CAB Core

  1. Requirements for case and controversy: Standing
    • Definition: P must allege and prove that he has been injured or imminently will be injured. Necessary elements are:
    • Injury
    • Causation and redressability (court must be able to remedy the injury)
    • No 3rd Party standing (cannot assert claims of others) (exceptions: close relationships, 3rd P cannot assert their own right, organization on behalf of members)
    • No generalized grievances (ex. taxes - taxpayers only have standing to challenge G expenditures subject to a statute, but not tax credits)
  2. Requirements for case and controversy: Ripeness
    • Definition: Whether a federal court may grant pre-enforcement review of a statute or regulation
    • Look at: hardship that will be suffered without preenforcement review; fitness of the issue and the record for judicial review
    • (comes up on MBE with requests for declaratory judgement)
  3. Requirements for case and controversy: Mootness
    • Definition: If events after filing the lawsuit ended P's injury, the case must be dismissed as moot
    • Exception: wrong capable of repetition but evading review
    • Exception: voluntary cessation of injurious conduct by D (but can be repeated)
    • Exception: class action suits (as long as one member of the class is still suffering an injury)
  4. SCOTUS Review
    • all cases from state court/fed crts of app come to SCOTUS by writ of certiorari
    • appeal from three-judge fed district crt decision
    • Original and exclusive jurisdiction over suits between states
    • Must be a final judgement in highest state crt, Crt of App, or 3-judge district crt
    • SCOTUS cannot review cases involving claims under fed and state law where outcome of interpretation of fed law will not affect outcome of case b/c of state law
  5. Lower Fed Crt Review: Federal courts may not hear suits against state governments
    • Sovereign immunity: 11th amendment bars
    • Suits against officers are allowed
    • Federal crts will not enjoin pending state crt proceedings
    • Exceptions:
    •  - Waiver (explicit)
    •  - states may be sued purusant to fed laws based on section 5 of 14th amendment
    •  - Fed may sue states
    •  - Bankruptcy proceedings (creditors seeking paid taxes)
  6. Congress's authority to act: 10th Amendment limit on Congressional powers
    • 'all powers not granted to the US, nor prohibited to the states, are reserved for the states or the people'
    • Congress may prohibit harmful commercial activity by state governments
    • Congress cannot compel state regulatory or legislative action
    •  - but can induce activity by putting strings on grants, so long as 1) conditions are express, 2) relate to purpose of program, 3) not unduly coercive
  7. Federalism - preemption
    • Supremacy clause of Art VI provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land
    • Express - Fed law expressly provides that states may not write laws in the area
    • Implied - 
    •  - Fed and state law are mutually exclusive - fed wins
    •  - state law impedes achievement of fed objective - fed wins
    •  - Congress evidences a clear intent to preempt (ex. strict state immigration law)
    • State cannot tax/regulate Fed
  8. Federalism - Dormant Commerce Clause & Privileges and immunities Clause
    • (DC Clause) State or local law is unconstitutional if it places an undue burden on interstate commerce (Art. IV)
    • (P&I Clause) No state may deny citizens of other states of the privileges or immunities of its own citizens
    •  - always the wrong answer on MBE unless question involves the right to travel
    • Art. 14th amendment - must involve the right to travel
    • Even if not discriminatory, use balance test to see if benefits outweigh burden interstate commerce
    • Exceptions: Congressional approval; market participant (state can favor its own citizens for receiving benefits or in dealing with Gov't owned business, like "in-state tuition")
  9. Federalism - state taxation of interstate commerce
    • States may not use their tax systems to help in-state business
    • State may only tax activities if there is a substantial nexus to the state
    • State taxation of interstate business must be fairly apportioned (only tax that which is connected to it)
  10. Constitution's Protection of Individual Liberties: Levels of scrutiny - rational basis
    • Rational basis test - a law is upheld if it is rationally related to a legitimate government purpose
    • Challenger has burden of proof - no conceivable purpose or no rational relation
  11. Constitution's Protection of Individual Liberties: Levels of scrutiny - intermediate scrutiny
    • Intermediate scrutiny test - a law will be upheld if it substantially related to an important government purpose
    • Interest must be importance
    • Means chosen must be substantially related to achieving the government objective (narrowly tailored)
    • Does not have to be the best way
    • Gov't has the burden of proof
  12. Constitution's Protection of Individual Liberties: Levels of scrutiny - strict scrutiny
    • A law will be upheld if necessary to achieve an compelling government purpose
    • The actual goal must be compelling
    • Least restrictive alternative - Gov't must show the means are narrowly tailored and there are no less restrictive alternatives
    • Gov't has burden of proof
  13. Individual Rights - Procedural due process
    • Whether the gov't has provided sufficient procedures when it takes away life, liberty, or property
    • notice, hearing required
    • Deprivation of liberty - loss of significant freedom provided by Const. or statute (ex. institutionalizing an adult)
    • Deprivation of property - entitlement and that entitlement is not fulfilled
    • Government negligence is not sufficient - must be intentional action or reckless action
    • In emergency, Gov't is liable only if action "shocks the conscience"
    • Gov't failure to protect people from privately inflicted harm does not deny due process
  14. Individual Rights - Procedural due process - what procedures are required?
    • Balancing test - importance of the interest to the individual; the ability of additional procedures to increase the accuracy of the fact-finding; government's interest in efficient process
    • Ex. Must be notice and hearing before welfare is terminated
    • Ex. must only be a post-deprivation hearing for SSDI benefits termination
    • Ex. School must provide student notice of charges and opportunity to explain before being disciplined
    • Ex. Must be notice and hearing before terminating right to custody of child
    • Ex. Punitive damages awards require instructions to the jury and judicial review to ensure reasonableness
    • An American citizen detained as an enemy combatant must be accorded due process
    • Except in exigent circumstances, prejudgement attachment or gov't seizure of assets require notice and hearing
  15. Individual Rights - economic liberties
    • Rational basis test is used
    • Takings clause - gov't may take private property for public use
    • Is there a taking?
    •  -1) possessory taking - gov't confiscation or physical occupation of property is a taking
    •  -2) regulatory taking - gov't regulation is a taking if it leaves no reasonable economically viable use of the property
    • Is the taking for public use? (based on gov't action on a reasonable belief)
    • Is just compensation paid? (measured by lost to the owner in RMV)
    • Examples:
    • Regulations on development must be justified on a benefit that is roughly proportionate to the burden imposed - other it is a taking
    • A property owner may bring a takings challenge to regulations that existed at the time the property was acquired
    • Temporarily denying an owner use of property is not a taking so long as the gov't action is reasonable
  16. Individual Rights - contracting liberties
    • No state shall impair the obligations of contracts (only state and local interference with existing contracts)
    • Test: Intermediate scrutiny - 
    •  - (1) substantial impairment of party's rights under K?
    •  - (2) is law reasonably and narrowly tailored means of promoting an important and legitimate public interest?
    • State/local interference with gov't K must meet strict scrutiny
    • Ex Post Facto Clause does not apply in civil cases - must meet rational basis test in civil context
  17. Individual Rights - Substantive due process
    Does the gov't have a sufficient reason to take away life, liberty, or property
  18. Individual Rights - Equal protection
    Whether the gov't differences in the treatment of people is sufficiently justified
  19. Substantive Due Process - Privacy Rights
    • Privacy is a fundamental rights protected under substantive due process
    • Right to marry
    • Right to procreate
    • Right to custody of one's child
    • right to keep family together
    • Right to control upbringing on one's family
    • Right to purchase and use contraceptives
    • Right to abortion 
    • Right to private consensual homosexual activity
    • Right to refuse medical treatment
    • NO RIGHT to physician assisted death
  20. Substantive Due Process - Privacy Rights - abortion
    • Prior to viability - states may not prohibit abortions, but may regulate abortions so long as do not create an undue burden on the ability to obtain an abortion
    • Gov't has not duty to subsidize abortion or provide abortions in public hospitals
    • Spousal consent and notification laws are unconstitutional
    • Parental notice and consent laws for unmarried minors are OK as long as judicial approval carve-out is an option
    • 24 hr waiting period - not undue
    • requirement it be performed by physician - not undue burden
    • After viability - states may prohibit abortion
  21. Substantive Due Process - Privacy Rights - Right to travel
    • Strict scrutiny applied - laws preventing people from moving into a state
    • Durational residency requirements must meet strict scrutiny (50 days max)
    • Restrictions on foreign travel need meet only the rational basis test
  22. Substantive Due Process - Privacy Rights - Right to vote
    • Strict scrutiny (but regulations preventing fraud only need to be on balance desirable)
    • One person, one vote must be met for all state and local elections
    • At large elections are constitutional unless proof of discriminatory purpose
    • Use of race in drawing election district lines must meet strict scrutiny
    • Counting uncounted votes without standards in a presidential election violates equal protection
  23. Equal Protection - Classification based on race or national origin
    • Strict scrutiny
    • How to prove existence of racial classification: (1) express or evident, (2) discriminatory impact and discriminatory intent
    • Without (1) or (2), rational basis is used
  24. Equal Protection - Classification based on race or national origin - benefiting minorities
    • Strict scrutiny
    • Numerical set-asides require clear proof of past discrimination
    • Educational institutions may use race as a factor in admissions.
    •  - Must show no race neutral alternative.
    •  - May not add points to applicant's admission scores
    • Public schools may not use race as a factor in assigning students to schools unless strict scrutiny was met
  25. Equal Protection - Classification based on sex
    • Intermediate scrutiny
    • Gender discrimination is only allowed if there is an "exceedingly persuasive justification"
    • Proving existence of gender discrimination: (1) explicit, (2) demonstrating both discriminatory impact and intent - otherwise only rational basis
  26. Equal Protection - Classification based on sex - benefiting women
    • Not allowed if based on role stereotypes
    • Are allowed if designed to remedy past discrimination and differences in opportunity will be allowed (Navy promotion plan)(Calculation of benefits to remedy past wage discrimination was OK)
  27. Equal Protection - Alienage classification
    • Generally, strict scrutiny is used
    • Exception - rational basis is used for:
    •  - concerning self-government and democratic process (voting, teacher, jury, probation officer)
    •  - Congressional discrimination
    • Exception: Intermediate scrutiny is used for undocumented alien children
  28. Equal Protection - Classification against non-marital children
    • Intermediate scrutiny is used
    • Laws that deny benefits to all non-marital children, but grant it to all marital children, are unconsitutional
  29. Equal Protection - when rational basis is applied
    • D.A.W.E.S.
