Essay stuff part II

Question 1

What is discoverable?

Answer 1

i) in federal district court discovery may be had any nonprivileged matter that is relevant to any party’s claim or defense, ii) it is not necessary that the information be admissible itself, iii) the discovery must be proportional to the needs of the case.

Question 2

The standard for “relating back” when adding new defendant

Answer 2

When the statute of limitations has run, a defendant may be added and the filing of the amended claim will “relate back” to the date that the original complaint was filed, when i) the amendment adding the new defendant arises out of the same conduct, transaction, or occurrence as the original complaint, and ii) within 90 days after filing the complaint and any additional time as the court may order on a showing of good cause (i.e. the limit for service of process), the newly added defendant received notice of the action such that it will not be prejudiced in maintaining its defense on the merits and knew (or should have known that but for a mistake concerning the proper party identity the action would have been brought against it [generalized knowledge is not enough]

Question 3

Issue preclusion for non parties

Answer 3

i) some jurisdictions require mutuality
ii) tradutionally given that a judgement could not be used against a nonparty it was held that the nonparty could not take advantage of the judgement either, by precluding a prior party from relitigating an issue determined against that party
iii) MOst courts now allow a nonparty who is a defendant in a later case to use issue preclusion against a plaintiff who was a party to a prior action
iv) although courts have been reluctant for a nonparty plaintiff to use issue preclusion offensively against a defendant in prior lawsuit a number of courts have now permitted such use
v) regardless the court will consider the fairness in allowing the nonparty to assert issue preclusion against a party to the prior litigation.

Question 4

So if it was established that a doctor was negligent in a prior case. Is the issue precluded in another case where P wants to establish that D was negligent a similar procedure?

Answer 4

The issue will not be entirely precluded. It is possible that some of the issues from the first case will be the same as some in the second, for example the duty owed to a patient might be the same.

However the breach of duty proximate causation, and damages will likely involve different issues. ii) the act of malpractice may be different and it is possible that the procedures were performed using different techniques, if so, the issue of breach would not be the same. iii)it is possible that Doctor breached his duty by using Bolton Rods that he knew had potentially sever defected, iv) if so partial summary judgement might be available on that issue as well, v) the issues of proximate causation and damages are by necessity unique to Perry. (ex. victim has more serious back injuries etc.)

Question 5

What are goods?

Answer 5

Goods are all things moveable at the time they are identified to be sold under the contract.

Question 6

What do you say for anticipatory repudiation?

Answer 6

i) anticipatory repudiation occurs when a promisor, prior to the time for performance of his promise, unequivocally indicates that he will not perform when the time comes, ii) the nonrepudiatinng party has the option to sue immediately for breach, iii) for the doctrine to apply, there must be a bilatera contract with unperformed duties on both sides.

[ex. if you provided stock for two months, but you still need to provide stock for 10 months, there is still stuff to be performed.]

Question 7

What do you write for impossibiltiy and impracticabiltiy???

Answer 7

• If the nonoccurrence of the event was basic assumption of the parties in making the contract and neither party assumed the risk of the event occurring, contractual duries may be discharged.
• at common law, contractual duties will be discharged if it has become objectively impossible to perform them. UCC REQUIRES ONLY COMMERCIAL IMPRACTICABILITY NOT IMPOSSIBILITY.
• assuming that the event was unanticipated at the time of contracting and its nonoccurrence was a basic assumption the courts will discharge contractual duties if they can be performed only with extreme and unreasonable difficulty or expense. Increases in costs are rarely sufficient reason unless they change the nature of the contract.

Remember when you are talking about breach always follow up talking about excused from performance and whether we have a makpor breach (although no need to have a major breach in the UCC)

Question 8

Specific performance and the UCC.

Answer 8

NOt that the UCC also grants specific performance if, after reasonable effort, the buyer is unable to secure substitute goods.

Question 9

What are the damages for when seller breaches and still has the goods?

Answer 9

If the seller breaches by failing to deliver goods, the buyer basic damages are the difference between the contract price and either market price or the cost of buying replacement goods PLUS incidental and consequential damages, less expenses saved as a result of the breach. [go through each]

If the suit is the result of the seller’s anticipatory repudiation the buyer’s damages are measures as of the time he learned of the breach.

A buyer is no required to cover but if the buyer chooses to do so he must make a reasonable contract for the substitute goods in good faith and without unreasonable delay.
If you buyer covers, then the nonbreaching party will recover the difference between the contract price and the market price.

Question 10

How do you define incidental damages?

Answer 10

Incidental damages include expenses reasonably incurred by the buyer incident to the seller’s breach (ex. locating new suppliers, negotiating for new deals etc.)

Question 11

Remember to include certainty of damages

Answer 11

i) to recover the plaintiff must prove that the losses suffered were certain and not speculative, ii) when the issue is lost profits it can depend on whether the business is an existing business or a new business

Question 12

What do you say for offer and acceptance (‘cause common at least you gotta know this!)

Answer 12

i) an offer in an expression of willingness to enter into a bargain, made in a way that the other party could reasonably believe that he could conclude the bargain by accepting, ii) an offer must have definite terms, iii) estimates are usually considered invitations to deal rather than offers.

i) an acceptance is a manifestation of assent to the terms of the offer,
ii) acceptance of an offer must be communicated to the offeror and must be unequivocal
iii) silence may be acceptance if the offeror was justified in expecting a negative reply or silence was deceptive under the circumstances
iv) when an offeree knows or has reason to know that services are being a=rendered with an expectation of compensation and by word could prevent the mistake she is held to an acceptance if she fails to speak

ACCEPTANCE: An acceptance is a manifestation of assent to the terms of an offer

Question 13

Say, are written estimates in response to an inquiry offers if signed and if they have key terms?

Answer 13

YUP.

Estimates can be offers if they are in response to an inquiry from Owner, contained definite and certain terms and created the reasonable expectation that Builder was willing to enter into a contract on the asis of those terms,

Question 14

So, builder performed contract expecting to be paid $7000. Owner says, I don’t owe you anything, but heck I will pay you $5000, Builder says ok. Is that an accord and satisfaction?

Answer 14

NO its a new contract.

Generally, if the performance occurred before the promise was made it does not satisfy the brain requirement for consideration.

WHen the scope of the legal duty owed is the subject of honest dispute a modifying agreement relating to it will be given effect, the compromise by each party is a detriment and thus consideration. (remember accord and satisfaction is accepting something different not less).

Question 15

What do you say for restitution?

Answer 15

Restitution is available when there is no contract if: i) the plaintiff has conferred a benefit on the defendant with the reasonable expectation that he would be compensated, ii) the defendant knew or had reason to know of the plaintiff expectation and iii) the defendant would be unjustly enriched if she were allowed to retain the benefit without compensating the plaintiff. The measure of restitution is usually the value of the benefit conferred, measured by the reasonable value of the work performed.

