground stated was correct
EVID - OFFERS OF PROOF a. witness offer - proceed with examination outside of jury's hearing; b. lawyer offer - counsel states what witness would have testified; c. tangible offer - marked, authenticated, tangible evidence
EVID - TESTIMONIAL PRIVILEGES federal rules have no specific privilege provisions, but recognize common law privileges; federal courts recognize attorney-client, spousal, and psychotherapist/social worker-client
EVID - HOW PRIVILEGE CAN BE WAIVED i. failure to claim by holder; ii. voluntary disclosure by holder; iii. contractual provision in advance
EVID - ATTORNEY-CLIENT PRIVILEGE must be att.-client relationship; must be confidential communication; duratio is indefinite and termination of the relationship does not terminate priv.; not app. for future acts of wrongdoing, dispute between client and att.
EVID - PHYSICIAN-PATIENT PRIVILEGE prof. member must be present; info must be acquired while attending patient; info must be necessary for treatment; not applicable where patient puts phys. condition at issue, in aid of wrongdoing, dispute
EVID - HUSBAND-WIFE PRIVILEGE married person may not be compelled to testify against her spouse in a criminal case;
EVID - SPOUSAL IMMUNITY married person whose spouse is def. in criminal case may not be called as a witness by the prosecution and may not be compelled to testify against spouse in any criminal proc.; federal courts - priv. belongs to witness-spouse; some states - party-spouse
EVID - PRIVILEGE FOR CONFIDENTIAL MARITAL COMMUNICATIONS in any civil or criminal case, either spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were H & W (except when sueing each other
EVID - PRIVILEGE AGAINST SELF-INCRIMINATION 5th amendment protection - "incriminating" means commission of CRIME; can be claimed at any state or federal proceeding, whether civil or criminal
EVID - GOVERNMENTAL PRIVILEGE TO CONCEAL IDENTITY OF INFORMER no privilege if otherwise voluntarily disclosed, judge may dismiss if informer's testimony crucial
EVID - HEARSAY RULE a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted, is inadmissible as hearsay
EVID - EXAMPLES OF OUT-OF-COURT STATEMENTS THAT ARE NOT HEARSAY a. legally operative facts; b. statements offered to show effect on hearer or reader; c. statements offered as circumstantial evidence of declarant's state of mind;
EVID - STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES - PRIOR STATEMENTS BY WITNESS 1. prior statements by witness - prior inconsistent if made under oath, prior consistent if offered to rebut charge that witness is lying
EVID - STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES - ADMISSIONS BY PARTY OPPONENT personal knowledge not required; former judicial admissions are conclusive, extrajudicial statements can be explained, silence may be an implied admission
HEARSAY EXCEPTIONS - DECLARANT UNAVAILABLE unavailability means declarant: i. exempted by privilege; ii. refuses to testify; iii. lacks memory; iv. dead or mentally ill; or v. absent and proponent cannot procure attendance
HEARSAY EXCEPTIONS - DECLARANT UNAVAILABLE - FORMER TESTIMONY party against whom offered was party in the former action; same subject matter; grand jury testimony not admissible; under oath;
HEARSAY EXCEPTIONS - DECLARANT UNAVAILABLE - STATEMENTS AGAINST INTEREST must be against interest when made; requirements: 1. against pecuniary, proprietary, or penal interest when made; 2. D had personal knowledge of facts; 3. D aware statement against interest and no motive to misrepresent; 4. declarant unavailable as W
HEARSAY EXCEPTIONS - DECLARANT UNAVAILABLE - DYING DECLARATIONS in a prosecution for homicide or a civil action, declaration by unavailable declarant while believing death was imminent that concerns cause or circumstances of what he believed to be his impending death is admissible
HEARSAY EXCEPTIONS - DECLARANT UNAVAILABLE - STATEMENTS OF PERSONAL OR FAMILY HISTORY statements concerning birth, marriage, divorce, death, relationship are admissible as an exception to the hearsay rule
HEARSAY EXCEPTIONS - DECLARANT UNAVAILABLE - STATEMENTS OFFERED AGAINST PARTY PROCURING DECLARANT'S UNAVAILABILITY statements of an unavailable declarant are admissible when offered against a party who has engaged in wrongdoing that intentionally procured the declarant's unavailability
EVID - HEARSAY EXCEPTIONS - DECLARANT'S AVAILABILITY IMMATERIAL - PRESENT STATE OF MIND when admissible - state of mind directly in issue and material to the controversy; offered to show subsequent acts of D; statements of memory or belief generally not admissible
EVID - HEARSAY EXCEPTIONS - DECLARANT'S AVAILABILITY IMMATERIAL - EXCITED UTTERANCES startling event required and statement must relate to startling event; statement must be made while under stress of excitement
EVID - HEARSAY EXCEPTIONS - DECLARANT'S AVAILABILITY IMMATERIAL - DECLARATIONS OF PHYSICAL CONDITION present bodily condition - admissible; past bodily condition - admissible if to assist diagnosis or treatment
EVID - HEARSAY EXCEPTIONS - DECLARANT'S AVAILABILITY IMMATERIAL - BUSINESS RECORDS for profit doesn't matter; must have been maintained in conjunction with a business activity;
EVID - HEARSAY EXCEPTIONS - DECLARANT'S AVAILABILITY IMMATERIAL - OFFICIAL RECORDS AND OTHER OFFICIAL WRITINGS what may be admitted: records, reports, statements, or data compilations if they set forth: i. activities of office or agency; ii. matters observed pursuant to a duty of law; or iii. factual findings resulting from an investigation made pursuant to law
EVID - HEARSAY EXCEPTIONS - DECLARANT'S AVAILABILITY IMMATERIAL - OFFICIAL RECORDS - JUDGMENTS prior criminal conviction - felony conviction admissible; prior criminal acquittal - excluded; judgment in former civil case inadmissible in criminal proceeding and gen. inadmissible in civil proceeding
EVID - HEARSAY EXCEPTIONS - DECLARANT'S AVAILABILITY IMMATERIAL - LEARNED TREATISES must be: i. called to attention of expert witness or relied upon by them; and ii. established as reliable authority
EVID - HEARSAY EXCEPTIONS - DECLARANT'S AVAILABILITY IMMATERIAL - MARKET REPORTS admissible if generally used an relied upon by the public or persons in particular occupation
EVID - WHEN STATEMENTS MADE TO POLICE ARE TESTIMONIAL if primary purpose is to help in an ongoing emergency, then nontestimonial; if primary purpose to establish or prove past events potentially relevant to later criminal prosecution, then testimonial
CONT - ARTICLE 2 OF U.C.C applies to things movable and supersedes common law in sale of goods
CONT - VALIDITY OF CONTRACTS a. void contract - without any legal effect, cannot be enforced; b. voidable contract - either party may elect to avoid; c. unenforceable contract - may be unenforceable due to various defenses
CONT - CREATION OF A CONTRACT 1. was there mutual assent?; 2. was there consideration?; 3. are there any defenses?
CONT - MUTUAL ASSENT an agreement on the "same bargain at the same time," a "meeting of the minds"
CONT - OFFER must create a rsbl expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms
CONT - ELEMENTS OF AN OFFER i. expression of promise, undertaking, or commitment to enter into contract?; 2. certainty & definiteness of terms?; 3. communication to offeree?
CONT - DEFINITE & CERTAIN TERMS capable of being enforced? i. identity of offeree; ii. subject matter; iii. price
CONT - TERMINATION OF OFFER - TERMINATION BY OFFEROR - REVOCATION terminates if communicated before offeree accepts; effective when received by offeree; options not revocable; merchant's firm offer not revocable; may not be revocable if offeree detrimentally relied on offer; unilateral contract irrevocable if part perf.
CONT - TERMINATION OF OFFER - TERMINATION BY OFFEREE rejection - terminates offer; counteroffer rejects first offer and creates a new one (distinguish mere inquiry); effective when received by offeror
CONT - TERMINATION OF OFFER - TERMINATION BY OPERATION OF LAW death or insanity of parties; destruction of subject matter; supervening legal prohibition of proposed contract
CONT - ACCEPTANCE manifestation of assent to the terms of an offer
CONT - ACCEPTANCE OF OFFER FOR UNILATERAL CONTRACT not accepted until performance is completed; generally, offeree not required to give notice, but required to notify offeror within rsbl time of completion of perf.
CONT - ACCEPTANCE OF OFFER FOR BILATERAL CONTRACT may be accepted either by promise to perform or by the beginning of perf.; generally, acceptance must be communicated; offer to buy goods for current or prompt shipment can be accepted by either promise or prompt shipment
CONT - "MIRROR IMAGE" RULE acceptance must be unequivocal acceptance of each and every term of the offer; common law says any difference in terms is a rej. and counteroffer
CONT - ACCEPTANCE OF OFFER FOR BILATERAL CONTRACT - MAILBOX RULE acceptance by mail or similar means creates a contract at the moment of dispatch, unless: (i) offer stipulates accep. not effective unles received; or ii. option contract is involved (effec. upon receipt)
CONT - MAILBOX RULE AND TIMING a. offeree sends rejection, then acceptance - mailbox rule does not apply, whichever received first is effective; b. offeree sends acceptance, then rejection - mailbox rule gen. applies,
CONT - CONSIDERATION only the presence of valuable consideration on both sides of the bargain will make an executory bilateral contract fully enforceable
CONT - ELEMENTS OF CONSIDERATION i. must be a bargained-for exchange between the parties; and ii. that which is bargained for must be considered of legal value, courts will generally not inquire into adequacy of consideration
CONT - EFFECTIVE CONSIDERATION - MAJORITY VIEW effective consideration if detriment to the promisee in performing an act or making a promise - i.e. does something he is under no legal obligation to do
CONT - EFFECTIVE CONSIDERATION - MINORITY VIEW detriment or benefit to either party
CONT - REQUIREMENT OF MUTUALITY consideration must be on both sides of the contract; an "illusory" promise on either side will render the contract unenforceable
CONT - SURETYSHIP PROMISES a suretyship contract involves a promise to pay the debt of another; a. surety makes promise before or at same time as creditor performs or promises to perform - consid. present; surety makes promise after creditor performs - no consideration
CONT - PROMISSORY ESTOPPEL OR DETRIMENTAL RELIANCE consid. not necessary if facts show that promisor should be estopped from not performing; promise enfor. if nec. to prevent injustice if: a. promisor should rsbly expect to induce forbearance; b. of a def. & sub. character; c. & such forbearance induced
CONT - DEFENSES TO FORMATION - ABSENCE OF MUTUAL ASSENT a. mutual mistake as to existing facts - i. basic assumption; ii. material effect; iii. no assumption of risk of mistake; b. unilateral mistake - only if other party KNEW or HAD REASON TO KNOW of mistake; c. ambiguous language; d. misrepresentation
CONT - DEFENSES TO FORMATION - PUBLIC POLICY DEFENSES TO FORMATION - ILLEGALITY if either consideration or subject matter is illegal, then defense to enforcement
CONT - DEFENSES BASED ON LACK OF CAPACITY individuals in certain protected classes are legally incapable of incurring binding contractual obligations; timely assertion of this defense by a promisor makes the contract voidable at his election
CONT - DEFENSES BASED ON LACK OF CAPACITY - CONTRACTS OF INFANTS if under 18, voidable by infant, binding on adult; infant may choose to disaffirm contract any time before or shortly after reaching the age of majority; infant may affirm expressly or by failing to disaffirm at age of maj. (bound to pay for necessities)
CONT - DEFENSES BASED ON LACK OF CAPACITY - MENTAL INCAPACITY may disaffirm when lucid or by legal representative
CONT - DEFENSES BASED ON LACK OF CAPACITY - INTOXICATED PERSONS considered to have made a voidable promise; may affirm upon recovery
CONT - DEFENSES BASED ON LACK OF CAPACITY - DURESS AND COERCION voidable and may be rescinded as long as not affirmed; economic duress gen. not a defense
CONT - DEFENSES TO ENFORCEMENT - STATUTE OF FRAUDS a. writing requirement; b. signature required; c. interest in land - leases of > 1 year, easements of > 1 year, fixtures, minerals in structures, goods priced at $500 or more
CONT - DEFENSES TO ENFORCEMENT - UNCONSCIONABILITY allows a court to refuse to enforce a provision or an entire contract to avoid "unfair" terms; substantive uncon. - price alone; proc. uncon. - unequal bargaining power
CONT - PAROL EVIDENCE RULE where parties express their agreement in a writing with the intent that it embody the full and final expression of their bargain, any other expressions-written or oral-made prior to the writing, as well as any made contemp. with the writing, inadmissible
CONT - HOW IS DETERMINATION OF WHETHER PARTIES INTENDED WRITING TO BE A FINAL INTEGRATION MADE? Corbin test - (majority) takes into account specific circumstances of transaction involved; Williston test - look only at face of agreement and decide whether contracting parties in general would include the term sought to be proved
CONT - OTHER ARTICLE 2 PROVISIONS ON INTERPRETING CONTRACTS - BATTLE OF THE FORMS UCC 2-207 provides that a contract can be ormed even though terms of offer do not match terms of accep.; a. involving nonmerchant - terms of offer govern; b. contracts b/t merchants - additional terms in accep. usually included unless materially alter
CONT - KNOCKOUT RULE conflicting terms in the offer and acceptance are knocked out of the contract because each party is assumed to object to the inclusion of such terms in the contract
CONT - DELIVERY TERMS AND RISK OF LOSS a. noncarrier case - if seller is merchant, risk passes to buyer upon taking physical possession, if seller nonmerchant, risk passes upon tender of delivery; b. carrier cases - risk passes to buyer when delivered to carrier, or destination
CONT - IMPLIED WARRANT OF MERCHANTABILITY implied in every sale by a merchant who deals in goods of the kind sold
CONT - ELEMENTS OF IMPLIED WARRANT OF MERCHANTABILITY goods must at least: i. pass w/o objection; ii. be of fair average quality; iii. be fit for ordinary purpose; iv. be of even kind, quality, and quantity; v. be adequately contained/packaged/labeled; vi. conform to promises on label
CONT - PERFORMANCE UNDER ARTICLE 2 requires perfect tender - the delivery and condition of the goods must be exactly as promised in the contract
CONT - DISTINCTION BETWEEN PROMISE AND CONDITION promise - commitment to do or refrain from doing something; condition - event or state of the world must occur or fail to occur before a party has a duty to perform (courts prefer promises when in doubt)
EFFECT OF ANTICIPATORY REPUDIATION nonrepudiating party has 4 alternatives: i sue immediately; ii. wait to sue; iii. treat contract as discharged; iv. urge promisor to perform
CONT - RULE OF DIVISIBILITY if a party performs one of the units of a divisible contract, he is entitled to the agreed-on equivalent for that unit even if he fails to perform the other units
CONT - TESTS FOR DIVISIBILITY all 3 must be satisfied: i. performance of each party divided into 2 or more parts; ii. # of parts due from each party is same; iii. perf. of each part by one party is agreed on as the equivalent of the corresponding part
CONT - DISCHARGE OF DUTY TO PERFORM BY IMPOSSIBILITY 1. impossibility must be objective; 2. impossibility must arise after; 3. each party excused from perf.; 4. imposs. can be partial (discharges only that part); 5. imposs. can be temporary (only suspends)
CONT - CONTRACTS TO BUILD & IMPOSSIBILITY contract to construct a building NOT discharged by destruction of work in progress
CONT - DISCHARGE OF DUTY TO PERFORM BY IMPRACTICABILITY test for imprac.: i. extreme & unrsbl difficulty/expense; ii. nonoccurrence was basic assumption of parties; iii.