    • Disability
    • Age
    • Wealth
    • Economic regulation
    • Sexual orientation
  30. First Amendment: Content-based vs. Content-neutral
    • Content-based: strict scrutiny
    •  - subject matter restrictions (application depends on topic)
    •  - viewpoint restrictions (application depends on ideology)
    • Content-neutral: intermediate scrutiny
    •  - applies to all speech (all parades in the park)
  31. First Amendment: prior restraint
    • Court order that suppress speech (must be obeyed under vacated or overturned)
    • Requiring license/permit
    •  - must contain procedural safeguards and clear criteria (ex. prompt determination)
  32. First Amendment: symbolic speech
    • Gov't may regulate conduct that communicates if it has an important interest unrelated to the suppression of the message and if the impact on communication is no greater than necessary to achieve the gov't purpose
    • Ex. of symbolic speach
    •  - flag burning - protected
    •  - draft card burning is not protected
    •  - local gov't may prohibit nude dancing
    •  - burning cross is protected unless done with intent to threaten
    •  - contribution limits in election campaigns are generally constitutional, but expenditure limits are not
  33. First Amendment: Free speech - unprotected or less protected speech
    • Incitement of illegal activity
    • Obscenity and sexually-oriented
    • Test:
    •  - material must appeal to the prurient interest (shameful/morbid sex)
    •  - material must be patently offensive under the law prohibiting obscenity (local standard)
    •  - taken as a whole, material must lack serious redeeming artistic, literary, political or scientific value (national standard)
  34. First Amendment: Free speech - unprotected or less protected speech (examples)
    • OK - gov't zoning to regulate the location of adult bookstores and movie theaters
    • Child pornography may be entirely banned (children must be used in its production)
    • Not OK - punish private possession of obscene materials (except child porn)
    • Gov't may seize assets of businesses convicted of violating obscenities laws
    • Profane and indecent speech is generally protected by the 1st Amd. (Except public broadcasts and in school)
  35. First Amendment: Free speech - Commercial Speech
    • False and deceptive adverts are not protected
    • Risky but true commercial speech may be prohibited (attorney soliciting face-to-face; preventing professionals from using DBAs)
    • Other commercial speech: intermediate scrutiny
    • Must be narrowly tailored, not least restrictive alternative
  36. First Amendment: Free speech - defamation - public figure
    If P is public official/running for office, may only recover on defamation if prove (C&C evidence) by proving falsity of the statement and actual malice (Knew or reckless)
  37. First Amendment: Free speech - defamation - private figure
    • "Public concern" - P may recover on defamation if P can prove falsity in the statement and negligence by D. (punitive damages must show actual malice)
    • "Private concern" - P may recover on defamation if P can prove falsity in the statement and negligence by D. (punitive damages do not have to show actual malice)
  38. First Amendment: Free speech - defamation - intent'l infliction of emotional distress
    • intent'l infliction of emotional distress for defamatory speech must meet the defamation standards and
    • cannot exist for speech otherwise protected by the 1st Amd.
  39. First Amendment: Free speech - Privacy (media)
    • No liability for truthful reporting of information lawfully obtained from gov't
    • No liability if media broadcasts tape of illegally intercepted call, if media did not participate in the illegality and is of public importance
    • Gov't may limit its dissemination of information to protect privacy
    • Speech by gov't employees while on the job is not protected
    • Other gov't restrictions on content must meet strict scrutiny (ex. violent speech)
  40. First Amendment: Free speech - places available for speech - public forums
    • gov't property that must be made available (parks, squares)
    •  - Strict scrutiny applied to subject matter or view point based regulations
    • Time, Place, and Manner regulations that serve an important gov't purpose and leave open adequate placed for communication 
    • Narrowly tailored, but need not be least restrictive
    • No discretion by city officials to set permit fees
  41. First Amendment: Free speech - places available for speech - Designated public forums
    • Gov't property that gov't could close to public but holds open
    • Same rules apply as for public forums
    • School that opens itself up
  42. First Amendment: Free speech - places available for speech - Limited public forums
    • gov't properties that the gov't opens up for limited to certain groups or dedicated to discussion of certain topics
    • Can regulate speech but regulation must be reasonable and viewpoint neutral (OK- commercial ads, but no political ads)
  43. First Amendment: Free speech - places available for speech - Non-public forums
    • Gov't property that gov't constitutionally can and does close to free speech.
    • Can regulate speech so long as regulation is reasonable and viewpoint neutral
    • Ex. military bases, areas outside prisons and jails, sidewalks on post office property, airport
  44. First Amendment: Free speech - places available for speech - private property
    • No 1st amd right of access to private property for speech purposes
    • (ex. Mall)
  45. First Amendment: Free of association
    • Strict scrutiny
    • To punish membership state must prove:
    • (1) actively affiliated with the group
    • (2) knowing of its illegal activities
    • (3) with specific intent of furthering those illegal activities
    • Laws requiring disclosure, where disclosure would chill membership, must meet strict scrutiny
    • Laws prohibiting a group from discriminating are constitutional unless they interfere with an intimate association or expressive activity
  46. First Amendment: Free of religion - Free Exercise Clause
    • Free exercise clause cannot be used to challenge a neutral law of general applicability (native americans lost peyote case)
    • gov't may not deny benefits to individuals who quit their jobs for religious reasons
    • gov't may not hold a religious institution liable for choice it makes as to who will be its ministers
  47. First Amendment: Free of religion - Establishment Clause
    • Test (S.ecular E.ffect X.ess entangled):
    • (1) law must have a secular purpose (NO- 10 commandments posted in public buildings)
    • (2) effect must be neither to advance nor inhibit religion (multi-religious displays are ok)
    • (3) must not be excessive entanglement with religion (gov't cannot pay teacher's salaries in religious schools to teach religion)
    • Gov't cannot discriminate against religious speech or among religious unless strict scrutiny is met
    • Gov't sponsored religious activity in public schools is unconstitutional (but religious student and community groups must have the same access to school facilities as non-religious groups)
    • Government may give assistance to parochial schools, so long as it is not used for religious instructions.
    • Gov't may be given vouchers which they may in turn use in parochial schools.
  48. "Truth in evidence" of Prop 8 & exceptions
    • All relevant evidence is admissible in a criminal prosecution
    • Exceptions:
    •  - exclusionary rules under US constitution
    •  - Hearsay
    •  - Privilege
    •  - limits on character evidence to prove D's conduct
    •  - Secondary evidence rule (best evidence rule)
    •  - CEC 352 (If probative value substantial outweighed by unfair prejudice)
  49. Three step approach to CA essay questions
    • Raise all objections under CEC
    • Mention if Prop 8 overrules the objections
    • Balance probative value against unfair prejudice
  50. CA definition of Relevant
    • Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence
    • and the fact of consequence must be in dispute
    • Distinction: D admits to shooting. Witness says he say D shoot V. Not relevant.
  51. CA Exclusion of relevant evidence for policy reasons
    • Subsequential remedial measure or repairs (Fed - NO; CA - Admissible in strict liability case)
    • Mediation discussions (in addition to Fed)
    • Medical expenses - admissions of fact made in the course of making such payments or offers (in addition to Fed)
    • Expression of sympathy related to suffering or death of an accident victim (admissible under Fed)
    • Pleas later withdrawn, offers to plea, and related statements (maybe admissible under Pro 8?)
  52. CEC Character evidence in civil cases
    • Inadmissible to prove conduct
    • (Fed allows where claim is based on sexual assault or child molestation)
  53. CEC Character evidence in criminal cases - D
    • Prosecution cannot open the door (CA and Fed - prop 8 does not change this)
    • Exceptions:
    •  - In cases of sexual assault/child molestation (CA and Fed)
    •  - Domestic violence/elder abuse (CA only)
    •  - Crt admitted evidence of victim's violent nature, prosecution may do the same (CA narrower than Fed - violent character only - Fed admits any trait)
    • CEC ONLY allows reputation and opinion on direct or cross (not specific instances, unless used to impeach witness)
  54. CEC Character evidence in criminal cases - victim
    • homicide case: if D offers evidence that V attacked first, Prosecution may then offer evidence of peaceful nature (Fed OK, CA - NOT must be evidence of character)
    • (CA) reputation, opinion, specific instances ok on direct and cross
    • (FED) reputation and opinion ok; no specific instances on direct, but OK on cross
  55. CEC test for competency
    • Witness must testify on personal knowledge, have ability to communicate, take an oath or affirmation to tell the truth, and claim to recall what they perceived
    • and must understand legal duty to tell the truth (CA addition)
  56. CEC competency - hypnotized witness
    • Fed - ok
    • CA - disqualifies witnesses hypnotized to recollect
    •  - except: criminal case - when by police using procedures to protect against suggestion
  57. CA difference expert opinion - basis on reliable principles reliably applied to the facts
    • Kelley/Frye General Acceptance Standard
    • The opinion must be based on principles generally accepted by experts in the field
    • (Fed - Daubert test does not require generally accepted)
  58. CA Learned Treatise Hearsay Exception
    • CA - only admissible to show matters of general notoriety or interest (too narrow to be useful)
    • Fed - admissible to prove anything if treatise is accepted authority in field
  59. Impeachment - prior inconsistent statement of witness testifying at trial
    • Fed & CA: no hearsay if used only to impeach
    • CA - all inconsistent statements of witness, whether or not under oath, can be used to prove matter asserted
    • Fed - must be under oath at trial or deposition to be used to prove the facts asserted
  60. Impeachment - prior felony conviction
    • CA: Felonies involving "moral turpitude" only are admissible for impeachment purposes
    •  - must use PV/unFP balancing test
    •  - moral turpitude crimes: lying, violence, theft, extreme recklessness, sexual misconduct
    • Fed: crimes of dishonesty are always admissible; no balancing test unless over 10 yrs old
    •  - all other felonies Fed uses PV/unFP balancing test
  61. Impeachment - misdemeanor
    • CA: misdemeanors involving "moral turpitude" may be admissible; PV/unFP; otherwise, generally inadmissible 
    •  - INADMISSBLE in CIVIL all cases
    • Fed: misdemeanors involving lying are admissible automatically
    •  - older convictions subject to PV/unFP
  62. Impeachment - non-conviction misconduct bearing on truthfullness
    • CA: Inadmissible under CEC but Prop 8 makes it admissible in criminal cases if act of moral turpitude
    •  - both cross and extrinsic evidence permitted
    •  - subject to PV/unFR
    • Fed: Admissible in Civil and Crim cases
    •  - subject to PV/unFR
    •  - must be act of lying
    •  - extrinsic evidence inadmissible, cross only
  63. CA Judicial notice
    • Whether requested or not, Judge is required to take notice of matters generally known within jurisdiction (Fed & CA - party may otherwise request or judge may sua sponte)
    • CA - Crt instructs jury it must accept judicially noticed facts in both criminal and civil (Fed - in criminal cases are rebuttable)
  64. Hearsay - opposing party statement
    • Statement by party/attributable party offered by the part opponent (CA - exception, Fed - exemption)
    • CA - employee statement is attributable to employer only where employee's negligent conduct is at issue 
    •  -  narrower than Fed - allows any statement made while employed and in scope of employment
  65. Hearsay - declaration against interest
    • Statement by unavailable declarant if, at the time made, was against the interest of the criminal or financial interest of the declarant
    • CA: includes statement against social interest, b/c hatred, ridicule, or social disgrace in the community
    • Fed: only applies if against financial/crim liability interest
  66. Hearsay - unavailability
    • Declarant is unavailable if crt. exempts from testifying due to privilege, dead/sick, or proponent of statement cannot procure attendance
    • CA: adds if declarant suffers total memory loss or refuses to testify out of fear
    • Fed: adds refuses to testify despite crt order or declarant's memory fails
  67. Hearsay - Former Testimony - similar interest
    • CA: FT is offered against a party
    • -1) who was present at 1st case, or
    • -2) in a civil case, against someone with a similar interest as a party in the 1st case
    • Fed: FT is offered against
    • -1) a party who was present in the 1st case, or
    • -2) in civil case, against a party in privity w/ party to 1st case
    • CA addition: may be offered against person/successor in interest who offered it in prior case for their own benefit
    • Witness must be unavailable
  68. Hearsay - dying declaration
    • CA: may use in all civil and criminal cases
    •  - declarant must be dead
    • Fed: may use in civil action and homicide action
    •  -  declarant must be unavailable, but need not be dead
  69. Hearsay - Present sense impression
    • CA: a statement explaining conduct of the declarant made while declarant was engaged in that conduct
    • Fed: declarant describing anything simultaneously with its occurrance
  70. Hearsay - Statement describing infliction or threat of physical abuse
    • (CA Only)(look out for confrontation clause issue)
    • Statement made at or near time of injury or threat
    • by unavailable declarant
    • describing or explaining infliction or threat
    • in writing or recorded or made to police or medical professional
    • under trustworthy circumstances
  71. Hearsay - Statement of past or present mental physical condition
    • CA: only available for minors describing an act of child abuse or neglect
    • Fed: if made for and pertinent to medical diagnosis or treatment
    • CA related exception: statement of past physical/mental condition, including statement of intent, is admissible to prove that condition if it is at issue
    • - declarant must be unavailable
  72. Hearsay - business records
    • CA: Will admit records of events or condition kept in course of regularly conducted business activity is admissible if made at or near time of matters described, by a person with knowledge of the facts in that record, and record is trustworthy
    • Note: absence of "opinions or diagnosis" (Fed); however, crt will accept simple ones
  73. Hearsay - public records
    • CA: Record is admissible in prosecution if:
    • - record made by public employee making record was a part of job duties
    • - made at or near the time or the matters described
    • - circumstances indicate trustworthiness (corroborating evidence?)