Question 16

Tell me about the Trustee’s duty of fairness to all beneficiares

Answer 16

Trustees have a duty to administer the trust impartially. EX. they MUST ensure trust property produces income for the income beneficiary and will not depreciate in value for the remaindermen. A trustee of a removable trust owed his duties exclusively to the settlor, whereas a trustee of an irrevocable owed his duties solely to the beneficiaries.

Trustee could argue that beneficiaries gave consent (but not saying anything…? that is unlikely to work)

Question 17

Tell me about the Trustee’s duty to protect property and make productive.
(*)

Answer 17

i) A trustee has a duty to preserve the trust property and make it productive, which includes the duty to invest trust funds (and reinvest them when required),
ii) Under the Uniform Prudent Investor Act a turstee must invest and manage trust assets as a prudent investor would.

In making investment decisions, the trsutee is to consider: i) the general economic conditions, ii) inflation or deflation, iii) tax consequences, iv) the role of each investment in the trust portfolio, v) the expected total return, vi) other resources of the beneficiaries, vii) needs for liquidity regularity of income and presentation or appreciation of capital and vii) an asset’s special relationship or value to the purposes of the trust or to one or more of the beneficiaries

A trustee must diversify the trust investments unless he reasonably determines that, due to special circumstances the trust purposes are better served without diversification, ii) a settlor’s direction not to diversify a revocable trust would constitute a special circumstance relieving the trustee of the duty to diversify

Question 18

How can you give trust money to Minors?

Answer 18

Trustees can distribute property of minor to their parents under the Uniform Transfers to Minors Act.

The property would not be title in Wendy’s name but she would be able to invest and use the property for the child’s benefit, transferring to Carl any that is left when he turns 21.

Question 19

Intestacy share and children.

Answer 19

Remember under instestacy, only the testator
s children (not their step children) take under the intestacy statute.

Question 20

What do you say for abatement?

Answer 20

In the absence of property not passing by will or trust the omitted child’s share is satisfied by taking pro rata from all of the beneficiaries taking under the decedent’s will and or revocable trust.

Question 21

What happens when a deed states that the property will pass when grantor dies?

Answer 21

When a deed expressly provides that title will not pass until the grantor’s death it creates a present possessory life estate in the grantor and a future estate.

Question 22

When talking about adverse possession what do you say?

Answer 22

The usual HELLUVA requirements.

• THen. Actual possession gives the true owner notice of a trespass. ii) Generally an adverse possessor gains title only to the land he actually occupies.

Actual possession of a portion of land gives title to the whole tract if i) there is a reasonable proportion between the portion actually possessed and the tract (i.e. possession of the portion was sufficient to put the owner or community on notice of possession) and ii) the possessor has color of title to the whole tract.

i) color of title is a document that purports to give title but for reasons not apparent from its face does not ii) a properly executed deed that was improperly delivered provides color of title.
- exclusive possession means not sharing land with owner or public at large
- possession is open and notorious when it is a use the owner would make of the land
- the occupation must be sufficiently apparent to putthe true owner on notice of a trespass
- the adverse possessor must enter the land without the owner’s permission.

Question 23

Types of notice

Answer 23

There is actual notice, constructive notice, or record notice.

Record notice: what was contained in a deed properly recorded in his chain of title

Actual notice: what he actually knows

inquiry notice: what would have been revealed through reasonable inquiry

Question 24

How does UTATA work (you know for pout over provisions?)

Answer 24

CA has adopted the Uniform Testamentary Additions to Trusts Act (UTATA) under which a testator can make gifts by will to a trust, even a revocable and amendable trust, provided that the trust instrument was executed before, concurrently with, or within 60 after execution of the will and the trust is adequately identified in the will.

Don’t forget about incorporation by reference or act of independent significance.

Question 25

How are things distributed at intestacy?

Answer 25

Under CA intestacy statute, if there Is no surviving spouse, the entire estate passes to the decedent’s surviving issue. Descendants of a living descendant are excluded. If the eligible surviving issue are all of the same generation they take equally

Question 26

What are some defenses that a Trustee can use for its breach of fiduciary duties?

Answer 26

Equity will not enforce a trust if the beneficiaries expressly or impliedly consented to the breach. Also, the beneficiaries must sue within a reasonable time or they will be barred by laches. Some jurisdictions have specific statutes of limitation for these breaches. So consent or disecretion.

Question 27

How can you revoke a will by physical act?

Answer 27

A testator can revoke a will by burning, tearing, canceling, destroying, or obliterating it, with the intent to revoke. To revoke by tearing, the will must be torn through some material part. In order for a will to be revoked by physical act, the will must be destroyed in some manner, there must be a simultaneous intent to revoke the will, and lastly the act must be done by the testator or someone under their direction and presence NO need for witnesses to be present.

Question 28

How can you revive a will?

Answer 28

Generally, revival of a revoked will concerns a will that was revoked by a subsequent instrument, which itself is revoked by physical act or subsequent instrument. In that case, in California, the first will is revived if that is the testator’s intent. A will also maybe revived by reexecution or republication. A will may be reexecuted by the testator acknowledging her signature or the will and having witnesses attest to it. This was not done here. A will still in physical existence may be revived through publication of a subsequent codicil, but a will revoked by physical destruction cannot be republished. At common law, the revocation of the codicil would revive Al’s legacy in the will. However, under California law, the revival of a revoked will or legacy depends on the testator’s intent. If the revoking instrument was revoked by physical act, extrinsic evidence is admissible to prove the testator’s intent to revive the will or legacy. In that case, the will or legacy is not revived unless the testator’s intent to revive it is evidence from either the circumstances of the revocation or the testator’s intent to revive it is evidence from either the circumstances of the revocation or the testator’s concurrent or subsequent declaration of intent to revive the revoked will or legacy

Question 29

What do you say in relation to holographic codicils?

Answer 29

First say that California recognizes holographic wills and codicils. Lay out the requirements for a valid handwritten will. Then say that one of the parties will try to argue that the instrument is a separate will of its own. (go through that).

Question 30

How to prove that there was undue influence in making a will?

