Torts

• Assault: intentional & volitional act causing apprehension of imminent harmful or offensive contact w/ present ability to inflict harm

• IIED: act of outrageous or extreme nature intended to cause & does cause severe ED

• NIED: requires actual physical injury to person in the zone of danger

• Negligence: act or failure to act which breaches legal duty of care owed to another, resulting in injury to other’s person or property

• Duty: for a duty of care to arise, P must be a reasonably foreseeable person

  • Andrews: duty owed to all foreseeable consequences of negligence

  • Cardozo: duty owed to class of persons in “zone of danger”

• Contributory Negligence: P’s own failure to use care of a reasonable prudent person to protect himself which contributes to his damage (complete defense to negligence) exception: D had last clear chance

• Res Ipsa: circumstantial evidence where injury itself indicates someone else breached a duty.

  • Thing causing injury is under D’s exclusive control

  • Injury would not ordinarily happen if ordinary care used

  • P didn’t contribute to injury

• Vicarious Liability: Master liable for torts of servant in scope of employ: IC: rt to control manner & means, skill req, license req, instrumentalities & tools, duration of relation, when & how long to work

• Product liability: there are 5 theories of liability:

  • Strict Liability: Strict Duty, breach, causation, damages

  • Negligence: Duty & Breach, Negligent conduct (reasonableness), Damages

  • Implied Warranties: of Merchantability & of Fitness for Particular Purpose

  • Express Warranties/Representation: Doesn’t conform to affirmative reps

  • Intentional: D intended the consequences or it was substantially certain to occur

• Private Nuisance: substantial & unreasonable interference w/ right to use & enjoyment of land

• Defamation: defamatory statement, of or concerning P, publication, and damages

  • Matter of public concern: P must prove falsity and fault

    • Fault: Public figure: show malice; Private person- must show negligence & actual dam.

• Invasion of privacy: 4 types: intrusion upon seclusion or private affairs, misappropriation, false light, and publication of private facts.

Contracts

• Offer: manifestation of willingness to enter bargain, D&C terms, communicated to offeree, PKI

• Acceptance: manifestation of assent to the terms of the offer in a manner invited or required.

• Consideration: bargained for exchange of legal value or detriment

• SOF: A writing is required for the sale of goods over $500, guaranteeing debt of another, land sale K and leases for more then 1 year, K cannot be performed in 1 year, marriage K (MYLEGS)

• Merchant Confirmation: written conf enforceable against party receiving it if that party has reason to know of its contents & does not object w/in 10 days

• 2-201: K for sale of goods over $500 is not enforceable unless in writing, signed by party charged.

• 2-205: Signed firm offer irrevocable for period stated or reasonable time, but no more than 90 days.

• 2-206: shipment of non-conforming goods not acceptance if seller notifies buyer of accommodation

• 2-207: Changes or additions deemed proposals for addition to the K

• 2-209: no consideration required for good faith promise to modify pre-existing K if both parties agree

Remedies

• Constructive trust: equitable restitutionary remedy to reach product of assets wrongfully appropriated through fraud, mistake, breach (tracing permits obtaining increased value)

• Equitable lien: provides for specific relief, tracing property into product of D & establish lien against prty

• Rescission: undo K, beware fraud/mistake

• Restitution: used to prevent UE

• Doctrine of Laches: improper delay prevents seeking remedy

• Doctrine of estoppel:

• Quantum meruit: as much as he deserves

• Unclean hands: he who seeks equity must do equity

• Specific Perform: K, Ad of remedy, Enforceability, Mutuality, Conditions, Defenses

• Injunction: Tort, Adqcy of rem, Enforceability, Irreparable harm, Party right, hardship, type inj, def.

Crim Law

• Inchoate crimes:

  • Solicitation- enticing, advising, or encouraging another to commit a crime

  • Attempt- substantial but unsuccessful effort, coupled w/ SI to commit a crime.