    • Fed: restrictions on use of police reports
  74. Authentication - ancient documents
    • CA - requires 30 years
    • Fed - 20 years
    • both require 
    • - no irregularities on the face
    • - found in natural place of custody
  75. Authentication - self-authenticating writings
    • CA: certified copies of public docs, acknowledgment docs, official publications, newspapers, periodicals
    • - no business records or trade transcripts (allowable under Fed)
  76. Authentication - Secondary Evidence Rule (Best Evidence)
    • Exempt from Prop 8 - apples in criminal cases
    • CA: duplicates and other written evidence of contents of original, such as hand written notes
    • Fed: handwritten notes not allowed
  77. Privileges - Attorney-client - w/ estate
    CA: ends once estate of dead client is distributed and executor is discharged
  78. Privileges - Attorney-client - Co.'s employee
    • No major difference between CA and Fed
    • CA: where employe is the natural person to speak to the attorney or the employee did something and the Co. instructs her to speak to the attorney
    • CA Exception: "Mere Witness"
    • - no exception for witness that happens to be an employee
  79. Privileges - Attorney-client - additional general exception
    CA: where lawyer reasonably believes that disclosure of the communication is necessary to prevent crime that is likely to result in death of substantial bodily harm
  80. Privileges - Attorney-client - psychotherapy/doctor
    • CA addition: psychotherapist privilege does not apply where patient poses a threat to himself or others and disclosure is necessary to prevent
    • CA addition: Doctor-patient does not apply in criminal cases or to information doctor is required to report to public office (e.g. gun-shot wound)
  81. Privilege - spousal
    • CA: applies to BOTH civil and criminal (Fed only criminal)
    • CA: witness does not have to take the stand at all
  82. Additional CA privileges
    • Confidential communications between a counselor and victim of sexual assault or domestic violence
    • Penitential communication between penitent and clergy
    • Immunity from contempt of court for news reporter who refuses to disclose source
  83. Battery Elements
    • D must commit a harmful/offensive contact (Objective, reasonable standard)
    • Contact must be with the P’s person
    • Intent (including anything ‘connected’ to P)
    • Causation
  84. Assault Elements
    • An act by D creating a reasonable apprehension in P
    • Of immediate harmful or offensive contact to P’s person
    • Intent
    • Causation
  85. Unloaded gun problem
    • If P reasonably believes the gun is loaded, then it is an assault.
    • “Apparent ability creates reasonable apprehension”
  86. Is fear enough to create a reasonable apprehension in P of immediate harmful or offensive contact to P's person?
    • Mere fear is not enough. Knowledge of the threat is required (P must see it coming).
    • Words are not enough. Conduct is required. Words can negate reasonable apprehension.
  87. False Imprisonment Elements & Definition of bounded area
    • An act or omission on the part of D that confines or retrains P
    • to a bounded area
    • Intent
    • Causation
    • Bounded Area: no reasonable means of escape is known to P (even if way out exists, cannot be dangerous or disgusting)
  88. Intentional Infliction of Emotional Distress Elements
    • An act by D amounting to extreme and outrageous conduct
    • Intent or recklessness
    • Causation
    • Damages – severe emotional distress
    • Definition of Extreme and outrageous: conduct that exceeds all bounds of decency tolerated in a civilized society (insults are not enough)
  89. Intentional Infliction of Emotional Distress Elements- Bystander case
    • P may show either a prima facie case or:
    • (i) P was present when the injury occurred
    • (ii) P is a close relative of the injured person
    • (iii) The D knew of facts (i) or (ii)
  90. Trespass to Land Elements
    • Physical invasion of P’s real property
    • Intent
    • Causation
    • Notes: D’s intent to enter the property is required, even if ignorant of trespass
    • No damages are required
  91. Trespass to Chattels Elements
    • An act by D that interferes with P’s right of possession in a chattel
    • Intent
    • Causation
    • Damages (to possessory right is enough)
    • Two types of interference: 
    • - Intermeddling (directly damaging) and
    • - Dispossession (deriving P of lawful right of possession)
  92. Conversion Elements
    • An act by D that interferes with P’s right of possession in a chattel
    • The interference is so serious that it warrants requiring D to pay the chattel’s full value
    • Intent
    • Causation
    • Note:  Damages – FMV at time of conversion or possession (replevin)
  93. Defense to Intentional Torts - Consent
    • must be valid, and D must have stayed within bounds
    • Express consent - words granting D to act in a certain way (invalid if obtained through fraud/duress)(look for customary practice)
    • Implied consent
    •  - apparent consent: reasonable person inference of P’s conduct and surrounding circumstances/customs
    •  - Consent implied by law: when act is necessary to save life/important interest in property
  94. Intentional Tort Defense - Self-defense, Defense of others/property
    • Proper timing: Applies to preventing the commission of a tort (no preemption, no revenge)
    • Reasonable belief that the threat is genuine (mistake is allowed)
    • may use such force as is reasonably necessary to protect against injury
  95. Intentional Tort Defense - Necessity
    • Public: D commits a property tort in an emergency to protect the community
    • Private: D commits a property tort in an emergency to protect an interest of his own (not absolute immunity)
    •  - D will be liable for compensatory damages
    •  - D will not be liable for nominal/punitive damages
    •  - As long as the emergency persists, P may not throw D off land (right to sanctuary)
    • Available when it is reasonably and apparently necessary to avoid threatened injury
  96. Defamatory elements
    • D must make a defamatory statement that identifies P (tends to adversely affect reputation)
    • D must 'publish' the statement (hold it out to others - one is enough - negligent publication is sufficient)
    • Damage - 
    •  - Libel: written down or otherwise memorialized (presumption of damages)
    •  - Slander per se: Oral statement related to business/profession; crime of moral turpitude; imputing unchastity to woman; loathsome diseases (presumption of damages)
    •  - Slander: P must show special damages (loss of business)
  97. Defenses to Defamation - absolute
    • Consent
    • Truth
    • Communication between spouses
    • Officers of the government in the conduct of their official duties
  98. Defenses to Defamation - qualified
    • Where there is a public interest in promoting candid expressionRecommendations - include statements made to the cops
    •  - good faith 
    •  - statement must be limited to that relevant to matter at hand
  99. Constitutional Defamation Case
    • Involves something that is of public concern
    • P must prove 2 extra elements:
    •  - P must prove falsity
    •  - P must prove Fault
    •  -- Public Figure Fault – knowingly false or utterly reckless
    •  -- Private Figure Fault - negligence as to the truth
  100. Privacy tort - appropriation
    • D uses P's name or image for commercial purpose
    • Newsworthy exception - not actionable if newsworthy
    • Look for uses in advertisement, packaging, etc.