CONT - DISCHARGE OF DUTY TO PERFORM BY FRUSTRATION exists if purpose of contract has become valueless by supervening event; elements - i. supervening act; ii. did not rsbly foresee; iii. purpose of contract destroyed; iv. purpose of K realized by both parties at time of making K
CONT - DISCHARGE OF DUTY TO PERFORM BY RESCISSION a. mutual rescission - must be executory on both sides; unilateral rescission - requires legal grounds like mistake, misrep., duress, lack of consid.
CONT - PARTIAL DISCHARGE OF DUTY TO PERFORM BY MODIFICATION requires: a. mutual assent; b. consideration;
CONT - DISCHARGE OF DUTY TO PERFORM BY NOVATION occurs when new contract substitutes a new party to receive benefits and assume duties; elements - i. previous valid K; ii. agreement among all parties; iii. immediate extinguishment of duties of old parties; iv. valid & enforceable new K
CONT - DISCHARGE OF DUTY TO PERFORM BY ACCORD & SATISFACTION a. accord = agreement in which one party agrees to accept in lieu of the perf. he was supposed to receive some other, diff. perf., requires diff. consid.; satis. - perf. of accord agreement
CONT - DETERMINING MATERIALITY OF BREACH general rule is to consider: 1. amt of benefit received; 2. adequacy of damages; 3. extent of part perf.; 4. hardship to breaching party; 5. negligent or willful behavior; 6. likelihood of full perf.
CONT - PERFECT TENDER RULE - SALE OF GOODS (Article 2) if goods or their delivery fail to conform to the contract in any way, the buyer generally may reject all, accept all, or accept any and reject rest
CONT - REVOCATION OF ACCEPTANCE OF GOODS goods must have subst. defect that impairs their value, and must have accepted them on rsbl belief that defect was cured, and accepted because of difficulty of discovering defects; must be in rsbl time and before any subst. change occurs
CONT - NONMONETARY REMEDIES - SPECIFIC PERF. if legal remedy is inadequate, nonbreaching party may seek specific perf., esp. if subject matter is rare or unique or land; not available for service K's
CONT - EQUITABLE DEFENSES TO SPECIFIC PERF. 1. laches; 2. unclean hands; 3. sale to a bona fide purchaser
CONT - NONMONETARY REMEDIES UNDER ARTICLE 2 - BUYER 1. cancellation; 2. replevy identified goods (if seller insolvent or goods purchased for personal, family, or household purposes); 3. spec. perf. (for unidentified goods)
CONT - SELLER'S NONMONETARY REMEDIES 1. seller's right to withhold goods; 2. seller's right to recover goods; 3. seller's ability to force goods on buyers limited; right to demand assurances
CONT - MONETARY REMEDIES FOR BREACH - DAMAGES types of damages: a. compensatory; b. punitive; c. nominal; d. liquidated
CONT - COMPENSATORY DAMAGES put the nonbreaching party where she would have been had the promise been performed; standard measure - expectation; also reliance damage measurement (position if K never formed); consequential - if rsbly foreseeable; incidental (sale of goods)
CONT - PUNITIVE DAMAGES generally NOT available in K cases
CONT - NOMINAL DAMAGES token damages ($1) where breach is shown but no actual loss proven
CONT - LIQUIDATED DAMAGES must be rsbl in view of actual or anticipated harm; req. for enforcement: i. damages must have been difficult to estimate at formation; ii. must be rsbl forecast and not a penalty; recoverable even if no actual damages
CONT - K'S FOR SALE OF GOODS - BUYER'S DAMAGES seller doesn't deliver or rejection - diff. in K price and market price or cost of replacement goods; seller delivers nonconf. goods - if buyer accepts, warranty damages, consequential damages
CONT - K'S FOR SALE OF GOODS - SELLER'S DAMAGES buyer refuses or ant. breaches - difference b/t K price and market price or difference between K price and resale price; damages based on lost profits (volume seller)
CONT - K'S FOR SALE OF LAND - DAMAGES difference between K price and fair market value
CONT - EMPLOYMENT K'S - DAMAGES breach by employer - full K price; breach by employee - cost to replace employee (if intentional); same for unintentional, but can be mitigated for work done
CONT - CONSTRUCTION K'S - DAMAGES breach by owner - builder gets profits (or profits + costs if work started) (+ interest if completed); breach by builder = cost of completion (+ rsbl comp. for delay if applicable) (+ interest if late perf.)
CONT - RESTITUTION based on unjust enrichment; measure of damages is generally value of benefit conferred
CONT - RESCISSION remedy whereby original K considered voidable and rescinded; grounds - a. mutual mistake; b. unilateral mistake if other party knew; c. misrep. of fact or law
CONT - REFORMATION remedy whereby writing setting forth the agreement b/t the parties is changed so that it conforms to the original intent of the parties (parol evid. and statute of frauds do not apply)
CONT - WHAT 3RD PARTY BENEFICIARIES CAN SUE? intended vs. incidental benficiaries (according to language of K);
CONS - ARTICLE III federal courts have judicial power over all cases and controversies: 1. arising under Cons., laws, treaties of US; 2. admiralty/maritime; 3. if US is party; 4. b/t states; 5. diversity; 6. citizen vs. foreign state/citizen
CONS - POWER OF JUDICIAL REVIEW 1. review of other branches of fed. gov.; 2. federal review of state acts
CONS - TYPES OF FEDERAL COURTS 1. Article III - established by Congress, who has power to delineate jurisdictional limits, both original and appellate; 2. Article I - judges have no life tenure or salary protection, vested with admin. and judic. fucntions
CONS - JURIS. OF SUPREME COURT original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party; appellate juris. in all cases arising under Cons., act of Cong., or treaty, appeal, certiorari (4 must agree)
CONS - RIPENESS immediate threat of harm
CONS - MOOTNESS federal court will not hear a case that has become moot; real, live controversy must exist at all stages of review, not merely when complaint filed
CONS - STANDING SCOTUS will not decide a cons. challenge unless a person has standing; components - 1. injury; 2. causation; 3. redressability
CONS - STANDING TO ASSERT RIGHTS OF OTHERS P must have suffered injury AND: i. 3rd parties find it difficult to assert own rights; ii. injury suffered by P adversely affects relationship with 3rd party
CONS - STANDING OF ORGANIZATION standing to challenge action that causes injury to org. itself, or to its members IF: i. injury in fact to members; ii. injury related to org.'s purpose; AND iii. neither nature of claim nor relief requires participation of indiv. members in lawsuit
CONS - CITIZENSHIP STANDING no general standing as a result of being a mere citizen
CONS - TAXPAYER STANDING gen. no standing to litigate gov. expenditures; exception: Cong. measures under taxing and spending power that violate establishment clause
CONS - ADEQUATE AND INDEPENDENT STATE GROUNDS SCOTUS will refuse juris. if it finds adequate and independent nonfederal grounds to support the state decision
CONS - ABSTENTION a. unsettled state law - when fed. cons. claim premised on an unsettled ? of state law, federal court should stay its hand; b. pending state proceedings - fed. cts. will not enjoin pending state criminal proceedings
CONS - POLITICAL QUESTION DOCTRINE SCOTUS will not decide political questions; political questions are: i. those issues committed by the Constitution to another branch of gov.; or ii. those inherently incapable of resolution and enforcement by the judicial process
CONS - 11TH AMENDMENT LIMITS ON FEDERAL COURTS - WHAT IS BARRED? i. actions against state gov.'s for damages; ii. actions against state gov.'s for inj. or dec. relief where state is party; iii. actions against state gov. off. where damages paid from state treas.; iv. actions against state gov. off. for viol. state law
CONS - SOVEREIGN IMMUNITY - WHAT IS BARRED? a. suits against state gov. in state court, w/o D's consent; b. adjudicative actions against states and state agencies before federal administrative agencies
CONS - EXCEPTIONS TO 11TH AMENDMENT - CERTAIN ACTIONS AGAINST STATE OFFICERS a. actions against state officers for injunctions; b. actions against state officers for monetary damages from officer (for violations of federal law); c. actions against state officers for PROSPECTIVE payments from state
CONS - EXCEPTIONS TO 11TH AMENDMENT - CONGRESSIONAL REMOVAL OF IMMUNITY UNDER 14TH AMENDMENT Cong. can remove the states' 11th Amendment immunity under its power to prevent discrimination under the 14th Amend.
CONS - NECESSARY AND PROPER "POWER" grants Cong. power to make all laws necessary and proper for carrying into execution any power granted to any branch of the federal government
CONS - TAXING POWER Cong. has power to lay and collect taxes, imposts, and excises, but they must be uniform throughout the US (export taxes not permitted)
CONS - SPENDING POWER Cong. may spend to provide for the common defense and general welfare
CONS - COMMERCE POWER Cong. may regulate commerce with foreign nations and among the several states, and with Indian tribes; commerce includes basically all activity affecting 2 or more states, includes trans./traffic
CONS - LIMITATIONS ON COMMERCE POWER federal law must :i. regulate the channels of interstate commerce; or ii. regulate the instrumentalities; or iii. regulate activities that have subs. effect
CONS - WAR AND RELATED POWERS Cong. has power to declare war, raise and support armies, provide/maintain navy, make rules/regulations for armed forces, and organize/arm militia
CONS - PROPERTY POWER Cong. has power to dispose of and make all needful rules/regulations respecting the territory or other property belonging to the US
CONS - BANKRUPTCY POWER Cong. may establish uniform laws on the subject of bankruptcies throughout the US
CONS - POSTAL POWER Cong has power to establish post offices and post roads
CONS - POWER OVER CITIZENSHIP Cong. may establish a uniform rule of naturalization; a. exclude all aliens; b. natrualziation/denaturalization
CONS - LIMITATIONS ON CONGRESSIONAL DELEGATION OF POWER a. power cannot be uniquely confined to Cong.; b. must be clear standard; c. separation of powers limitation; d. must respect liberty interests;
CONS - SPEECH OR DEBATE CLAUSE - SPECIAL IMMUNITY FOR FEDERAL LEGISLATORS extends to aides who engage in acts that would be immune if performed by a legislator, but NOT state legislators; bribes excluded; speeches outside Cong. excluded; defamation excluded
CONS - CONGRESSIONAL "VETO" OF EXECUTIVE ACTIONS INVALID usually brought about when Cong. delegates discretionary powers to President or an executive agency; if no bicameralism and presentment, invalid
CONS - EXEC. POWERS - APPOINTMENT Pres. empowered with advice and consent of Senate to appoint all ambassadors, other public ministers and consuls, judges of SCOTUS, and all other officers of US, but Cong. may vest appointment of inferior officers in Pres., courts, or heads of departments
CONS - EXEC. POWERS - REMOVAL 1. by Pres. - can probably remove high level, purely executive officers (i.e. Cabinet members) at will; 2. by Cong. - Cong. cannot give itself power to remove officer charged with execution of laws except through impeachment
CONS - EXEC. POWERS - PARDONS Pres. empowered to grant reprieves and pardons for offenses against the US, except in cases of impeachment; includes power to commute sentence
CONS - EXEC. POWERS - VETO POWER a. Cong. may override veto by 2/3 vote; b. Pres. has 10 days to veto (becomes law if not if Cong. in session, pocket veto if Cong. not in session); line item veto uncons.