  • Conspiracy- Does not merge! Agreement between 2 or more persons to commit an unlawful act (or a lawful act in an unlawful manner)

• Murder: an unjustifiable homicide committed with malice

• Malice: (1) SI to kill or GI to do an act certain to produce death; (2) intent to do serious bodily harm, (3) reckless indifference, or (4) intent to commit felony (felony murder)

  • 1^st Degree: Malice; premeditation & deliberate

  • 2^nd Degree: Malice & any non-enumerated violent felony

• Manslaughter

  • Voluntary: Intentional homicide w/out malice; heat of passion; imperfect self def.

  • Involuntary: unintentional homicide w/out malice (gross neg or crim recklessness)

• Specific intent: Purposeful; intent to achieve result

• Strict liability crimes: defined w/out reference to mens rea- culpability rests solely on committing act- ie: felony murder, statutory rape, child porn, food protection statutes

• Burglary: trespassory breaking & entering into dwelling house of another at nighttime, w/ intent to commit a felony therein- ML: Eliminates reqs of nighttime, breaking, dwelling

• Larceny: trespassory taking & carrying away of personal property of another w/ intent to perm deprive

• Larceny by trick: obtaining possession by false pretenses

• False Pretenses: obtaining title to prop by false representation

• Robbery: Larceny of personal property from person of another by use of force or fear

• Mistake of fact: honest and reasonable mistake of fact may excuse conduct provided the conduct would not have been illegal under facts as D supposed

  • vs mistake of law: will not excuse a criminal act unless advice traceable to high level source in executive, judicial or leg branch

• Insanity: legal conclusion based on medical evid which overcomes presumption of D’s competence & responsibility

  • M’Naghten: right/wrong test- mental disease/ defect + inability to understand the “nature & quality” of the act or inability to understand that it was wrong

  • Irresistible Impulse: Lack of control (behavioral)

  • Durham Rule: act was “product” of mental disease or defect (rare)

  • MPC/ALI: M’Naghten + Irresistible Impulse

Crim Pro

• 4th Amendment: Protects individual’s reasonable expectation of privacy in his person & possessions. Prohibits unreasonable searches & seizures.

• 5^th Amendment: self incrimination, double jeopardy, & due process

• 6^th Amendment: rt to counsel, confrontation, speedy trial, fair/ impartial trial, public trial, trial by jury

  • Massiah: prohibits post-indictment interrogation without counsel

• 8^th Amendment: prohibits excessive bail, cruel & unusual punishment, death penalty

• Exigent Circs: warrantless search in hot pursuit or delay to obtain warrant permits destruction of evid.

• Exclusionary Rule: designed to deter police misconduct by excluding all evidence illegally obtained or seized in violation of 4^th, 5^th, or 6^th Amendment rights- fruits of poisonous tree (Wong sun)

• Limits on ER: Attenuation, inevitable discovery, indp. source, harmless error, or used to impeach

• Miranda: requires counsel if D deprived of freedom (arrest) & cops conduct custodial interrogation

Con Law

• Justiciability: case & controversy- standing, mootness, ripeness, political Q, adequate state grounds, abstention, declaratory relief, 11^th Amendment

• Commerce Clause: Article 1 §8 Congress can regulate channels & instrumentalities that substantially affect interstate commerce (ensure non-fragmented central gov’t) RATIONAL BASIS

1. Any national economic effect is sufficient

2. Feds argue: necessary & proper clause used to effectuate means

3. State argues: 10^th Amendment says health, safety, morals, welfare are not interstate commerce

• Dormant Commerce Clause: Where Congress has not regulated a subject, states are free to regulate interstate commerce so long as they don’t:

1. directly discriminate against out of state commerce or

1. important NON-economic state interest

2. no less discriminatory alternatives

3. Market participant ok

2. unduly burden interstate commerce: balance:

   1. important state interest and

   2. no less discriminatory alternatives or

   3. market participant ok

• Preemption: fed pwr, direct conflict w/ state, occupy the field, feds- min standard & sts high standard

• Supremacy Clause: Fed law preempts state law- watch for due process issue

• Privileges and Immunities: Art. IV §2 state can’t discriminate against other state residents unless substantial justification for treatment & no less restrictive means available.

• Substantive Due Process: 5^th & 14^th- protects life, liberty, and property from unreasonable gov’t action.