Answer 30

PRIMA FACIE To establish undue influence, the contestants, who have the burden of proof, must establish that: a) influence was exerted on the testator b) the effect of the influence was to overpower the mind and free will of the testator, and c) the product of the influence was a will that would not have been executed but for the influence. Undue influence is usually proven by circumstantial evidence. This generally requires showing a number of factors that, when combined, justify the interference of undue influence. These factors include opportunity to exert influence, the susceptibility of the testator to influence due to age or physical condition, whether the beneficiary was active in procuring the will, whether the dispositions in the will are at variance with the expressed intentions of the testator, and whether the will provisions seem unnatural. None of the factors alone are enough. COMMON LAW A presumption of undue influence, which shifts the burden of proof to the will proponent, can arise when, a) a confidential relationship exists between the testator and the beneficiary, b) the beneficiary participated in procuring, drafting, or executing the will, c) the will provisions are unnatural and favor the alleged influencer. In addition to the usual common law confidential relationships, CA recognizes a confidential relationship whenever one party relies heavily on and places more than a normal amount of trust in another. STATUTORY PRESUMPTION By statute, California, presumed that a provision in favor of one of the following people is the product of fraud or undue influence, a) the person who drafted the instrument (and his relatives and associates), b) a person who transcribed the instrument and was in a fiduciary relationship with the testator when the instrument was transcribed, and c) a testator’s care custodian (or his relatives, cohabitant, or employees). However, the presumption does NOT apply to someone who had a personal relationship with the transferor before she became dependent and provides services without pay.

Question 31

Do you need a trustee in a declaration of trust?

Answer 31

The complete failure to name a trustee will not defeat a testamentary trust but may cause an inter vivos trust to fail because there can be no delivery of the trust property to the trustee. However, where there is a declaration of trust, no delivery is required because the settlor is the trustee

Question 32

I know you know, but what are the elements needed to create a trust?

Answer 32

Creation of a valid express trust requires: a) property, b) a trustee with duties, c) a definite beneficiary, d) a manifestation of intent to create a trustee by a settlor with capacity at the time trust was made, e) a valid trust purpose

Question 33

revocability of irrevocable trusts

Answer 33

In most states a trust is presumed to be irrevocable unless there is an express reservation by the settlor of the right to revoke. Under the Uniform Trust Code and by statute in several non-UTC states (including CA) a trust is presumed revocable unless the trust instrument expressly provides that it is irrevocable. In any case, where there is a power to revoke, that power generally lies with the settlor, although all beneficiaries may consent to terminate a trust if no material purpose will be impaired.

Question 34

What do you say in relation to codicils?

Answer 34

A codicil is a testamentary instrument intended to modify, amend, or revoke an existing will. It must be executed with the same formalities as a will. A will may be revoked in part by the express terms of a later codicil.

Question 35

What is a specific gift and a general gift?

Answer 35

A specific legacy or devise is a gift of a particular item of property distinct from all other objects in the testator’s estate. A general legacy is a gift of a general economic benefit, payable out of the general assets of the estate and a demonstrative legacy is a hybrid, a general legacy first from particular property and then out of the estate if the property is insufficient.

Question 36

Revocation of a will by ademption

Answer 36

Revocation of a gift by ademption applies only to specific bequests. Usually, a specific bequest is adeemed if the specific property is not part of the testator’s estate at his death. In most states, the testator’s intent is irrelevant, and if the testator no longer owns the property, the gift is adeemed. However, in CA, ademption depends on whether the testator intended to adeem the gift when he disposed of the property In CA extrinsic evidence of the testator’s intent is admissible, and may affect the classification of the legacy. Court do not favor ademption and use various devises to avoid it. Sometimes, the court will classify a legacy as general or demonstrative to avoid ademption and carry out the testator’s intent.

Question 37

Definition of a trust

Answer 37

A trustee is a fiduciary relationship with respect to property in which one person, the trustee, holds legal title to the trust property, the res, subject to enforceable equitable rights in another the beneficiary

Question 38

If the trust does not say, how can you tell that it is irrevocable?

Answer 38

'cause it reserves no rights for the testator.

Question 39

Duty to keep trust assets productive

Answer 39

There is a basic duty to preserve and property the trust property. From this duty, there is implied the duty to make the property productive, which includes the duty to invest. The trustee must invest trust funds within a reasonable time after receiving them and continually review those investments. If the trustee fails to invest, she is chargeable with the amount of income that would normally accrue from appropriate investments.

Question 40

Duty to account

Answer 40

The trustee owed a duty of undivided loyalty to the trust and its beneficiaries and that loyalty might be tainted by personal interest. Thus, a trustee must not deal with the trust in her personal capacity. She may not use or borrow trust funds. One way that the trustee’s duty of loyalty is assured is by requiring her to keep and render accounts

Question 41

Can a third party be liable for misuse of trust property?

Answer 41

YUP. A third party who knowingly participates in a breach of trust is liable for the resulting loss to the trust estate. One who innocently participates in a breach of trust is generally not liable to beneficiaries except to the extent he is obligated to return property transferred to him. [make sure dude actually knows that there was a trust fund. Simply knowing that "money was owed to someone else" is not enough]

Question 42

(*) If we have two trustees, then are they both liable? What if one of them says "I don't want nothing to do with this"?

Answer 42

In addition to the duties discussed above with respect to Carol each co trustee owed the beneficiary a duty of prudent participation in administering the trust. Two co-trustees must act unanimously in administering the trust. One trustee generally cannot delegate administration of the trust to a co-trustee

Question 43

When you start talking about arrest and seizures, what do you start off by saying?

Answer 43

The Fourth Amendment protects citizens against unreasonable searches and seizures and is applicable to the states via the Due Process Clause of the 14th Amendment.

Question 44

What do you write when talking about Miranda?

Answer 44

-The 5th Amendment which is applicable to the states through the Due Process Clause of the 14th A, guarantees a freedom against compelled self-incrimination. Statements obtained as a result of a custodial interrogation conducted without giving the warnings are inadmissible. - then you go ahead and lay out the requirements Statements obtained as a result of a custodial interrogation conducted without giving the warnings generally are inadmissible. Miranda warnings generally applies only to interrogation by the publicly paid police. It does NOT apply where interrogation is by an informant who the defendant does not know is working for the police. - Custody A suspect is in custody when he is placed in a situation where a reasonable person would not feel free to leave. The “freedom of movement” test applies to determine whether the person’s freedom of action is limited in a significant way. If an individual’s freedom of movement was curtailed in this way the next step considers whether the environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda. - Interrogation Interrogation refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response. However, as discussed above, Miranda does not apply where interrogation is by an informant who the defendant does not know is working for the police. - Miranda does not apply to spontaneous statements not made in response to interrogation although officers must give the warnings before any follow up questioning.

Question 45

Can a statement by co-defendant 1 that implicates Co-defendant 2 be introduced in Co-defendant 1's case?

Answer 45

When two defendants are tried together and one has given a confession that implicates the other, the right of confrontation prohibits the use of that statement, unless all portions referring to the other defendant can be eliminated, the confessing Defendant takes the stand and subjects himself to cross-examination, or the non-testifying co-defendant’s confession is being used to rebut the D’s claim that D’s confession was obtained coercively.