  101. Privacy tort - Intrusion
    • Invasion of P’s physical seclusion in a way that would be highly offensive to an average person ex. wiretapping, peeping tom
    • Must have legitimate expectation of privacy
  102. Privacy tort - False Light
    • Wide-spread dissemination of a material falsehood about the P that would be highly offensive to the average person
    • Tort of false gossip
  103. Privacy tort - Disclosure
    • Wide-spread dissemination of confidential information about the P that would be highly offensive to the average person
    • Tort of "true" gossip
    • Newsworthy exception - not actionable if newsworthy
  104. Defense to privacy torts
    • Consent - defense to all
    • Absolute and qualified privileges to defamation - to false light and disclosure privacy torts
  105. Duty definition and considerations
    • A duty on the part of D to conform to a specific standard of conduct for protection of P against an unreasonable risk of injury
    • Must exercise as much case as a hypothetical reasonably prudent person acting under similar circumstances
    • Owed to foreseeable victims inside the "zone of danger"
    • Note: Danger invites rescue
  106. Reasonable Person Standard Exceptions
    • 1) Superior skill/knowledge – standards becomes what that person
    •  - Superior skill – body of knowledge that makes D unusually experienced
    •  - Superior knowledge – can be an isolated nugget of fact (advanced knowledge of the danger)
    • 2) Physical attributes, in some cases, can be relevant (person should know their own limitations)
  107. Negligence Claims against Kids
    • Duty owed is of a child of similar age, intelligence, and experience under similar circumstances
    •  - Subjective Standard (pro-D)
    •  - Under 5 owe the world no duty of care - cannot be held liable for negligence
    •  - A child doing an adult activity use RPP (ex. driving anything with an engine)
  108. Premises Liability - 4 types of entrants - Duty owed to Unknown Trespasser
    possessor owes no duty of care to unknown trespasser on the land
  109. Premises Liability - 4 types of entrants - Duty owed to Known Trespasser
    • Duty owed only:
    • when the hazard is an artificial condition
    • that is Highly dangerous (capable of inflicting serious harm)
    • the danger is Hidden (not open and obvious)
    • Possessor knows about in advance
  110. Premises Liability - 4 types of entrants - Duty owed to Licensee
    • Licensee – enter w/ permission but without economic benefit (ex. social guest)
    • Condition must be concealed (hidden) from the licensee
    • Possessor must have advanced knowledge
  111. Premises Liability - 4 types of entrants - Duty owed to Invitee
    • Invitee – enter w/ permission and confer an economic benefit or enter into a place open to the public
    • Condition must be concealed from the invitee
    • Possessor knew or could have discovered from a reasonable inspection
  112. Premises liability - Child trespassers
    • Attractive Nuisance Doctrine: possessor must exercise reasonable prudence to avoid injuring trespassing children on the land with respect to artificial hazards
    • P must show:
    •  - A dangerous condition on the land that the owner is or should be aware of
    •  - The owner knows or should know children frequent the vicinity of the condition
    •  - The condition is likely to cause injury (dangerous b/c child cannot appreciate the danger)
    •  - The expense of remedying the situation is slight compared to the magnitude of the risk
  113. Premises liability: Two ways to satisfy duty
    • Fix the hazard
    • Give an adequate warning (doesn’t work with small children)
  114. When is negligence per se available?
    • Two part test for when P may use negligence per se:
    • - The statute seeks to protect a class of persons to which he belongs
    •  - Statute seeks to prevent a risk of the same type as occurred in this case
    • “Class of person, class of risk” test
    • Unless: statutory compliance would be more dangerous or would be impossible under the circumstances (avoiding hitting a child by swerving into oncoming traffic)
    • Note: Failure to pass the test is not fatal - litigated under RPP standard of care
  115. Duties to act affirmatively/rescue
    • There is no duty to act affirmatively
    •  - No duty to rescue
    • Two exceptions:
    •  - pre-existing relationship: legal/formal)(hotelier/guest)
    •  -  D caused the peril
    • Opting to rescue will be held liable if they do not rescue reasonably
    • Once you undertake an activity, you have to do so as the RPP
  116. Negligent Infliction of Emotional Distress - Near miss cases
    • P must show D’s negligence and
    • D’s negligent act placed P in a zone of physical danger
    • P must have suffered subsequent physical manifestations (ex. heart attack, miscarriage)
  117. Negligent Infliction of Emotional Distress - Bystander case
    • Bystander cases: P must show D’s negligence killed/maimed X and
    • P and X have a close family relationship (spouse, parent, child)
    • Must have seen D injure/kill X
  118. Negligent Infliction of Emotional Distress - Relationship Cases
    • In business relationship, P must show high probability that careless performance will produce emotional distress
    • - Medical patient w/ doctor/lab giving false positive
  119. Res ispa loquitor
    • When the plaintiff lacks information about what the D did wrong (doesn’t know what the actual breach was)
    • P must show:
    •  - The accident is of a type normally associated with negligence
    •  -  An accident of this type would normally be due to the negligence of someone in D’s position (D had control over the injury causing object)
    • Prevents a directed verdict for D
  120. Elements of showing breach of duty
    • Must identify conduct and give a reason why the conduct fell short of the standard of care
    • Once the conduct has been show, there must be a sentence saying
    •  -"Plaintiff will argue that this is unreasonable because…”
  121. Two kinds of causation
    • Factual Cause: "but for" - was D's activity a necessary link in the chain?
    • Proximate Cause: "forseeable" - was the injury forseeable from the negligent conduct
  122. Factual Cause - Merged Cause Test
    • two negligent D’s, two negligent activities merge to cause the injury
    • Apply the Substantial Factor Test: Could each breach have caused the harm by itself?
    • If yes, then D’s are jointly liable
  123. Factual Cause - Unascertained Cause case
    • One injury, two potential tortfeasors equally capable of being the party causing the injury
    • Burden of proof is shifted to D’s to prove by preponderance they are not liable
  124. Proximate Cause
    • After showing duty, breach, and factual cause, the P must show that liability would be fair by not extending the factual causal link too far
    • The limiting factor is the “forseeable” injuries from your negligent conduct
    • Factors: Distance, Time, Number of intervening steps
  125. Proximate Cause - 4 types of cases where we go off precedent
    • Injury is deemed proximate regardless: Intervening medical malpractice
    • Intervening negligent rescue
    • Intervening reaction and protection forces (stampede to avoid danger)
    • A subsequent disease or accident
  126. Affirmative Defense to Negligence - Contributory Negligence
    • D must show P failed to exercise proper case for P’s own safety
    • -Standard of care for yourself: reasonable prudence
    • -You should observe self-protective statutes
    • Result: jury will be instructed to assign each litigant a number that reflects the degree of fault (P’s damages will be reduced accordingly)
  127. Strict liability - domesticated animals
    • no liability for domesticated animal (cow, sheep, dogs)
    • Exception – you have knowledge of violent propensity of a particular animal that causes harm (dog already bites a man, afterwards strict liability)
    • Exception to exception – not to trespasser on your own land
  128. Strict liability - wild animals
    • you keep wild animals, you are strictly liable for injuries
    • safety precautions are irrelevant
  129. Abnormally Dangerous Activities
    • foreseeable risk of serious harm even when reasonable care is being exercised
    • - Cannot be made safe even with reasonable care
    • - Not common in community where D conducts it
    • Examples: blasting, toxic material, radiation
  130. Elements of Strict Liability for Defective Products
    • D is a merchant (routinely deals in goods of this type)
    • Product is defective
    • Product not altered after leaving D's hands
    • P was making a foreseeable use of the product
  131. Strict Liability for Defective Product - "Merchant"
    • Casual sellers are not merchants
    • Service providers are not merchants
    • Commercial Leasor (rental car company can be held liable)
    • Every party in a distribution chain is a merchant (and amenable to a suit)
  132. Strict Liability for Defective Product - Ways to prove product defect
    • Manufacturing Defect: differs from others that came off assembly line in a way that makes it more dangerous than consumers would expect
    • Design Defect: when there is a viable, safer design
    • Information Defect: product has residual risks that cannot be designed out, consumers are unaware of those risks, and the product lacks adequate warnings
  133. Strict Liability for Product Defect - Product not altered
    Element presumed satisfied if moved in ordinary channels of commerce
  134. Affirmative Defense to Strict Liability - Comparative Responsibility
    Stupidity of the plaintiff will reduce the level of liability
  135. Definition of Nuisance
    • Interference with someone’s ability to use and enjoy his property to an unreasonable degree
    • Requirements: Intentionally, negligently, and significant interference
  136. Personal Jurisdiction
    • Does the court have the authority over D and can P sue D in this state/federal court?
    • State and Constitutional requirements
  137. Pers Juris. via State Long Arm Statute
    • Must allow for pers juris for specific type of suite (service, domicile, contracts, etc.)
    • Pers juris - imposing jurisdiction over individual
    • In rem juris- apply MC/F but property in jx should satisfy
    • CA Long Arm Statute is unlimited
  138. Personal jurisdiction - constitutional analysis (due process standard)
    Does D have such minimal contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?
  139. Personal jurisdiction - constitutional analysis (3 due process considerations)
    • Minimal contacts - purposeful availment or foreseeability
    • Relatedness- does P's claim arise from D's contacts with the forum?
    • Fairness- convenience (D at a disadvantage?)/State's interest / Plaintiff's interest
  140. Personal jurisdiction - constitutional analysis - minimal contacts
    • PURPOSEFUL AVAILMENT – D’s voluntary act reaching out to the forum, availing benefits & protections
    • EX: establishing office in state, trying to make $, directing activities to the forum, roads, causing an effect in state, interactive website
    • FORESEEABILITY – based on D’s contacts, could D reasonably anticipate being required to defend in forum
    • TRADITIONAL BASES OF JX: domicile, consent, presence in the forum when served process
  141. Personal jurisdiction - constitutional analysis - Relatedness
    • Does P's claim arise from D's contact with the forum
    • SPECIFIC JX: minimal contacts will be sufficient if claim arose out of D’s contact w/ forum
    • GENERAL JX: w/o specific jx, D’s continuous and systematic ties with the forum
    •  - Continuous and systematic: domicile, incorporation, doing continuous business
  142. Personal jurisdiction - constitutional analysis - Fairness
    • CONVENIENCE – would forum put D at a severe disadvantage in litigation? 
    • STATE’S INTEREST – to provide a forum for its citizens for this type of claim
    • PLAINTIFF’S INTEREST – maybe injured and wants to sue at home
  143. TRADITIONAL BASES OF PERSONAL JX
    • CONSENT – appearing in action, by contract, appointed agent, implied consent
    • DOMICILE – living in state
    • PRESENCE – in state when served
  144. CLASSIFICATION of CA state court claims
    • P determines classification by amount of demand, recovery sought, value – w/o atty’s fees, costs, interest
    •  - ONLY ONE UNLIMITED CLAIM: and entire case is unlimited
    •  - AGGREGATE: Aggregate 1P-1D claims & class actions (not fed)
    • LIMITED CIVIL – $25,000 and less in controversy
    •  - Each claim is capped at $25k, limited pleadings and discovery
    •  - Note limited civil in caption
    • UNLIMITED CIVIL – more than $25,000 Claimant can recover any amount
    • SMALL CLAIMS – for individual P, $7,500 or less. For entity P $5,000 or less
  145. RECLASSIFICATION of CA state court claims
    • If misclassified, or later events make clear that original jx should be changed, SMJ is still retained
    • AUTOMATIC RECLASSIFICATION: P amends complaint, then clerk automatically reclassifies
    • BY MOTION: by party or by court sua sponte – Court must give notice to parties, hold hearing to find $.
