conversion/tmp/activity - Task - Scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

AGENCY AND PARTNERSHIP
10 SECOND CHECKLIST
I. Agency
a. Principal Liability in Contract
b. Principal Liability in Tort
c. Duties Owed by Agents
II. Partnership
a. Formation
b. Liability of Partners to 3rd Parties
c. Rights and Liabilities Between Partners
d. Partnership Dissolution
AGENCY (Consensual fiduciary relationship by which P consents to have A act on Ps behalf and subject to Ps
control)
I. PRINCIPAL LIABLIITY BASED ON CONTRACT
A. Rule: P liable for contracts entered into by A if P authorized A to enter contract. Both P and A
must consent to relationship
B. Actual Express Authority
i. Rule: Principal used words to express authority either orally or in a writing to A (oral,
private, narrowly construed to actual words OK)
ii. Exception: Equal Dignities Doctrine. If K itself must be in writing, then so too equally
must express authority
iii. Revocation: Express authority revoked by 1) unilateral act of either party; or 2) death or
incapacity of principal
1. Exception: Cannot be revoked if P gives A:
a. a ‘durable power of authority’ = written expression of authority to
enter into transaction; conspicuous survival language
b. An interest is coupled with the agency
C. Actual Implied Authority
i. Rule: Authority which A reasonably believes P has given because of 1) necessity; 2)
custom; 3) prior dealings
D. Apparent Authority
i. Rule: Created when 1) P cloaked agent with appearance of authority; and 2) third-party
reasonably relies on appearance of authority. Discuss what transpired between the
principle and the 3rd party.
ii. Special Cases:
1. Secret Limiting Instruction: A has actual authority, but P has secretly limited
authority. A acts beyond scope = P still liable
2. Lingering Authority: Actual authority has been terminated. Afterward, A
continues to act on behalf of P (Note: those who have relied upon lingering
authority may do so until they receive notice of termination)
a. Death terminates apparent authority, even without notice
E. Ratification
i. Rule: Authority can be granted after K has been entered if:
1. P has knowledge of all material facts regarding contract;
2. P accepts its benefits,
3. And has capacity
F. Rules Of Liability On The Contract
i. Third party v. principle
1. If agent has authority, P is ALWAYS liable, period. A will not be liable.
2. If no authority, P is not liable on the contract. If no authority, A is liable on the
contract
/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

-1-
ii. Third party v. Agent: An agent’s liability depends on whether the principal was
disclosed. (ONLY talk about disclosed/undisclosed when talking about whether agent is
liable, not P – if A had authority, P liable)
1. Disclosed Principle: Disclosed P is always liable on the K, and the agent is
generally not liable
a. Agent liable if intended to be liable, or if he represents that he has
authority (where he doesn’t)
2. Undisclosed/Partially Disclosed Principle: If P is partially disclosed or
undisclosed, then both P and A are liable, at the election of the 3rd party
iii. Principle v. 3rd Party
1. Bound to principle if valid authority existed.
iv. Agent v. 3rd Party
1. Bound to agent if principle partially disclosed or undisclosed and agent enforces
contract, but principle entitled to contract benefits.
v. Liabilities:
1. P owes A duty to indemnify him for any legal liability reasonably incurred by
the A in acting for the P, unless liability was due to As own fault
2. A P also owes the A duty to compensate the A reasonably for his services unless
A has agreed to act gratuitously
II. PRINCIPAL LIABILITY FOR TORTS COMMITTED BY AGENT (VICARIOUS

LIAIBLITY)
A. Principal-Agent Relationship (Employer/Employee)
i. Principal’s Liability: P liable for torts committed by A if…
1. A principal-agent relationship exists; and
a. Assent = informal agreement between P who has capacity and A
b. Benefit = A’s conduct must be for Ps benefit
c. Control = P must have right to control A by having power to supervise
manner of As performance
2. In the scope of employment
a. Tort was committed by A during scope of relationship
b. Scope: conduct of the kind agent was hired to perform;
i. frolic (new independent journey is outside scope) vs. detour
(mere departure from assigned task is within scope);
1. whether A intended to benefit P (partial benefit to P
is enough to be within scope)
c. Intentional torts = outside scope of agency unless…
i. Specifically authorized by P
ii. natural from nature of employment (bouncer)
iii. motivated by desire to serve P
ii. Sub-Agents: No VC for sub-agent torts unless: assent, benefit, right to control sub-agent
tortfeasor
iii. Borrowed Agents: no VC unless: assent, benefit, right to control borrowed agent
tortfeasor
B. Independent Contractor
i. Rule: As a general rule the principle is liable only for torts committed by agents who are
employees, not for torts of general acts of IC. An IC exists where the P has no right to
control IC because no power to supervise manner of its performance.
1. Exceptions to no-liability of P for IC’s acts:
a. ultra-hazardous activities;
b. principal knowingly selects incompetent IC
c. non-delegable duty (including invitee situations)
III. WHAT DUTIES DOES AGENT OWE TO PRINCIPAL?

A. Duty of Care: Duty to exercise reasonable care
B. Duty to Obey: Duty to obey reasonable instructions

-2-
C. Duty of Loyalty:
i. Self-Dealing: A cannot receive benefit to detriment of P
ii. Usurping P’s Opportunity
iii. Secret Profits
GENERAL PARTNERSHIP (An association of two or more persons to carry on as co-owners a business for
profit)
IV. PARTNERSHIP FORMATION
A. Formation: No formalities; no filing; no writing
B. Rule: GP is an association of 2 or more persons who are carrying on as co-owners of a business
for profit. Majority vote of partners required to authorize ordinary business; unanimous vote of
partners required to authorize extraordinary acts
C. Factors that show a partnership
i. Sharing of Profits: Contribution of money/services in return for share of profits creates
presumption that GP exists
ii. Intent
iii. Sharing of property
V. LIABILITY OF PARTNERSHIP TO THIRD PARTIES

A. Agency Principles Apply
i. Partners are agents of partnership for carrying on usual partnership business and bind the
business unless:
1. The partner had no authority and the other party knew or had notification that
the partner lacked authority. (partners generally have apparent authority)
ii. Partnership bound by torts committed by partners in scope of partnership business
iii. Partnership bound by contracts entered by partners with authority
1. Tort and contract liability is joint and several between partners, if done in scope;
can get contribution
VI. LIABILITY OF PARTNERS
A. Rule: GP personally liable for debts of partnership
B. Pre-existing Debts: Incoming partners NOT liable for prior debts; but money paid into
partnership by incoming partner may be used for partnership to satisfy prior debts
C. Dissociating Partner Liability for Subsequent Debts: Retains liability even on future debts until
notice of dissociation given to creditors; or until 90 days after filing notice of dissociation with
state
D. General Partnership Liability By Estoppel: One who represents to third-party that GP exists
will be liable as if GP exists
VII. RIGHTS AND DUTIES OF PARTNERS

A. Fiduciaries
i. Duty of Loyalty: Partners may never 1) engage in self-dealing; 2) usurp partnership
opportunities; 3) make secret profits
ii. Action for Accounting: Partnership may recover losses caused by breach and also may
disgorge profits made by breaching evil partner as well
B. Partners’ Rights in Partnership Property
i. What is partnership property – per RUPA (Revised Uniform Partnership Act)
1. Deemed to be partnership property
a. Titled in partnership name
2. Presumed partnership property
a. Property purchased with partnership money
3. Presumed Partner’s Separate Property
a. Property held in one or more partner’s name
b. The title of the property is in a partners name, but doesn’t indicate his
capacity as a partner
ii. Other specifics

-3-
1. Specific Partnership Assets (land, leases, equipment owned by partnership): No
individual partner may transfer w/o partnership authority
2. Share of Profits and Surplus (if any): personal property owned as such by
individual partners; may transfer their share
3. Share in Management: if share in mgmt is an asset owned only by partnership
itself; no individual partner may transfer
4. Conflict Between Specific Partnership Assets and Personal Property: only 1/3 is
liquid (personal property) hard to transfer; if partnership money used to buy
property = partnership property; if personal property used = personal property.
VIII. MANAGEMENT
A. Rule: Absent agreement, each partner entitled to EQUAL control (one partner; one vote)
IX. SALARY
A. Rule: Absent agreement, partners get NO SALARY
B. Exception: Partners do receive compensation for helping to wind up partnership business
X. SHARE IN PROFITS AND LOSSES

A. Rule: Absent agreement, profits shared equally; Absent agreement, losses shared like profits
XI. DISSOCIATION/DISSOLUTION
A. Dissociation: Upon dissociation, partner’s right to participate in management ceases. Partnership
must purchase (buy out) his interest at either liquidation or going-concern value
i. Violation: Partner who dissociates in violation of partnership agreement or before
expiration of partnership term or completion of partnership undertaking = liable for
damages caused by wrongful dissociation and not entitled to payment of buy-out price
until term expires or undertaking completed
ii. Partnership is liable for obligations incurred by the partner (subsequent Ks that partner
does) for 2 years if
1. The other party entered into the agreement thinking that DP was still a partner
AND
2. Did not have notice of the partner’s disassociation
B. Dissolution:
i. At will:
1. dissolution occurs automatically upon notice of express will of any one partner
to dissociate
ii. Not at will:
1. dissolution occurs only upon happening event specified in agreement;
2. or upon majority vote of partners to dissolve within 90 days of dissociation of
partner
3. if it becomes illegal to continue
4. issuance by judicial decree on application by partner
iii. Termination: Real end of partnership
iv. Winding Up: A partnership continues into existence even after dissolution until it is
wound up
1. liquidate partnership assets to satisfy partnership’s creditors (note: any time
before winding up partnership business is complete, partners may decide to
waive dissolution and continue partnership by unanimous vote of partners who
have wrongfully dissolved)
v. Compensation and Liability for Winding Up:
1. Compensation: Partners do receive compensation to wind up partnership
business
2. Partnership Liability:
a. Old business = GP and its individual partners retain liability on all
transactions entered into to wind up old business with existing creditors