CONS - EXEC. POEWRS - POWER OVER EXTERNAL AFFAIRS 1. war, under actual hostilities; 2. foreign relations, as representative; 3. treaty power - with advice and consent of Senate, if 2/3 present to concur; 4. exec. agreements - with heads of other nations, consent of Senate not req.
CONS - EXEC. PRIVILEGE/IMMUNITY Pres. documents and conversations presumptively privileged; absolute immunity - from civil damages based on action took within official respon. (may extend to aides)
CONS - IMPEACHMENT persons - Pres., VP, all civil officers of US; grounds - treason, bribery, high crimes, misdemeanors; needs maj. vote in House, 2/3 vote in Senate
CONS - SUPREMACY CLAUSE provides that the federal law is supreme, and conflicting state law is void
CONS - FORMS OF SUPREMACY CLAUSE CONFLICTS 1. actual conflict; 2. state prevents federal objective
CONS - PREEMPTION a. express; b. implied - courts will try to deduce Cong. intent (presumption that state laws do not supersede)
CONS - FULL FAITH AND CREDIT CLAUSE full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state
CONS - SUITS BY US AGAINST STATE state need not consent
CONS - FEDERAL OFFICER AS DEFENDANT deemed to be brought against US if judgment sought would be paid out of public treasury, therefore not permitted
CONS - PRIVILEGES AND IMMUNITIES CLAUSE - ARTICLE IV the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states, prohibits discrimination by a state against nonresidents (corporations and aliens not protected), only "fundamental rights" protected
CONS - PRIVILEGES AND IMMUNITIES CLAUSE - 14TH AMENDMENT prohibits states from denying their citizens the privileges and immunities of national citizenship, such as right to petition Cong. for redress of grievances
CONS - REGULATION OF FOREIGN COMMERCE lies exclusively with Cong. (traffic on high seas)
CONS - REGULATION OF INTERSTATE COMMERCE states may regulate in absence of congressional action, but may not discriminate against interstate commerce, and so long as not unduly burdensome
CONS - EXAMPLES OF INVALID REGULATIONS AGAINST INTERSTATE COMMERCE 1. regulations protecting local business; 2. regulations requiring local operation; 3. regulations limiting access to in-state products; 4. regulations prohibiting out-of-state wastes (exc: necessary to important state interest)
CONS - 21ST AMENDMENT - STATE CONTROL OVER INTOXICATING LIQUOR repealed prohibition, gave state governments wide latitude over the importation of liquor and the conditions under which liquor is sold or used within the state
CONS - POWER OF STATES TO TAX INTERSTATE COMMERCE Cong. has complete power to authorize or forbid state taxation affecting interstate commerce; if discriminates against interstate comm., then invalid; if not, then 3 tests: i. substantial nexus; ii. fairly apportioned; iii. fair relationship
CONS - USE TAX imposed on the users of goods purchased out of state; not considered to discriminate against interstate commerce; state may force seller to collect use tax
CONS - SALES TAXES generally do not discriminate against interstate commerce;
CONS - AD VALOREM PROPERTY TAXES taxes based on a percentage of the assessed value of the property in question; generally valid; goods in transit totally exempted
CONS - PRIVILEGE, LICENSE, FRANCHISE, OCCUPATION TAXES for privilege of doing business within the state; must meet basic requirements (subst. nexus, not discriminate, fair apportionment, fairly related to services)
CONS - BILL OF RIGHTS (FIRST 10) held to be applicable to states by 14th Amend. (all of 1st (speech); 2nd (arms); 4th (search & seizure); 5th (self-incrim); 6th (speedy trial by jury, confrontation); 8th (cruel & unusual)
CONS - BILL OF RIGHTS - RIGHTS NOT APPLICABLE TO STATES i. 3rd (quartering troops); 5th (right to grand jury indictment in crim. cases); 7th (jury trial in civil cases); 8th (excessive fines)
CONS - CONTRACT CLAUSE - IMPAIRMENT OF CONTRACT prohibits states from enacting any law that retroactively impairs contract rights (does not affect contracts not yet entered into)
CONS - EX POST FACTO LAWS neither state nor federal gov. may pass legislation that retroactively alters the criminal law in a substantially prejudicial manner so as to deprive a person of any right previously enjoyed for the purpose of punishing the person for some past activity
CONS - BILLS OF ATTAINDER legislative act that inflicts punishment without a judicial trial upon individuals who are designated either by name or in terms of past conduct (applies to both federal and state gov.)
CONS - PROCEDURAL DUE PROCESS - BASIC PRINCIPLE government shall not take a person's life, liberty or property without due process of law (contemplates fair process/procedure, and neutral decisionmaker)
CONS - PROCEDURAL DUE PROCESS - IS LIFE, LIBERTY, OR PROPERTY BEING TAKEN? liberty - freedom from bodily restraints, right to contract and engage in gainful employment; property - personal belongings, realty, chattels, money (must be an entitlement)
CONS - ACCESS TO COURTS - INDIGENT PLAINTIFFS fundamental rights - waiver of fees required; nonfundamental rights - waiver not required
CONS - THE "TAKING" CLAUSE 5th Amend. prohibits governmental taking of private property "for public use without just compensation"
CONS - WHETHER A 'TAKING' HAS OCCURRED 1. actual appropriation or physical invasion (exc: emergencies); 2. use restrictions - denial of ALL economic value of land = taking; remedy = compensation, or termination of regulation and damages
CONS - SUBSTANTIVE DUE PROCESS & EQUAL PROTECTION substantive due process - guarantees that laws will be rsbl and not arbitrary; equal protection - similarly situated persons will be treated alike
CONS - SUBST. DUE PROCESS & EQUAL PROTECTION - WHAT STANDARD OF REVIEW WILL THE COURT APPLY? strict - suspect class. or fund. right, upheld if NEC. to achieve COMPEL. state interest; intermediate - class. based on gender or legit., upheld if SUBST. related to IMPORTANT gov. interest; rat. basis - upheld if RAT. RELATED to LEGITIMATE gov. interest
CONS - SUBST. DUE PROCESS - FUNDAMENTAL RIGHTS right to travel, privacy, voting, all 1st Amend. rights (strict scrutiny); other rights = business/labor, taxation, lifestyle, zoning (RBR)
CONS - EQUAL PROTECTION EPC of 14th Amend. has no counterpart in Constitution applicable to government; limited to state action (but grossly unrsbl discrimination by fed. gov. violates 5th Amend.)
CONS - EQUAL PROTECTION - PROVING DISCRIMINATORY CLASSIFICATION 1. facial disc. - explicit distinction; 2. disc. application - neutral on face, applied in diff. manner; 3. disc. motive - neutral on face and application, disproportionate impact (but must be purpose, not just effect)
CONS - SUSPECT CLASSIFICATIONS 1. race/national origin; 2. alienage - valid if not arbitrary and unrsbl (rarely subject to strict scrutiny);
CONS - QUASI-SUSPECT CLASSIFICATIONS 1. gender - intentional discrimination against women must show "exceedingly persuasive justification"; legitimacy
CONS - FUNDAMENTAL RIGHTS - RIGHT OF PRIVACY 1. marriage; 2. use of contraceptives; 3. abortion; 4. obscene reading material (but not child porn); 5. keeping extended family together; 6. rights of parents; 7. intimate sexual conduct; 8. collection and distribution of personal data
CONS - FUNDAMENTAL RIGHTS - ABORTION pre-viab rule: no undue burdens; inf. consent not undue; waiting period is not undue; parental consent not undue; (if bypass available); spousal consent IS undue; partial-birth ban NOT undue; post-viab rule: may prohibit unless woman's health threatened
CONS - FUNDAMENTAL RIGHTS - RIGHT TO VOTE a. short residency requirements valid; b. property ownership req. invalid; c. poll taxes prohibited; may not dilute right to vote; may not gerrymander;
CONS - FUNDAMENTAL RIGHTS - RIGHT TO TRAVEL individuals have a fundamental right to travel from state to state and to be treated equally if they become a resident
CONS - FUNDAMENTAL RIGHTS - RIGHT TO REFUSE MEDICAL TREATMENT SCOTUS has NOT explained which standard of review should be used
CONS - FIRST AMENDMENT FREEDOMS - GENERAL PRINCIPLES free speech clause restricts government regulation of private speech
CONS - FIRST AMENDMENT FREEDOMS - CONTENT-BASED REGULATIONS content based regulations must be necessary to serve a compelling state interest and narrowly drawn to achieve that end (unless unprotected category such as obscenity, defamation, fighting words); content-neutral regulations warrant inter. scrutiny
CONS - FIRST AMENDMENT FREEDOMS - REGULATION OF CONDUCT depends on whether the forum involved is a public forum, a designated public forum, a limited public forum, or a nonpublic forum
CONS - TEST FOR VALID REGULATION OF SPEECH AND ASSEMBLY IN PUBLIC FORUMS AND DESIGNATED PUBLIC FORUMS must: i. be content neutral; ii. be narrowly tailored to serve an important government interest; iii. leave open alternative channels of communication
CONS - TEST TO DETERMINE WHETHER AN INJUNCTION THAT RESTRICTS SPEECH OR PROTEST IS CONSTITUTIONAL depends on if content neutral; if content-based - necessary to compelling interest; content-neutral - burdens no more speech than necessary
CONS - LIMITED PUBLIC FORUMS AND NONPUBLIC FORUMS government can regulate speech in such a forum to reserve the forum for its intended use; regs will be upheld if i. viewpoint neutral; ii. rsbly related to legitimate gov. purpose
CONS - UNPROTECTED SPEECH - REGULATION/PUNISHMENT BECAUSE OF CONTENT list of only reasons for which SCOTUS has allowed content-based restrictions on speech: i. clear and present danger of imminent lawless action; ii. fighting words; iii. obscene; iv. defamation; v. false/deceptive advertising; vi. compelling interest
CONS - PRIOR RESTRAINTS any governmental action that would prevent a communication from reaching the public (must be some special societal harm) - national security, fair trial, contracts, military, obscenity
CONS - FREEDOM OF THE PRESS 1. publication of truthful information; 2. access to trials; 3. req. to testify in front of grand jury OK; 4. may not insist to interview prisoners; 5. taxes upheld
CONS - FREEDOM OF ASSOCIATION AND BELIEF may be infringed to serve a compelling government interest
CONS - FREEDOM OF RELIGION 1. no punishment of beliefs; 2. no punishment of relig. conduct solely because religious; 3. states can reg. gen. conduct
CONS - ESTABLISHMENT CLAUSE 1. sect preference presumed invalid; 2. no sect preference - Lemon test: valid if i. secular purpose; ii. primary effect neither advances nor inhibits religion; and iii. does not produce excessive gov. entanglement
AGEN - DEFINITION OF AGENCY relationship that arises when principal manifests an intention that the agent shall act on his behalf
AGEN - CREATION OF AGENCY RELATIONSHIP 1. capacity - principal - contract cap.; agent - minimal cap.; 2. formalities - consent of both parties, no consid. req., no writing req.
AGEN - MODES OF CREATING AGENCY RELATIONSHIP a. by act of parties; b. operation of law (estoppel or statute)
AGEN - RIGHTS AND DUTIES BETWEEN PRINCIPAL AND AGENT - DUTIES OF AGENT TO PRINCIPAL 1. duty of loyalty (no self-dealing); 2. duty of obedience (obey all rsbl directions; 3. duty of rsbl care (in light of local community standards, taking into acct skill of agent)
AGEN - REMEDIES OF PRINCIPAL FOR BREACH OF DUTY BY AGENT a. action for damages; b. action for secret profits; c. accounting; d. withhold compensation
AGEN - DUTIES OF SUBAGENT TO PRINCIPAL AND AGENT a. liability of agent for subagent breaches; b. liability of subagent to agent
AGEN - DUTIES OF PRINCIPAL TO AGENT a. duties imposed by law (compensation/reimbursement); b. duties imposed by K; c. duty to cooperate
AGEN - REMEDIES OF AGENT a. breach of K; b. agent's lien
AGEN - ACTUAL & APPARENT AUTHORITY - ACTUAL AUTHORITY auth. agent rsbly thinks she possesses based on dealings with prin.; 1. express; 2. implied authority (custom, usage, necessity, from prior express)
AGEN - TERMINATION OF ACTUAL AUTHORITY 1. by lapse of time; 2. happening of event; 3. change of circumstances; 4. breach of agent's fid. duty; 5. unilateral act of either prin. or agent; 6. operation of law
AGEN - IRREVOCABLE AGENCIES (MAY NOT BE UNILATERALLY TERMINATED) a. agency coupled with interest; b. power given as security
AGEN - APPARENT AUTHORITY prin. can still be held liable on K's entered into on behalf of 3rd party if 3rd party can show agent had apparent authority to act ("holding out," rsbl reliance); lingering app. auth. may require notice to term.