    •  - Do not look at merits of the claim, but can look beyond pleadings (judicial arb awards, settlement conf)
    •  - Reclassify unlimited à limited: $25k or less is virtually unobtainable
    •  - Reclassify limited à unlimited: possibility that recovery >$25k
  146. Questions to raise for PJ issues on essays
    • Traditional basis for PJ (domicile, presence, consent)
    • Long Arm Statute
    • Constitutionality of Long Arm Statute (minimum contacts/purposeful availment & foreseeability)
    • Relatedness of contacts to lawsuit (specific or general jurisdiction)
    • Fairness (convenience of Parties, state's interest, etc.)
  147. When can a case be removed to federal crt?
    • A case can be removed if it would have been proper in Fed Crt
    • If SMJ is based on DJ, no D may be of the state where the case is removed to
    • NOTE: does not matter if state had jurisdiction prior to removal
  148. Erie Doctrine steps (and 4 "substantive" issues)
    • Is there federal law (FRCP/Evidence) on point that directly conflicts with state law?
    • If there is NO fed law on point, fed crt must apply state law if the issue to be determined is substantive
    • Note: Always Substantive Issues:
    • - elements of claim or defense
    • - SOL
    • - Rules for tolling SOL
    • - ***Conflict or choice of law rules***
  149. Factors for determining "substantive issues" under Erie Doctrine
    • Outcome Determinative
    • Balance of interests
    • Avoid forum shopping
  150. Where may P lay venue?
    • In any district where all D's reside
    • - If all D's live in different districts of same state, can be any district w/in that state
    • In any district where a substantial part of the claim arose
  151. How is process served?
    • With summons and copy of complaint
    • By non-party over 18
    • Via:
    • - Personal service
    • - Substituted service: service at D's usual abode w/ someone of suitable age and discretion who resides there
    • On D's agent
    • - As permitted by state law of where crt sits or where D resides
    • - Waiver by mail
  152. Required elements of complaint
    • Statement of grounds of SMJ
    • Short and plain statement of the claim, showing entitlement to relief, including facts supporting a plausible claim
    • Demand for relief sought
  153. Which Rule 12 responses are waivable and when must they be asserted?
    • Lack of PJ
    • Improper venue
    • Improper process
    • Must be asserted in first rule 12 response (either motion or answer)
  154. What must be included in Response?
    • Response to allegations in complaint
    • - admit, deny, or state a lack of sufficient information to admit or deny
    • Raise affirmative defenses (otherwise waived)
  155. When is a counterclaim compulsory?
    Arrises from same T/O as P's claim
  156. When are crossclaims permitted?
    • When arising from same t/o
    • Never compulsory
    • If by P, cannot invoke supplemental jurisdiction
  157. Discovery - Required initial disclosures
    • W/in 14 days of scheduling conference
    • ID's of people who have discoverable information in support of your claims/defense
    • Documents and things you may use to support your claims or defenses (may produce copies or descriptions)
    • Computation of monetary relief and documents supporting it
    • Insurance coverage
  158. Who is a necessary and indispensable party?
    • Without A, the court cannot accord complete relief among existing parties
    • A's interests may be harmed if A is not joined
    • A claims and interest that subjects a party to risk of multiple obligations
    • Note: Then look to whether joinder is feasible (PJ, wether DJ is messed up)
  159. Steps for impleading a TPD
    • D filed a third-party complaint naming TPD
    • Serves process on TPD (must have PJ)
    • Right to implead w/in 14 days of serving answer - afterwards w/ crt permission
    • TPD may then assert claims arising form same T/O against P and D
  160. 4 initial requirements for class action
    • Numerosity: too many class members for practicable joinder
    • Commonality: some issue in common to all class members
    • Typicality: Rep's claims are typical of those of the class
    • Representative adequate: class reps fairly and adequately represent the class
  161. 3 types of class action cases
    • Damages: requires both
    •  - common questions predominate over individual questions
    •  - class action is the superior method
    • Injunction/declaratory relief: sought b/c D treated class members alike
    • Prejudice: class treatment necessary to avoid harm either to class members or non-class party
  162. Diversity and notice requirements for class action suits
    • All representatives must be diverse from all defendants
    • At least one rep's claim must exceed $75K (others by SJ)
    • Notice must be provided to all members of class in common questions suit
  163. What is required for an ex parte TRO
    • Applicant files under oath clearly showing he will suffer immediate and irreparable harm if other side has an opportunity to be heard
    • Applicant's attorney certifies his attempt to provide notice to D/D's attorney
    • TRO must state w/ specificity what D must do/refrain; why TRO was issued; and why threatened injury was irreparable
    • Applicant must post bond (for damages)
  164. What must applicant show to obtain a preliminary injunction (4 things)
    • Likely to suffer irreparable harm w/out PI
    • Likely to win on the merits
    • Balance of hardship favors him
    • Injunction is in the public interest
  165. Steps of obtaining default/default judgment
    • D failed to respond w/in 21 days
    • P motions clerk to enter default
    • P motions clerk for default judgment (if D made no response/sum certain/claimant affidavit re. sum owed/D is competent)
    • P applies to crt for default judgment
    • - w/ notice and hearing for D
    • D may motion to set aside default/default judgment by showing:
    • - good cause, or
    • - a viable defense
  166. What must be shown to obtain summary judgement & deadline
    • There is no genuine dispute on a material fact, and
    • That movant is entitled to judgement as a matter of law
    • Deadline: w/in 30 days after close of discovery
  167. When is a motion for RJMOL filed and what standard is used to grant it
    • When: after trial w/in 28 days of entry of judgment
    • Prerequisite: must have motioned for JMOL during trial
    • Standard: Reasonable people cannot disagree with the result (same as JMOL)
  168. When is a Motion for New Trial filed and what standard is used (and examples)
    • When: w/in 28 days of judgement
    • Standard: error at trial requires a do-over
    • Ex: erroneous jury instruction, new evidence, misconduct, serious error in judgment, inadequate/excessive damages)
    • Note: may be used if RJMOL cannot be used b/c waived by not filing JMOL
  169. "Collateral order" exception to interlocutory appellate review
    • Appellate crt has discretion to review ruling on an issue if:
    • - is distinct from the merits of the case
    • - involves an important legal question
    • - is essentially unreviewable if parties must await final judgment
  170. Appellate standard of review: questions of fact
    • Non-jury case: clearly erroneous
    • Jury case: "could a reasonable jury have reached the same conclusion?"
  171. Supreme Court appellate jurisdiction
    • any order granting/denying an injunction in any proceeding requiring hearing before 3-judge panel
    • Any case in a court of appeals by certiorari
    • Decisions of highest state court if
    • - validity of federal law is called into question
    • - validity of state law is called into question based on ground that it violates Constitution/federal law
  172. Requirements for Claim Preclusion (res judicata)
    • Same claimant against same defendant
    • Ended in a final judgment on the merits
    • both cases assert the same claim
  173. Requirements for Issue Preclusion (Collateral Estoppel)
    • Case 1 ended in a valid, final judgment on the merits
    • Same issue was litigated and determined in case 1
    • The issue was essential to the judgment in case 1
  174. By whom/against whom can issue preclusion be asserted
    • By whom: By a party in case 1
    • Against whom: against a party in case 1/someone in privity and
    • *nonmutual defensive issue preclusion: D in case 2 was not in case 1
    • *nonmutual offensive issue preclusion: P in case 2 was not in case 1
  175. nonmutual defensive issue preclusion & requirements
    • Def: D in case 2 was not in case 1
    • Case 1 ended in valid, final judgment on the merits
    • Same issue was litigated and determined
    • Issue was essential to judgment in case 1
    • Being asserted against party to case 1/someone in privity
  176. nonmutual offensive issue preclusion
    • P in case 2 was not in case 1
    • Case 1 ended in valid, final judgment on the merits
    • Same issue was litigated and determined
    • Issue was essential to judgment in case 1
    • Being asserted against party to case 1/someone in privity
    • Must not be "unfair"
    • "unfair" factors: full opportunity to litigate case 1, incentive to do so, no inconsistent findings on the issue
  177. Requirements of Incapacity
    • 18 yrs old
    • able to understand extent of property
    • know natural objects of bounty (i.e. who are the beneficiaries)
    • Know of nature of acts (executing a will)
    • - w/out capacity, entire will is invalid
  178. Requirements & effects of insane delisuion
    • If at the time of execution the testator:
    • held a false belief
    • that was the product of a sick mind
    • there is NO evidence to support the belief
    • delusion affected the testator's will
    • Effect: only that part of will affected is invalidated - goes into residuary
  179. Fraud in preventing T from revoking & consequences
    • wrongdoer's representation
    • Consequences:
    • - Crt will NOT probate will
    • - constructive trust: beneficiary of wrongdoer's representation will pass to crt-determined beneficiary
  180. Undue Influence - Prima facie case & consequences
    • Susceptibility - T has a weakness
    • Opportunity - wrongdoer had access to T
    • Active Participation - wrongful act creates the gift
    • Unnatural Result - Wrongdoer receives an unusual devise
    • Consequences:
    • - the tainted part of the will is invalidated
    • - First to residual, intestate, or constructive trust
  181. Undue Influence - Common law presumption & consequences
    • Confidential relationship exists
    • Active participation - wrongful act creates the gift
    • An unnatural result - wrongdoer receives an unusual gift
    • Consequences:- the tainted part of the will is invalidated- First to residual, intestate, or constructive trust
  182. Statutory Presumption of Undue Influence & consequences
    • Presumption that provision of will is invalid if 
    • Person who drafted the instrument
    • Care custodian
    • Spouse/domestic partner/relative/employee of person described above
    • Does not apply to:
    • drafted by spouse/domestic partner/relatives,
    • reviewed by independent attorney, or
    • transfer that does not exceed 5K if estate exceeds 10K
    • Consequence: transferee is deemed to predecease testator
  183. Mistake in Description & consequences
    • Where no one or nothing fits the description, or 2 or more persons or things fit the description
    • Latent ambiguity: no problem on the face of the will (introduce parole evidence to establish ambiguity and intent)
    • Patent ambiguity: ambiguity is apparent on the face of the will (see CA statute)
    • Modern CA Statute: Introduce parole evidence for any type of ambiguity
  184. Dependent Relative Revocation
    • If T revokes will, or portion thereof, in the mistaken belief that substantially identical will or codicil effectuates T's intent, then the revocation of first will is deemed conditional, dependent, and relative to the second will effectuating T's intent
    • only use if subsequent will is invalid or fails to effectuate T's intent
  185. Integration - 2 elements
    • Intent: T must have intended for the papers in question to be a part of the will
    • Presence:the paper must have been actually or physically present at time of execution
    • Proving Integration:
    • - physical connection among papers
    • - logical connection between pages
  186. Incorporation by reference elements
    • Non-integrated writing is given testamentary effect and becomes part of the will
    • A document or writing
    • in existence when the will was executed
    • clearly identified in the will
    • T intended to incorporate the document into the will
    • Note: if 1-3 are established, intent will be implied
  187. Facts of Independent Significance
    • Beneficiary/gift may be given meaning by facts of significance independent from T's will ('my church')
    • Fact must be verifiable independent from the will
    • Allows use of trustworthy parole evidence to fill-in the blanks
  188. CA Probate Code 6132 elements
    • A writing, whether or not it can be incorporated be reference or is a fact of independent significance, may be admitted into probate and given testamentary effect
    • Elements:
    • 1: Writing must be referred to in the will, dated, and signed/handwritten/intent establishable through extrinsic evidence
    • 2: Must describe the items and beneficiaries with reasonable certainty
    • 3: Must be executed before or after the will
    • 4: Directs the disposition of personal tangible property not used in T's business w/ value not more than $5K @ or $25K total
    • Gifts to predeceased pass as directed, otherwise the gift lapses
  189. Application of Harmless Error Rule
    • Clear and convincing standard showing intent of T to probate writing
    • Used if:
    • T's signature is not witnessed,
    • witnesses do not sign, or
    • witnesses do not know they are witnessing a will
  190. Slap down for "substantial compliance" doctrine
    • If there is no issue of fraud or mistake, the will should be deemed valid under California's 'substantial compliance doctrine' as the will substantially complies with the Probate Code.