1. Social & economic regulation: (health & safety, biz reg, zoning) RATIONAL BASIS

2. Fundamental Rts & Privacy: (CAMPER, Interstate travel, vote) STRICT SCRUTINY

• Procedural Due Process: 5^th & 14^th- Procedural safeguards for gov’t action w/ more then a de minimus impact on individual rights involving life, liberty, or property.

  • Notice, Opportunity to be heard, & Balancing (Eldridge)

  • Eldridge: interest of individual, value of add. procedures (safeguard), & gov’t interest (econ eff)

• Contracts Clause: Prohibits states from enacting reg. to retroactively interfere w/ existing K relationship. Invalid unless:

1. serves important & legitimate interest;

2. reasonable & narrowly tailored means of promoting that interest.

• Equal Protection Clause: of 14^th Amd provides “no person shall be denied equal protection of the laws” 5^th & 14^th prohibit purposeful discrimination:

1. ID classification: (1: Fund rts, race, nat org, alienage), (2: illegitimacy, sex), (3: other)

2. then level of scrutiny: (Strict scrutiny, intermediate scrutiny, rational basis)

• 1^st Amendment: Congress shall make no law abridging freedom of speech, press, association, religion, peaceable assembly, & right to petition gov’t. Fundamental rights- STRICT SCRUTINY

• Free Speech: If regulation is content based STRICT SCRUTINY

1. Compelling Interest

2. Necessary

3. Narrowly Drawn

• If regulation is content neutral (T/P/M) reg must:

1. Significant Gov’t Interest

2. Narrowly drawn

3. Alternative Channels of communication

• Then discuss Forum: Public, limited public, non-public

• Establishment Clause: 1^st A prohibits gov’t to pass law respecting est of religion- Was sect preferred?

1. secular purpose,

2. advance or inhibits religion,

3. excessive entanglement between church & state

• Free Exercise Clause: freedom to believe in any religion & conduct oneself in accord w/ religion

Evidence

• Logical Relevance- 401: Evidence having any tendency to make existence of any fact of consequence more probable or less probable than it would be w/out the evidence

• Legal Relevance 403: Evid. may be excluded if probative value (logical rel.) is substantially outweighed by danger of unfair prejudice, confusion of issues or misleading jury, or undue waste of time.

• Character Evidence: Evid. tends to suggest D’s conduct occurred in conformity w/ character, offered by:

  • Specific acts, Opinion, Reputation

• Admission of prior convictions:

  • Substantive use: 404(b) evidence may be admissible to show motive, op, intent, plan, knowld…

  • Impeachment: 609: evid. of dishonesty always admissible. If crime was punishable by death or imprisonment over 1 yr evid. admissible if probative value is greater than prejudice. Act over 10 yrs old admissible if probative value outweighs prejudicial effect

• Best Evidence Rule: To prove content of writing, recording, or photo: original is required- only applies if contents of doc are in dispute

• Judicial Notice: court’s recognition of a fact as true, fact of common knowledge or easily verified

• Hearsay: An out of court statement offered for the truth of the matter stated

• Dying Declaration: Statement made in belief that death was imminent, concerning cause or circs of death (admissible in homicide or civil action) CA: all cases, must have died

• Admission of Party Opponent: FRE 801(d)(2)- Non hearsay: stmt made of acknowledgement by party

• Privilege 501: Basic principles of privilege are:

  • Limited to written & oral statements (not observations)

  • Must be made in confidence

  • Privileged relationship

  • Holder of privilege must claim it

  • CA: trade secrets, secrecy of vote, Newsman, Informer, Dom-violence counsel, official info.

Civ Pro

• SMJ: SMJ in Fed Cts is established by Diversity (over 75k & dif states) or Fed Q; CA: reclassify cl & sc

• PJ: Established by domicile in state, consent, presence in state/ minimum contacts CA: long arm

  • Minimum Contacts

    • Purposeful availment of state benefits

    • Foreseeability of being sued in the forum

  • Fair play & substantial justice Int’l Shoe

    • Systematic & continuous activity in the state

    • Cause of action arising from D’s contacts w/ forum state

    • Burden on D

    • Interests of court & P

• Forum Non Conveniens: Fed ct may dismiss/transfer if forum inconvenient to D. CA: may only dismiss

• Erie Doctrine: In diversity, federal cts use state substantive law & federal procedural law.

