Rules 11.9% Flashcards
(43 cards)
Vicarious Liability - Respondeat Superior
An employer is vicariously liable for an employee’s negligent acts if the employee was acting within the scope of employment.
A party is generally NOT vicariously liable for the torts of an independent contractor.
Respondeat Superior - Scope of Employment
An employee acts within the scope of employment when:
a) performing work assigned by the employer;
b) engaging in the course of conduct subject to the employer’s control
OR
c) the conduct is of the same general nature as that authorized, or is incidental to the conduct authorized.
An employee’s act is NOT within the scope of employment when:
1) it occurs within an independent course of conduct
AND
2) it is not intended by the employee to serve any purposes of the employer
An employee’s intentional torts are generally not within the scope of employment unless specifically authorized.
Personal Liability of General Partners
General partners are personally liable for ALL obligations of the partnership UNLESS otherwise agreed by the claimant.
General partners are jointly and severally liable for partnership obligations.
Liability for Pre-Incorporation Contracts
Promoter Liability - a Promoter remains personally liable on any pre-incorporation contract entered into EVEN IF the corporation subsequently adopts the contract.
Duty of Loyalty: Usurping a Corporate Opportunity
A corporate opportunity is any opportunity that:
a) the corporation has an interest/expectancy in;
OR
b) is in the corporation’s line of business
Removal to Federal Court
A defendant may remove a case to a federal court if:
1) the federal court has subject matter jurisdiction;
2) all defendants agree;
3) no defendant is a resident of the forum state - if using diversity jurisdiction;
AND
4) removal is sought within 30 days of service of the Summons.
A plaintiff cannot remove a case to federal court, must just file there.
Claim Preclusion (Res Judicata)
Claim Preclusion precludes the parties in an action from subsequently re-litigating any claim that was or could have been raised in that action.
Four elements:
1) the parties are identical or in privity;
2) the judgment in the prior action was rendered by a court of competent jurisdiction;
3) the prior action was concluded by a final judgment on the merits;
AND
4) the same claim was involved in both actions
(in CA, only when all appeals are exhausted)
Jointly Titled Property & Anti-Lucas Statute
Under the Anti-Lucas statute, jointly titled property acquired by a married couple is presumptively CP at divorce but any SP used for the purchase is entitled to reimbursement.
At death, SP used to acquire jointly titled property is presumed to be a gift.
Separate Business Property (Van Camp & Pereira Tests)
If a SP business is enhanced by community labor during marriage, courts will determine CP and SP interest using either Pereira or Van Camp.
Pereira - Applied when business growth is mostly due to spouse labor and abilities.
Owning spouse will receive the original principal value of the business, plus an annual rate of return of 10%. The remaining value of the business is CP.
Van Camp - Applied when business growth is mostly due to the character and nature of the business itself. Comment receives a reasonable salary in return for the community labor, reduced by any community expenses.
The remaining value of the business is SP of the owning spouse.
State Sovereign Immunity (11th Amendment)
11th Amendment prohibits a party from suing a state or a state agency in federal court UNLESS:
a) the state explicitly consents to waive its 11th amendment protections;
b) the suit pertains to federal laws adopted under Section 5 of the Fourteenth Amendment;
c) the suit seeks only injunctive relief against a state official for conduct that violates Constitution/federal law;
OR
d) the suit seeks money damages from a state official.
Eleventh Amendment DOES NOT apply to:
a) local governments;
b) federal suits brought by one state against another;
c) a suit by the federal government against a state.
Substantive Due Process
Pertains to the government’s power to regulate certain activities under the Due Process Clause of the 14th amendment(states) and the 5th Amendment(federal govt).
Fundamental Rights Test
When the government attempts to regulate fundamental rights, it must satisfy strict scrutiny (compelling government interest).
Fundamental Rights include:
1) Right to Vote
2) Right to interstate travel
3) right to privacy
Non-Fundamental Rights Test
Regulation of activities that DO NOT constitute fundamental rights must meet the rational basis test (rationally related to legitimate government interest)
Procedural Due Process
Due Process Clause of the 14th and 5th Amendments guarantees that no person shall be denied life, liberty, or property without due process of law
Court first determines whether life/liberty/property has been taken or deprived.
Then, court will balance the three Matthews v. Eldridge factors:
1) the importance of the private interests being affected;
2) the risk of error under current procedures and the value of additional procedures;
AND
3) the importance of state interests and the burdens on the government that would arise from additional safeguards.
First Amendment - Protections
1) freedom of speech and expressive activities that constitute speech;
2) freedom to exercise religion;
3) freedom of the press;
4) freedom to peaceably assemble;
and
5) the right to petition the government for redress of grievances
Freedom of Religion - Establishment Clause
Establishment Clause prohibits the government from establishing a religion or endorsing/supporting religion.