    • Note: always follow with Harmless Error if witness-issue is involved
  191. Consequences of an interested witness
    • Will is not invalidated
    • Rebuttable presumption of wrongdoing
    • - only takes (max.) intestacy amount
    • Inapplicable if witness-beneficiary only takes in a fiduciary capacity (trustee)
  192. Three types of questions in determining testamentary intent of holographic will
    • T signs a writing simply listing assets and names - use extrinsic evidence to determine intent
    • T writes a series of letters - may constitute a will under integration
    • Testamentary intent is part of a commercially printed form - allowable under CA Probate Code
  193. Revocation of Codicils - 2 rules
    • Rebuttable presumption that revocation of codicil does not revoke will
    • Rebuttable presumption that revocation of will invalidates codicil amending it
  194. Revocation by Physical Act - elements
    • Must be burned, torn, cancelled (crossing-out), destroyed, or obliterated
    • T must have the simultaneous intent to revoke
    • The act must be done either by T, or by someone in T's presence and at his direction
  195. Treatment of cross-outs and interlineation
    • NOT a holographic codicil unless includes material portions
    • - does not need a new signature
    • Using Dependent Relative Revocation on failed interlineation codicil:
    • - if new gift is greater: handwritten gift was dependent on revocation of crossed-out gift - beneficiary takes crossed-out gift
    • - if new gift is less: DRR is not used. Entire gift is cancelled.
  196. Revocation by Subsequent Written Instrument
    • Explicit
    • Implied: Subsequent will revokes prior wills if it entirely disposes of T's estate
  197. Revival of Revoked Will
    • Prior will is revived upon destruction of subsequent will if
    • - T demonstrates intent that prior will be revived
    • - In CA, revival is not automatic
    • By codicil: terms of codicil must indicate that T wanted previous will to be revived
  198. Omitted or Pretermitted Child Definition & Consequences & Exceptions
    • A child born or adopted after all testamentary instruments are executed and not provided for in any testamentary instrument
    • Consequence: child receives intestate share plus any inter vivos trust amounts
    • Exceptions:
    • - intentional omission w/ intent appearing in testamentary instrument
    • - at time of execution, substantially all assets are transferred to other parent of omitted child via inter vivos trust
    • - T provided for child outside testamentary instrument in lieu of transfer via testamentary instrument
  199. Omitted Spouse Definition
    • Surviving spouse who married decedent after execution of all testamentary instruments and is not provided for in any testamentary instrument
    • (includes inter vivos trust)
  200. Omitted Spouse - statutory share
    • 1/2 community property owned by decedent or in any revocable trust
    • 1/2 quasi-community property owned by decedent at death or in any revocable trust
    • A share of separate property equal to intestate share
    • - max. 1/2 separate property of the estate
  201. Omitted Spouses - waiver definition and elements
    • Waiver: a voluntary relinquishment of a known right, whether signed before or during marriage
    • Any and all probate rights can be waived
    • Elements:
    • - in writing, signed before or during marriage
    • - full disclosure of T's assets
    • - independent counsel by waiving spouse
    • Enforceable unless unconscionable
    • Exception:
    • - full disclosure not necessary if spouse should have known 
    • - independent counsel not necessary if fair
  202. Four Rules for testamentary gifts upon Final Dissolution of Marriage/Domestic Partnership
    • Revoked upon annulment or final dissolution of marriage/term. of dom. partnership
    • Legal separation does not affect the testamentary gift
    • Reinstated upon remarriage if unchanged
    • Rules do not apply if expressly stated otherwise
  203. Specific Devise
    • gift of a particular, unique item
    • real property is always specific
    • ex: "my" 10 shares of company X
    • T must have the intent that Beneficiary take that particular thing
  204. General gift
    Payable out of general assets - payable as the gift named or cash equivalent
  205. Demonstrative Gift
    • Gift from a specified, particular fund
    • If funds are insufficient, the amount may be made up from general assets
  206. Residuary Devise
    All other property not expressly disposed of in the will
  207. Ademption by Extinction
    • Intent is important in determining whether T intended the gift to fail
    • There is no ademption by extinction in the following situations:
    • Securities changing form (reissued stock, split stock, etc.)
    • Conservator sells off assets - beneficiary takes the net benefit (b/c T did not sell the asset)
    • Eminent Domain Award - paid after death
    • Insurance Proceeds - paid after death
    • Installment Sale Proceeds - paid after death
    • - For proceeds paid after death, intent can be inferred from tracing proceeds to a separate account
  208. Ademption by Satisfaction
    • T give Beneficiary an inter vivos down payment on device
    • 4 ways it comes up:
    • - will provides for deduction of inter vivos gift
    • - T declares in contemporaneous writing a gift is satisfaction
    • - beneficiary acknowleges in writing
    • - inter vivos gift is the same as a specific gift to the beneficiary
  209. Five Ways Contracts to Not Revoke can be made
    • Will/instrument states the material provisions of the contract (in consideration of $ I hereby)
    • Express reference in will/instrument to K (terms of contract can be determined by parole evidence)
    • Writing signed by decedent evidencing K
    • Clear and convincing evidence of agreement that is enforceable in equity
  210. Contracts to Not Revoke - when cause of action accrues
    • Generally - when the decedent dies
    • Exception: when T is engaging in conduct which would be a fraud on the promisee
    • - injunction to prevent dissipation of funds
  211. Joint & Mutual Wills - Definition
    • Joint: Will of 2 or more people on 1 document
    • Mutual: Separate wills of 2 or more people which are reciprocal
    • Joint & Mutual Wills: Reciprocal provisions on one document
    • - does not create presumption of contract
    • - may be evidence of a contract
  212. Remedies for Contracts to Not Revoke
    • Damages
    • Specific Performance
    • Constructive Trust
  213. 4 Rules Protecting Spouse/Dom Partner
    • Community property - T can only dispose of 1/2
    • Quasi-community property- T can only dispose of 1/2
    • Widow's election- S may elect b/twn accepting gift in T's will rather than take statutory right
    • Illusory Promises-
    • -generally: T's inter vivos transfer of quasi-comm property to 3rdP w/out consideration is allowed
    • -exception: if illusory (T retains some interest/control) then surviving spouse may elect to have 1/2 property to be restored to estate
  214. Intestacy For Surviving Spouse
    • Community property: inheret's 1/2 of deceased property (now owns all)
    • Quasi-community property: inheret's 1/2 of deceased quasi-property (now owns all)
    • Separate Property:
    • - If D has no issue/parents/siblings/nephews - Spouse takes 100%
    • - If D survived by 1 child/issue of predeceased child, child/issue takes 1/2 and spouse 1/2
    • - If D survived by more than 1 child/issue, then 1/3 to spouse and 2/3 to children/issue
    • - If D survived by no issue, but parents/issue, then 1/2 to parents/issue and 1/2 to spuse
  215. Intestate Scheme (w/out spouse)
    • Issue
    • Parents
    • Issue of parents
    • G-parents
    • Issue of G-parents
  216. Per Capita Distribution
    • Issue of the same degree take "per capita": equally & in his own right
    • Make equitable distribution at first level of distribution with someone living
  217. Per Stirpes/'by representation' distribution
    The distribution at the first level, even if everyone at that level is deceased
  218. Elements for Adoption for Stepchildren or Foster Childred
    • relationship began during child's minority
    • Relationship continued throughout life
    • established by clear and convincing evidence that D would have adopted but for legal barrier
    • -ex. biological parent does not give consent to adopt
  219. CA's Anti-lapse statute
    • Applies if predeceased B is "kindred" of T/T's spouse
    • Issue of predeceased B step into B's shoes and take the devise
    • Kindred: of blood relationship
    • Applies to Wills & Revocable Trusts & Class Gifts
  220. CA & Simultaneous Death - Testator and Devisee
    • T and D die under simultaneous event
    • If cannot determine by C & C evidence which survived the other - D is deemed to have predeceased T
    • Gift lapses or anti-lapse is applied
  221. CA & Simultaneous Death - Joint tenancy w/ rights of survivorship
    JTs w/ right of survivorship, w/out C&C evidence of who survived the other, sever the JT between the estates
  222. CA & Simultaneous Death - Spouses w/ Community/Quasi property
    • Community/Quasi will be severed
    • 1/2 of each type will be distributed to each estate
  223. Order of Abatement - paying omitted children/spouses/dom. partners
    • property not passing by T's will or revocable inter vivos trust
    • abate from all beneficiaries of T's will/revocable trust pro rata, in proportion to value received
    • Applied to specific, general, and residuary gifts
    • - Except: if specific gift is made with obvious intention of T
  224. Order of Abatement - paying debtors
    • intestate property
    • residuary gifts
    • general gifts to non-relatives
    • general gifts to relatives
    • specific gifts to non-relatives
    • specific gifts to relatives
  225. Exoneration: CA
    • Devisee takes specific gift subject to the encumbrance
    • unless T's will states the specific gift is to be exonerated
    • NO Automatic exoneration: general instruction to "pay all my just debts" is not sufficient
  226. Requirements of Gift Causa Mortis
    • Gift made by donor believing death is imminent Only personal property (no real property)
    • Delivery required (actual, symbolic, constructive)
    • If donor survives, the gift is revoked by operation of law
    • Modern: Found whenever donor has done everything possible to effectuate delivery (absent fraud or mistake)
  227. Which offenses "merge" and which don't
    • Solicitation and Attempt merge into a completed, substantive offense
    • Conspiracy does not
  228. Specific intent crimes
    • Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts 
    • Solicitation
    • Conspiracy
    • Attempt
    • First degree murder
    • Assault
    • Larceny
    • Embezzlement
    • False Pretenses
    • Robbery
    • Burglary
    • Forgery
  229. Elements of Solicitation
    Inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime
  230. Elements of Conspiracy
    • An agreement between two or more people
    • an intent to enter into the agreement
    • an intent by at least two persons to achieve the objective of the agreement
    • Unilateral approach (modern): only one person with intent is needed
  231. Elements of Attempt
    • An act
    • done with intent to commit a crime
    • that falls short of completing the crime
    • Act must be a "substantial step" in the course of conduct planned (beyond mere preparation)
  232. Defenses to Attempt
    • Legal impossibility: act, if committed, would not be illegal
    • Factual impossibility: not a defense
    • Abandonment (CL): not a defense
    • Abandonment (MPC): fully voluntary and complete abandonment is a defense
  233. Under the M'Naghten Rule, D is entitled to acquittal if:
    • disease of the mind
    • caused a defect of reasoning
    • such that D lacked the ability at the time of his action to either
    • know the wrongfulness of his actions, or 
    • understand the nature and quality of his actions
  234. Under the Irresistible Impulse Test, D is entitled to acquittal if:
    because of a mental illness he was unable to control his actions or conform his conduct to the law
  235. Under the MPC test for Insanity, D is entitled to acquittal if:
    • he had a mental disease or defect and, as a result, he lacked the substantial capacity to either
    • appreciate the criminality of his conduct, or
    • conform his conduct to the requirements of law
  236. Elements of Battery
    • Unlawful application of force
    • to the person of another resulting in
    • bodily injury or an offensive touching
  237. Elements of Assault
    • An attempt to commit a batteryor
    • The intentional creation - other than by mere words - of a reasonable apprehension in the mind of the victim of imminent bodily harm
  238. Definition of Murder and required states of mind (CL)
    • Murder is the unlawful killing of another human being with malice aforthought.