  • Hanna- If FRCP directly conflicts, fed is presumed to be procedural

  • If no direct conflict: look for forum shopping or result in “inequitable administration of justice”

• Pleading: Fed: notice; CA: Code/fact pleading: each element of each COA; specifically pleaded: fraud, PI

• Complaint: requires statement of damages, special dam specifically pleaded. CA: PI & WD no actual or punitive damages stated, Fed: relation back 120 days, CA: doe D’s 3 years.

• Joinder: compulsory (needed for just adjudication; amenable to service; doesn’t destroy diversity) & permissive (same T&O; common Q of law or fact)

• Disclosure/ Discovery: CA: Limited Civil: special rules for $25,000 or less- limited discovery 35 total, Fed automatic disclosure within 14 days of Meet & Confer

• Res Judicata: Claim preclusion- bars re-litigation of the same cause of action

CA: Primary rights theory: separate cause of action for prop damage & PI even if same event

• Must have been a valid & final judgment

• Same cause of action

• Same parties

• Collateral Estoppel: Issue preclusion- bar re-litigation of fact issues previously litigated in different COA

  • Identical issue actually litigated and determined

  • Necessary to result of first action

  • Same parties to original action or in privity & have full opportunity to be heard

Corp

• Piercing the veil: equitable doctrine w/ unsatisfied tort or K claims. Results in personal SH liability when:

  • Inadequate capitalization (If SH UP)

  • Failure to observe corporate formalities

  • SH holds himself out as personably liable

  • Use of corp solely for personal purposes

  • Parent corp intermingling biz w/ subsidiary or purposefully running sub at a loss

• Duty of Care: Director must act in good faith, ordinary prud person, for best int of Corp, def: BJR

• Duty of Loyalty: fiduciary obs: no usurping corp opportunity, interested transaction, competing venture

• 10-b/10-b5: Catch all fraud provisions, prohibits manipulative or deceptive device in connection w/ purchase or sale of security.

  • JDX- Sell w/ instrumentality of ISC

  • Omission/ misstatement, non-disclosure of mat fact, fraud on market, insider trading, Tipping, Misappropriation theory

  • Material- important in making decision

  • Scienter- intent to deceive

  • Standing- SEC or Private COA

  • Reliance- presumed if material, (privity- not required)

  • Remedy- SEC may seek inj, private P may seek difference in price

• 16(b): prohibits directors, officer, and 10% SH from making short swing profits by trading w/in 6 months (JISP) Jdx, Insider, Short swing, Purchase or sale

• §14: Prevents abuse in proxy solicitation- Jdx, omission/mistmt, material, liability, reliance, rem

Agency

• Defined: Fiduciary relation that results from manifestation of consent by 1 person to another that the other shall act on his behalf & subject to his control & consent by the other so to act.

• Types of As: General, Special, Sub A, Co-A, Duel A, Agent’s A

• Authority: can be by ratification or estoppel

  • Actual: express or implied consent

  • Apparent: P allowed 3^rd party to reasonable believe A has actual authority

  • Inherent: A has actual authority but exceeds that authority

• K Liability to 3^rd Parties: Agency relationship binds P & relieves A from personal liability.

• Vicarious Liability: P generally not liable for A’s tort

  • Respondeat Superior: master is liable for torts of ees in scope of employ (frolic & detour)

  • Test for Ind. Contractor: rt to control manner & means, skill req., who supplies instrumentalities & tools, who sets T/P/M & how long to work, duration of relationship, method of payment, whether work is part of regular biz of corp, whether A works for anyone else.

• Duties of Agent: (1) duty to perform K responsibilities, (2) loyalty, (3) obedience (all reasonable instructions), (4) reasonable care (community standard of care), (5) notify P of important matters

• Duties of Principal: (1) duty to honor terms of K, (2) compensate A & reimburse expenses for authorized duties, (3) cooperate & not interfere w/ A’s performance

• Termination: at will, by act of parties, automatic termination, op of law (notice to all parties)

General Partnership

• Defined: Association of 2 or more people who own a biz for profit for a legal purpose.