-4-
b. New business = entering into new contract is beyond scope of partners’
authority once dissolution has occurred. Partnership and its individual
GPs still retain liability even on brand new transactions until: notice of
dissolution given to creditors; or until 90 days after filing statement of
dissolution with state
vi. Priority of Distribution: 1) Creditors must be paid first (outside & inside creditors); 2)
Capital contributions by partners must be paid (partnership still owes individual partners
full repayment of their capital contributions); 3) Profits and Surplus, if any (shared
equally without any agreement)
LIMITED PARTNERSHIP (Partnership with at least one general partner and at least one so-called limited
partner)
XII. Limited Partnership
A. Formation: Must file limited partnership certificate that includes: name of all general partners
B. Liability and Control: GPs still have personal liability but also right to manage and control
business; Limited Partners have limited liability, and are NOT liable for partnership obligations
(no right to control/manage business)
i. Limited partner can lose limited liability by running day to day business
ii. One who erroneously believes to be limited partner can avoid GP liability if upon
discovery, files with secretary of state appropriate certificate of limited partnership or
certificate of amendment or withdraws from future equity participation
LIMITED LIABILITY PARTNERSHIP

XIII. Limited Liability Partnership
A. Formation: File articles of organization and operating agreement
B. Liabilities: Owners not liable for debts and obligations of business form; profits and losses shared
according to value of contributions
C. Partners are not personally liable for the obligations of the partnership, whether; arising in
contract, tort or otherwise
i. LLP partners can participate in everyday management and not lose limited liability.
D. Partnership Characteristics: (2 of 3 must be true): 1) members control, but Articles delegate
control to managers; 2) limited liquidity (member interests not freely transferable; 3) limited life
(events of dissolution)
REGISTERED LIMITED LIABILITY PARTNERSHIPS (RLLP)

XIV. Registered Limited Liability Partnerships
A. Formation: Group of attorneys/accounts/architects file certificate of registration
B. Liabilities: No partner, not generals or limited will be liable for obligations of business form (only
for own wrongdoing)

-5-
COMMUNITY PROPERTY CHECKLIST
10 SECOND CHECKLIST
I. Introduction
II. Marriage
ATTACK ASSETS SEPARATELY
III. Source (CP, SP, QCP, QMP)
IV. Transmutation
V. Transfers
VI. Specific Asset Presumptions
VII. Pre-marital Agreements
VIII. Federal Preemption
DETAILED OUTLINE
I. INTRODUCTION TO ESSAY QUESTION

a. In California, all property acquired during marriage is community property, while property
acquired before marriage or after permanent separation, or by gift, devise or descent, is separate
property. Quasi-community property is property acquired by either spouse while domiciled in a
non-community property state that would have been CP if the couple had lived in California at the
time of acquisition.
b. The character of the asset depends upon: (i) the source of an asset, (ii) any actions taken by the
parties that may alter the character of the asset, and (iii) any statutory presumptions that might
affect the asset.
II. BASIC PRESUMPTIONS
a. Marital Economic Unit: Begins at marriage, and ends upon divorce, death, or a permanent
physical separation with an intent not to resume the marital relationship.
b. Separate Property: is property acquired before marriage, or during marriage by gift, bequest,
devise or descent, or after death, divorce or permanent separation.
c. Community Property: Property acquired during marriage or temporary separation is
presumptively community property.
d. Quasi Community Property: Property acquired by either spouse while domicile in a non-
community property state that would have been CP if the coupled had been domiciled in
California at the time of acquisition. It remains acquiring person’s SP until death of divorce.
i. The disposition of the QCP depends on whether the marriage ended in divorce or death
1. DIVORCE: at divorce, QCP is treated exactly like CP
2. DEATH: The survivor has a ½ interest in the decedent’s QCP. Decedent has no
rights in the survivor’s QCP
a. Thus, if the non-acquiring spouse dies first, He is screwed
b. If the acquiring spouse dies first, then other spouse will take ½
III. THRESHOLD ISSUES
a. Valid Marriage: in CA, a lawful marriage requires legal capacity and the performance of formal
legal procedures
i. Putative Spouses: To qualify as a putative spouse, a person must have a good-faith belief
based upon objectively reasonable grounds that she is lawfully married, but once that
person discovers that the marriage is not valid, her quasi-marital property rights no longer
accrue.
1. The property acquired as a putative spouse is Quasi-Marital Property (QMP)
ii. Unmarried Co-Habitants: (Marvin Actions) Property disputes between unmarried co-
habitants are governed by contract principles, and if there is no express contract, a co-
habitant may prove the contract was implied by conduct.
iii. Domestic Partners: CP rules apply to registered same-sex domestic partners in CA AND
elderly opposite-sex couples receiving Social Security benefits.
IV. NOW, ATTACK EACH PIECE OF PROPERTY SEPARATELY

-6-
V. SOURCE: When and How the asset acquired
a. Source of Funds
i. Property Purchased with both CP and SP Funds, OR just SP Funds (SP into Community
Asset)
1. Generally: Under Lucas, property purchased with SP and CP or just SP funds
before 1/1/1987 AND titled in joint form is presumptively a gift to the
community by the SP spouse. As a result, Anti-Lucas statute says that the CP
presumption for the property purchased with SP and CP funds after 1/1/1987 is
rebuttable, and the SP contributor can be reimbursed for down payments,
improvements and principal payments upon divorce.
2. LUCAS (Pre 1/1/1987)
a. Is the asset a CP asset or SP asset, when taken in joint form but
purchased with SP money
b. Before 1987, presumed to be a CP asset and SP contribution is
presumed a gift to the community absent an oral or written agreement,
and NO claim for reimbursement.
3. ANTI-LUCAS (Post 1/1/1987)
a. Is the asset CP or SP, when taken in joint form but purchased with SP
money
i. 1987 and after, presumed to be a CP asset, but rebuttable
through a collateral written agreement or an explicit statement
in a document
b. Next, Lucas operates to say that even if it is CP asset, SP gets dollar for
dollar reimbursement for the amounts that he contributed to CP asset.
i. Anti-Lucas only applies to divorce or legal separation. IF the
marriage ends in death, then Lucas presumption of gift
remains
1. ANTI-LUCAS REIMBURSEMENT
a. SP contributor can be reimbursed for (DIP)
i. Down Payment
ii. Improvements
iii. Principle Payments
iv. (No interest, Appreciation,
Maintenance, Insurance, Taxes)
c. Also, if a married person deeds her SP house into a CP asset, upon
divorce, she get the value of the house at time of transmutation back
dollar-for-dollar (if after 1987).
i. You automatically have a 2640 (Lucas claim) if there is any
equity in the property when you transmute it into CP asset.
1. ONLY Way NOT to get this back is if the spouse
waives the right to receive their LUCAS claim
ii. Property Purchased from a Commingled Bank Account
1. Asset is not presumptively CP when purchased from a commingled bank
account but burden is on the SP proponent to show SP funds were used to
purchase asset. SP Proponent can use either the exhaustion method or the direct
tracing method to prove the SP funds were used to purchase the property.
a. Tracing Methods (Talk about both)
i. Exhaustion Method: at the time the asset was purchased, CP
funds were exhausted through the payment of family
expenses.
ii. Direct Tracing Method: at the time the asset was purchased,
there was sufficient SP to purchase it, and SP was intended to
be used.
b. Presumption with Family Expenses: Family expenses are presumed to
be paid using CP funds, then SP funds. SP funds used are gifted. SP