Question 46

Murder slapdown: Manslaughter slapdown:

Answer 46

Murder is the unlawful killing of another human being with malice aforethought. Malice is shown by the a) intent to kill, b) intent to inflict great bodily injury, c) killing of another with a reckless indifference to an unjustifiably high risk to human life, or d) killing of another during the commission of felony. o What to say: voluntary manslaughter is a killing that would otherwise be murder, but that is distinguishable from murder by the existence of adequate provocation (heat of passion killing). The provocation must be sufficient to arouse the sudden and intense passion in the mind of an ordinary person which that he would lose any self-control. - A suspect is in custody when he is placed in a situation where a reasonable person would not feel free to leave and the environment is coercive, such as at a police station house. If the suspect invoked his right to remain silent, the police may reinitiate questioning (after providing another set of Miranda warning) if they “scrupulously honor” the suspect’s invocation of this right to remain silent. If the suspect requests an attorney via an unambiguous and specific request, questioning must stop and cannot be reinstated, even with a fresh set of Miranda warnings, until at least 14 days after a break in custody (ex. termination of the prior attempted custodial interrogation of D) - Furthermore the 5th A right to counsel unlike the 6th is not offense specific. A statement taken in violation of a suspect 5th A right to counsel cannot be used by the prosecution in its case in chief hut it can be sued to impeach the suspect’s trial testimony, as long as the court grants that the suspect voluntarily waived his right to counsel. Additionally, the person must in fact be provoked and there must not be sufficient time for the person to cool off. Furthermore, if the person did in fact cool off, the reduction to voluntary manslaughter is unavailable.

Question 47

Imperfect self-defense

Answer 47

If the fact-finder finds that D was acting in unreasonable self-defense (and not eliminating the harassment), D may argue that the killing should be manslaughter rather than murder. In some states, when the D was at fault in starting the altercation for which he used self-defense, or when the defendant unreasonably, but honestly, believed in the necessity of responding with deadly force, the murder may be reduced to manslaughter.

Question 48

When a police informant is put in the jail cell AFTER D has been indicted has D's right to the 6th Amendment been violated?

Answer 48

YES. The relevant right is to have an attorney. The right applies to all critical stages of a criminal prosecution after formal proceedings have begun. The right is violated when the police deliberately elicit an incriminating statement from a D without first obtaining a waiver of the D’s right to have counsel present. Thus absent a waiver the right is violated when an undisclosed paid government informant is placed in the D’s cell after the D has been indicted, and deliberately elicits statements from the D regarding the crime for which the D was indicted.

Question 49

Solicitation elements?

Answer 49

Solicitation requires inciting, counseling, advising, urging, or commanding another to commit a crime, with the specific intent that the person solicited commit the crime. It is not necessary that the person solicited respond affirmatively. Under the doctrine of merger, the solicitor cannot be punished for both solicitation and the target offense. (telling someone about a crime without explicitly tellin them: hey wanna join, is STILL solicitation) - However, the intention can be implied by the fact that he asked in order to be helped. This is a reasonable implication since a reasonable person would not tell another that they are about to commit a crime unless they wanted to be helped

Question 50

Conspiracy slapdown

Answer 50

Elements: - An agreement between two or more persons - An intent to enter into the agreement - An intent by at least two persons to achieve the objective of the agreement. - Also a majority of states require an over act in furtherance of the conspiracy. Giving a truck to someone you KNOW is going to commit a theft= conspiracy Giving an axe to someone whom you "does not get along" with other people= no conspiracy

Question 51

Larceny and robbery slapdown:

Answer 51

Larceny is the trespassory taking and carrying away of tangible personal property of another with the intent to permanently deprive a person of his interest in the property. Robbery is a higher crime than larceny. Robbery is the taking of personal property of another from the other’s person or presence by force of intimidation with the intent to permanently deprive of it.

Question 52

Accomplice liability slapdown:

Answer 52

Modern statutes have abolished these distinctions and now hold that all parties to the crime (except accessories after the fact) can be found guilty of the offense if the accomplice acts with the intent to aid, counsel, or encourage the principal before or during the commission of the crime. An accomplice is responsible for the crimes he commited or counseled and for any other crimes committed in the course of committing the crime contemplated as long as the other crimes were probable and foreseeable.

Question 53

What do you say for the General Exclusionary Rule?

Answer 53

General Exclusionary Rule Under the exclusionary, evidence obtained in violation of a D’s 4th, 5th or 6th Amendment rights generally will be excluded from evidence in the prosecution’s case in chief. Moreover, under the fruit of the poisonous tree doctrine, most evidence derived from unconstitutionally obtained evidence will also be excluded. Suppression is not required if the taint of the unconstitutional action can be attenuated ex. by an intervening act.

Question 54

When doing remedies, don't forget to talk about individual remedies for each topic (Ex. anticipatory repuduation for contract, conversion for tort)

Answer 54

ANTICIPATORY REPUDIATION: Anticipatory repudiation occurs when a promisor, prior to the time set for performance of his promise, indicates that he will not perform when the times comes. If there is an executory bilateral contract between the parties and the promisor’s anticipatory repudiation is unequivocal, the non-repudiating party can treat the anticipatory repudiation as a total breach and sue immediately. As indicated above, anticipatory repudiation can be applied only if there is a bilateral contract with executory (underperformed) duties on both sides. If the non repudiating party has already fully performed, he must wait until the time originally set for performance because the repudiating party may withdraw her repudiation and perform in accordance with the contract. Second, the anticipatory repudiation must be unequivocal. The promisor’s words or conduct must indicate that she cannot or will not perform when the time comes

Question 55

Slapdown for TRO

Answer 55

TRO is an emergency order imposed to maintain the status quo until a regular, adversary-type hearing may be held on a motion for preliminary injunction. A TRO can be granted without notice to the nonmoving party if the moving party can make a strong showing as to why notice and an adversarial hearing should not be required (ex. the nonmoving party could not be found or there is a strong reason to believe that the nonmoving party would dispose of or hide the subject matter of the litigation before the TRO is issued. In any case, the moving party must prove that he will suffer irreparable injury before a preliminary injunction can be obtained and a likelihood that he will succeed on the merits of his underlying claim. TROs can last only until a motion for a preliminary inunction can be heard

Question 56

Slapdown for preliminary injunction:

Answer 56

A preliminary injunction is an order that maintains the status quo until a trial on the merits can be held. It is imposed after notice and a regular, adversary type court hearing. Like a TRO a motion for imposition of a preliminary injunction requires proof of irreparable injury that would occur before the trial can be held and a likelihood of success on the merits

Question 57

Slapdown for replevin AND the UCC

Answer 57

Replevin is a legal restitutionary remedy, the purpose of which is to recover specific chattels(such as personal property) wrongly taken or detained by a defendant. Under article 2 of the UCC, a buyer who has made at least partial payment may replevy the goods from the seller if the goods were purchased for personal, family or household purposes. Additionally Article II permits a buyer to replevy undelivered, identified goods if, after reasonable effort, the buyer is unable to secure to replevy undelivered, identified goods if, after reasonable effort, the buyer is unable to secure adequate substitute goods. However, replevin is not an adequate remedy when there is no guarantee that the sheriff will successfully be able to seize and restore the property to the plaintiff (ex. when the sheriff cannot find the property).