• Formation: Default form of business, no writing/ formalities req, new partner reqs unanimous consent

• Partner Rights: 1. participate in biz decisions (maj vote) unless outside ordinary course of biz (unanimous), 2. indemnification reasonable costs, 3. inspect books, 4. sue another P for BOK or breach of duty, 5. rt to withdraw (written notice), 6. seek dissolution, 7. settle partnership acct upon dissolution

• Dissolution: does not end partnership- must wind up affairs

Limited Partnership

• Compliance: statutory reqs: file cert, designate A for service; keep records in state

• Authority: GP has sole authority; LP can’t manage/ directly participate or lose LP status.

• Liability: LP is only liable for capital he invested, share in profit according to contribution

LLC: owners are members; receive lim liability- no member personally liable for obligations

• Member run: each member is agent; manager run: mgrs have authority to bind

Property

• Defeasible Fees:

  • Fee simple determinable (while, during, so long as) possibility of reverter

  • Subject to conditions subsequent (upon condition that, but if) right of re-entry

  • Subject to Executory Limitation (“so long as… but if… then to”)

• Grantor’s Future Interests: possibility of reverter, right of re-entry, and reversion

• Grantee’s Future Interests: Remainders (contingent & vested) and Executory (spring/shift)

• Adverse possession: Possession, open, notorious, continuous, hostile, exclusive

• Landlord’s Duties: (HAMERS) habitable premise in urban setting, actual possession, maintain common areas, quiet use & Enjoyment, repair hidden defects, L Standard of care

• Tenant Duties: (4) pay rent, repair (if expressly agreed to), avoid waste, other express covenants

• Quiet enjoyment: no other person claims superior title

• Waste: Voluntary, permissive (failure to make minor repair), ameliorative (improvement)

• Fixtures: chattel so affixed to property that it loses its identity & becomes part of real property

• Assignment: transfer of entire remaining leasehold estate- remains in privity of K not privity of estate

• Sublease: transfer of leasehold in part, not in privity w/ landlord

• Deed: contents, delivery, recording, Covenants of title, title insurance

• Easement: non-possessory interest in land, rt to use/do thing or prevent someone else from doing thing

  • Creation:

    • Express: writing, ID parties & affected land, signed by grantor, indicate grantor’s intent

    • Implied: pre-existing use/ division single tract, used at severance, reasonable necessity

    • Necessity: parcel previously under common ownership & strict necessity

    • Prescription: (COHAN) continuous, open, hostile, acquiescence, notorious

    • Estoppel: detrimental reliance (use if prescription doesn’t work)

  • Type: Affirmative or negative and:

    • Appurtenant: (presumed type) benefits land, not person, burdens O

    • In Gross: benefits an individual, CL: not transferrable, ML: transfer of commercial ok

• Covenants: non-possessory interest in land – promise by holder to do or refrain from doing something.

  • Burden: (WIN tvh) writing, Intent, Notice, Touch & Concern, Vertical & Horizontal privity

  • Benefit: (ITV) Intent, Touch & Concern, Vertical Privity

• Equitable Servitude: non-possessory interest in land, forbidding use, enforced in equity: I, N, T&C

• Reciprocal Negative Easement: common grantor, common plan/ scheme for development of residential subdivision, other restricted lots, notice.

PR

• Solicitation: face- to face/ phone prohibited. If unsolicited advice given, L may not accept employment unless friend or family.

• Duty of Competence: must provide competent representation – knowledge skill reasonably nec for rep

• Duty to Communicate: duty to communicate w/ client

• Duty of Confidentiality: Must not disclose info protected by privilege (confidence) or Secrets

• Duty of Loyalty: L has duty of loyalty to clients of avoiding representation that poses a conflict of interest

• Conflict of interest: actual conflict: (1) rep of a client will be directly adverse to interest of another client or (2) significant risk representation will be materially limited by interest of L, C, or 3^rd party.

• Multiple clients: (not in litigation or negotiation against each other) may be permitted if interests are not materially limited by L’s responsibilities and if:

  • L reasonably believes rep will not be adversely affected and

  • Clients consent after consultation

• Sex with client: MR: not ok unless relationship was prior to representation; CA: ok if relationship is not in return for legal services, services do not suffer, fee is not increased.