-7-
cannot use recapitulative accounting to prove remaining funds are his
SP.
i. RA: Showing that adding up all family expenses exceeded CP
income by large margin
1. “I had to use SP to pay off some of those expenses” -
WRONG
2. Does not prove that CP funds were unavailable when
each asset was purchased
iii. CP Funds Into SP Business (Pereira/Van Camp)
1. When CP funds or CP labor enhance the value of a SP business, courts will
apply Van Camp or Pereira to calculate the CP portion of the business. Van
Camp is used when the character of the business was the primary reason for its
growth or productivity, and Pereira is used when the personal skills and efforts
of the managing spouse increased the value of the business.
2. Van Camp: Capital intensive, SP gets more (Reasonable Salary for Doing
Nothing, You Win)
a. Allocate a reasonable salary for managing spouse’s services – family
expenses paid from biz earnings
b. CP = (Reasonable Salary x Years) – Family Expenses paid with salary
c. SP = Everything Else
3. Pereira: Labor Intensive, CP gets more (Same Return for Working Hard, You
Lose)
a. Allocate as SP a reasonable return to original investment, valued at
DOM. Everything else is CP.
b. SP = Value of business at DOM + [(Fair return 10% x V@DOM) x
years) – no compounding
c. CP = Everything Else
iv. CP Contributions into SP Real Property – Moore Test
1. When CP funds are used to pay the principal on SP property, the community
establishes a pro-rata ownership interest to the extent that the CP mortgage
payments reduce the principal debt.
a. SP has 2640 claim for equity at DOM/Date of Transmutation
2. When one spouse uses CP funds to improve the other Spouse’s SP property, the
funds are presumed to a gift, although the community may be granted a right of
reimbursement if the court rejects the presumption.
a. Buy-In Rule:(Principal Debt Reduction that is CP/Purchase Price) =
CP %
i. Buy-in rule not triggered by payments of: insurance
premiums/mortgage interest/prop taxes
ii. Appreciation is calculated in proportion to the ownership
interest.
1. If there are taxes paid, you should apportion those
also so the community can get some reimbursements
for amounts it paid on those. Apportion these with
same % as ownership interest.
b. Improvements: Remember, if improvements are made to a house, then
no ownership %, rather just reimbursement under Anti-Lucas OR the
increased value in the realty because of the improvement, whichever is
greater.
3. Property Purchased with Credit: Purchases made with borrowed funds are
treated like cash purchases in terms of ownership interest. When credit or
purchase money loans are used to purchase property, the property is
presumptively CP, but the presumption can be overcome by proving that the
lender relied primarily on the borrowing spouse's SP in granting the loan or
extending the credit.
b. Where Property Purchased

-8-
i. Out-of-State CP or QCP: QCP retains its SP nature after a couple moves to California,
but QCP is treated like CP upon divorce or for purposes of creditor’s rights. Upon the
death of the acquiring spouse, the surviving spouse has a ½ interest in the decedent’s
QCP.
1. When dividing OOS CP and QCP realty upon divorce, courts will award the
realty to one spouse and equal offsetting assets to the other spouse.
2. When dividing OOS CP and QCP realty upon death, courts will employ the situs
rule and apply the probate laws of the state in which the realty is located.
VI. ACTIONS THAT CHANGE CHARACTER
a. General: All property acquired during marriage is presumed to be CP.
i. Overcome Presumption: CP presumption may be overcome by showing any of the
following:
1. Statutory facts (it is actually a devise, gift, bequest, descent)
2. Parties to written title in a manner that shows that the parties agreed to hold it
other than as CP
3. The parties agreed that the property would not be CP
4. One spouse took in a form that evidences a gift to the other spouse
5. The purchase funds are traced to SP source, which means that he owns it in
proportion to its contribution in the purchase price.
b. Transmutation
i. Oral Transmutation:
1. Made before January 1, 1985, are enforceable where based on an express
agreement or implied in fact from either party’s behavior.
2. Made after January 1, 1985, the agreement which alters the character of property
must be:
a. In writing
b. Signed by the spouse whose interest is adversely affected, AND
c. Expressly state that a change in ownership is being made.
i. Writing requirement applies to all transmutations (except
tangible gifts of personal nature that are insubstantial) – SP
into CP, CP into SP, H SP into SP by gift (H gives from his SP
to W for her SP)
ii. Statements in wills “The auto shop is our community property” have no effect.
iii. Presumption of undue influence when one spouse gains an advantage over the other in a
property transaction
c. Gifts
i. The Donor Spouse needs the other’s written consent to make a gift to a 3rd party, but if
consent is not obtained, the non-consenting spouse can still ratify the gift in a separate
writing.
ii. The Non-Consenting spouse can void the gift in its entirety during the donor’s lifetime,
but the gift becomes a valid testamentary transfer upon the donor’s death, and the
surviving spouse can only recover her ½ CP interest.
d. Transfers during Marriage
i. Management and Control:
1. Each spouse has exclusive management and control of his SP, and equal
management and control of the CP. Subject to certain exceptions, either spouse
acting alone may buy/sell/spend/encumber all of the CP.
ii. Conveyances of REAL property:
1. Both spouses must jointly execute a written instrument in order to validly
convey community real property.
2. When CP is titled in one spouse’s name only and that spouse misrepresents his
marital status to an innocent transferee, the non-consenting spouse has 1 year in
which to bring an action to void the transfer.
a. Transfers to BFPs are presumed valid.
i. The non-consenting spouse may overcome this presumption
by demonstrating that she did not in any way consent to, or

-9-
participate in, the transfer. She may then void the conveyance
and BFP must return the transferee’s purchase price. The non-
consenting spouse also may entirely void any security interest
in CP granted to the creditor by the other spouse, however the
debt underlying the security interest remains intact.
iii. Exception to Equal Control Rule for PERSONAL property
1. Personal belongings
a. One spouse cannot transfer household furnishings or clothing without
other spouse’s written consent
i. The non-consenting spouse can void the transfer at any time
during or after the marriage and does not need to refund the
purchase price to the transferee
2. Business
a. The spouse who operates in a business that is CP, has primary control.
Although spouse may act alone, he must give written notice prior to the
sale, lease, or exchange of the personal property used.
i. If no notice is given, the non-managing spouse can seek
remedy only if the managing spouse’s behavior has
substantially impaired her ½ half interest, but in no event can
she void the transfer.
e. Agreements affecting Property Rights
i. Premarital Agreement: A valid premarital agreement must be:
1. Requirements:
a. Pre 2002
i. In writing
ii. Voluntary
iii. Signed in the presence of independent legal counsel
b. Post 2002 (Barry Bonds)
i. In writing
ii. Voluntarily
1. 7 days from date of receipt to date of signing
2. In the language of the parties
iii. signed in front of independent legal counsel
1. this can be waived in writing
iv. Disclose all assets/liabilities
v. Oral agreements are still enforceable if the promise was
carried out by the promisor or the promisee detrimentally
relied on the oral contract.
2. Parties May:
a. Limit or waive property and death rights
b. Agree that each spouse's salary remains his own SP after marriage
c. Not claim family allowance from other spouse's estate
d. Dispose of property upon divorce or death and
e. Limit personal rights and obligations.
3. Parties May Not
a. Limit/waive spousal support if burdened party not represented by legal
counsel when K signed and provision was unconscionable at time of
enforcement or
b. Promote divorce in K
ii. Affect of Title Agreements on Property Rights
1. Generally, All property held in joint form is presumptively CP. The
presumption can only be overcome by a collateral written agreement providing
that the property is SP and not CP.
2. Joint Tenancy with ROS: W and H hold an undivided 1/2 SP interest and upon
death ROS.
3. Tenancy in Common: equal, proportional ownership and no ROS

- 10 -
4.
Community Property: undivided 1/2 CP interest and no ROS (presume CP after
1975, and TIC before 1975)
a. Community Property with ROS: undivided 1/2 CP interest and ROS
iii. Married Woman’s Special Presumption
1. MWSP applies to property acquired before 1975 if title was taken in the wife's
name only (presumed to be her SP), if husband & wife took title as tenants in
common (W presumptively has ½ SP interest, and H has ½ CP interest) or if title
was taken in the wife's name only and a 3d party - the property is presumptively
SP.
2. The rule for property acquired after 1975 is that when one spouse purchases
property and puts title in the other spouse's name, it was intended to be a gift.
VII. SPECIFIC ASSET SPECIFIC PRESUMPTIONS
a. Any Special Rules that Apply to this Asset?
i. Personal Injury Recovery: Personal injury recovery caused by a 3rd party tortfeasor is
the injured spouse's SP before or after marriage, but tort recovery is CP if the injury
occurred during marriage. Upon death, tort recovery treated as CP.
1. At divorce, the spouse injured will receive the award, or what is left of it unless
justice requires a different allocation.
2. HOWEVER, personal injury recover against a spouse is her separate property
ii. Education/Training Expenses: The community has a right of reimbursement for one
spouse's education expenses if CP funds were used to pay for the expenses, the earning
capacity of the educated spouse was substantially enhanced and the spouses did not
waive the right of reimbursement by a signed agreement.
1. Equitable Defenses:
a. Presumption that the community has already substantially benefitted
from education or training (only go back 10 years from present)
b. The other spouse received community-funded education
c. If the need for spousal support is reduced as a result of education or
training, then maybe no community reimbursement
iii. Business/Professional Goodwill: Business and professional goodwill represents those
qualities that generate income beyond that derived from the labor of a spouse and the
reasonable return on capital and physical assets. Treated like CP.
1. Two valuation techniques:
a. Market Sales valuation (Expert testimony)
i. Price the goodwill would command in a sale of the business or
professional practice
b. Capitalization of past excess earnings are attributable to goodwill
i. Ascertains the present value of future stream of income that
the goodwill developed during the marriage will generate in
the business or professional practice.
ii. What average person in that job would make - family
expenses (* years) - whatever is left over = biz goodwill
2. Peraira – Labor of one of the Spouses – initial investment plus reasonable rate of
return.
3. Van Camp – Unique nature of SP asset or Business – Community gets what
would have been your sellary, you get the rest.
iv. Stock Options: Stock options awarded during marriage are community property and
courts use the time rule to apportion the CP ownership interest.
1. Time Rule Equation:
a. Nelson: To entice new employees
i. If married when options awarded (to reward old employees:
Nelson)
1. Date of Grant to date MEC ends / date of grant to
exercise date = CP
ii. If married after options awarded:
1. Numerator = DOM date MEC ended