AGEN - INHERENT AUTHORITY prin. bound by agent's acts in certain situations even though agent has no actual auth. (to protect 3rd parties)
AGEN - RATIFICATION if agent who has no auth. purports to have it, prin. might be bound if ratifies (agent relieved of liability for breach if ratified)
AGEN - WHAT CONSTITUTES RATIFICATION 1. prin. must know material facts; 2. prin. must accept entire transaction; 3. prin. must have capacity; 4. no consid. needed (undisclosed prin. may not ratify)
AGEN - LIABILITIES OF THE PARTIES - 3RD PARTY VS. PRIN. general rule: if agent had auth., prin. liable to 3rd party
AGEN - LIABILITIES OF THE PARTIES - 3RD PARTY VS. AGENT a. disclosed prin. - prin. liable, agent not; b. partially disclosed and undisclosed prin. - both agent and prin. liable, election to bind either
AGEN - RIGHT TO HOLD 3RD PARTY LIABLE a. disclosed - prin. may enforce; b. partially/undisclosed - prin. or agent may enforce K (unless fraudulent concealment of prin.'s identity)
PART - PARTNERSHIP DEFINED an association of two or more persons to carry on as co-owners a business for profit
PART - PARTNERSHIP AS LEGAL ENTITY except with respect to partners' personal liability for partnership obligations, a partnership generally is treated as legal entity distinct form indiv. partners; may own land; may be sued
PART - GOVERNING LAW - RUPA RUPA gen. governs, agreement may alter, but can't waive: i. part's right of access to books/records; ii. part's duties of loyalty & care; iii. power to dissociate; iv. power to expel part; v. wound up; vi. rights of 3rd parties; vii. duty of good faith
PART - FORMATION OF PARTNERSHIP 1. agreement (writing not req.); 2. capacity - K capacity; 3. legality of purpose; 4. consent of all
PART - PROOF OF PARTNERSHIP EXISTENCE look to intent of parties; consider: 1. sharing of profits raises presumption of part. unless: debt, services/wages of employee/ind. cont., rent, annuity/retirement, interest of loan, sale of goodwill
PART - EVIDENCE INDICATIVE OF PARTNERSHIP a. title to property; b. designation of entity by parties; c. extensive activity involved; d. sharing of gross returns;
PART - FAILURE TO SHARE LOSSES evidence of intent not to form part.
PART - PURPORTED PARTNERS may be bound to third parties if they consent to holding themselves out as partners; those that hold non-partners out as partners may be liable due to power to bind
PART - PROPERTY OF PARTNERSHIP a. partnership capital - property or money contributed by each of part.; b. partnership property - contributions and subsequently acquired prop.
PART - COMMON LAW CRITERIA FOR UNTITLED PARTNERSHIP PROPERTY consider: a. partnership funds used?; b. use of prop. by part.?; c. ownership in books?; d. relationship b/t prop. and business operations?; e. improvement of prop. with part. funds?; f. maint. of prop. with part. funds?
PART - PARTNER'S INTEREST IN THE PARTNERSHIP - IN GENERAL i. management and other rights; ii. right to share in part. profits and losses and receive distributions
PART - TRANSFERABLE INTEREST IS PERSONAL PROPERTY each partner has transferable interest in part., which consists of share of profits/losses and right to recieve dist. (unless agreement to the contrary)
PART - TRANSFEREE'S RIGHTS not entitled to interfere in management or administration of part. business or affairs, to require information, or to inspect books
PART - RIGHT TO PARTICIPATE IN MANAGEMENT ordinary business decisions require majority vote; decisions outside scope of business require consent of all partners
PART - INDEMNIFICATION partnership must indemnify partners for payments rsbly made and obligations rsbly incurred by a partner in carrying on business of part.
PART - RELATIONS OF PARTNERS TO 3RD PARTIES - RUPA, GENERALLY focus on apparent auth.; act of any part. in ordinary course of business binds partnership unless: i. part. had no auth.; and ii. 3rd party had notice
PART - STATEMENT OF AUTHORITY partnership may expand or curtail a partner's auth. to enter into transactions on behalf of the partnership by filing a statement of authority with the secretary of state
PART - LIABILITIES OF PARTNERS - CIVIL LIABILITY 1. contract liab.; 2. tort liab. (in ordinary course of business); 3. timing - new guy not liab. for old stuff; old guy still liable for stuff during his term even after he leaves
PART - LIABILITIES OF PARTNERS - CRIMINAL LIABILITY only those who participated in the crime are liable
PART - DISSOCIATION - EVENTS OF DISSOCIATION i. notice & express will; 2. happening of agreed upon event; 3. expulsion pursuant to agreement; 4. expulsion by unanimous vote; 5. expulsion by judicial decree; 6. bankruptcy; 7. death; 8. incapacity; 9. receiver; 10. termination of business entity
PART - DISSOLUTION - EVENTS CAUSING DISSOLUTION 1. notice & will; 2. will of half of remaining partners after death, bankruptcy, dissociation, expiration of term; 3. happening of agreed upon event; 4. unlawfulness; 5. judicial decree by partner or transferee
PART - DISTRIBUTION OF ASSETS - FINAL ACCOUNTING creditors must be paid before partnership distributions
PART - LIMITED LIABILITY PARTNERSHIPS - FORMATION 1. voting (partnership agreement); 2. filing with sec. of state; 3. must be named RLLP/LLP; 4. no personal liability for partnership obligations
PART - LIMITED PARTNERSHIPS composed of one or more general partners and one or more limited partners; general partners personally liable; limited partners not (except to make contributions)
PART - FORMATION OF LIMITED PARTNERSHIP 1. certificate filed with sec. of state; 2. records office; 3. agent for service of process
PR - SOURCES OF REGULATION 1. state reg. - state legis., state courts, state bar assoc.; 2. federal reg. - fed. courts, fed. admin. agencies, fed. gov. attorneys; 3. ABA; 4. CA legal ethics rules
PR - ADMISSION TO LEGAL PROFESSION 1. citizenship req. - state may NOT require; 2. residency req. - state may NOT require; 3. character req. OK; may not not reject for political membership, personal beliefs
PR - DISCIPLINARY PROCESS gen standards: 1. violations of Rules of PC; 2. crime involving honesty; 3. state/imply improper influence; 4. dishonest conduct; 5. prejudicial conduct; 6. assisting judge in dishonest ocnduct
PR - DISCIPLINARY PROCEDURE a. complaint; b. screening and hearing
PR - FORMS OF DISCIPLINARY SANCTION a. disbarment; b. suspension; c. public or private censure
PR - UNAUTHORIZED PRACTICE OF LAW i practicing in jurisdiction in violation of that juris.; ii. assisting a person who is not member of bar in unauthorized practice of law
PR - PROHIBITION ON MULTI-JURISDICTIONAL PRACTICE lawyer licensed in one state may not: i. open law office in other state; ii. hold himself out as practicing in other state; or iii. establish a "systematic and continuous presence" in other state without becoming licensed
PR - PERMISSIBLE PRACTICING IN ANOTHER STATE 1. association with active lawyer; 2. pro hac vice; 3. mediation/arbitration arising out of home state; 4. temporary practice out of state if rsbly related to home-state practice
PR - FORMS OF PRACTICE 1. law firms; 2. may not partner with laypersons to practice law or share legal fees; lawyer must exercise independent judgment
PR - RESTRICTIONS ON RIGHT TO PRACTICE lawyer must not participate in offering or making: i. partnership or employment agreement that restricts rights of lawyer to practice after term. of relationship; or ii. agreement in which restriction on lawyer's right to practice is part of settlement
PR - SALE OF LAW PRACTICE lawyer may sell prac. or area of practice, inc. goodwill; req.: i. entire prac. or area of prac. must be sold to 1+ lawyers; ii. seller must cease to engage in prac. or that area in that geo. area; iii. fees charged must not increase; iv. notify clients
PR - SALE OF LAW PRACTICE - CA DIFFERENCES i. notice req. more complicated; ii. no need to stop practicing in geo. area; iii. CA does not permit sale of area of prac., only all or subst. all; iv. may keep clients in conflict
PR - ADVERTISING VS. SOLICITATION advertising - public at large; solicitation - individual contact
PR - ADVERTISING RULES 1. communications must be true and not misleading; 2. must include name and office address of at least 1 lawyer in firm;
PR - RECIPROCAL REFERRAL ARRANGEMENTS may enter into RRA if arrangement not exclusive and lawyer explains arrangement to client when making refferal
PR - ADDITIONAL CA RESTRICTIONS ON ADVERTISING 1. no guarantees on outcome; 2. no "quick cash" no "quick settlement"; 3. impersonation w/o disclosure; 4. dramatization w/o disclosure; 5. contingent fee offer w/o warning of other fees
PR - SOLICITATION RULES 1. prohibited from using agents; 2. may solicit for pro bono work; 3. may solicit family; 4. written solicitations must be labeled as advertising material
PR - ACCEPTING APPOINTMENTS must not avoid appointment unless: i. violation of Rules would occur; ii. unrsbl financial burden on lawyer; iii. client/cause so repugnant to lawyer as to impair zealous advocacy
PR - EMERGENCY REP. OF NONSOLICITED PERSON WITH DIMINISHED CAPACITY may represent even w/o formal entry into att-client relationship if already consulted (usually compensation not sought)
PR - AVOIDING CONFLICTS OF INTEREST 1. concurrent - directly adverse to interests of another client; 2. client consent - 4 conditions - rsbly believes can rep.; rep. not prohibited; clients not adverse; informed, written consent
PR - GENERAL RULE OF IMPUTED CONFLICTS if a lawyer faces conflict, no lawyer in that firm may represent the client (but may consent in writing); not imputed: gov. lawyers; personal interest of 1; family relat. of 1; sexual relat. of 1; screening (no fee)
PR - CALIFORNIA AND IMPUTED CONFLICTS not subject to discipline for imputed conflict
PR - OWNERSHIP/FINANCIAL INTEREST ADVERSE TO CLIENT may not enter into business transaction unless: 1. fair & rsbl terms fully disclosed in writing; 2. advised to seek indep. counsel; 3. informed consent in writing
PR - DESIGNATING ONESELF AS BENEFICIARY lawyer must not solicit subst. gift from client or prepare instrument giving lawyer or person related to lawyer subst. gift from client
PR - LITERARY/MEDIA RIGHTS BASED ON REP. prior to conclusion of rep., must not negotiate for literary/media rights relating to rep.
PR - FINANCIAL ASSISTANCE may not provide in conn. with pending litigation exc: 1. advance court costs; 2. may pay court costs for indigent client
PR - COMPENSATION FROM PARTY OTHER THAN CLIENT must not accept compensation from someone other than client unless: 1. written, informed consent; 2. no interference with lawyer's judgment; 3. info still kept confident
PR - AGGREGATE SETTLEMENT/AGGREGATE GUILTY PLEA may not seek unless all clients give informed written consent
PR - LIMITING LIABILITY FOR MALPRACTICE can't do it; also can't settle malpractice claim with unrep. client or former client
PR - LAWYERS CLOSELY RELATED TO EACH OTHER must get informed consent before representing parties in same matter or subst. related matters
PR - SEXUAL RELATIONSHIP WITH CLIENT must not do unless preexisting
PR - CONFLICTS FACING INSURANCE DEFENSE LAWYERS policyholder and insurance co are joint clients;
PR - REPRESENTING AN ORG. - DUTIES 1. duty to report to higher auth. in org. if violation of law suspected; 2. ability to report outside org. (only if nec. to prevent subst. injury to org. [criminal act causing death/ser.bod.harm])
PR - SECURITIES LAWYER'S DUTIES UNDER SARBANES-OXLEY 1. duty to report to chief legal officer if material violation of state sec. laws; 2. CLO's duty to investigate and obtain appropriate response from client; 3. if not, then lawyer must report to board; 4. may alert SEC
PR - ESTABLISHING COMPENSATION FOR LEGAL SERVICES 1. duty to avoid fee misund.; 2. fee must be rsbl; 3. minimum fee schedules NO, maximum OK; 4. contingency - must be signed in writing, noting fees (can't for domestic rel. or crim.); 5. no ref. fees unless client consent in writing & prop. work & no hike
PR - DISCLOSURE OF LACK OF PROF. LIABILITY INSURANCE must disclose at time of engagement if work will exceed 4 hours
PR - COMPETENT REPRESENTATION a. knowledge & skill; b. thoroughness & prep.; c. supervision; d. diligence; e. comm.;
PR - DUTY TO PRESERVE CONFIDENCES 1. att-cli priv.; 2. exceptions - i. procured to aid in future crime/fraud; ii. breach in rel.; iii. lit. against former clients; iv. comp. of client disposing of prop. by will or inter vivos trans.