• Fee: must be reasonable, not unconscionable (CA), in writing, must offer arb for fee dispute

• Contingency Fee: must be in writing & must be explained, prohibited in crim (CA crim ok), divorce/alimony (CA ok) and must inform if % is computed before or after deduction for cost

• Withdrawal: if matter is before a tribunal, must secure permission to withdraw

Community Property

• CP: All real or personal property acquired during a valid marriage while domiciled in CA and any rents, issues, profits, or proceeds derived there from

• SP: All real or personal property acquired before marriage or after separation or dissolution and any property acquired by gift, bequest, devise, and decent and all rents, issues, profits...

• QCP: property acquired by a married person while domiciled in a non-CP state if the property would have been CP in CA- only used at dissolution or death

• Conduct of Parties: Separation, Improv, Pereira/Van Camp, Transmutation, Gift, Commingle

• Injury: inj during marriage, SP damages for injured spouse at diss unless justice demands (not <50%)

• Married woman's presumption: MW taking title to property prior to ’75 holds as SP

• Tort Liability: if benefit community use CP, then SP of tortfeasor, if not, T’s SP then CP

• Creditor: before M- owing spouse SP/ earnings not earnings/ SP of other; after M- CP but not other SP

• Pereira: (SP biz) SP portion of increase is annual legal rate of interest (10%). Major increase due to spouse’s labor and efforts

• Van Camp: (SP biz) Managing spouse gets annual salary (salary x # yrs), rest is CP. Major increase due to natural appreciation or good will increase of SP asset

• Reverse Van Camp: CP biz appreciates after perm sep, improves due to market conditions, CP gets benefit, managing spouse gets reasonable salary

• Reverse Pereira: CP biz appreciates after perm sep, improves due to L&E, managing spouse gets benefit, CP gets value of biz at sep plus reasonable rate of return.

Trusts

• Creation: intent to create trust, purpose, res, trustee, settlor, ascertainable bene

• Revocable: irrevocable trusts can’t be terminated unless all benes consent or S is sole bene

• Cy Pres: doctrine used by cts when deviation from express terms of charitable trust is req:

  • Settler had general charitable purpose

  • Specific charitable purpose can no longer be fulfilled

  • Available substitute mechanisms to effectuate gen charitable purpose

• Spendthrift trust: private trust which prohibits bene from assigning interest in trust and prohibits creditors from attaching interest

• Trustee’s Duties: Loyalty, care, segregation/earmark, accounting, impartiality, not delegate

• Prudent investor rule: (Duty of care) investor must diversify & make it productive

Wills

• Valid Will: 3 elements: Testamentary Intent, Capacity, and compliance with formalities

• Capacity: knows extent of prop, nature of object and bounty, understands nature of disposition

• Defenses: Fraud, Undue Influence, Mistake, Ambiguity, Insane, infant, mental capacity

• Undue influence: prevents testamentary intent- anything that subverts T’s free will and substitutes another’s intent- created in 2 situations:

  • Susceptibility, opportunity, motive, and unnatural disposition

  • Confidential relationship, unnatural disposition, active participation

• Dependent relative revocation: doctrine used to restore a revoked will. Revocation conditioned on effectiveness of substituted doc- used w/ interlineation

• Ademption by Extinction: if specific devise is no longer in estate when T dies, ct may read the gift to be a general bequest, leaving bene w/ equivalent amt from estate

• Advancement: gift given during T’s life is deemed partial/full satisfaction only where T intended gift to be a substitute and expressed this in will or bene acknowledges in writing

• Abatement: certain bequests are decreased to pay off the obligations of the estate

• Exoneration: specific gifts pass to bene subject to mortgages

• Revocation: by physical act, written instrument, and operation of law

• Intestate: no will or will invalid

  • Spouse survives: spouse takes all if no issue, parent, sibling, or issue of deceased sibling

  • Spouse survives w/ child/parent: spouse takes 1/3 if more then one child or parent

  • Spouse survives w/ 1 child/parent: spouse takes ½ if one child or parent

  • No surviving spouse: issue, then D’s parents, siblings, grandparents, issue of gps, issue of predeceased spouse, next of kin, parents of predeceased spouse and issue, escheats to st