Question 58

Can replevin be applied in this situation?

Answer 58

In this case, Sally has wrongfully detained the car. However, Barry has neither made partial payment for the Phaeton, nor has he purchased it for personal, family, or household purposes. His stated motivation for purchasing the Phaeton is to bolster his magazine circulation and to attract advertising revenues, which a court would likely find to be business purposes. Nevertheless, given the practically unique nature of this car, it is unlikely that Barry will be able to find a substitute, making replevin an available remedy. Since the court will grant a TRO and then a preliminary injunction to prevent delivery to the shipping company. Barry will be able to replevy the car

Question 59

Spcific performance slapdown:

Answer 59

Specific performance is a mandatory decree or injunction that orders a contracting party to perform that which she has promised to perform under the contract. The purpose of specific performance is to give the injured party the benefit of actual performance, rather than its equivalent in money damages. To obtain an order for specific performance….[lay out requirements]

Question 60

What is the "undue hardship" defense used in specific performance (or any other equity situation)?

Answer 60

Sally will try to argue the defense of hardship. To prevail on a defense of hardship, the defendant us to show that there was inadequacy in consideration, marked inequality between the parties, and unfair advantage exercised by the plaintiff. It is usually no defense that th subject matter of the contract is found to be worth more than the agreed price at the time set for performance.

Question 61

Slapdown for expectancy, consequential and incidental damages

Answer 61

Expectation Damages: The purpose of compensatory damages is to give compensation for the breach, i.e. to put the nonbreaching party in the position he would have been in had the promise been performed. In this case, the damage measure that will do this is the benefit of the bargain also known as expectation damages. Consequential Damages Consequential damages, a special type of expectation damages are those losses above and beyond expectation damages resulting from the breach that a reasonable person would have foreseen at the time of entry into the contract. Incidental Damages For a buyer these would be expenses reasonably incurred in inspection receipt, transportation, care, custody of goods rightfully rejected and other expenses reasonable incident to the seller’s breach. Expenses that a buyer would have incurred even if the seller had not breached are not damages.

Question 62

What is ab exception toe SOF real estate contracts?

Answer 62

- Frank may argue that he is not required to pay Mary 150,000 because their oral agreement is unenforceable under the Statute of Frauds. However, a contract to buy and sell real estate and divide the profits does not create an interest in land.

Question 63

In tort, when talking about equitable restitutionary remedies (CT, equitable lien), what do you start off by saying?

Answer 63

Generally equitable remedies are issued in the discretion of the court to avoid injustice when there is no adequate remedy at law. Therefore the equitable remedies discussed below will be available to Mary only if the damages remedy, above is inadequate.

Question 64

New equitable tort remedy: purhcase money resulting trust

Answer 64

Purchase money resulting trusts are imposed after the sale of property when one person, here F, takes title and another supplies consideration, here M. The trustee must convey his title to the beneficiary. Note that because resulting trusts are implied by the court no writing is necessary. [Where the beneficiary pays only part of the purchase price, the resulting trust is for pro rata portion of title. Here F and M each gave half and therefore their pro rata should be half half. F will try to argue that M gave him a loan. However this argument will be unsuccessful if M can prove that she and Donald agreed to contribute equally to down payment and divide net proceeds equally if an when Donald vacated. F will also argue that M agreed to put the house in F’s name to avoid creditors, but this illegal scheme is slight compared to Frank’s unjust enrichment if he is permitted to keep the property for which he did not pay. M should get her pro rata rate. - for full answer look at Remedies 2] POSSIBLE DEFENSE: no trust was intended Frank may argue that a pro rata result trust should not be implied because Mary provided the 40,000 as a loan that Frank would pay back upon selling the storefront. A trustee/title holder may rebut the presumption of trust by submitting evidence that no trust was intended and that the money used as consideration was a gift, loan, or payment of a debt. If the trustee and the beneficiary are close relatives a gift is presumed.

Question 65

Constructive trust and equitable lien slapdown:

Answer 65

CT is not limited to the specific property that the defendant wrongfully acquired. P can use the equitable doctrine of tracing to impose a CT on proceeds of wrongfully acquired property this is useful when the proceeds are more valuable than the property that was wrongfully acquired To impose an equitable lien, the plaintiff must show that a) the defendant misappropriated the plaintiff’s property under circumstances creating a debt or an obligation to pay, b) the plaintiff’s property can be traced to property held by the defendant and c) the defendant’s retention of the plaintiff’s property would result in unjust enrichment. Although an equitable lien may be an option for Tanner a constructive trust would be more useful because the property has gone up in value.

Question 66

Slapdown for actual injunction:

Answer 66

An injunction orders the defendant to refrain from engaging in certain conduct or activities ( i.e. a negative injunction), or to perform a particular act (i.e. a mandatory injunction). To obtain an injunction: a) the legal remedy must be inadequate, b) it must be feasible to enforce, c) the court must balance the hardship, and d) there must not be any defenses Whether it is feasible to enforce an injection depends largely on whether it is negative or mandatory in nature. A negative injunction poses no feasibility problems because the court can simply hold the defendant in contempt if it fails to refrain from engaging in certain activities. Mandatory injunctions, however, pose feasibility problems. Since the defendant is ordered to do an affirmative act, the court must supervise the order to make sure the act is done properly

Question 67

Remedies when we are talking about a nuisance:

Answer 67

Coming to the nuisance: The fact that a nuisance already exists when the plaintiff moves to it (coming to the nuisance) is generally not a defense to a plaintiff’s suit for injunctive relief. Continuing Nuisance Traditionally, the measure od damages of a continuing nuisance is the value of the loss of use and enjoyment of the property (loss of profits) plus costs incurred in trying to abate the nuisance and an award for any discomfort or annoyance to the occupant. Damages must be caused by the D’s breach of duty and be foreseeable, certain, and unavoidable. They were computed from the time the nuisance began up to the commencement of the action. Recovery for future losses or damages is not available because the defendant may discontinue the nuisance at any time. Permanent nuisance Doctrine To avoid multiplicity of suits, some jurisdiction have developed the “permanent nuisance” doctrine, which allows a plaintiff to recover damages measures by the permanent diminution in value of his property. Mere proof of a physical permanence demonstrating that the nuisance cannot practically be abated will suffice. + usual ones