PR - DUTY TO PROTECT CLIENT'S PROPERTY 1. client trust acct; 2. must keep records for 5 years; 3. must keep client informed; 4. if dispute, must deliver undisputed portion immediately and put disputed portion in client trust acct
PR - COMMUNICATIONS WITH ADVERSE PARTIES a. comm. with rep. person impermissible; b. if comm. with unrep. person, must disclose that you are not disinterested; c. may not use or examine inadvertently received materials
PR - CANDOR TOWARD TRIBUNAL must not knowingly: i. make false statement; ii. fail to correct false statement; iii. fail to disclose adverse authority; iv. offer false evidence
PR - CRIMINAL DEF. WHO INSISTS ON TESTIFYING FALSELY - MAJORITY VIEW if you KNOW it's perjury, must try to convince otherwise, may withdraw, must disclose enough info to court to set matter straight
PR - PERJURY BY CRIMINAL DEFENDANT - CALIFORNIA narrative statement; cannot rely on false parts in closing argument
PR - FAIRNESS TO OPPOSING PARTY AND COUNSEL must not: i. obstruct access to evid.; ii. falsify evid.; iii disobey obligation to tribunal; iv. make friv. disc. requests; v. allude to any matter not supported by evid.; vi. request person other than client to refrain from giving relevant info
PR - AVOIDING IMPROPER CONTACT WITH JURORS AND THE COURT must not: i. seek to influence, judge, juror, prosp. juror, or admin. tribunal; ii. comm. ex parte; iii. engage in conduct to disrupt tribunal
PR - TRIAL PUBLICITY must not make extrajudicial statements that have subt. likelihood of materially prejudicing;
PR - TERMINATION OF LAWYER-CLIENT RELATIONSHIP - MANDATORY WITHDRAWAL 1. mandatory withdrawal - rep. would result in violation of RPC; physical/mental condition overly impairs; discharged; cause is to harass/injure (CA)
PR - TERMINATION OF LAWYER-CLIENT RELATIONSHIP - PERMISSIVE WITHDRAWAL 1. client persists in course of action that is criminal/fraudulent; 2. lawyer's services used to perpetuate crime/fraud; 3. repugnance; 4. client fails to subst. fulfill oblig. to lawyer; 5. unrsbl financial burden; vi. other good cause
PR - SPECIAL ROLE OF PUBLIC PROSECUTOR must: 1. refrain from pros. w/o prob. cause; 2. rsbl efforts to inform of right to counsel; 3. not seek from unrep. accused a waiver of pretrial rights; 4. timely disc. of excul evid.; 5. rsbl care in extrajud. statements; 6. not subpoena lawyer in crim.;
PR - REPORTING PROFESSIONAL MISCONDUCT must report if know that lawyer has committed violation of Rules that raises subst. question as to that lawyer's honesty, trustworthiness, or fitness in other respects (but not in CA)
PR - CA DUTY TO REPORT ONESELF i. sued for malp. 3x in a year; 2. found civilly liable for fraud/breach of fid.duty; 3. sanctioned more than $1k; 4. charged with fel.; 5. conv. of serious crimes; 6. disciplined in another juris.
TRUS - CHARACTERISTICS OF EXPRESS PRIVATE TRUST 1. intention to create - words, writing, conduct; 2. manifested while settlor owns prop.; 3. trustee must have duties; 4. trust property (res); 5. benef.
TRUS - GROUNDS FOR REMOVAL OF TRUSTEE a. breach of trust; b. incapacity; c. unfitness; d. refusal to post bond or to account; e. conflict of interest; f. insolvency; g. extreme friction/hostility
TRUS - RESIGNATION OF TRUSTEE requires: i. permission of court; or ii. auth. to do so in terms of trust; or iii. consent of all beneficiaries having capacity to consent
TRUS - ACCEPTANCE OF TRUST may be express or implied; presumed acceptance; may renounce prior to acceptance if learned of
TRUS - DEFINITENESS OF BENEF. UNDER PRIVATE TRUST must be definite; need not be identified, but must be susceptible of identification at time interest comes to enjoyment, class OK if sufficiently definite
TRUS - TRUST PURPOSE any purpose allowed that is not contrary to public policy; invalid if illegal or involves comm. of crime/tort
TRUS - CREATION OF EXPRESS TRUSTS 1. inter vivos - declaration of trust by prop. owner; 2. inter vivos trust - transfer of prop.; 3. - testamentary trust - will
TRUS - FORMALITIES OF TESTAMENTARY TRUST essential terms must be ascertained from terms of will itself, or incorporation by ref. or facts having indep. significance or power of appointment
TRUS - SECRET TRUSTS if will makes absolute gift to beneficiary, but in reality conditioned on holding for another, intended benef. may present clear and conv. extrinsic evid. to create constructive trust
TRUS - SEMI SECRET TRUST will makes gift to person in trust, but no named benef.; testator may have comm. intent to trustee; fails due to Stat. of Wills; trustee holds for testator's heirs
TRUS - DISTINCTIVE RULES APPLICABLE TO CHARITABLE TRUSTS 1. must have indefinite benef.; 2. cy pres doctrine; 3. may be perpetual
TRUS - CHARITABLE depends on effect of gift, not motive of settlor; must benefit the community; charitable trust implied when charitable purpose clear
TRUS - HONORARY TRUSTS not for charitable purposes, has no private benef.; (cemetery plot, care of animal during settlor's lifetime); void if beyond Perpetuities
TRUS - ALIENABILITY OF TRUST generally permitted, but reaches only the interest, not the trust res, if multiple benef.
TRUS - RESTRAINTS ON ALIENATION - SPENDTHRIFT TRUSTS 1. creditors may not reach while in trust; 2. restraints on involuntary alienation only are invalid; 3. if there is an assignment, may not compel, but may serve as authorization
TRUS - DISCRETIONARY TRUSTS - TRUSTEE HAS DISCRETION TO MAKE DISTRIBUTIONS 1. creditors rights - before discretion - cannot reach, after discretion - payments made to creditors;
TRUS - SUPPORT TRUSTS trustee required to pay or apply only so much of the income or principal or both as necessary for support of beneficiary
TRUS - POWER OF SETTLOR TO REVOKE OR MODIFY TRUST must reserve (but UTC presumes revocable); power to revoke includes power to amend
TRUS - MODIFICATION OR TERMINATION OF TRUST BY BENEF. only if: i. all benef. consent; and ii. will not interfere with material purpose of trust
TRUS - JUDICIAL POWER TO TERMINATE/MODIFY TRUST i. accomplished early; ii. illegal or impossible to carry out; may advise trustee to deviate in changed circumstances (but cannot change beneficial rights of benef.); can accelerate vested rights
TRUS - JOINT POWERS OF MULTIPLE TRUSTEES traditional position - unanimous decision; modern - majority
TRUS - POWERS OF TRUSTEE a. imperative (mandatory); b. discretionary (must exercise SOME judgment); c. implied - power of sale, power to incur expenses, power to lease, NO implied power to borrow money
TRUS - DUTIES OF TRUSTEE rsbly prudent person; duty of loyalty (no self-dealing); duty to separate and earmark trust res (no commingling); duty to perform personally (no delegation); duty to defend trust from attack; duty to preserve trust res and make it productive
TRUS - LIABILITIES OF TRUSTEE surcharged (damages) or removed by benef.; not liable for acts of co-trustees unless delegated or participated or concealed
TRUS - EXCULPATORY CLAUSES clauses that attempt to relieve the trustee of liability for breach are construed narrowly and held void against public policy generally
TRUS - LIABILITIES OF 3RD PARTIES TO THE TRUST may replevy property improperly transferred unless bona fide purchaser; innocent donee not liable;
TRUS - WILL SUBSTITUTES revocable inter vivos trusts, life insurance designations, bank arrangements
TRUS - REVOCABLE INTER VIVOS TRUST avoids costs and delays of probate, interest must pass during settlor's life
TRUS - POUR-OVER GIFT FROM WILL TO REVOACABLE TRUST made on same terms, avoids dual fees and dual trusts, trust must be in existence before will
TRUS - LIFE INSURANCE TRUSTS contingent benef. trust
TRUS - TOTTEN TRUST BANK ACCOUNTS bank account in depositor's name "as trustee" for named benef., trustee-depositer has full rights during lifetime; may be revoked by withdrawals or other lifetime acts
TRUS - RESULTING TRUSTS involve reversionary itnerest when the equitable interest in prop. not completely disposed of and based on presumed intent of settlor
TRUS - CONSTRUCTIVE TRUSTS to prevent unjust enrichment
TRUS - WHEN ARE RESULTING TRUSTS IMPLIED? 1. purchase money trusts - someone else funded money; 2. - failure of express trust; 3. excess corpus -
TRUS - WHEN ARE CONSTRUCTIVE TRUSTS IMPLIED? 1. arising from theft/conversion; 2. fraud/duress; 3. breach of fid.duty; 4. homicide; 5. breach of promise - no cons.trust
CORP - GENERAL CHAR. OF A CORP. 1. limited liability for owners, directors, officers; 2. centralized management; 3. free transferability of ownership; 4. continuity of life; 5. taxation - C corp. - taxation on corp. income & dist.; S corp - single tax., <100 shareholders, 1 class
CORP - FORMATION OF A DE JURE CORPORATION must file articles of incorporation with state and pay fees; mand. prov. - name, # shares, registered office & agent, name & address of each incorp; optional prov. - business purpose; bylaws
CORP - RECOGNITION OF CORPORATENESS WHEN CORP. DEFECTIVE 1. de facto corp. - statute for valid inc. avail., colorable compliance/good faith, exercise of corp. priv.; corp. by estoppel - those treating as corp. estopped from denying later
CORP - DISREGARD OF CORP. ENTITY ("PIERCING THE CORPORATE VEIL") 1. corporate formalities ignored; 2. inadequately capitalized at outset; 3. to prevent fraud
CORP - WHO MAY PIERCE CORPORATE VEIL? a. creditors; b. shareholders
CORP - TRADITIONAL PAR VALUE APPROACH TO SHARES if par value, could not be sold below that par value, and money received goes to "stated capital" account (idea is to ensure creditors of minimum level of capitalization)
CORP - SHAREHOLDERS CONTROL - INDIRECT a. elect and remove directors; b. modify bylaws; c. approve fundamental corporate changes
CORP - ANNUAL SHAREHOLDER MEETING to elect directors; also special meetings inside or outside state, req. notice
CORP - PROXIES shareholder may vote his shares either in person or by proxy executed in writing by shareholder or attorney-in-fact
CORP - DURATION OF PROXY valid for 11 months unless it provides otherwise
CORP - REVOCABILITY OF PROXIES may be revoked unless conspicuously stated to the contrary, or unless coupled with an interest
CORP - MECHANICS OF SHAREHOLDER VOTING a. quorum (maj. of votes entitled to be cast); b. passes if majority of quorum agrees; c. directors elected by plurality of quorum (cumulative voting optional); shareholders may act w/o meeting by unanimous written consent
CORP - SHAREHOLDER AGREEMENTS voting trusts (must be given to corp.); voting agreements; shareholder management agreements
CORP - SHAREHOLDERS' INSPECTION RIGHTS common law - proper purpose; RMBCA - 5 days notice, proper purpose; any purpose - articles/bylaws, class. of shares, minutes, shareholder comm.'s, director/officer registry, annual report
CORP - PREEMPTIVE RIGHTS yes at common law, no under RMBCA (unless in articles); may be waived; do not apply to compensation for directors/employees, shares issued for consid. other than money, shares w/o general voting rights but with dist. pref.
CORP - SHAREHOLDER SUITS - DIRECT ACTIONS breach of fid.duty owed to shareholder by officer/director
CORP - SHAREHOLDER SUITS - DERIVATIVE SUITS shareholders enforcing rights of corporation - recovery goes to corporation; standing - ownership at time of wrong; written demand requirement; dismissal if not in corp's best interest (as det. by maj. of disint. direc.)
CORP - DISTRIBUTIONS at least one class of stock must have a right to recover the corporation's net assets on dissolution; generally solely within board's discretion; cannot become insolvent; directors may be pers. liable for unlawful distributions
CORP - GENERAL POWERS OF DIRECTORS general responsibility for management of business and affairs of the corporation
CORP - DIRECTORS - NUMBER, ELECTION, AND TERMS 1 or more; elected at annual meetings (maybe w/ staggering); may resign with notice; vacancies may be filled by directors and shareholders;
CORP - REMOVAL OF DIRECTORS with or w/o cause by shareholders, unless articles provide only for cause
CORP - DIRECTORS' MEETING regular or special; within or outside state; must all simultaneously hear each other; reg. meetings w/o notice; special require 2 days; quorum usually 1/2, art. may say otherwise (min 1/3); maj of quo. to approve; action by written unan. consent
CORP - DIRECTORS MAY DELEGATE TO COMMITTEES OR OFFICERS comm. require 2 or more; may NOT: authorize dist, submit actions to shareholders, fill vacancies on boards, amend articles, alter bylaws, approve mergers, authorize reaq. of shares, issue shares
CORP - DIRECTORS' DUTIES duty of due care, duty of loyalty, duty to protect interests of other intracorporate parties
CORP - BUSINESS JUDGMENT RULE court will not question decision in hindsight if due care was given
CORP - DIRECTORS DUTY NOT TO WASTE corporate assets by overpaying for property or employees
CORP - CONFLICTING INTEREST TRANSACTION WITH DIRECTOR majority of disinterested directors may approve
CORP - DIRECTORS COMPENSATION may set their own, unless otherwise provided for in articles or bylaws (must be rsbl to fulfill fid.duty)
CORP - DUTIES OF OFFICERS determined by bylaws
CORP - POWERS OF OFFICERS determined by agency; actual and apparent authority held by Pres., VP, sec., treas.