Laws that discriminate against a religion must satisfy strict scrutiny (compelling government interest/least restrictive means)
Lemon Test holds that a law that has some relationship to religion, but that DOES NOT discriminate against religion will be upheld if:
1) it has a secular purpose;
2) its primary effect does not advance or inhibit religion;
AND
3) it does not excessively entangle the government with religion.
Freedom of Religion - Free Exercise Clause
Prohibits the government with interfering with exercise of religion
Laws designed to interfere with religion must meet strict scrutiny test
(Narrowly tailored, compelling government interest, least restrictive means)
Laws of general applicability that cause unintentional burdens on religion are OKAY.
Example - prohibitions of drug use, human sacrifice.
Mutual Mistake & Unilateral Mistake
A contract is voidable (may be rescinded or reformed) when there is a mutual mistake.
Mutual Mistake occurs when:
1) both parties are mistaken as to a basic assumption on which the contract is made;
2) the mistake is material to the contract;
AND
3) the person asserting the mistake did not bear the risk of the mistake
Unilateral Mistake occurs when:
1) a mistake is made by one party;
2) mistake is unknown to other party;
3) mistake concerns a basic assumption of the contract
4) mistake has a material effect.
Modification of Contracts: Pre-Existing Duty Rule & Exceptions
Under UCC, there is no consideration requirement for contract modification made in good faith.
Under Common Law, contract modifications MUST be supported by consideration.
Past performance or preexisting duty are not treated as adequate considerations.
Exception when:
1) an addition or change in the performance or promise;
OR
2) a fair and equitable modification due to unanticipated changed circumstances IF the contract is NOT fully performed by either party.
Impracticability
Performance is discharged as impractical when:
1) an event occurs after contract formation
2) that is unanticipated by both parties at contract formation;
3) making performance extremely and unreasonably difficult or expensive.
UCC Perfect Tender Rule
Under UCC a seller must deliver conforming goods.
The smallest non-conformity is a breach and the buyer may reject all or a portion of the goods.
Two exceptions:
1) if the seller has the right to cure; and
2) in the installment contract context.
Confrontation Clause (6th Amendment)
A criminal defendant’s right to confront witnesses against them.
The use of an out-of-court statement, even if within a hearsay exception/exemption, will violate this sixth amendment right to confrontation when:
1) the statement is testimonial
2) the declarant is unavailable to be cross-examined at trial
AND
3) the defendant did not have an opportunity to cross-examine the declarant before trial.
Examples of testimonial statements:
- Statements made to grand juries
- an affidavit or certified report containing forensic laboratory results
- statements made to the police where primary purpose is to collect testimony to be used later at trial
Proper Scope of Lawyer-Client Relationship
A client controls the objectives of the representation - the ends - while the lawyer controls the means. BUT, lawyer must consult with client as to means by which objectives are pursued.
Permissive Withdrawal
A lawyer MAY withdraw from representing a client if:
a) the client persists on a criminal or fraudulent course of action;
b) the client has used the lawyer’s service to commit a crime or fraud;
c) the client fails to substantially fulfill an obligation after reasonable warning;
d) the representation has been rendered unreasonably difficult by the client;
OR
e) other good cause exists.
In CA, a lawyer may also withdraw if:
a) client insists on a claim/defense/position/demand that is unwarranted and cannot be supported by a good faith argument;
b) the client freely and knowingly consents;
c) there is an inability to work with co-counsel and withdrawal is in the best interests of the client;
d) the lawyers mental or physical condition makes it difficult for effective representation.
OR
e) continuing the representation will likely violate an ethical rule
Must obtain court approval to withdraw after case has been filed.
Conspiracy
Conspiracy is a specific intent crime.
Requires:
1) an express or implied agreement between two or more people;
2) intent to enter into the agreement;
3) intent to pursue an unlawful objective;
AND
4) the commission of an overt act in furtherance of an unlawful objective.
Co-conspirators are liable for all foreseeable crimes committed by other co-conspirators in furtherance of the unlawful objective. Withdrawal will cut off liability for co-conspirator crimes after withdrawal effectuated.
Witness Perjury
A lawyer CANNOT call a witness that the lawyer knows will commit perjury.
Criminal defendants have more rights of expression. If a criminal defendant intends to lie, the lawyer should:
First, try to persuade the client that the evidence should not be offered.
Second, attempt to withdraw from the case if persuasion is ineffective.
Third, if withdrawal unsuccessful, a CA lawyer must allow the defendant to testify in narrative fashion.
(Under ABA, the lawyer must tell the court, including disclosure of confidential information).
