Rules 11.9%

Question 1

Vicarious Liability - Respondeat Superior

Answer 1

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.

Question 2

Respondeat Superior - Scope of Employment

Answer 2

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.

Question 3

Personal Liability of General Partners

Answer 3

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.

Question 4

Liability for Pre-Incorporation Contracts

Answer 4

Promoter Liability - a Promoter remains personally liable on any pre-incorporation contract entered into EVEN IF the corporation subsequently adopts the contract.

Question 5

Duty of Loyalty: Usurping a Corporate Opportunity

Answer 5

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

Question 6

Removal to Federal Court

Answer 6

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.

Question 7

Claim Preclusion (Res Judicata)

Answer 7

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)

Question 8

Jointly Titled Property & Anti-Lucas Statute

Answer 8

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.

Question 9

Separate Business Property (Van Camp & Pereira Tests)

Answer 9

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.

Question 10

State Sovereign Immunity (11th Amendment)

Answer 10

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.

Question 11

Substantive Due Process

Answer 11

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)

Question 12

Procedural Due Process

Answer 12

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.

Question 13

First Amendment - Protections

Answer 13

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

Question 14

Freedom of Religion - Establishment Clause

Answer 14

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.

Question 15

Freedom of Religion - Free Exercise Clause

Answer 15

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.

Question 16

Mutual Mistake & Unilateral Mistake

Answer 16

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.

Question 17

Modification of Contracts: Pre-Existing Duty Rule & Exceptions

Answer 17

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.

Question 18

Impracticability

Answer 18

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.

Question 19

UCC Perfect Tender Rule

Answer 19

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.

Question 20

Confrontation Clause (6th Amendment)

Answer 20

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

Question 21

Proper Scope of Lawyer-Client Relationship

Answer 21

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.

Question 22

Permissive Withdrawal

Answer 22

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.

Question 23

Conspiracy

Answer 23

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.

Question 24

Witness Perjury

Answer 24

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).

Question 25

Prior Bad Acts

Answer 25

Evidence of prior bad acts is NOT admissible to show propensity.

It is admissible to show: motive, identity, absence of mistake/accident, intent, common plan/scheme, opportunity, preparation

Question 26

Solicitation of Clients

Answer 26

A lawyer cannot solicit a person by in-person, live telephone, or real-time electronic contact for professional employment when a significant motive is for pecuniary gain unless the person:
a) is a lawyer;
b) has a family, close personal, or prior business/professional relationship with the lawyer/law firm.

Question 27

Joint Tenancy: Formation

Answer 27

Time Title Interest Possession

Time - all interests received at the same time
Title - all interests were acquired by the same instrument
Interest - all ownership interests are equal
Possession - all interests have equal rights of possession

Question 28

Joint Tenancy: Severance

Answer 28

Generally, when one joint tenant unilaterally transfers their ownership interest in the real property, the joint tenancy is severed and the tenants will then hold the property as tenants in common.

If there are more than two joint tenants, a conveyance by one will sever their connection, but the joint tenancy remains amongst the other joint tenants.

Most jurisdictions hold that a lease by one tenant will sever a joint tenancy.

Question 29

Landlord Duties: Constructive Eviction

Answer 29

Constructive eviction occurs when:
1) the landlord breached a duty to the tenant;
2) the landlord’s breach caused a loss of the substantial use and enjoyment of the premises;
3) the tenant gave the landlord notice or the condition;
4) the landlord failed to remedy the condition within a reasonable time after notice was given;
AND
5) the tenant vacated the premises

Constructive Eviction is a breach of the implied covenant of quiet enjoyment.

Question 30

Assignment of a Lease

Answer 30

A lease may be freely assigned UNLESS a provision in the lease states otherwise.
An assignment cannot exceed the period of time of the lessor’s remaining lease term.

The tenant transfers ALL of their remaining interest in a lease to a third-party.

Both assignor and assignee are liable to the landlord following assignment.

A landlord may be deemed to waive a right to enforce a prohibition of assignment if they accept a rental payment from an assignee.

Question 31

Real Covenants

Answer 31

A real covenant is a non-possessory interest in land that obligates the holder to either do something or refrain from doing something to the land. Remedy is damages (different from equitable servitude remedy of injunctive relief).

To enforce the benefit of a covenant, there must be:
1) a writing that satisfies the statute of frauds;
2) intent that the covenant runs with the land;
3) vertical privity between succeeding parties (when the successor holds the entire interest held by the predecessor);
AND
4) the covenant must touch and concern the land

To enforce the burden of a covenant, all the above, plus:
1) horizontal privity between the original parties (when two parties shared the same interest in the land independent of the covenant);
AND
2) the new owner must have notice of the covenant (actual, constructive or inquiry)

Question 32

Reformation

Answer 32

Reformation allows a contract to be changed to conform to the parties’ original intent. It is available if a valid contract exists but there was a misrepresentation OR mutual mistake of material fact.