CORP - RESIGNATION/REMOVAL OF OFFICERS may resign with notice; corp. may remove with or w/o cause
CORP - INDEMNIFICATION OF DIRECTORS/OFFICERS/EMPLOYEES mandatory - d/o who prevails in defending; discretionary - if unsuccessful and: d acted in good faith; and believed conduct in best interest of corp.
CORP - CHANGES IN CORPORATE STRUCTURE - FUNDAMENTAL CHANGES types - most amendments of articles, mergers, share exchanges, dispositions of subst. all prop. outside reg. course of business, and dissolution
CORP - GENERAL PROCEDURE FOR FUNDAMENTAL CHANGE a. maj. of board adopts resolution; b. notice sent to all shareholders; c. change approved by majority of all votes entitled to be cast and by maj. of any voting group; d. formalized in articles, filed with state
CORP - AMENDMENTS TO ARTICLES NEEDING NO APPROVAL "housekeeping" needs no approval, such as: extending duratio, deleting orig. directors names, changing abbrev. or geo. loc.;
CORP - AMENDMENTS BY BOARD & SHAREHOLDERS may require vote of voting group with dissenter's rights if: change aggregate # shares auth., change shares in class to diff. #, exchange/reclassify shares of class, change rights/preferences, cancel dist. rights
CORP - MERGER, SHARE EXCHANGE, CONVERSION merger - blending of one or more into another corp, who survives; share exchange - 1 corp buys all outs. or one or more classes of another corp; conversion - 1 entity changing its form into another
CORP - MERGER approval by shareholders of surviving corp not required if: articles not differ; and each shareh. same # shares; and voting power of shares issued from merger comprises no more than 20% of voting power of shares surviving
CORP - SHORT FORM MERGER SUBSIDIARY part corp owning at least 90% of subsid may merge sub into self w/o approval of shareh or directors of sub
CORP - SHARE EXCHANGE only shareh of corp being acquired need approve
CORP - CONVERSION requires shareh approval
CORP - DISPOSITION OF PROPERTY OUTSIDE REGULAR COURSE OF BUSINESS must be all or subst all (leaves business w/o significant continuing bus activities
CORP - DISSENTING SHAREHOLDERS APPRAISAL REMEDY - WHO MAY DISSENT? merger - shareh entitled to vote (and shareh of sub in short form); share exchange - shareh being acquired; disposition of prop - shareh entitled to vote; amendment of articles - if materially affected
CORP - PROCEDURE FOR SHAREHOLDERS DISSENT corp must give notice; shareh must give notice of intent to demand payment; corp must give dissenters notice; shareholder must demand payment; corp must pay fair value; shareh must give notice of dissatisfaction and show own value; court
CORP - TENDER OFFERS AND CORPORATE CONTROL TRANSACTIONS elements of tender offer - widespread solicitation, substantial % of target, premium price, contingent on fixed # of shares (must file 14D disclosure if >5%)
CORP - 14D REQ. OF TENDER OFFER must be open for 20 days; must be open to all holders of class; shareh must be permitted to withdraw tendered shares while offer open; if oversubscribed, must pro rata; if price goes up, goes up for all
CORP - TARGET OF TENDER OFFER must give within 10 business days statement of: recommendation of accep/reject; or no opinion; or unable to form opinion
CORP - VOLUNTARY DISSOLUTION by incorporators or initial directors (if shares not yet issued/business not yet commenced); by corporate act (fundamental change); must wind up and liquidate affairs; known claims notice and min 120 days
CORP - ADMINISTRATIVE DISSOLUTION failure to pay fees, failure to deliver annual report; failure to maintain reg. agent; failure to notify state of change in agent; expiration of corporate duration
CORP - JUDICIAL DISSOLUTION by attorney general for fraudulent articles; by shareh for irreparable injury with deadlocked directors; illegality; corporate waste; by creditors if insolvent
CORP - LLC taxed like partnership while offering members limited liability like shareh of corp (profits/losses flow through to owners)
CORP - FORMATION OF LLC file articles with sec.of.state; management presumed to be by all members (or as in articles); if management by memb, maj must approve decisions and each is an agent
CORP - LLC - SHARING OF PROFITS/LOSSES on basis of contributions, may only transfer interest in profits/losses, not management
CORP - PROFESSIONAL CORPORATIONS treated like corp, but only for licensed professionals; members MAY NOT escape personal liability for own malpractice
CORP - FORMATION OF PROFESSIONAL CORPORATION election and filing; must deemed prof corp, or prof assoc, or service corp, or PC/PA/SC
CORP - WHO MAY CREATE PROFESSIONAL CORP, GENERALLY architects, attorneys, CPAs, engineers, dentists, doctors, pharmacists, psychologists
CORP - FOREIGN CORPORATIONS admission - certificate of auth.; if no certi. cannot bring suit, but contracts still valid
CORP - RULE 10B-5 unlawful for any person, directly, or indirectly, to use means or instrumentality of interstate commerce to defraud or make untrue statements or omissions that would operate to defraud re: security
CORP - 10B-5 INSIDER TRADING violation if breach duty of trust and confidence owed to issuer, shareholder of issuer, or another person who is source of material nonpublic info
CORP - TIPPER tipper liable if tipping for improper purpose; tippee liable if he breached and knew tipper was breaching
CORP - MISAPPROPRIATORS OF INSIDER INFO gov can prosecute person under 10b-5 in breach of duty of trust owed to source of info
CORP - 16B any profit realized by d/o/shareh owning more than 10% from any purchase/sale of any equity security within a period of less than 6 months must be returned to corp (applies to corp with shares trade on nat. exchange (min 500 shareh) and more than $10 mil
CORP - SARBANES-OXLEY a. public company audit committee; b. corporate resp. for financial reports; no personal loans to execs; crim penalties for destruction of audit records; whistleblower protection
CP - APPLICATION TO NON-MARRIAGES cp system applies to CA registered domestic partners (same-sex, or elderly receiving old-age SS benefits)
CP - HOW TO DETERMINE CHARACTERIZATION OF AN ASSET ask: 1. when was asset acquired? 2. how? (what source, by labor or gift?); 3. is there a legal presumption?; 4. did either or both spouses act in a way to have changed the asset's character?
CP - TIME OF ACQUISITION cp may be acquired only during marriage, ends at death of spouse or permanent physical separation with intent not to resume marital relationship (must be separate households)
CP - SOURCE OF ACQUISITION all property acquired during marriage is cp except: i. prop received by gift/bequest/devise/descent; ii. rents, issues, profits of sp; and iii. prop. acquired in exchange for sp
CP - OUT-OF-STATE PROPERTY still subject to cp system while married and domiciled in CA
CP - DIFFICULT TO CLASSIFY ASSETS personal inj. rec. against 3rd.p tortf - depends on time of inj. (but if commingled, then cp); ret. pensions - cp if earned during marriage; disability/severance pay - ask what it replaces, cp or sp; stock option - gen. cp; goodwill - cp; educ. - reim
CP - PRESUMPTION THAT PROPERTY ACQUIRED DURING MARRIAGE IS CP exception at death when divorce occurred >4 years earlier; overcoming - parties agreement, inconsistent written title, title evidences gift to 1 spouse, tracing to sp source
CP - PRESUMPTIONS RELATED TO FORM OF TITLE form of title gives rise to presumption of that characterization as long as the other party knew and consented to that form of title
CP - PRESUMPTION OF UNDUE INFLUENCE if spouse acted in manner not conforming with that of nonmarital business partners, presumption of form of title is rebutted
CP - UNFAIR ADVANTAGE any transaction that unfairly advantages one spouse over the other is presumed to have been induced by undue influence
CP - PREMARITAL AGREEMENTS agreements to treat earnings as sp during marriage; no consid required; must be a writing;
CP - CIRCUMSTANCES RENDERING PREMARITAL AGREEMENTS UNENFORCEABLE agreements promoting divorce; agreements executed involuntarily; unconscionability coupled with nondisclosure
CP - AGREEMENTS DURING MARRIAGE (TRANSMUTATION) express writing req; exception for personal gifts of relatively insubst. value
CP - HOW TITLE IS TAKEN - WAYS MARRIED COUPLES MAY JOINTLY HOLD PROPERTY joint tenancy; tenancy in common; community property; community property with right of survivorship
CP - PRESUMPTIONS FOR TRACING FUNDS IN COMMINGLED ACCOUNT family expenses paid by comm funds; gift presumed when separate funds used to pay family expenses
CP - PERMISSIBLE TRACING METHODS exhaustion method - proponent may show that at time of purchase comm funds in acct already exhausted so sep funds must have been used; direct tracing - sufficient sep and comm funds, and intent was to use sep funds to purchase asset
CP - COMMUNITY FUNDS OR LABOR USED TO ENHANCE VALUE OF SP Van Camp accounting - manager's services valued at going market salary for such services, family expenses paid from business earnings subtracted; Pereira accounting - begin with sep capital, impute fair rate of return
CP - WHEN TO USE VAN CAMP OR PEREIRA Pereira - when management by spouse was primary cause of growth or productivity; Van Camp - when character of sep business is largely responsible for its growth or productivity
CP - IF COMMUNITY PAYMENTS USED TO PAY OFF PURCHASE PRICE OF SEPARATE PROPERTY community gets interest in that amount; rest is sp
CP - WHEN CP USED TO IMPROVE SP no gift presumed; comm entitled to reimbursement of cost to improve or value of increase, whichever is greater
CP - CREDIT ACQUISITIONS purchases made with borrowed funds treated as cash purchases;
CP - DISTRIBUTION OF PROPERTY AT DIVORCE divorce court has juris; both parties must make full disclosure; equal division req; norm is in-kind division
CP - DEVIATION FROM IN-KIND DIVISION AT DIVORCE where economic circumstances warrant; out of state realty
CP - DEVIATION FROM EQUAL DIVISION REQUIREMENT AT DIVORCE one spouse deliberately misappropriates cp; one spouse has incurred education debts; tort liability; separate debt has been incurred; one spouse receives comm estate personal inj damages
CP - DISPOSITION BY TESTAMENTARY TRANSFER married person may transfer one half of cp and all sp by will; surviving spouse gets other half of cp
CP - CP AND SP PASSED BY INTESTACY all property not transferred by will or testamentary substitute passes by intestacy;
CP - INTESTACY - CP AND QUASI CP passes to surviving spouse
CP - INTESTACY - SP entirely to surv spouse - if no issue, parent, brother, sister, or issue of brother/sister; 1/2 to surv spouse - 1 child or issue of deceased child, or no child but parent (or issue); 1/3 to surv spouse - >1 child/issue, issue of 2+ deceased kids
CP - PROP. ACQUIRED BY MARRIED PERSONS BEFORE DOMICILED IN CA quasi-cp; at divorce, treated same as cp
CP - COMMON LAW MARRIAGES not recognized in CA, but validly entered into CL marriages in other states are recognized
CP - PUTATIVE SPOUSE not lawfully married, but has good faith belief that she is lawfully married; must have rsbly objective basis
CP - RIGHTS OF PUTATIVE SPOUSE has almost same prop. rights as lawful spouse; quasi-marital property
CP - UNMARRIED COHABITANTS cp not applied; general contract principles apply;
CP - MANAGEMENT OF SP each spouse has exclusive management/control of sp
CP - MANAGEMENT OF CP each spouse has equal management and control; either spouse acting alone may buy, sell, and encumber all the property
CP - EXCEPTIONS TO MANAGEMENT OF CP both spouses must sign instrument for real prop; nonconsenting spouse has 1 year period to void transfer; transfer to good faith purchase presumed valid; nonconsenting spouse may entirely void security interest in community realty granted to creditor
CP - BANK ACCOUNTS when one spouse deposits her earnings in a bank account titled in her name alone, she effectively deprives her spouse of his equal management rights
CP - GENERAL LIMITATIONS ON MANAGERIAL POWER gifts of cp require written consent; fid.duty to manage cp;
CIV - SUBJECT MATTER JURIS power over particular type of case
CIV - PERSONAL JURIS ability of a court having subj matter juris to exercise power over a particular D or item of prop
CIV - LIMITATIONS ON PERSONAL JURIS statutory limitations; constitutional limitations - D must have such contacts w/ forum so juris is fair & rsbl; D gets notice & hearing; assessment of pers. juris for fed cts same as state cts
CIV - 3 TYPES OF PERSONAL JURIS in personam - when forum has power over person of part.D; in rem - when ct has power to adjudicate rights of all persons in world w/ respect to part. item of prop.; quasi in rem - when ct has power to det. whether part. indiv. own prop. w/i ct's ctrl
CIV - STATUTORY LIMITATIONS ON IN PERSONAM JURIS D present in forum state and pers. served; D domiciled in forum state; D consents to juris; D has committed acts bringing him within forum's long arm statutes
CIV - LONG ARM STATUTES CA - ct of CA may exercise juris on any basis not inconsistent with CA Cons. or US Cons.