- 11 -
2. So, (DOM to date MEC ended) / (date option
awarded to date of exercise) = CP
b. Hug: to reward old employees
i. If married when options awarded (to reward old employees:
Nelson)
1. Date of start of employment to date MEC ends / date
of start of employment to exercise date = CP
ii. If married after options awarded:
1. Numerator = DOM date MEC ended
2. So, (DOM to date MEC ended) / (date option
awarded to date of exercise) = CP
v. Pension Benefits: CA treats retirement pensions as CP or SP depending on when the
right was earned. Vested or unvested pension benefits earned during marriage are
community property and courts use the time rule to apportion the CP ownership interest
1. Time Rule: years employed during marriage/total years of employment = CP %
a. If the spouse is not eligible to retire upon divorce, 3 options for court:
i. Cash out the Non-Participant Spouse (NPS) upon divorce by
awarding assets equal value (most likely)
ii. Pay benefits to the NPS when and if received (lease likely)
iii. Retain jurisdiction “continuing jdx”
b. If spouse is eligible to retire, then use above formula.
2. Look out for FEDERAL retirement (ERISA) – PREEMPTION might occur
vi. Disability Pay & Worker's Comp: Disability pay or worker's compensation benefits are
treated like wage replacement and classified according to when received, not when
earned, and the characterization of the benefits depends on what it is intended to replace.
1. Are the disability payments intended to be martial earnings or post-divorce
earnings?
vii. Severance Pay: If the severance pay resembles a retirement pension because it was
earned through employment during marriage, the severance is treated like CP. If the
severance is intended to replace lost earnings upon retirement, it is treated like SP after
divorce or permanent separation.
viii. Life Insurance: Upon the death of an insured spouse, the 3rd party beneficiary &
surviving spouse each get 1/2 of whole life insurance proceeds if policy was paid with CP
funds. If policy was paid for with CP and SP funds, courts employ the buy-in rule to
apportion the CP ownership interest in the policy.
1. Buy In: # of premium payments made with CP/total # of premium payments =
CP %
a. Remember, whatever % this formula gets is CP, so spouse only entitled
to ½ of it.
2. Term insurance has no investment feature, so most courts hold that it has no
value upon divorce. Upon death, courts will employ the apportionment method
or hold that the characterization of the final premium payment (who paid the
last installment) will determine whether the proceeds are CP or SP
ix. Property Insurance: There is no buy-in rule for SP property, so the proceeds from an
insurance policy for SP property are SP, even if CP funds were used to make the
premium payments. However the community can claim reimbursement for CP funds
used to make the premium payments
VIII. PREEMPTION ISSUES
a. Federal Law Preempts Community Property Law:
i. Federal Homestead Claims: Characterization depends on federal homestead law
ii. Armed Forces Life Insurance benefits: Characterized as SP
iii. US Savings Bonds: Characterized as SP unless fraud is involved
iv. Social Security Benefits: SP
b. Property with Federal Aspects:
i. Railroad Retirement Benefits: Characterized as SP if benefits are parallel to SS benefits
and apportioned CP if benefits are supplemental .

- 12 -
ii.
Military Retirement benefits: characterized as apportioned CP
iii.
Military and VA Disability Benefits: Characterized as SP
iv.
Civil and Foreign Service Pension: characterized as apportioned CP
v.
Copyrights: Cp division of copyright proceeds are not preempted by federal copyright
law
IX. DISPOSITION
a. Distribution at Divorce:
i. Equal Division Requirement: Upon divorce, all CP assets are divided equally between
spouses based upon an item theory of distribution.
ii. Deviation from Equal Division Requirement:
1. Court decisions where economic circumstances warranted an unequal division
of CP assets:
a. Family residence (don’t want to harm the children), shares of closely
held corporations, pension benefits, artwork, stockholder voting control
2. Statutory exceptions to the equal division requirement:
a. Misappropriation, SP debts, Tort liability, personal injury recovery,
negative community
b. Distribution at Death:
i. Property Distribution by Will/Testamentary Transfer: A spouse may transfer all of
his separate property and one-half of the community property by will.
1. If a gift was made without the other spouse's consent, the non-consenting spouse
can void the gift in its entirety during the donor's lifetime. However, if the
testator is dead, the surviving spouse may only recover her 1/2 CP interest.
2. Widow's Election Clause in a Will: If the testator tries to devise all of the CP by
will, or has included an explicit widow's election clause in the will, then the
surviving spouse must make an election between her CP rights or her rights
under the will.
ii. Property Distribution by Intestacy: If a spouse dies intestate, his one-half CP interest
passes to the surviving spouse and the surviving spouse's share of the decedent's separate
property depends upon the number of heirs that survive the decedent.
1. If decedent has no surviving heirs: surviving spouse takes ALL of his SP
2. If decedent has only one surviving heir: surviving spouse takes 1/2 of his SP
3. If decedent has more than one surviving heir: surviving spouse takes 1/3 of his
SP
c. Creditor's Rights to Property:
i. Property that is liable for debts:
1. A creditor can reach a debtor spouse's SP and the entire CP to satisfy debts
incurred before and during marriage. After divorce or legal separation, a
creditor cannot reach the CP awarded to a spouse unless that spouse incurred the
debt or was assigned the debt by the court.
a. A non-debtor spouse's CP earnings are not liable for debt incurred
before marriage if they are held in a separate bank account where the
debtor spouse has no right of withdrawal.
i. Liability for necessaries (food/clothing/shelter/medical) during
the marriage:
1. Non-debtor spouse is personally liable for
necessaries, creditors may reach her SP. Non-debtor
can only be reimbursed if CP or SP funds were
available at the time.
ii. When Debt is Incurred: Generally, debt is incurred at the time the obligation arises.
1. Tort: Tort debt is incurred when the tort occurs.
2. K: K debt is incurred when the k was made.
3. Child/Spousal Support: from a prior relationship is treated like SP debt incurred
before marriage.
iii. Liability for Debt upon Divorce: personally liable for debts she incurred or assigned to
her by court.

- 13 -
iv. Right of Reimbursement for Payment of Certain Debts:
1. The non-debtor spouse can be reimbursed for CP funds used to pay
child/spousal support from a previous relationship but only if the debtor spouse
had SP funds available at the time to pay the debt.
2. The non-debtor spouse can be reimbursed for SP funds used to pay for debtor
spouse's necessaries, but only if debtor spouse had SP or CP funds available at
the time to pay the debt.
v. Tort Liability: CP is subject to the tort liability of either spouse. If the tortfeasor was
acting for the benefit of the community, liability is first satisfied from CP and then from
the tortfeasor's SP. If the tortfeasor was not acting for the benefit of the community, then
liability is first satisfied from the tortfeasor's SP and then CP.

- 14 -
REMEDIES CHECKLIST
10 SECOND CHECKLIST
I. Tort Remedies
a. Damages
b. Legal Restitution
c. Equitable Restitution
d. Injunction
II. Contract Damages
a. Damages
b. Restitution
c. Specific Performance
d. Rescission
e. Reformation
TORTS
CONTRACTS
Legal Restitution Equitable Misc Legal Restitution Equitable

C Legal Equitable PI Sat C Legal Equitable SP
N RD CT TI Crime C RD CT Resc
P R EL TRO Contempt N R EL Ref
E LD E
No P QC
DETAILED OUTLINE
I. TORT REMEDIES
a. Legal remedies
i. Damages
1. Compensatory: are based on the injury to the plaintiff. P is entitled to
compensatory damages to put her in the position she would be in had the wrong
not occurred. Requires:
a. Actual causation
b. Proximate causation - foreseeability
c. Certainty
d. Mitigation
i. Special damages are awarded for economic losses (e.g. med
exp, lost earnings) and must be calculated w/sufficient
certainty (past losses - look for history; future damages - “all
or nothing” rule)
ii. General damages are awarded for non-econ losses (e.g., pain
& suffering) and jury can award any amount.
2. Nominal: are awarded when there is no actual injury to the P and are designed
to vindicate the P’s rights
3. Punitive: requires that P first have been awarded compensatory/nominal
damages, D’s fault must be greater than negligence, and the award is relatively
proportionate to actual damages (limited to a single digit multiple unless
conduct extreme)
a. Willful, wanton or malicious
b. Restitutionary Damages: “unjust enrichment”
i. Legal Remedies
1. Restitutionary Damages: Measured as the value of benefit conferred on D