Question 68

What is proper venue? (FED Civil Procedure)

Answer 68

While jurisdiction refers to the power of the court over the defendant or the subject matter of the action, venue relates to the proper district in which the matter will be decided. In civil actions, venue is proper in a judicial district in which a) any defendant resides, if all defendants are residents of the state in which the district is located, b) a substantial part of the events or omissions giving rise to the claim occurred or a substantial part of the property that is the subject of the action is situated or c) if there is no district anywhere in the US that satisfied a or B in a judicial district in which any defendant is subject to personal jurisdiction. For the purposes of venue a corporation is deemed to reside in any judicial district in which it is subject to personal jurisdiction with respect to the civil action in question. If a state has more than one judicial district, the corporation is deemed to reside in any district in the state within which the corporation’s contacts would be sufficient to subject the corporation to personal jurisdiction if the district were a state. Also, even though venue is proper in a particular district, under the Federal Rules of Civil Procedure, an action may be transferred to another district where the action might have been brought or to which all parties have consented. [so go through SMJ and PJ]

Question 69

If a party is trying to get some maintenance record, what are some of the ways of getting them.

Answer 69

There are several methods that Sally can use in order to obtain the maintenance records. a) firstly she can use a deci cum deposition asking for the records to be beought b) she can use a request for proof c) if she is looking for specific information, she can ask for an admission or an answer through an admission or interrogatory. d) Sally should subpoena the records from blinko requiring them to produce the records, Blinko is a nonparty, but is required to respond to a request from a party for relevant records. Sally should include a declaration that explains why the records are relevant to the action and ask that Copycat provide the records to her. If Blinko refuses Sally can file a motion to hold Blinko in contempt of failing to comply with the subpoena.

Question 70

What is discoverable?

Answer 70

Anything: - relevant - proportionate to the needs of the case - does not need to be admissible evidence

Question 71

Can you get diversity citizenship for aliens?

Answer 71

YES. Just make sure the alien is not a permanent resident of the same state as the opposing party. The diversity statute also provides for subject matter jurisdiction over alienage cases(suits between a US citizen and a citizen or subject of a foreign country). Jurisdiction is withdrawn if the foreign national has been admitted for permanent residence in the US and is domiciled in the same state as an adverse party.

Question 72

(*) How can a Plaintiff aggreggate its claims?

Answer 72

A single P may aggregate all of his claims against a single D multiple P may aggregate their claims against a single D only when they are seeking to enforce a common or undivided interest.

Question 73

(*) How do you go about talking about personal jurisdiction?

Answer 73

In personam jurisdiction refers to the court’s ability to exercise power over a particular defendant. Traditionally, IPJ is based upon where the party is domiciled, presence in the state when served, or consent. [Most states have statutes granting their courts personal jurisdiction, a) where the defendant is present in the forum state and is personally serves with process, b) where the defendant is domiciled in the forum state, c) where the defendant consents to jurisdiction, or d) where the defendant has committed acts bringing her within the scope of the forum state’s long arm statues.] General jurisdiction: Since no traditional basis exists P&P must look to see if the state has a long arm statute that would allow IPJ over the D. A long arm statute gives the court personal jurisdiction over an out-of state D. Here no long arm statute was provided in the facts, but if State A has a long arm statute similar to that of California, it would give the court power over any person over which the state can constitutionally exercise jurisdiction. If the long arm statute specifies the circumstances under which a court may exercise in personam jurisdiction, the exercise still must be constitutional . Constitutional analysis “At home” in the state (general jurisdiction): Specific jurisdiction: Long arm Jurisdiction (specific jurisdiction): Since general jurisdiction does not exist, the only way for the court to have personal jurisdiction over Busco is by means of long arm (specific jurisdiction). Constitutionality: To be constitutional there must be sufficient contacts with the forum state as to not offend the traditional notions of fair play and substantial justice. The Supreme Court has list of factors, mainly including contacts, relatedness and fairness Minimum contacts Minimum contacts requires a showing of purposeful availment and foreseeability. The court must find that defendant purposefully availed herself of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of its laws. Additionally the defendant must have foreseen that she would be haled into court in the forum state. Purposeful availment The court must find that defendant purposefully availed herself of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of its law. Foreseeability The defendant also must know or reasonably anticipate that her activities in the forum render it foreseeable that it may be haled into court there. Relatedness of the Claim to the Contacts The claim must be related to the defendant’s contacts with the forum. Fairness (bigger category) The court, in determining whether exercising IPJ over defendant is fair, will look at the convenience to the defendant the state’s interest and other factors. Convenience A forum is constitutionally acceptable unless it is so gravely difficult and inconvenient that the defendant is put at a severe disadvantage. State’s interest The forum state may have a legitimate interest in providing redress for its residents. Other factors. Other factors include the plaintiff’s interest, the judicial system’s interest, and the shared interests of the states.

Question 74

Claim preclusion and California.

Answer 74

In most states, res juridcata (claim preclusion) bars a litigant in a prior action from bringing the same cause of action again. For res judicata to apply, it must be shown that: a) the earlier judgement is a valid final judgement on the merits (and in the same position), b) the case are brought by the same claimant against the same defendant, c) the same cause of action or claim is involved in the later lawsuit, and d) the cause of action was actually litigated or could have been litigated in the prior action. Other states such as CA, follow the primary rights doctrine. Under that doctrine a cause of action is defined as an invasion of a single primary right. A cause of action may not be split into separate lawsuits if the cause of action arises from invasion of a single primary rights (for example a cause of action based on personal injuries suffered in an automobile accident may be separated (and sued on separately) from a cause of action based on property damage suffered in the same accident because the right to be free from personal injury is considered a different primary right than the right to be free from harm to property. Nonetheless collateral estoppel might apply to prevent recovery.)

Question 75

Issue preclusion

Answer 75

Collateral estoppel, which estops a party in a prior case from relitigating an issue that was resolved in that case, requires that: a) the first case end in a valid, final judgement on the merits, b) the issue be actually litigated and determined in the prior case, and c) the issue was essential to the prior litigation. The issues must also be identical in each action. When a party in a second case is seeking to take advantage of a decided issue from a prior case in which she was not a party the court will also look to see whether it is unfair or inequitable to allow a nonparty to assert collateral estoppel. Note that some states only allow nonmutual collateral estoppel to be used defensively in subsequent litigation, CA does not have such restriction in that nonmutual collateral estoppel may be sued offensively or defensively. (MAKE SURE to look at every element of the offense and defense. Often not all of them are proved. Ex. damages would be offset because plaintiff has already sued in something else. If this happens talk about it in the FAIRNESS section)

Question 76

When is there a right to a jury trial in civil cases?