CIV - CONSTITUTIONAL LIMITATIONS ON IN PERSONAM JURIS suff. contacts w/ forum - trad. - physical power; modern - contact & fairness, foreseeability of being D in that forum
CIV - IN PERSONAM - NOTICE rsbl method must be used to notify D of pending lawsuit
CIV - CONSTITUTIONAL LIMITATIONS ON IN REM JURIS nexus - no juris if prop not located in state, no juris if prop brought in by fraud/force;
CIV - LIMITATIONS ON QUASI IN REM JURIS nexus (minimum contacts standard); type I - dispute involves rights of parties in prop itself; type II - when dispute unrelated to ownership of prop, must be minimum contacts b/t D and forum
CIV - FEDERAL SUBJECT MATTER JURIS - DIVERSITY OF CITIZENSHIP - AMOUNT IN CONTROVERSY district cts have orig juris of all civil actions where matter in cont. >$75k and is between: citizens of diff. states; citizens of State and foreign state; a foreign state as P of State or diff. states
CIV - FED SUBJ MATTER JURIS - DIVERSITY AMONG THE PARTIES must be complete diversity when action commenced;
CIV - COLLUSION AND DEVICES TO CREATE OR DEFEAT DIVERSITY assignment of claims ignored in determining div; adroit selection of named members of class OK;
CIV - IN EXCESS OF $75K all that is necessary is a good faith allegation that the amt of damages or injuries in controversy exceeds $75k
CIV - CAN ONE AGGREGATE CLAIMS TO SATISFY FED. DIV. REQUIREMENT OF 75K? 1 P and 1 D - yes; 1 P several D - may not if separate claims; several P against 1 D - only where seeking to enforce a single title or right in which they have a common, undivided interest
CIV - SUPPLEMENTAL JURIS claims may invoke supp juris if they arise from same transaction/occurrence as claim that invoked diversity; but cannot be used to override complete diversity rule
CIV - ERIE DOCTRINE AND LAW APPLIED UNDER DIVERSITY JURIS a federal ct, in exercise of diversity juris, is required to apply the subst. law of state in which it is sitting (but still apply fed. proc. law); may apply fed. law if on point & valid
CIV - NO FED. DIRECTIVE ON POINT, IS ISSUE SUBST. OR PROC? subst - must apply state law; proc - may ignore state law
CIV - FED CT. INTERPRETING STATE LAW bound to apply law that would be applied by highest state court; if no decision made, or decisions old and not on point, may consider decisions in other juris
CIV - DE NOVO REVIEW OF DISTRICT COURT'S DECISION appellate court reviews federal trial judge's deicsion as to state law de novo
CIV - CA CONFLICT OF LAWS RULES tort - governmental interest approach; contract - choice of law clauses
CIV - EXCEPTIONS TO DIVERSITY OF CITIZENSHIP JURIS even though req for div juris satisfied, federal cts will not exercise juris over domestic relations or probate proceedings
CIV - MULTIPARTY, MULTIFORUM TRIAL JURIS ACT req: single accident, 75 people died, at discreet location, minimal diversity of citizenship, and one of: i. D resides in different state than situs of acc., or ii. any 2 D's reside in diff. states, or iii. subst. parts of acc. in diff. states
CIV - FED SUBJ MATTER JURIS - FED QUESTION federal question must appear in complaint, might be implied
CIV - PENDENT JURIS OVER STATE CLAIMS P has both fed and state claims against D; though no divers, fed ct has discretion to exercise pendent juris over claim based on state law if 2 claims derive from common nucleus or operative fact
CIV - EXCLUSIVE FED JURIS bankruptcy; patent/copyright; many cases where US involved; cases with consuls and vice-consuls as D's; antitrust cases; admiralty; foreign state; postal matters; IRS; SEC
CIV - CA COURTS - LIMITED VS UNLIMITED CIVIL CASES limited - $25k or less; more than $25k
CIV - FORUM NON CONVENIENS common law doctrine that permits a district court to dismiss an action in favor of a more convenient forum outside the federal judicial system
CIV - VENUE - GENERAL RULES FOR MOST CIVIL ACTIONS venue proper in: judic district where any D resides; judic district in which subst part of events or omissions giving rise to claim occurred or prop situated; for solely divers cases - district where D subj to pers juris; or ~solely divers - where any D
CIV - ACTIONS AGAINST CORPORATIONS - VENUE corp - where contract made or oblig/liab arises; uninc assoc or partnerships - principal place of business if on file with sec of state
CIV - INTERLOCUTORY INJUNCTIONS equitable remedy by which a person is ordered to act or to refrain from acting in a specified manner
CIV - PRELIMINARY INJUNCTION must demonstrate likelihood of success on the merits as well as irreparable harm if the inj not issued
CIV - TEMPORARY RESTRAINING ORDER granted when nec to prevent irrep harm to party and inj will result before prelim inj hearing can be held; notice gen required but can be done ex parte if immediate harm, efforts to give notice, and security placed with ct
CIV - CA STANDARD OF FACT PLEADING OR CODE PLEADING distinguished from fed notice pleading; required pleading of ultimate facts to support each element of each cause of action; pleading of evid facts or bare conclusions not permitted; cts must liberally construe
CIV - FEDERAL COMPLAINTS should contain: statement of grounds for ct's decision; statement of claim showing pleader entitled to relief; demand for judgment for relief
CIV - CA STATE COURT COMPLAINTS must contain: statement of facts constituting the cause of action and a demand for judgment for the relief pleader claims to be entitled
CIV - PRE-ANSWER MOTIONS - RULE 12(B) lack of subj matter juris; lack of pers juris; improper venue; insuff process; insuff service of process; failure to state a claim upon which relief can be granted; failure to join a required party
CIV - CA DEMURRER D in an unlimited case may file a general or special demurrer to entire complaint or any causes within it; gen grounds are: pleading fails to state facts suff to const a cause of action; or ct lacks subj matter juris
CIV - MOTION FOR MORE DEFINITE STATEMENT before responding; opposing party has 14 days unless ct says otherwise;
CIV - MOTION TO STRIKE (BEFORE RESPONDING) fed - w/i 21 days after service, strike insuff defense or redundant, immaterial, impertinent matter; CA - any irrelevant, false, improper matter in pleading (30 days)
CIV - ANSWER - FED must contain denials or admissions and any affirm defenses; 21 days after service; counterclaims
CIV - ANSWER - CA STATE COURTS general denial permitted; D pleads in same manner as P; 30 days from date of service of process; separate cross-complaint
CIV - EFFECT OF FAILURE TO ANSWER default judgment (D loses right to contest liab)
CIV - AMENDMENT fed - pleading may be amended once within 21 days of serving it; CA - once before answer or demurrer complaint filed or after demurrer but before hearing on issue raised by demurrer
CIV - JOINDER OF PARTIES compulsory (rule 19) - if complete relief cannot be given to existing parties in her absence; disposition in her absence may impair her ability to protect interest in controv.; or absence would expose existing parties to subst risk of double oblig
CIV - PERMISSIVE JOINDER fed - same series of occurrences or transactions; and question of fact or law common to all parties; CA - similar to fed + adverse D
CIV - JOINDER OF CLAIMS fed - permit adjud of all claims b/t parties and all claims arising out of single trans; CA - very similar to fed
CIV - CLASS ACTIONS IN FED COURTS prereqs - so numerous that joinder imprac; common ?'s of law/fact; named parties interests are typical of class; fair & adeq rep; meets any req of Rule 23b
CIV - DUTY OF DISCLOSURE - DISCOVERY fed - Rule 26 requires parties to disclose certain info to other parties w/o waiting for disc request; CA - no such rule
CIV - DUTY OF DISCLOSURE - DISCOVERY - FED INITIAL DISCLOSURES names/addresses/#'s of indiv's likely to have discerable info; copies or desc's of documents & tangible things in disclosing party's poss.; computation of damages claimed; copies of insurance agreements, expert witnesses used at trial
CIV - SCOPE OF DISCLOSURE AND DISCOVERY - RELEVANCE fed - any nonprivileged matter that is relevant to any party's claim or defense; CA - fed + must be relevant to PENDING action
CIV - SCOPE OF DISCLOSURE AND DISCOVERY - WORK PRODUCT PROTECTION/PRIVILEGE fed - work product of lawyer made in anticipation of litigation discoverable only upon showing subst need to avoid undue hardship; CA - absolute work product protection of attorney's impressions, conclusion, opinions, legal research
CIV - METHODS OF DISCOVERY oral deposition of witness, including party-witness (max 10 in fed); interrogatories (25 max fed; 35 max CA); production of documents/things; phys/mental exams
CIV - DISCOVERY SANCTIONS violation of order to compel; failure to attend depo or provide ANY answers - immediate sanctions; failure to disclose w/o subst. justif - automatic sanction
CIV - PRETRIAL CONFERENCES fed Rule 26(f) - planning for discovery; Rule 16(b) scheduling
REM - TORT REMEDIES - COMP. DAMAGES standard is monetary damages; general damages = foreseeable; special damages = not foreseeable, must be specially pleaded; must be causal, foreseeable, certain
REM - TORT REMEDIES - NOMINAL DAMAGES no actual injury/loss
REM - TORT REMEDIES - PUNITIVE DAMAGES for willful, wanton, malicious conduct; intent. torts - punitive may be awarded; negligence - usually not; sales of corp. stock - possible; cannot be grossly excessive
REM - TORT REMEDIES - ATTORNEYS' FEES not recoverable unless in contract/statute; exception: shareholder's derivative suit
REM - RESTITUTIONARY REMEDIES look to whether D wrongfully obtained benefit retention of which would result in D's unjust enrichment
REM - REST. REMEDIES - REPLEVIN purpose is recovery of specific chattels wrongfully taken or detained
REM - REST. REMEDIES - EJECTMENT where D wrongfully in possession of P's real property, plaintiff may bring action at law to have possession restored to him
REM - REST. REMEDIES - REQUIREMENTS FOR CONSTRUCTIVE TRUST title held by D; unjust enrichment; inadequacy of legal remedy
REM - REST. REMEDIES - DEFENSES TO ACTION TO IMPOSE CONSTRUCTIVE TRUST equitable defenses (laches, unclean hands); transfer to bona fide purchaser
REM - REST. REMEDIES - EQUITABLE LIEN once imposed on D's property, iien can be foreclosed and property sold to satisfy P's claim
REM - INJUNCTIVE RELIEF IN TORT identification of tort critically important; inadequacy of legal remedy;
REM - INJUNCTIVE RELIEF - REASONS WHY LEGAL REMEDY MAY BE INADEQUATE money damages inadequate; damages too speculative; multiplicity of suits; irreparable injury; prospective tort
REM - FEASIBILITY OF ENDORCING THE DECREE decree must be practical to enforce
REM - APPROACHES TO BALANCING HARDSHIPS FOR INJUNCTIVE RELIEF strict (minority) view - refuse to balance hardships; liberal (majority) view - if harm to P does not outweigh harm to D or to public, P will be left to remedy of damages
REM - INJUNCTIVE RELIEF - DEFENSES TO SUIT FOR INJUNCTIVE RELIEF laches - unrsbl delay asserting equitable claim, prejudice to other party; unclean hands - party seeking relief must not himself have been guilty of wrongful conduct with respect to transaction or subj of suit; interference w/ freedom of speech;
REM - INJUNCTIVE RELIEF - INTERLOCUTORY INJUNCTIONS maintain status quo until full trial on merits may be held; 2 types - preliminary and TRO
REM - INJUNCTIVE RELIEF - REQUIREMENTS FOR INTERLOCUTORY INJUNCTION must generally show irreparable injury and likelihood of prevailing on merits; notice to D for prelim, not necessarily for TRO
REM - SPECIFIC TORT REMS - MISAPPROPRIATION OF MONEY damages; rest - quasi contract, constructive trust, equitable lien
REM - SPECIFIC TORT REMS - DESTRUCTION OF CHATTELS damages - value at time of destruction, less salvage, plus interest;
REM - SPECIFIC TORT REMS - INJURY TO CHATTELS damages - diminution of value or cost of repair plus loss of use
REM - SPECIFIC TORT REMS - DISPOSSESSION OF CHATTELS conversion damages for major dispossession; nominal damages/damages for loss of use for minor dispossession; rest - self-help (rsbl force), replevin, quasi-contract, const trust, equit lien
REM - SPECIFIC TORT REMS - TRESPASS TO LAND simple trespass - nominal damages; rest - none at common law, modern says quasi-contract; inj relief
REM - SPECIFIC TORT REMS - TRESPASS CAUSING SEVERANCE damages - diminution in value; rest - replevin, rest. damages; injunctive relief
REM - SPECIFIC TORT REMS - TRESPASS EFFECTING OUSTER ejectment - must prove right to possession and wrongful withholding; mesne damages - rental value for period land occupied by trespasser (improvements set off against mesne)
REM - SPECIFIC TORT REMS - ENCROACHMENTS encroachment is continuing trespass resulting when D builds structure partly on land of P or invades airspace over P's land; damages - rental value of occupied land or market value of land; rest - ejectment; injunction