- 15 -
a. If compensatory and restitutionary damages are avail, discuss both and
award the larger sum.
b. Punitive damages can be attached if the underlying cause of action is in
tort.
2. Replevin: allows P to recover possession of specific personal property where P
has a right to possession, and D wrongfully withholding the property.
a. Special rule: P may recover the chattel before trial if P posts a bond,
unless D defeats immediate recovery by posting a “redelivery bond”
b. Replevin is almost always coupled w/damages (compen/restit) for lost
use or benefit to D during the time of the wrongful withholding.
3. Ejectment: allows P to recover possession of real property where P has a right
to possession, and D in possession is wrongfully withholding the property.
a. Most always coupled with damages (compens/restit)
ii. Equitable Restitutionary Remedies
1. Constructive Trust: are imposed on improperly acquired property to which D
has title (vs. possession) to avoid unjust enrichment. The D serves as trustee and
must return the property to the P.
a. If the D no longer has title to the property, then tracing is allowed so P
can follow the property to whatever form it takes.
b. Must be an inadequate legal remedy
c. BFPs prevail over plaintiff
d. P prevails over unsecured creditor
2. Equitable Lien: are imposed on improperly acquired property to which D has
title to avoid unjust enrichment. The property is subject to an immediate court-
ordered sale and P receives the proceeds. If the proceeds are less than FMV of
property when it was taken, P will also receive a deficiency judgment
a. An equitable restitutionary remedy that imposes a lien on D’s property
to secure payment of debt owed to plaintiff because D misappropriated
P’s property.
i. Must be a Inadequate legal remedy
ii. Tracing allowed
iii. BFPs prevail over plaintiff
iv. P prevails over unsecured
3. Which do I use – Equitable Lien/Constructive Trust?
a. Constructive trust when:
i. Value of property has increased. CANNOT be used when D
has improved other property with D’s property (Embezzled
P’s funds to build addition to house)
b. Equitable Lien when:
i. The value of the property misappropriated goes down. Use
when D has improved other property with P’s property
ii. When D’s property cannot be traced solely to P’s property,
only equitable lien is avail
1. E.g. D misappropriates money and uses it to remodel
his house. Since title to the home was not obtained
by the use of money, property remedy is an equitable
lien on it.).
c. Equitable Remedies
i. Injunctive relief: is an order where D is enjoined to do or refrain from doing something
1. Permanent injunction
a. Requirements (I Put Five Bucks Down)
i. Inadequate legal remedy
1. Replevin inadeq b/c sheriff unable to recover it or D
can file a redelivery bond and run off with or destroy
the chattel in the interim
2. Ejectment inadeq b/c sheriff may refuse to act

- 16 -
3. Money damages inadeq b/c 1) Too speculative, 2) D
is insolvent 3) Irreparable injury (fact inquiry; injury
related to “unique” property = irreparable injury), 4)
Avoiding a multiplicity of actions (hint: prior history
of litigation b/t same parties relating to this type of
action).
ii. Property right/protectable interest (any legitimate property
interest) or protectable interest is involved.
1. Trad. Rule: equity will grant relief only where a
protectable property right is involved.
2. Modern trend: protectable interest will suffice- do not
need a property right
iii. Feasibility of enforcement
1. Negative injunction “stop doing that” has no
enforcement problem. Mandatory “do something”
injunc may have enforcement problems based on i)
difficulty of supervision, or ii) concern w/effectively
ensuring compliance.
a. Mandatory injunction will be denied if the
act involves great taste, skill or judgment, a
series of acts over a period of time, or an out
of state act is required by a non-resident D
iv. Balancing of hardships: (esp important in nuisance and
trespass to land) 4 Rules
1. There must be a gross disparity b/t P’s benefit and
D’s hardship.
2. Even then, there will be no balancing if D’s conduct
was willful.
3. Always consider awarding money damages
4. Hardship to the public is also taken into account
(approach: discuss D’s and public’s hardship and
deny injunction and award P money damages)
v. Defenses
1. Laches: is concerned with the effect of passage of
time. The clock starts to run when P knows of the
injury, and delay bars right to relief when delay is
unreasonable and prejudicial to D. (never greater
than SOL; if applicable, consider awarding money
damages)
2. Unclean hands: is avail only if P’s alleged improper
conduct is related to the lawsuit.
3. Impossibility: Impossible to comply with court order
4. Free speech: Enjoining violates free speech
principles
b. Permanent Injunction occurs: After trial on merits
2. Temporary injunction
a. Requires P to establish that she will suffer irreparable injury while
waiting for a full trial, and likelihood of her success on the merits.
i. Showing of irreparable harm
1. BALANCE THE HARDSHIPS
ii. Establish P’s likelihood of success
b. Bond required: the court should impose a bond requirement on P to
reimburse D if the injunction injures him and P does not succeed.
c. Temporary injunction occurs: Pending full trial on merits
3. Temporary Restraining Order (TRO)

- 17 -
a. requires irreparable injury while waiting for a hearing for a temporary
injunction, and likelihood of success on the merits
i. Showing of irreparable harm
1. BALANCE HARDSHIPS
ii. Establish P’s likelihood of success
b. TRO hearings can be ex parte, thus notice and adversarial proceedings
are not req’d, but if possible, a good faith effort must be made to give D
notice and a chance to contest.
c. TRO limited to 10 days.
d. Temporary Restraining Order: Pending temporary injunction hearing
4. Injunctive relief is almost always coupled with money damages for injuries
incurred in the time period prior to obtaining the injunction.
d. Miscellaneous
i. When P recovers full payment from one tortfeasor, either by settlement or payment from
a judgment, there is satisfaction and she may not recover further against any other joint
tortfeasor.
ii. Equity will not enjoin future commission of crimes. (hint: criminal statute)
1. Say: “it’s a crime but no injunction on that basis”
2. See if the conduct could be characterized as a tort. If so, injunction avail
3. An injunction binds: i) parties, ii) employees and agents acting w/notice, iii)
third parties acting w/notice.
iii. Erroneous injunctions must be obeyed, but can be modified or dissolved.
iv. Contempt
1. Civil contempt (to coerce): fine or imprisonment (D can get out by agreeing to
comply)
2. Criminal contempt (to punish): fine or imprisonment (D cannot get out of prison
for set time)
3. There no contempt for non-compliance w/a money judgment.
v. Tort Fact Pattern Possibilities
1. Personal property torts: 3 basic fact patterns
a. If property destroyed  compensatory damages
b. If property damaged  compensatory damages
c. If property has been dispossessed . . .
i. compensatory damages
ii. restitution damages (if D benefits)
iii. replevin, mandatory injunction (if chattel unique and damages
and replevin won’t work)
iv. constructive trusts/equitable liens (particularly if D is
insolvent and/or “tracing” facts are involved)
v. self help (reasonable force to recapture)
2. Real property torts: 5 basic fact patterns
a. Simple trespass: nominal damages, restitutionary damages, injunction
(avoiding multiplicity of actions)
b. Destruction/damage of realty: compensatory damages, injunction
c. Dispossession: compensatory damages, restitution damages, ejectment
(since it’s avail, no injunction), constructive trusts/equitable liens
d. Encroachment*: compensatory damages, injunction (probably
emphasize balancing of hardships). Note: NO restitution.
e. Nuisance*: compensatory damages, injunction (probably balancing of
hardships). Note: NO restitution.
3. Personal injury torts: Compensatory damages: Economic losses/special
damages: certainty rules apply. Noneconomic losses/general damages: certainty
rules do not apply. Lump sum payt discounted to present value (inflation not
taken into account). Injunction (only against prospective intentional tortious
conduct)

- 18 -
4.
Fraud: damages, constructive trust/equitable liens. (always consider if it also
should be analyzed as contracts case, and whether punitive damages should be
awarded)
II. CONTRACT REMEDIES
a. Legal
i. Damages
1. Compensatory in contract: require actual causation, foreseeability (at K
formation), certainty, and mitigation
2. Consequential: Foreseeable at time of contract, related to the breach
3. Nominal: Available
4. NO punitive
5. Liquidated Damages: are valid if 1) damages are very difficult to ascertain at
the time of K formation, and 2) this was a reasonable forecast of what they
would be.
a. If the clause is valid, only liquidated amount available.
b. If invalid, only actual damages available. (Clauses providing either
actual or liquidated damages are invalid and only actual damages are
avail)
b. Restitutionary Remedies
i. Legal
1. Restitution: available for the value of the benefit to the D.
2. Replevin: is available if the D is insolvent or the property is unique
3. Ejectment: See above
4. Quasi-contract is a legal restitutional remedy that is substitutional in nature. P
is awarded a sum of money measured by the reasonable value of the D’s ill-
gotten gain to avoid unjust enrichment.
ii. Equitable Restitutionary remedies
1. Constructive Trust
2. Equitable Lien
iii. Restitutionary “contract” fact pattern: K “fails” after P has rendered performance
(partial/complete)
1. Unenforceable contracts due to e.g., mistake, lack of capacity, SOF, illegality
a. P can get restitutionary damages for property/money given to, or
services rendered for D for the value of the benefit. (recovery may be
greater than K rate)
b. P can get replevin to get back the property if it’s unique or D is
insolvent.
2. Breached contracts
a. If P is the non-breaching party:
i. P can get restitutionary damages for property/money given to,
or services rendered for D for the value of the benefit.
(recovery may be greater than K rate)
1. Hypo: P rendered legal services for incorporating D’s
new business, pursuant to an unenforceable K. D
decides not to start the business and repudiates K.
2. Hypo: if value of services if GREATER than the K
rate, can P recover it? Yes
ii. P can get replevin to get the property back if unique or D is
insolvent.
b. If P is the breaching party:
i. Traditional view: no recovery
ii. Modern view: recovery allowed (cannot be greater than K rate
and is reduced by any damages suffered by D as a result of the
breach).
c. Equitable Remedies
i. Specific Performance – 6 steps (Cha Cha Is My Favorite Dance)