    • Intent to:
    • - kill
    • - inflict great bodily harm
    • - reckless indifference to an unjustifiably high risk to human life ("abandoned and malignant heart")
    • - to commit a felony (felony murder)
  239. Adequate provocation if (manslaughter)...
    • Arouse a sudden and intense passion in the mind of a reasonable person, causing him to lose control
    • D was in fact provoked
    • No sufficient time for passions of a reasonable person to cool
    • D in fact did not cool off
    • Manslaughter: Killing that would be murder but for the existence of adequate provocations
  240. Elements of Larceny
    • A taking (obtaining control)
    • and carrying away
    • of tangible personal property of another
    • by trespass
    • with intent to permanently deprive that person of her interest in the property
    • Note: if the person has control of the property at the time of the taking, it is likely embezzlement, not larceny
  241. Elements of Embezzlement
    • the fraudulent (intent)
    • conversion of personal property of another
    • by a person in lawful possession of that property
    • Note: conversion is dealing with property inconsistent with the arrangement by which D has possession
  242. Elements of False Pretenses
    • Obtaining title to personal property of another
    • by an intentional false statement of past or existing fact
    • with intent to defraud the other
    • (D convinces owner of property to convey title by a false representation)
    • Note: future promises do not count
  243. Elements of Robbery
    • Taking of personal property of another
    • from the other's person or presence
    • by force or threats of immediate death or physical injury to the victim/someone close
    • with the intent to permanently deprive him of it
  244. Definition of Extortion
    • Knowingly seeking to obtain property or services by means of a future threat
    • "blackmail"
  245. Elements of Forgery
    • Making or altering
    • A writing with apparent legal significance
    • so that it is false
    • Note: merely containing a misrepresentation is not enough - falsehood must be false representation of what the document purportedly is
  246. Elements of Burglary
    • A breaking and entering
    • of a dwelling of another
    • at night 
    • with the intent to commit a felony therein
    • Actual breaking: involving some force (not entering open doors)
    • Constructive breaking: a breaking by fraud or threat
  247. Elements of Arson
    • The malicious burning of the dwelling of another
    • - MBE - can extend to other structures
    • Note: scorching is insufficient, but charring is sufficient
  248. Three ways the government can break the chain between unlawful police action and derived evidence
    • Independent source
    • Inevitable discovery
    • Intervening act of free will on the part of D
  249. Sixth Amendment Protections
    • Speedy trial
    • Public trial
    • Trial by jury
    • Confront witnesses
    • Compulsory process for obtaining witnesses
    • Assistant of counsel for felony cases and misdemeanors w/ imprisonment
  250. Eighth Amendment Protections
    Prohibition against cruel and unusual punishment
  251. Definition of Probable Cause
    • trustworthy facts or knowledge
    • sufficient for a reasonable person to believe
    • that the suspect has committed or is committing a crime
    • for which arrest is authorized by law
  252. Requirements & limits for Stop and Frisk
    • Upon reasonable suspicion of criminal activity or involvement in a completed crime
    • supported by articulable facts
    • Note: based on totality of the circumstances
    • Duration and Scope: diligent and reasonable manner in confirming or dispelling the suspicion
  253. Two core requirements for search warrant
    • Probable cause: fair probability that contraband or evidence of a crime will be found in the area searched
    • Particularity: must state the place to be searched and the things to be seized
  254. Good faith reliance rule and 3 exceptions
    • An officer's good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements
    • Exceptions:
    • - affidavit underlying warrant is so lacking in P.C. or particularity that no reasonably officer would have relied on it
    • - Officer/prosecutor lied/misled the magistrate
    • - magistrate is biased and has abandoned neutrality
  255. Exception to warrant requirement: search incident to arrest
    • LEO may search the person and areas into which suspect might reach to obtain weapons or destroy evidence
    • May be of surrounding area if accomplices are suspected to be present
    • Must be contemporaneous in time or place
    • May NOT: search cell phone
  256. Exception to warrant requirement: "automobile exception"
    • IF before the search LEO have PC, LEO may search the entire car.
    • May open packages, luggage, containers that could reasonably contain contraband LEO is looking for (can't look for illegal aliens in glove box)
    • PC can arise after car is stopped but must be BEFORE search
  257. Exception to warrant requirement: Consent - 3rd P
    • Anyone with apparent equal right to use or occupy the property may consent to a search
    • If a co-occupant is present and objects, the objection controls
    • - but if arrested/removed, the consent controls
    • Look to 3rdP's right to enter the area
  258. Stop and Frisk- definition, standard, and limitation
    • A brief detention for the purpose of conducting a protective frisk
    • LEO must: have an articulable and reasonable suspicion of criminal activity, and
    • may frisk person only if LEO reasonably believes person may be armed and dangerous
    • Scope of frisk: light pat-down of outer clothing
  259. Exceptions to warrant requirement: Hot pursuit, Evanescent Evidence, Emergency Aid
    • Hot Pursuit: LEO in hot pursuit (15 min.) of fleeing felon may make warrantless search/seizure (can enter a home, too)
    • Evanescent Evid: LEO may seize evidence w/out warrant if likely to disappear before warrant can be obtained
    • Emergency Aid: LEO can enter premises without warrant to address emergencies
  260. Standards for when Miranda warning is required- custody
    • Custody: if at the time of interrogation a reasonable person would not feel free to leave
    • - does the situation involve inherently coercive pressures?
    • Under 5th Amd
  261. Standards for when Miranda warning is required- interrogation
    Interrogation: Any words or conduct by the police that they should know would likely elicit a response
  262. Effects of Providing Miranda Warning after confession
    • If pre-miranda confession is repeated after intervening miranda, the second confession is:
    • - inadmissible if it seemed intentional on the part of the police
    • - admissible if unplanned or inadvertent
  263. Prosecutor's duty to disclose exculpatory information: standards and effect
    • Will constitute grounds for reversal if:
    • - the evidence is favorable to D; and
    • - prejudice has resulted (i.e., a reasonable probability that the result would have been different)
  264. D's 4 rights during death penalty cases
    • Statute must give D chance to present mitigating facts/circumstances
    • No automatic imposition
    • all relevant mitigating evidence must be admissible
    • Only jury, not judge, may determine whether aggravating factors warrant death penalty
  265. Introduction of co-defendant's confession and 3 exceptions
    • 2 persons are tried together and one's confession implicates the other, the confession cannot be used
    • - even if the other has also confessed
    • Exceptions:
    • - All portions referring to 2nd D can be eliminated
    • - 1st D takes the stand and subjects himself to cross-examination
    • - to rebut 2nd D's claim that confession was coerced
  266. 4 most common duties owed to clients
    • "The lawyer has a duty of ____ to ____"
    • Confidentiality
    • Loyalty
    • Financial Responsibility
    • Competence
  267. 3 most common duties owed to parties other than a client
    • Candor
    • Fairness
    • Dignity/Decorum
  268. Steps for building a PR essay
    • Clients Love Fierce Counsel; Courts Feel Differently
    • Owed to client: Confidentiality, Loyalty, Financial Responsibility, Competence
    • Owed to others: Candor, Fairness, Dignity/Decorum
  269. Duty of Confidentiality to Client
    • Don't reveal anything related to the representation of a client or use that information against her w/out her consent
    • Scope: Broader than A-C privilege; may attache regardless of whether client sought confidentiality
    • Responsibility: use reasonable electronic security to prevent inadvertent access
    • Note: be skeptical of disclaimer
  270. Longevity of Duty of Confidentiality
    Continues after formal representation ends and after death
  271. Exceptions to Duty of Confidentiality
    • Consent: can be implied if necessary to render your client services
    • Defending yourself: information necessary to establish your claim or defense
    • Compelled by court, law or other ethical Duty
  272. Exception to Duty of Confidentiality - Defending yourself
    • May release information necessary to establish your claim or defense during:
    • sued for malpractice
    • disciplinary actions against you
    • client refuses to pay and you are forced to sue for fees
    • Under ABA: seeking ethics opinion
  273. Circumstances for when/how can you disclose confidential information to uphold the law - death or bodily harm
    • Death or bodily harm: attorney may disclose to prevent 
    • - must make a good faith effort to dissuade client
    • - if reasonable, inform client of your decision to reveal confidences (in CA)
  274. Circumstances for when/how can you disclose confidential information to uphold the law - fraud or crimes causing financial injury
    • Attorney may reveal confidences if client used or is using your services and disclosure would prevent or mitigate substantial financial loss
    • - must make a good faith effort to dissuade client
    • - * NO Financial crime DISCLOSURE IN CA
  275. Definition of Imputed Disqualification & exceptions
    • Any group of lawyers that work together closely or share responsibilities share each others' conflicts
    • Exceptions:
    • May confine conflict behind "ethical wall" if based on attorney's prior work at another firm or w/ Gov.