Answer 76

Although a federal court sitting in diversity will apply federal procedural law and state substantive law (under Erie doctrine) the right to a jury trial is preserved for civil cases over $20 under the United States Constitution. The Constitutional law is applied even if there is contrasting state law.

Question 77

JAML slapdown?

Answer 77

A judge may grant a motion for judgement as a matter of law when the evidence, viewed in the light most favorable to the party against whom the verdict would be directed (including all legitimate inferences in their favor and without considering the credibility of the witnesses), is such that a reasonable juror could come to only one conclusion. If a party moves for a judgement as a matter of law she may renew that motion within 18 days of the judgement being rendered. In other words, a motion for judgment as a matter of law is a prerequisite for a renewed motion for judgement as a matter of law

Question 78

Slapdown for subject matter jurisdiction?

Answer 78

The federal courts have diversity of citizenship jurisdiction (subject matter jurisdiction) when the amount in controversy exceeds 75000 (as determined by the plaintiff’s good faith allegation in the complaint), and the lawsuit is between citizens determined by the plaintiff’s good faith allegation in the complaint), and the lawsuit is between citizens of different states or a citizen of a state and a citizen or subject of a foreign country. Diversity jurisdiction first requires complete diversity between the opposing sides, meaning that each plaintiff must be of diverse state citizenship from every defendant. An individual’s citizenship is determine by his domicile, whereas a corporation is a citizen of every US state or foreign country in which it is incorporated and the one U.S. state or foreign country in which it has its principal place of business.

Question 79

You don't need to study this, but this is another way that they put personal jurisdiction.

Answer 79

Personal jurisdiction looks at whether it is fair and foreseeable to impose jurisdiction on the Defendant. Generally, there are three steps to establish that there is personal jurisdiction: a) there must be authorized by state law (ex. long arm statute), b) it must be constitutional to impose jurisdiction. This means that it must be a) foreseeable and b) fair to impose jurisdiction. Statutory Limitations on Personal Jurisdiction: Most states have statutes granting their courts personal jurisdiction, a) where the defendant is present in the forum state and is personally serves with process, b) where the defendant is domiciled in the forum state, c) where the defendant consents to jurisdiction, or d) where the defendant has committed acts bringing her within the scope of the forum state’s long arm statues. Traditional Bases: None of the traditional bases are there: - Not present in state - W did not consent Long arm statute: If state C has long atm statute, then jurisdiction is proper so long as the statute authorizes jurisdiction and the exercise of jurisdiction meets federal constitutional requirements. If State X has an unlimited long arm statute, jurisdiction is authorized to the extent permitted by the Constitution, thus merging the two questions. If State X has a limited long arm statute, the statute will list specific instances when its courts may exercise personal jurisdiction over a defendant. Most limited long arm statutes contain a provision authorizing personal j over a d who enters a contract with a citizen of the state. Thus “statutory authorization” will likely not be a bar to bringing suit in State X. Constitutionality: A party is subject to personal jurisdiction whenever it has sufficient minimum contacts with the forum state such that maintenance of the suit against the defendant does not offend “traditional notions of fair play and substantial justice”. Generally there are three factors considered: contact, relatedness, and fairness. Outlines: - At home in the state (general jurisdiction) - Minimum contacts (Specific Jurisdiction) o Purposeful availment: - The first issue is whether W purposefully availed itself of the benefits and protections of the forum state. o Foreseeability:  It was also foreseeable that W would be required to defend in State X • If the non arbitration clause in State X would not work then they would obviously have to go to court  Furthermore the month long sales trip to State X by W’s president, who visited the state to negotiate a 2.1 million contract placed W on notice that W’s activities could give rise to a cause of action in State X. o Relatedness of the Claim to the Contact  If the claim asserted against the defendant arises in some way from the defendant’s contacts with the forum, the court is more likely to find that jurisdiction is fair and reasonable. The Court must determine the nature and quality of the defendant’s contacts with the forum state and their connection with the cause of action.  Claim arising from Activity in the State o Fairness of Exercising Jurisdiction  Convenience: • W will argue that it is not convenient since all the witnesses ready to testify about the manufacturing process are in Italy o However, that does not really matter since P is not claiming a design defect so it is not necessary to investigate W’s manufacturing site. o Major piece of evidence is the vase and the contract itself  Unclear where they are but they can be shipped without too much expense  Forum State’s interest • State X has an interest in providing a forum for those who have engaged in substantial business transactions with W and since it would be overly expensive to sue in Italy for individuals like P

Question 80

Forum non convenis

Answer 80

Although venue is proper in State X, the discretionary doctrine of forum non conveniens allows a federal court, for the convenience of the parties and witnesses and in the interest of justice to transfer a civil action to any other district where it might have been brought, or, if transfer is not possible to dismiss the civil action. Imports public factors for the court to consider are the availability of an alternative forum, the laintiff’s choice of forum, and the forum state’s interest in providing s forum for its residents. Important private factors for the court to consider are the convenience of the parties and the witnesses, location of the evidence and where the cause of action arose.

Question 81

When does the UCC apply?

Answer 81

UCC applies to all movable goods that are identified in the contract. Goods are all things that are movable and computers are movable. A merchant is one who deals in goods of the kind sold who by his occupation holds himself out as having knowledge or skills peculiar to the practices or goods involved in the transaction .

Question 82

What are the damages in contract for a buyer when seller breaches in sale of goods context?

Answer 82

One of the remedies available to a buyer when a seller breaches a sale of goods contract is cover damages. When a buyer buys a replacement good, it can then sue the breaching seller for the cost of cover.

Question 83

Tell me about option contracts with UCC (firm offer rule)

Answer 83

SO, it lasts 3 months. However can argue that it is irrevocable because the offeror could reasonable predict on the fact that the offeree could rely on the offer.

Question 84

How does SOF apply in UCC contracts?

Answer 84

o SOF applies since this is goods more than $500  Under the SOF certain agreements must be evidenced by a writing signed by the party to be charged. The U.C.C. requires a contract for the sale of goods at a price of $500 or more to be evidenced by a signed writing. o Writing sufficient :  The UCC requires only a signed writing indicating that a contract has been made and specifying the quantity - Also most court find that letterhead is sufficient as signature

Question 85

Breach in contract.

Answer 85

A breach occurs when the promisor is under an absolute duty to perform and fails to do so. Here Developer may argue that there was in fact no contract because of a formation defect or a condition precedent to effectiveness. Remember UCC does not look at whether there is a material breach.

Question 86

Different between condition precedent to effectiveness or condition precedent to performance.