- 19 -
1. Requirements
a. Valid K
b. K conditions of P must be satisfied: already performed, ready and able
to perform or excused from performing
c. Inadequate legal remedy alternative: damages are speculative, D is
insolvent, multiple suits are necessary, thing bargained for is unique
(All land is unique. Personal property is not unique unless one of a
kind or very rare, personal significance, or circumstances make chattel
unique. Tested at time of litigation, not K formation)
d. Mutuality of remedy: Court will reject the mutuality argument it if it
feels secure that P can and will perform. Grant SP and have the decree
provide for simultaneous performance.
e. Feasibility of enforcement : Personal services K NOT specifically
enforceable (involuntary servitude)
f. Defenses
i. Equitable
1. Laches
2. Unclean hands
3. Unconscionability
ii. Contract
1. Mistake
2. Misrepresentation
3. SOF
2. 2 Favorite “Conditions” Fact Pattern
a. Deficiencies fact pattern: (land sale K)
i. Where the seller cannot deliver the agreed upon consideration:
1. The P-seller i) Can enforce the K if the defect is
minor, ii) cannot enforce the K if the defect is major,
unless the seller can cure before closing.
2. The P-buyer i) Can enforce the K even if the defect
is major, ii) Cannot, however, enforce the contract if
the defect is very major.
ii. If specific performance is granted even though a defect still
remains, the court will abate the purchase price to account for
the deficiency.
b. Time is of the essence clause fact pattern: (land sale K, express time of
essence clause, forfeiture provision, partial performance e.g., down
payment or installment payment, buyer makes a late payment, buyer
brings suit for SP)
i. Where the buyer does not meet the K condition of timely
performance, the court will look to avoid the harsh result of a
forfeiture by considering the following factors: the loss to the
seller is small, tardiness is de minimis, waiver (seller has
accepted late payments in the past), and buyer would suffer
undue hardship
1. On bar exam, you should almost always award
specific performance.
2. Under the modern trend, P would receive
restitutionary relief if specific performance not
granted.
c. Contract Defenses: SOF/Part performance doctrine problem (involve
land + oral K)
i. If one has rendered 1) valuable part performance 2) in reliance
on the K, this will take the case out of the SOF and SP will be
granted.

- 20 -
ii. What is valuable part performance? 2 of 3 satisfies valuable
part performance: Payment (whole in part), possession,
valuable improvements (modern trend: valuable services)
3. Specific performance/two problem areas:
a. Equitable conversion: if the land sale K is specifically enforceable, an
equitable conversion occurred upon execution- B and S’s property
interests switch. Thus, B has real property interest and S has personal
property interest.
b. Covenants not to compete enforceability
i. Validity tests: (1) covenant must protect legitimate interest of
person in whose favor it runs (service must be unique) AND
(2) covenant reasonable in geographical and durational scope
ii. Rescission: occurs where the original contract is considered voidable and rescinded. It
requires 1) grounds for rescission, and 2) there are no valid defenses (unclean hands,
laches; negligence is not a good defense). “Good Dog”
1. Grounds
a. Mistake
i. Mutual mistake – rescission granted; collateral mistake (going
to quality, desirability, or fitness of property for a particular
purpose) – rescission denied
ii. Unilateral mistake – rescission denied, unless 1) non-mistaken
party KNOWS OR SHOULD HAVE KNOWN of the
mistake. Modern trend exception: if mistaken party would
suffer undue hardship if there is no rescission.
b. Misrepresentation: rescission granted if P shows she actually relied
upon the misrepresentation.
c. Other formation defenses
i. Coercion, undue influence, lack of capacity, failure of
consideration, illegality
2. Defenses
a. Laches
b. Unclean hands
iii. Reformation: changes the written agreement to conform w/the parties’ original
understanding. It requires 1) a valid contract, 2) grounds for reformation, and 3) no
defenses. “Very Good Dog”
1. 3 Steps:
a. Valid K
b. Grounds
i. Mistake
1. Mutual mistake- reformation granted
2. Unilateral mistake- reformation denied unless non-
mistaken party KNOWS of the mistake
ii. Misrepresentation: Reformation granted
c. Defenses
i. Laches
ii. Unclean hands
d. Specific Contract Fact Pattern Possibilities
i. 1) P has been injured, 2) D derived a benefit, 3) Does P want the property returned, 4) P
want the K performed, 5) P wants the K ripped up, 6) P wants the K rewritten.
ii. Threshold inquiry fact analysis for compensatory damages: Which party to the K
committed the breach and how did they do it?
iii. Potentially available remedies
1. Personal Property Sale K:
a. compensatory damages (seller’s breach: does not convey or delivers
damaged goods; buyer’s breach: does not pay),
b. restitution,

- 21 -
c. specific performance,
d. rescission, reformation
2. Real Property Sale K:
a. compensatory damages (seller’s breach: does not convey; buyer’s
breach: does not pay),
b. restitution,
c. specific performance,
d. rescission,
e. reformation
3. Construction K:
a. compensatory damages (owner’s breach: does not pay; builder’s
breach: non-completion or defective completion),
b. restitution (only builder),
c. specific performance (only owner – very difficult b/c of enforcement
problems)
4. Personal Services K:
a. compensatory damages (employer’s breach: wrongfully terminates;
employee’s breach: wrongfully quits),
b. restitution (only employee for services rendered),
c. specific performance (avail for a valid covenant not to compete; not
avail for employment K)

- 22 -
WILLS CHECKLIST
10 SECOND CHECKLIST (RICE B ROID)

I. Execution of the Will
II. Revocation of the Will
III. Components of the Will
IV. Interpretation of the Will
V. Intestate Succession
VI. Rights of Surviving Spouse and Children
VII. Bars to Succession
VIII. Distribution of the Estate
IX. Other Issues
WCR – CIIS - BDO

Wills Cap Rev Comp Int. I/S S/S Bars Dist Other
A I/D PA Int Mist Share S/S H Abate K
C F SI IBR L + AL Adv O/C Exon J/M
H UI DRR RBC Adopt Rest.
OOL AIS SD
AD PO
DETAILED OUTLINE
I. EXECUTION OF WILLS
a. Attested Wills:
i. 4 Elements:
1. Must be a writing (in CA no oral wills)
2. Signed by one of the following three people:
a. 1) Testator (“X” if illiterate),
b. 2) a 3rd person, in T’s presence and at testator’s direction, if T
incapacitated
c. By a conservator pursuant to a court order
3. The signing by the T, 3rd person, or conservator, must be done in the joint
presence of two witnesses, both T and Ws present at the same time.
a. If sign in front of only one witness, T allowed to acknowledge to the 2nd
W, that this is his signature, but both T and W1 must be present when T
acknowledges signature to W2
b. CA Rules
i. Ws need not sign in the presence of each other.
ii. Ws can sign anywhere on doc
iii. Usually T signs first: some court say must sign first, but
modern law says valid as long as signs before they leave the
room.
iv. Ws cannot sign after T’s death
4. Ws understand that the instrument they are signing is T’s will
ii. Interested witnesses: is a beneficiary under the will.
1. Still valid will
2. Unless there are two other disinterested Ws, then presumption that witness-
beneficiary secured gift by wrongdoing. If interested W cannot rebut, only takes
an intestacy share.
a. Does not apply if the W-beneficiary is taking in a fiduciary capacity
(trustee of trust)
b. Conditional Wills: one whose validity is made conditional by its own terms. Will is probated if
the condition is satisfied.

- 23 -
c. Holographic (Handwritten) Wills: A holographic will is valid if the testator signed the will and
the material provisions are in testator’s own handwriting. (extrinsic evidence is allowed to
ascertain T’s intent);
i. Dates not required for holographic will, but absence of date can create problem where:
1. Undated holograph is inconsistent with provisions of another will; OR
a. If so, undated holograph invalid to extent of inconsistency unless
shown to have been executed after date of other will
2. Testator lacked testamentary capacity at any time during which holograph might
have been executed
a. If so, undated holograph is invalid unless shown to have been executed
when T had testamentary capacity
ii. In CA, holographic wills are permitted and can revoke a codicil so long as the formalities
req’d of a holographic are followed.
d. Testamentary Capacity: At time of execution, must:
i. At least be 18 years old,
ii. Understand extent of her property,
iii. Must know the objects of her bounty (parents, issue, etc),
iv. The nature of her act.
1. Without these, entire will is invalid. Passes through intestacy unless under a
previous will there was capacity
v. Insane delusion: At the time of execution, must:
1. T had a false belief,
2. Belief was product of sick mind,
3. No evidence to support the belief,
4. Causation – delusion affected the will
a. Only part of will that was affected is invalid
vi. Fraud: 1) representation, 2) of material fact, 3) known to be false by the wrongdoer, 4.)
for the purpose of inducing action or inaction, 5) that induces action/inaction
1. Fraud in the execution: Someone forges T’s signature to a will. Entire will
invalid
2. Fraud in the inducement: Wrongdoer’s representations affect the contents of the
will. Only part invalid.
3. Fraud in the prevention of revoking the will: Because of fraud testator fails to
change his will leaving the property to the one who defrauded T. Some courts
will impose a constructive trust on the property and compel transfer to
appropriate recipient. Some courts will do nothing.
vii. Undue Influence: portion of a will affected deemed invalid if there was a prima facie
case or by presumption, or statutory. DISCUSS ALL 3 ON TEST, THEY ALL WORK
IN DIFFERENT SITUATIONS
1. Prima face case: the portion of a will that is affected will be invalid if:
a. Susceptible to undue influence,
b. The wrongdoer had access to the testator and
c. Actively participated in the undue influence to get the gift,
d. Which ends in an unnatural result (takes devise he ordinarily would not
be expected to take).
2. Presumption: the portion of a will that is affected deemed invalid if:
a. A confidential relationship exists between the testator and the
wrongdoer (even two close friends)
b. Active participation
c. An unnatural result
3. Statutory: CA law invalidates a donative transfer from a transferor to:
a. A person who drafted the instrument OR
b. A person who is related to, in a domestic partnership with, cohabitates
with, partner, employee of the DRAFTER, OR
c. A person in a fiduciary relationship with the transferor and who
transcribes the instrument or causes it to be transcribed.