  276. CA difference w/ respect to imputed conflicts
    • CA does not impute purely personal conflicts to colleagues
    • CA disqualifies, but does not discipline, a lawyer for imputed conflicts
  277. Definition: concurrent conflict of interest
    when there is a significant risk that the representation will be materially limited by the conflict
  278. When may a lawyer undertake representation despite conflicts of interest?
    • Reasonably believes can reasonably/diligently represent clients despite conflict
    • each affected client gives informed consent
    • CA Rule is different:
    • does not contain "reasonably lawyer standard"
    • applies to potential and concurrent conflicts
    • requires "informed written consent"
    • but requires only written disclosure to client when arising from prior representations
  279. Three situations where lawyer may accept fees from 3rd parties
    • client gives informed consent
    • no interference with lawyer's independence or with attorney-client relationship
    • Information relating to representation remains confidential
    • CA: requires consent be in writing
  280. CA requirement for fee agreements (and 5 exceptions)
    • Over $1K required to be in writing
    • Exceptions:
    • client is corporation
    • client states in writing does not want
    • same kind of services client has previously paid for
    • Acting in emergency
    • Otherwise impracticable
  281. Competency in representation ABA v. CA
    • ABA: must act with the knowledge and skill to carry out the representation
    • ABA: Can be punished upon first failure
    • CA: Only punished if "intentionally, recklessly, or repeatedly" fails to perform with competence
  282. Private Express Trust Defined
    Fiduciary relationship with respect to property whereby one person holds legal title for the benefit of another and which arises out of a manifestation of intent to create it for a legal purpose
  283. Creation of private express trust to take effect during lifetime - Transfer in Trust
    • 3rd person is trustee
    • Real Propery:
    • - SOF applies
    • - Deed must be executed
    • Personal Property
    • - required delivery of property to trustee at the time intent is manifested
  284. Effects of Illegality of Trust after Creation
    • Resulting trust is decreed
    • Resulting trustee devises to settlor or settlor's estate
  285. Creation of Charitable Trust
    • Manifestation of trust intent
    • at settlor's death by will or during settlor's lifetime by declaration of trust/transfer in trust
    • of a presently existing property that can be transferred
    • for a legal charitable purpose
  286. Totten Trust
    • Not really a trust - more an account
    • The named beneficiary takes what is in the bank account
    • Some type of savings account w/ right of suvivorship
    • No fiduciary duties are owed
    • - unless depositor's intention is manifested somehow
  287. Spendthrift Trust Definition
    Beneficiary cannot transfer rights to future payments of income or principal and creditors cannot attach those rights
  288. Spendthrift Trust Definition - creditors attaching
    • Common law: generally no
    • Exceptions:
    • - Gov't
    • - Those providing necessities to B
    • - Child support
    • - Spousal support
    • - Alimony
    • - Tort judgment creditor
    • Surplus Concept: difference b/twn station in life and amount of income including STT is attachable
    • Self-settled Spendthrift Trust: Trust is valid, but spendthrift provision is not
  289. Support Trust - involuntary alienation
    • Common law: generally no
    • Exceptions:- Gov't- Those providing necessities to B- Child support- Spousal support- Alimony- Tort judgment creditor
  290. Discretionary Trust definition
    • Trustee is given sole and absolute discretion in determining:
    • how much to pay the beneficiary, if anything, and
    • when to pay the beneficiary, if ever
  291. Discretionary Trust - voluntary alienation
    • On one hand, beneficiary cannot voluntarily transfer rights b/c may not get anything
    • If there was an assignment, then asignee steps into beneficiary's shoes;
    • however - if trustee has notice he must make payments to assignee or risk being held liable
  292. Discretionary Trust - involuntary alienation
    • If there was an creditor, then creditor steps into beneficiary's shoes;however
    • - if trustee has notice he must make payments to creditor or risk being held liable
  293. Resulting Trust
    • Created by court - transfers property to settlor, or settlor's estate
    • Examples:
    • - end of private express trust
    • - No beneficiary in private express trust
    • - Charitable trust ends b/c impossibility or impracticability and Cy Pres cannot be used
    • - If private express trusts becomes illegal after creation
    • - Excess corpus in a private express trust
    • - Semi-section trust
    • - Purchase money resulting trust
  294. Purchase money resulting trust
    • When A pays consideration to B to have title to property to be transferred to C
    • If A and C are not related, rebuttable assumption that C is holding for benefit of A
    • If A and C are related, rebuttable presumption of a gift
  295. Semi-Secret Trust
    • Will makes a gift to a person to hold as trustee without naming a beneficiary
    • Violative of statute of wills - parole evidence is not allowed
  296. Constructive Trust
    • A remedy to prevent fraud or unjust enrichment
    • A means to disgorge a wrongdoer or ill gotten gains
    • Examples:
    • - trustee of private express/charitable trust makes a profit b/c of self-dealing
    • - there is fraud in inducement or undue influence
    • - Secret trusts in the Law of Wills
    • - Oral Real Estate Trust - breach of promise
  297. Secret trusts
    • Will provides gift to A but is based on promise to use money for B
    • Parole evidence can be used to show that beneficiary was B
    • Constructive Trust is remedy
  298. Oral Real Estate Trusts - Definition & when will constructive trust be imposed
    • Trusts where deed is transferred upon promise that property will be used to benefit 3rdP
    • Exceptions to statute of frauds:
    • Fiduciary relationship between Grantor and recipient
    • Fraud in inducement (by making someone rely on your promise to deed property to you)
    • Detrimental reliance by the intended beneficiary
  299. Two types of trustee powers
    • Enumerated: as listed in trust
    • Implied: helpful and appropriate to carry out the trust purpose
    • - to sell trust property
    • - to incur expenses
    • - to lease
    • - to borrow (modern)
  300. Trustee Duties Owed to Beneficiary - Loyalty
    • Trustee must administer trust for the benefit of the beneficiaries (must be impartial), having no other consideration in mind
    • No self-dealing by the trustee
    • consequences: 
    • - trustee is surcharged for loss
    • - personal profit is transferred via constr. trust
  301. Trustee duties to beneficiaries - duty to invest - three alternative rules
    • State lists
    • Prudent person (common law)
    • As a "prudent investor" (Uniform Prudent Investor Act)
    • Notes: always a duty to diversify
  302. Trustee duties to beneficiaries - duty to invest - Prudent person (common law)
    • Trustee must act reasonably prudent person investing his own property, trying to maximize income while preserving corpus.
    • If trustee holds himself to have greater care, then higher standard applies
    • Each investment is individually scrutinized
  303. Trustee duties to beneficiaries - duty to invest - "Prudent investor"
    • Trustee must act as a prudent investor
    • If trustee holds himself to have greater care, then higher standard applies
    • Performance of entire portfolio matters, not individual
  304. Duty to Earmark
    • Trustee must label trust property as trust property
    • Common law: trustee is held personally liable for any loss, even without causality
    • Modern: trustee is held personally liable only if loss was caused by failure to label (e.g. trustee's creditor attaches to trust funds)
  305. Duty to Segregate
    • Trustee cannot co-mingle personal funds with trust funds or between trusts
    • Trustee can be held liable for any loss
  306. Duty not to delegate
    • Trustee can rely on competent advice
    • Trustee must make decisions
    • Cannot delegate to another trustee
    • Common law:
    • - could not delegate duty to invest
    • - trustees must act unanimously
    • Modern: 
    • - Can delegate duty to invest
    • - majority of trustees can decide to act
  307. Duty to Account
    Trustee must give beneficiaries of income and expenses of trust on a regular basis
  308. Duty of Due Care
    • Trustee must act as a reasonably prudent person dealing with his own affairs
    • - note: discuss when there is any breach of duty
    • Remedies: damages, constructive trust, tracing and equitable lien on property, ratification, removal of trustee
  309. Liability of contract of Trustee
    • Common law: Trustee is sued in personal capacity
    • - can be indemnified by trust if acted w/in powers and not personally at fault
    • - K could provide that trustee
    • Modern rule: If other person to K knows trustee is entering into K as representative, the must be sued as representative
  310. Liability of Torts for Trustees
    • Common law: trustee was sued in personal capacity
    • - if w/out personal fault - trustee can be indemnified by trust
    • - thus, if agent committed tort, trustee was indemnified
    • Modern: Trustee is personally liable only if he is at fault
    • - with agent torts or strict liability, representative is sued in representative capacity
  311. Modification of Trust by Settlor
    • Settlor can modify trust if:
    • - expressly reserved, or
    • - has power to revoke
  312. Modification of Trust by Court & elements
    • Cy Pres - charitable trust
    • Doctrine of Changed Circumstances:
    • - Changes administrative or mgmt powers of trust
    • - Does not change beneficiaries
    • 2 Elements:
    • - unforeseen circumstances at time of settlement
    • - deviation is necessary to preserve trust
  313. Termination of Revocable Trust
    • Majority Rule: to retain power to revoke, settlor must expressly reserve power in trust instrument
    • Minority: Settlor has the power to revoke unless expressly does not
  314. Termination of Irrevocable Trust
    • Settlor and all beneficiaries agree
    • All the beneficiaries agree to terminate and all material purposes have been accomplished
    • Passive trusts and statute of uses
  315. Passive trusts and statute of uses
    • private express trusts w/ corpus of real property but trustee is passively holding title
    • property passes to beneficiaries
  316. Adjustment Power of Trustees
    Trustees may disregard general rules of allocating income and expenses if necessary to administer the trust fairly
Author
cfontanesi
ID
322072
Card Set
CAB Core
Description
CAB Core
Updated