Parol evidence is admissible to prove the required misrepresentation or mistake.

Question 33

Compensatory Damages - Tort

Answer 33

Compensatory damages attempt to put the injured party in the same position it would have been in but for the injury.

The damages must be:
1) caused by the defendant (actual cause);
2) foreseeable (proximate cause);
3) certain (not speculative);
AND
4) unavoidable.

Actual cause exists if “but for” the defendant’s conduct, there would have been no injury.
Proximate cause exists if the injury was a foreseeable result of the defendant’s conduct.

Question 34

Temporary Restraining Orders

Answer 34

An emergency remedy used to maintain the status quo pending the outcome of a hearing or application (usually a preliminary injunction application.
ONLY available when the movant will suffer immediate and irreparable harm.

When considering an ex party TRO motion, the Court can only grant if the moving party:
1) provides specific facts in a sworn statement clearly showing immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition;
2) certifies in writing any efforts made to give notice to the adverse party and why notice should not be required;
AND
3) gives security in an amount that the court deems proper.

Question 35

Intentional Torts - General Elements

Answer 35

Intentional tort actions require:
1) a voluntary act;
2) committed with intent (specific or general);
AND
3) causation (generally ‘but for’ causation)

Specific intent exists when a person desires that his conduct cause the resulting circumstances.

General intent exists when a person is substantially certain that his conduct will cause the resulting circumstances.

Question 36

Battery

Answer 36

A defendant is liable for Battery when there is
1) an intentional,
2) harmful or offensive contact,
3) with the plaintiff’s person

Nominal(punitive) damages available, plaintiff need not suffer actual damages

Question 37

Trespass to Chattel & Conversion

Answer 37

A person is liable for Trespass to Chattels when they
1) intentionally interfere with another’s personal property (including damage or preventing use),
AND
2) the amount of damage is small.

A person is liable for Conversion if the amount of interference is substantial, in which the converter is liable for the full market value of the chattel involved.

To determine if there is substantial interference, the court considers these factors:
i) extent and duration of dominion/control;
ii) intent to deprive the owner of possession
iii) the tortfeasor’s good faith;
iv) extent and duration of resulting interference
v) harm done to the chattel
vi) inconvenience and expense caused

Question 38

Causation: Actual and Proximate Cause

Answer 38

A plaintiff must show defendant’s conduct was BOTH the actual and proximate cause of injury.

Actual Cause is the “but for” cause. Something that is a substantial factor in bringing about the injury is an actual cause.

Proximate Cause is the legal cause, meaning the injury was a foreseeable result.

Question 39

Causation: Intervening Causes

Answer 39

Any act that occurs after the defendant’s breach that contributes to the harm is an intervening cause.

Intervening causes that are dependent on (a natural reaction to) the defendant’s wrongful acts are usually foreseeable. But if the intervening cause resulted in an unexpected injury it is usually deemed unforeseeable and will absolve the defendant of liability to the plaintiff.

Running away from danger - foreseeable
Rescuers injured helping - foreseeable
Intervening criminal acts - not foreseeable, unless anticipated/enabled by defendant’s own action

Question 40

Defamation

Answer 40

Elements:
1) a false defamatory statement (a statement that tends to harm the reputation of another),
2) of and concerning the plaintiff made by the defendant,
3) publication by the defendant to a third party,
AND
4) damages.

The statement must be one of fact, not opinion.
Cannot be found liable for defamation of a dead person.

Question 41

Slander (oral defamation)

Answer 41

Plaintiff ALWAYS needs to prove special damages, unless statement falls within slander per se category.

The four slander per se categories are:
a) impugning the business integrity or skill of the plaintiff,
b) statement of unchastity about an unmarried woman,
c) a statement that the plaintiff has/had a loathsome disease;
d) attributing to the plaintiff a crime of moral turpitude.

Question 42

Testamentary Capacity (ability to create a will)

Answer 42

To have sufficient capacity to execute a will, a testator must:
1) be at least 18 years old;
2) understand the nature and extent of their property;
AND
3) understand the natural objects of their bounty (i.e. relatives and friends).

Question 43

Omitted Spouse

Answer 43

A surviving spouse is entitled to one-half(( of the decedents *community property AND *quasi-community property.

A surviving spouse not mentioned in a will that was executed before the marriage began is entitled to a share of the separate property equal to what the spouse would have received under intestacy.

However, surviving spouse DOES NOT receive the intestate share if:
a) the spouse was intentionally omitted;
b) the spouse was given property outside of the will
OR
c) the omission was consistent with a valid prenuptial agreement.