- 24 -
i. Does not apply if the transferor is related to, married to, in a
DP with, or cohabitants of the drafter
ii. Summary: So don’t ever give it to someone that is related to
the drafter, unless that drafter is related to you.
1. Consequence: transferee does not take the gift, but
only to the extent the gift exceeds the person’s
intestate share. The excess goes by residuary if any,
or by intestate succession, or constructive trust,
whichever works better.
e. Choice of Law: The will admitted into probate in California if the will complies with the
formalities and execution of:
i. Complies with CA law OR law of the place of executed, OR law of the place of T’s
domicile at the time of execution.
II. REVOCATION OF WILLS
a. Revocation
i. By Physical Act: A will is revoked if it is burned, torn, canceled, destroyed or obliterated
(erasing), if the T has simultaneous intent to revoke, and the act was done by T, or by
someone in T’s presence or direction
1. Cancellations and Interlineations (crossing out, lining through, writing b/t
lines):
a. If on top of formal will, they don’t create holographic codicil unless all
material provisions (gifts + names of beneficiaries) are in Ts own
handwriting; If on top of holographic will, does create new disposition
b. If interlineations creates gift greater than cancelled provision = DRR
may operate to preserve original gift (b/c intent was there to give her
money from will 1)
c. If interlineations creates gift less than cancelled provision = DRR
cannot be used (b/c intent to give her less, maybe even nothing, so she
takes nothing)
2. Duplicate Wills: If testator or one in his presence at his direction revokes one of
the duplicate originals (not a photocopy of the originals), the other duplicated
original is revoked.
3. Mutilated Wills: there is a rebuttable presumption testator mutilated will with
the intent to revoke the will if a mutilated will was last seen in testator’s
possession.
ii. By Subsequent Instrument: revocation can be express (subsequent writing expressly
revokes prior will); or implied (subsequent will revokes prior will if totally disposes of Ts
estate). The revoking instrument must be executed w/the formalities req’d for execution
of the will.
b. Dependent Relative Revocation: a court will allow revival by DRR if there was a revocation of a
prior will based on a mistake of law or fact, and but for the mistake, the testator would not have
revoked the will. (revoke will 1 thinking will 2 is valid)
i. However, if a subsequent will that revokes a previous one is invalid, then DRR cannot
apply to will #2 because the 1st one isn’t actually revoked.
ii. Note: Whenever you determine a subsequent will is invalid, always consider whether
prior will be revived under DRR
1. Example 1: Will #1 revoked by physical act, Will #2 (substantially similar) not
valid as will. Try to revive 1 using DRR
2. Example 2: T makes Will #1, then Will #2 to revoke 1. However, Will #2
which is valid but doesn’t effectuate T’s intent. Court then revives using DRR.
iii. For DRR to apply:
1. There must be an alternate disposition
2. The alternative disposition must be ineffective, and
3. If the revocation is by subsequent instrument, extrinsic evidence is not
admissible to show the mistake.
c. By Operation of Law:

- 25 -
i. Divorce/Termination of Domestic Partnership: a devise is revoked if there is an
annulment or final dissolution of marriage. (legal separation does not count; devise is
reinstated if T remarries former spouse and will is unchanged but rule doesn’t apply if
will states otherwise.
d. Revocation by Ademption: When you give a bequest, but that specific item is no longer there –
what happens?
i. Classification of 4 Types of Gifts:
1. Specific Devise: gift of a particular item (unique; T intended that beneficiary
take precise thing); adeem by extinction only
2. General Devise: payable out of general assets of estate (nothing unique or
special); adeem by satisfaction of the gift or money in lieu of gift
3. Demonstrative Devise: hybrid of general and specific; gift from particular fund
but executor can resort to general property if fund is not enough
4. Residuary Devise: all other property not expressly disposed of in will
ii. Ademption by extinction:
1. CL: when a specific gift fails because the testator did not own the property at
testator’s death;
2. CA: Look to intent of T. Specific gift adeems by extinction only if T does 1)
not own property at his death and 2) T intended to adeem the gift at the time he
disposed of the specific property. No ademption by extinction of gifts of:
a. securities changing form, (If will says devise gets ABC stock, but ABC
merges & T now owns XYZ stock - devise gets XYZ stock (gift does
NOT fail))
b. conservator sells off assets, (Devise gets $$ from BA sale)
c. eminent domain award, casualty award, installment sale of property
paid after T’s death (if before see if can easily trace – evidencing intent
to not fail).
i. For all others, try to classify the gifts as general or try to trace.
iii. Ademption by satisfaction: You can transfer property to someone in an intervivos
transfer that is supposed to satisfy any amount the person was to receive in the will.
Establish:
1. The will provides for a deduction of the intervivos gift,
2. testator declares gift in a contemporaneous writing of the satisfaction,
3. beneficiary acknowledges in writing of the satisfaction, OR
4. The property is the same as the subject of a specific gift.
a. If beneficiary receives satisfaction but predeceases T, beneficiary’s
issue is treated as having received satisfaction unless T’s will or
contemporaneous writing states otherwise
b. If not made in cash, satisfaction valued 1) as expressed in
contemporaneous writing of T or beneficiary; or 2) at its FMV,
measured at time beneficiary came into possession of the property
e. REVIVAL:
i. CL: revocation of a codicil revives the prior will
ii. CA: the revocation of a subsequent codicil/instrument does not revive the prior will
unless the T intends the prior will to be revived. Extrinsic evidence is admissible to
prove T’s intent to revive.
III. COMPONENTS OF WILLS
a. Integration: doctrine permits papers/writings that were present at will execution to be part of T’s
will if T intended it to be her will and it was present at the time of execution.
i. Prove integration by establishing a physical connection among all papers (stapled) or
logical connection among pages
b. Incorporation by Reference: Theory is that a non-integrated writing is given testamentary effect
and becomes part of the will. Need 4 elements:
i. A document or writing
ii. The document or writing must have been in existence when the will was executed
iii. The document must be clearly identified in the will AND

- 26 -
iv. Testator must have intended to incorporate the document into the will (if prove 1-3, 4
usually implied by act)
1. “Exception” to Incorporation by Reference and Integration: Section 6132:
Disposing of Limited Tangible Property: if you have a 1) a writing, 2) referred
to in the will, 3) dated, 4) signed by testator, 5) describes property and recipient
with reasonable certainty, and 6) is personal tangible property (less than 5k each
item, 25k in the aggregate), then allowed in despite it violating IbR, or
Integration (wasn’t in existence, etc)
c. Republication by Codicil:
i. A codicil is a testamentary instrument executed subsequent to the execution of a will
intended to modify, alter or expand the will. To be valid, a codicil must be executed w/
the same formalities required for the execution of a will
ii. Two associated issues with codicils
1. Pour over wills and incorporation by reference: When a trust is modified after a
will, the will cannot incorporate by reference b/c the trust, as modified, was not
in existence at time of will. Now, if you republish the will via codicil, the trust,
as modified, was in existence at time of will.
2. Pretermission: RAISE BOTH ON EXAM
a. Example: Will executed in YR 1 giving money to charity, YR 2 child
born. YR 3, will republished
b. Most courts: Since republication after child born, no pretermitted
problem
c. Some courts: Since the codicil is a testamentary instrument itself, the
birth, marriage, etc. took place before the codicil, so they also are
precluded under this theory.
iii. Revocation of Codicil: Rebuttable presumption that T intended to revoke only codicil,
not will, if codicil is revoked; but presumption T intended to revoke will and codicil if
will revoked
iv. Codicil: testamentary instrument executed in compliance with statute of wills, which
modifies, amends or revokes a will.
d. Acts of Independent Significance: identity of beneficiary or a gift may be supplied by facts of
significance independent of Ts will; allow us to fill in blanks to Ts will with parol evidence
effectuated during the T’s lifetime that primarily for NON-testamentary motives and is
trustworthy. (e.g., ask, w/o will would this fact still exist?) i.e “To my church” – which church?
e. Pour-Over Wills: part or all of testator’s estate is devised to the trustee of the inter-vivos trust, to
be administered pursuant to the terms of the trust. Three ways to get a pour over will into probate.
DISCUSS ALL 3 ON TEST
i. Incorporation by Reference: A pour-over will is valid through incorporation by
reference if the trust is 1) in writing, 2) in existence at the time will was executed, 3) was
clearly identified in the will, and 4) the testator intended to incorporate the trust
instrument in the will. OR
ii. Independent Significance: whereby the pour-over provision will be validated by facts of
independent significance (which is usually the trust itself, since it survives, no matter
what the will does with the property) OR
iii. Uniform Testamentary Additions to Trusts Act: so long as trust is valid and was in
existence before or at time will was executed, even if modified later.
1. If trust modified after will executed, incorporation by reference no longer good
because trust as modified was not in existence when will was executed; but
provision can still be validated as act of independent significance or statute
IV. INTERPRETATION OF WILLS
a. Admission of Extrinsic Evidence (Mistake):
i. Mistake in Content: The wrong beneficiary is named or the wrong gift is made.
1. Mistake in Omission: No remedy. “to Jerry” but wanted “to Jerry and Sam”
2. Mistake in Addition: Remedy may be given. “to Jerry and Sam”, but only
wanted “To Jerry”