Answer 86

- If a party assets that there was an oral agreement that the written contract would not become effective until a condition occurred, all evidence of that understand may be offered and received o D will argue that his oral statements to B amounted to a condition precedent to the effectiveness of the written contract. o Since that condition did not occur the written contract never became effective and D was not in breach o Builder will try to argue that his full statement was that their oral agreement was implicit in the contract. So, rather than a condition precedent to effectiveness, the condition (if it exists at all) is part of the written contract and is a condition precedent to performance. - A condition precedent to performance is an event that must occur before an absolute duty of immediate performance arises.

Question 87

How do you determine whether we have a partial or a complete integration?

Answer 87

What to say for complete or partial integration Whether an integration is complete or partial depends on the intent of the parties and will be decided by the judge not the jury. All relevant evidence is admissible for this purpose. One of the factors considered is inclusion of a merger clause in the writing. A merger clause states the writing represents the complete agreement of the parties.

Question 88

Slapdown for mutual mistake

Answer 88

Can also say that there was mutual mistake. Mistake by the parties can mean that there was no true mutual assent and thus no contract. When both parties entering into a contract are mistaken about existing facts relating to the agreement, the contract may be voidable by the adversely affected party if: a) the mistake concerns a basic assumption on which the contract was made, b) the mistake has a material effect on the agreed upon exchange and c) the party seeking avoidance did not assume the risk of the mistake

Question 89

When can a condition be excused?

Answer 89

o Can use rule that says that if a Party whose performance is subject to a condition prevents the condition from occurring, condition may be excused. However, to invoke this rule, the prevention must be wrongful, meaning that the other party would not have reasonably contemplated or assumed the risk of this type of conduct. o Here however it was not wrongful since D made it very clear.

Question 90

In addition to impossibility and impracticability what else is there to excuse a condition?

Answer 90

Frustration of purpose: Frustration of purpose occurs when the purpose of the contract becomes valueless because of a supervening event not the fault of the party seeking discharge, At the time they entered into the contract, the parties must not have reasonably foreseen the supervening act.

Question 91

Offers or invitations to deal?

Answer 91

Generally, offers are any communication that create a reasonable expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms. Conversely advertisements are seen as invitation to deal and not as offers since the law does not want to bind the offeror to thousands of potential offerees. However, this is not the case here. Here the advertisement provides a method to identify the offeree and makes a particular promise. It is more likely that a court will see this as an objective manifestation of intent by the offeror to enter into a contract.

Question 92

Slapdown for unilateral contract?

Answer 92

An offer for a unilateral contract may be accepted only by performance. Contests and sweepstakes are often analyzed as unilateral contract, but they must require some performance on the part of the offeree.

Question 93

Slapdown for consideration and what if you don't have consideration?

Answer 93

An enforceable contract also requires the presence of consideration on both sides of the bargain. Consideration is a bargained for exchange, and that which is bargained for must have legal value. It is not enough that the promise incurs detriment, the detriment must be the price of the exchange and nor merely a fulfillment of conditions for a gift. Consideration is not required if the facts indicate that the promisor should be estopped form not performing. A promise is enforceable to avoid injustice if the promisor should have reasonably expected that promise to induce action or forbearance, and such action or forbearance was in fact induced.

Question 94

P won a voucher for trip to Scotland. She bought clothes . Can she recover both the value of the trip and the clothes?

Answer 94

Like to receive the value of the clothes but not the value of the trip. The value of the trip to Scotland If Polly is awarded expectation damages, it would be to the exclusion of reliance damage. Thus if she is awarded the value of the trip, she would not recover for the luggage and clothing. Most courts would limit Polly’s recovery to her reliance damages based on promissory estoppel. Thus it is unlikely that she would recover the value of the trip to Scotland.

Question 95

What do you need to become an LLP?

Answer 95

To become an LLP, a partner ship must file a registration with the secretary of state – certificate of qualification-. The partnership becomes an LLP at the time of the filing or on the date specified in the registration. The advantage of operating as an LLP is that the partners are not personally liable for the LLP obligations

Question 96

What do you say in regards to general partnerships?

Answer 96

A general partnership is created when two or more people associate themselves in a business for profit. Each partner generally shares the profits as well as the losses. To form a general partnership no writing or consideration is required. Furthermore there is no requirement that the parties subjectively intent to form a partnership, only that they intend to run a business as co-owners. Incidentally, although a number of business organizations have doctrines that protect the owners from defective organization issues (de facto corporation, corporation by estoppel) those doctrines are not directly applicable to the partnership context. How to determine whether someone is a partner? Partner defined: To be a partner in a general partnership, one must agree with at least one other person to carry on as co-owners a business for profit. A person who receives a share of the profits of a business is presumed to be partner. However, the presumption does not arise in certain circumstances, such as when the profits were received of rent, or when it is actually gross returns (and not profits) that are being shared

Question 97

What is the liabiltiy of the general partnership?

Answer 97

In general partnership all partners are jointly and severally liable for all obligations of the partnership, whether the obligations arise in contract or tort. This means that an action may be brought against any one or more of the partners or the partnership. Furthermore, each partner is personally and individually liable for the entire amount of all partnership obligations (although a partner compelled to pay more than his share may seek indemnification). Despite these general rules, a judgment creditor may not levy or execute against a partner’s individual assets to satisfy a judgment arising from a partnership obligation until partnership assets have been exhausted.

Question 98

Duty of considentiality of attorneys (yes we are in PR now)

Answer 98

Under the ABA Model Rules of Professional Conduct, an attorney must not reveal information relating to the representation of a client. In CA the duty arises from the Attorney’s Oath, in which the attorney promises to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets of his or her client”. As part of the duty of confidentiality discussed above, the ABA Rules also specifically require a lawyer to act competently to preserve confidentiality – i.e. make reasonable efforts to prevent the inadvertent or unauthorized of, or unauthorized access to, information relating to the representation.

Question 99

Duty of competence and supervision?

Answer 99

In CA a lawyer is subject to discipline if he intentionally, recklessly, or repeatedly fails to perform legal services with competence. The duty of competence in California includes the duty to supervise the work of subordinate attorneys and non-attorney employees.

Question 100

Failure for negligent supervision?

Answer 100

A lawyer having direct supervisory authority over a nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.

Question 101

Slapdown for libel?

Answer 101

Libel is written defamation. To establish a prima facie case for defamation, a plaintiff must prove a) that the defendant made a defamatory statement, b) concerning the plaintiff, c) publication of the statement to a third person, d) damage to the plaintiff’s reputation and if the plaintiff is a public figure, e)falsity and f) fault on the part of the defendant, knowledge that the statement is false or reckless disregard for the truth.