REM - SPECIFIC TORT REMS - DESTRUCTION OR INJURY TO REALTY dest of buildings - value @ time of dest; damage to buildings - cost of repair + loss of use; dest of trees/crops - diminution in value of realty or by separately valuing crops/trees;
REM - SPECIFIC TORT REMS - DESTRUCTION OR INTERFERENCE W/ EASEMENTS damages - dest: diminution in value of land, interf: cost of restoration + loss of use; injunctive relief
REM - SPECIFIC TORT REMS - WASTE voluntary waste - damages (diminution), injunction; permissive waste - damages, injunction (rarely); ameliorative - injunction
REM - SPECIFIC TORT REMS - NUISANCE damages - value of loss of use and enjoyment of property plus costs incurred in trying to abate nuisance, plus award for discomfort/annoyance; permanent nuisance - diminution; injunction
REM - SPECIFIC TORT REMS - PERSONAL INJURIES no rest.; injunction rarely sought; damages: economic losses (special damages) such as medical expenses, loss of earnings; noneconomic damages (general damages) such as pain & suffering
REM - SPECIFIC TORT REMS - DEFAMATION damages; no restitution; generally no injunction; declaratory relief
REM - SPECIFIC TORT REMS - PRIVACY damages; no restitution; injunctive relief
REM - SPECIFIC TORT REMS - FRAUD damages - benefit of bargain or out of pocket measure; rest - rescission; const trust
REM - SPECIFIC TORT REMS - BUSINESS TORTS - INDUCING BREACH damages; restitution; injunctions rare
REM - CONTRACT REMS - COMPENSATORY DAMAGES put P in as good a position as if D had performed K (expectation interest); only those damages that are causal, foreseeable, and unavoidable may be recovered
REM - CONTRACT REMS - RESTITUTIONARY REMDY - QUASI CONTRACT D receives benefit pursuant to unenforceable K; grounds: by mistake, prior to material breach of K, pursuant to perf of unenforc K
REM - CONTRACT REMS - REST - MEASURE OF BENEFIT rec against breaching party - value of perf; by breaching party - benefit conferred in excess of damages suffered as result of breach
REM - CONTRACT REMS - SPECIFIC PERFORMANCE must be existence of K; terms of K must be definite & certain; P must have satisfied all conditions under K
REM - CONTRACT REMS - DEFENSES IN A SUIT FOR SPECIFIC PERF laches; unclean hands; hardship - inadequacy of consideration + marked inequality + unfair advantage
REM - CONTRACT REMS - RESCISSION grounds: (must have occurred before time K was entered into, making K voidable) - mutual mistake as to very basis of bargain, unilateral mistake if other party knew; innocent misrep - good faith and reliance; fraudulent misrep - reliance
REM - CONTRACT REMS - REFORMATION valid original K required; grounds: mutual mistake, unilateral mistake, mistake of law, fraud; defenses - laches, sale to BFP
WILL - CP - RIGHT TO DECEDENT'S CP decedent's share passes to surviving spouse/domestic partner in absence of will
WILL - CP - RIGHT TO DECEDENT'S QUASI CP quasi cp is all personal property and all CA real property owned by either spouse or domestic partner while they were domiciled outside CA that would have been cp at time of acq; passes to surviving spouse/domestic partner in absence of will
WILL - SP - SHARE OF SURVIVING SPOUSE OR DOMESTIC PARTNER takes 1/3 of sp if decedent survived by more than one kid or one kid and issue of one or more dead kids or issue of 2 or more dead kids; takes 1/2 if decedent survived by one kid or issue of dead kid or no issue but parent or issue of parent; all if none
WILL - SP - PROPERTY NOT PASSING TO SURVIVING SPOUSE OR DOMESTIC PARTNER to issue - (lineal descendents) equal degree: per capita, unequal degree: per capita with right of representation (aka division into equal shares), happens at level of highest surviving issues (unless "pure per stirpes")
WILL - SP - PROPERTY NOT PASSING TO SURVIVING SPOUSE OR DOMESTIC PARTNER - NO ISSUE to parents; then to issue of parents; then to grandparents or their issue; then to issue of predeceased spouse or domestic partner; then to next of kin; then to parents of predeceased spouse or partner or their issue; then escheats to state
WILL - SP - REAL PROPERTY OR PERSONAL PROPERTY >$10K OBTAINED FROM PREDECEASED SPOUSE WITHIN 15 YEARS OF DEATH passes to heirs of previously deceased spouse or domestic partner
WILL - SIMULTANEOUS DEATH if it cannot be established by clear and convincing evidence that a person who would otherwise be an heir has survived the decedent by 120 hours for purposes of intestate succession it is deemed that the person failed to survive decedent
WILL - DISCLAIMERS no one forced to accept gift; may disclaim; if they do disclaim, treat it as if they predeceased the decedent, must be in writing, signed by disclaimant, identify decedent, describe interest being disclaimed, and state extent of disclaimer
WILL - TIMING OF DISCLAIMER must be w/i 9 months of later of death or vesting of interest
WILL - POSTHUMOUS BORN RELATIVES relatives of decedent conceived before the decedent's death but born thereafter inherit as if they had been born in the lifetime of the decedent
WILL - POSTHUMOUSLY BORN CHILD treated as born within decedent's lifetime if: auth. by decedent signed and dated, designates person to control genetic material, written notice w/i 4 months of death cert. to person who has control of disp. that gen.mat avail., kid conceived w/i 2 years
WILL - ADOPTED CHILDREN inherit from adoptive parents same as natural child; do not inherit from natural parents;
WILL - STEPCHILDREN AND FOSTER CHILDREN same effect as if adoptive relationship if: relationship began during child's minority and continued throughout the parties' joint lifetimes and clear and convincing evidence that the parent would have adopted the person but for a legal barrier
WILL - NONMARITAL CHILDREN recgonized as heirs of mothers in all states; most states permit inheritance from father if paternity established through subsequent marriage, paternity test; statutes permitting inheritance only from mother unconstitutional
WILL - RELATIVES OF HALF BLOOD inherit same share as whole bloods
WILL - ADMISSION TO PROBATE instrument must either dispose of property, appoint an executor, or revoke another instrument; will cannot serve solely to disinherit an heir (to do so, must give all property to other persons)
WILL - PERSONS WHO MAY MAKE A WILL must be 18 and of sound mind
WILL - PROPERTY THAT MAY BE DISPOSED OF BY WILL testator's separate property; one-half community property interest; one-half quasi community property interest
WILL - TESTAMENTARY INTENT for an alleged will to be valid, the testator must have had the intention to make the particular instrument her will
WILL - CONDITIONAL WILLS a will may be made expressly conditional upon the happening of a certain event; if the condition does not happen, the will is not given any effect
WILL - FORMALITIES REQUIRED FOR A WILL - FORMAL (ATTESTED) WILLS except as provided for holo. wills, must: be in writing, be signed by the testator, signing must occur in the joint presence of at least 2 witnesses who sign the instrument during the testator's lifetime, witnesses must understand as will
WILL - FORMALITIES REQUIRED FOR A WILL - QUALIFICATIONS OF WITNESSES competency; if beneficial interest, witness disqualified; CA rule - presumption against devise to witness, failure to rebut presum. means witness takes no more than intestate share;
WILL - HOLOGRAPHIC WILLS valid if signature and material provisions in handwriting of testator; must still have testamentary capacity;
WILL - CA STATUTORY WILL must be 18 and of sound mind; dissolution or annulment of marriage or domestic partnership revokes provisions in favor of former spouse/dp;
WILL - UNIFORM INTERNATIONAL WILLS ACT in writing; testator must declare presence of 2 witnesses and person authorized to act in connection with international wills; testator signs; witnesses sign
WILL - REVOCATION OF WILLS any testator with capacity may revoke; methods of rev: written instrument, physical act, operation of law;
WILL - REVOCATION BY WRITTEN INSTRUMENT express - same formalities or holographic will can revoke prior; implied - by subsequent instrument
WILL - REVOCATION BY PHYSICAL ACT PERFORMED ON WILL burned, torn, canceled, obliterated, destroyed; must be simultaneous present intent to revoke; if 3rd party, must act in presence of testator and at his direction
WILL - SUFFICIENCY OF ACT burning - mere singing ok; tearing, obliteration, cancellation - should be through material part of provision
WILL - REVOCATION BY OPERATION OF LAW subsequent marriage or domestic part - common law: woman's will revoked at marriage, needed consent of husband for new, man's revoked at marriage + kids; modern: prior will revoked on marriage;
WILL - REVOCATION BY OPERATION OF LAW - DISSOLUTION OR ANNULMENT OF MARRIAGE will provisions in favor of former spouse or dp revoked; remarriage revives provisions; legal separation does not work a revocation
WILL - DEPENDENT RELATIVE REVOCATION - MISTAKEN BELIEF DRR applies when a testator revokes his will upon a mistaken belief that another disposition of his property would be effective, and but for this mistake would not have revoked the will; must carry out testator's intent, should not defeat it
WILL - DEPENDENT RELATIVE REVOCATION - PHYSICAL ACT revocation and making new will must be simultaneous; alternative disposition does not include intestacy; where there is express revocation, mistake must be on face of will
WILL - REVIVAL OF REVOKED WILLS - WILL 1 REVOKED, THEN WILL 2 (WHICH EXPRESSLY OR IMPLIEDLY REVOKES WILL 1) REVOKED common law - prior will automatically revived; Uniform Probate Code - depends on testator's intent; CA law follows UPC: 2nd will revoked by physical act, extrinsic evid admissible; 2nd revoked by later will - no extrin.evid
WILL - COMPONENTS OF A WILL - INTEGRATION all papers or writings that were actually present at the time of execution and that the testator intended to constitute her will
WILL - COMPONENTS OF A WILL - CODICIL testamentary instrument executed subsequent to the execution of a will, and it is ordinarily intended to modify, alter, or expand the will in some fashion; must be executed with same formalities as will; will deemed to be "republished" with codicil
WILL - COMPONENTS OF A WILL - INCORPORATION BY REFERENCE CA - writing in existence when will executed may be incorporated by reference if language of will manifests this intent and describes the writing sufficiently to permit identification
WILL - ACTS OF INDEPENDENT SIGNIFICANCE permits a ct to fill in certain blanks in the testator's will be referring to documents or acts effectuated during the testator's lifetime for primarily nontestamentary motives
WILL - WILL SUBSTITUTES joint tenancy and/or cp with right of survivorship; life insurance; deeds delivered during grantor's lifetime; deed delivered to escrow agent; inter vivos revocable trusts; gov bonds; bank arrangements; contracts;
WILL - CONTRACTS TO MAKE WILLS if K requirements met, K to make, not to make, or not to revoke will is valid; must be in writing; joint will revocable by either, doesn't affect other;
WILL - SURVIVING SPOUSE'S OR DOMESTIC PARTNER'S WAIVER OF RIGHTS rights that may be waived - prop that would pass by intestate; prop that would pass by will before waiver; right to be apointed as executor/administrator of estate; right to take cp or qcp; right to take statutory share; nonprobate interests (life insur)
WILL - ENFORCEABILITY OF WAIVER must be in writing and signed by the surviving spouse or dp
WILL - TESTAMENTARY CAPACITY age: 18; mental capacity: must understand rights duties created by will, probable consequences and persons affected, risks, benefits, alternatives in disposition
WILL - INSANE DELUSION one to which testator adheres irrationally against evidence and reason to the contrary; may serve to invalidate portion or all of will
WILL - UNDUE INFLUENCE will invalid if obtained through undue influence (mental or physical coercion); req: T susceptible to undue influence, influencer had opportunity and disposition to influence, provisions unnatural
WILL - CA PRESUMPTION OF FRAUD OR UNDUE INFLUENCE on transfer to drafter or other disqualified person (fid.relationship, care custodian)
WILL - FRAUD requires that the testator be willfully deceived as to the character or content of an instrument, as to extrinsic facts that would induce the will or a part. disposition, or material facts
WILL - MISTAKE IN EXECUTION OR INDUCEMENT execution of wrong document - cannot be probated; mistake as to contents - probate may be denied mistaken portion; mistake in inducement - no relief unless mistake on face of will
WILL - AMBIGUITIES extrin.evid admissible to explain any ambiguity
WILL - PROHIBITED BENEFICIARIES slayers (CA: feloniously and intentionally); persons who abuse or neglect elder or dependent adults; aliens;
WILL - WILL CONTESTS must be filed within 120 days; only directly interested persons may contest will; no-contest clause may preclude right to take if contest fails (strictly construed in CA)
Created by: m1chaelk1m