- 27 -
ii. Mistake in Execution: T signs wrong document thinking it is a non-testamentary
instrument, or signing the other will during reciprocal wills. First example not probated,
reciprocal will is probated.
iii. Mistake in Inducement: T is mistaken as to fact, and a gift is made or not made b/c of
that fact. Will is not changed. “I don’t give John anything, b/c he is dead”.
1. Narrow exception: “Because John is dead, I leave him nothing, b/c if he was
alive I would leave him $100”
iv. Mistake in description (ambiguity): where there is an ambiguity – (latent = not on face
of will; patent = on face of will), parol evidence can be used to establish the ambiguity
and to determine the meaning. Modernly parol evidence admissible to ascertain any type
of ambiguity.
v. Mistake involving Living Children (pretermission): “accidental omissions” where a
child is born or adopted after all testamentary instruments are executed AND he is not
provided for in any testamentary instruments.
1. A pretermitted child takes an intestate share of the estate, including assets in the
testator’s inter vivos trust.
a. “Exception”: A child born before execution of a testamentary
instrument is executed takes nothing because it can be inferred they
didn’t want to leave anything to the child.
i. Exception to that exception: If the testator thought the child
was dead or not existent, then he can still take. i.e. T fathers a
child and does not know the child exists.
b. Lapse and Anti-Lapse
i. Lapse: If beneficiary predeceases T, beneficiary gift fails (falls to residue if any; to co-
residuary devisees if already part of residue; or by intestacy)
ii. Anti-Lapse statute:
1. CL: Specific request that lapses passes through the residuary
2. CA: Issue of predeceased devisee step into shoes of predeceased devisee so gift
doesn’t lapse
a. Applies only if the predeceased devisee is a “kindred” or blood relative
of T / “kindred” of spouse or domestic partner ; NOT surviving,
deceased, or former spouse himself.
i. However, if the will evidences a contrary intent, [like a
condition], then there will be no taking by the substitute
beneficiaries.
V. INTESTATE SUCCESSION
a. Share of Surviving Spouse: Inherits CP and SP share
i. Inherits decedent’s SP as follows:
1. 100%, if decedent leaves no issue, parents, siblings, or issue of deceased siblings
2. 50%, if decedent leaves no issue but leaves parent(s) or parent’s issue (brothers
or sisters)
3. 50%, if decedent leaves one child or issue of a predeceased child
4. 33%, if decedent leaves two or more children or issue of predeceased children
b. Share not passing to Surviving Spouse: If intestate leaves no surviving spouse: 1) to issue: 2) to
parents: 3) issue of parents
i. Per Capita: If issue take by intestacy or by a will or trust that does not specify the
manner, they take in manner provided in Probate Code section 240: [Pg 67 in Wills
lecture handout]
1. Issue of the same degree take ‘per capita’ or equally and in their own right
2. Issue of more degree take ‘per capita by representation’
a. Make distribution at first level someone is living, giving one share each
to 1) all living people at that generation; and 2) deceased members of
that generation who leave issue (to be divvied up among the issue)
ii. Representation:
1. If a will or trust calls for distribution ‘per stirpes’ or ‘by representation’ or by
‘right of representation’

- 28 -
a. Diagram problem and make distribution at the very first level, even if
everyone is dead, so long as they left issue
c. Special problems:
i. Advancement: Requires writing that lifetime gift is advance payment of intestate share.
Advancement is an inter-vivos down payment on a devise to an heir apparent where the
testator declares in a contemporaneous writing, or the beneficiary acknowledges in
writing of the advancement.
1. If heir-apparent receives advancement but predeceases intestate, heir apparent’s
issue is not treated as having received an advancement unless advancement
states otherwise
2. If not made in cash, advancement is valued 1) as expressed in contemporaneous
writing of intestate or heir apparent; or 2) at its FMV at time heir came into
possession
ii. Adoption: Always treated as natural child of adoptive parents
1. For purposes of succession, adoption severs relationship to child’s natural
parents unless adoption is 1) by spouse of natural parent or after death of either
of the natural parents, or 2) child and natural parent lived together at some point.
2. Stepchildren/Foster children treated as having been adopted if 1) relationship
began during child’s minority; and 2) relationship continued throughout parties’
lifetimes; and 3) established by clear and convincing evidence that step-parent
or foster parent would have adopted but for ‘legal barrier.’ (biological parent
does not consent to adoption)
3. Equitable adoption arises when the parties hold themselves out as parent and
child.
iii. Nonmarital Children: In CA, marital status of parents is irrelevant
1. In domestic partnership, parent-child relationship presumed as to non-birthing
partner if 1) child is born during domestic partnership or 2) child is born after
domestic partnership but non-birthing partner is named on birth certificate or
pays child support
iv. Half-Bloods: relatives of half-blood inherit the same as whole blood
v. Posthumous Children: deemed heirs of intestate and beneficiaries of a will; a child
conceived during life of intestate or testator but born after his/her death
d. Simultaneous Death
i. Intestate: Must prove by clear and convincing evidence heir survived by D by 120 hours
ii. Will: Must prove by clear and convincing evidence beneficiary survived T
iii. Joint Tenancy: Must prove by clear and convincing evidence beneficiary survived T or
sever JT into tenancy-in-common and give ½ the property to the decedents’ estates.
iv. CP / QCP: Must prove by clear and convincing evidence beneficiary survived T or sever
JT into separate halves.
v. Life Insurance: Must prove by clear and convincing evidence that beneficiary survived T.
Otherwise goes to T’s estate.
VI. RIGHTS OF SURVIVING SPOUSE
a. Actually in the will/No will (Not omitted):
i. She is in the will: Two options:
1. She gets her ½ CP and takes property devised to her in the will (He wills away
the rest) OR
2. She gets her ½ CP and ½ of his QCP (Forced Share) BUT must renounce the
will
ii. There is no will: Passes by intestacy, she gets 100% CP, 100% of his QCP, and 1/3 to
100% of his SP
b. Pretermitted/Omitted Spouse: A surviving spouse who married the decedent after the execution
of all testamentary instruments and is not provided for in any testamentary instruments. Omitted
spouse receives a statutory share of assets decedent owned at death PLUS the assets held in any
revocable inter vivos trust.
i. Omitted Spouse gets:
1. The 50% of CP owned by the decedent (thus, she gets 100% of CP)

- 29 -
2.
The 50% of the QCP owned by decedent (thus, she gets 100% of QCP)
3.
A share of the decedent’s SP equal to her intestacy share but no more than 50%
of his SP
ii. Exceptions:
1. it was intentional from the instrument,
2. or the testator provided outside the instrument in lieu of a testamentary provision
(separate trust)
3. signed waiver by spouse
c. Pretermitted/Omitted Children: A child born or adopted after the testamentary instrument is
executed or not provided for therein will receive an intestate share of the estate, unless
i. it was intentional from the instrument,
ii. the devise was substantially all of his estate to the parent of the omitted child,
iii. or the testator provided outside the instrument in lieu of a testamentary provision
(annuity/separate trust)
d. Omitted Domestic Partner: Must be same sex or of opposite sex at least 62 years old. Rules are
the same as Omitted Spouse
VII. BARS TO SUCCESSION
a. Homicide: Those who feloniously and intentionally kill the decedent. Need conviction or, in
other cases, probate court determines guilt by a preponderance of the evidence (if no trial, b/c
killer also died before conviction)
i. Consequences: Killer is deemed to predecease the decedent and the anti-lapse statute
does not apply (killer and his issue do not take). A joint tenant does not receive the ROS,
but still keeps his ½ interest.
b. Elder Abuse: You abuse them, you don’t get anything
c. No Contest Clause: states that any contestant will lose her gift under the will. Generally,
enforceable, but strictly construed
VIII. DISTRIBUTION OF THE ESTATE
a. After Acquired Property. Will devises property acquired after the will was executed “Mary gets
my estate”.
b. Increase During T’s Lifetime. Stocks
i. Stock splits:
1. CL: not entitled to shares produced by the stock
2. ML: Uniform Probate Code adopted in CA: the beneficiary receives any
increase or change in stock at the time the will was executed if:
a. The T owned the stock shares at the time will was executed
b. The securities owned matched the securities being gifted in the will,
and
c. The change was initiated by the corporation, not the T.
ii. Stock dividends: same as stock splits
c. Increase After T’s Death and During Probate. Beneficiaries of specific devises receive all
increases; however, as a general rule, general devisees do not receive any increase, except interest
on gifts if not distributed one year after T’s death.
d. Abatement.
i. Omitted Children / Omitted Spouse. Order of abatement is 1) property not passing by
will / inter vivos trust 2) then all beneficiaries of T’s will & revocable inter-vivos trust
(pro rata).
1. Specific Gifts. Court can exempt a specific gift if abating specific gift would
defeat obvious intention of T.
ii. General Debts of T. Order of abatement is 1) intestate property, 2) residuary gifts, 3)
general gifts to non-relatives, 4) general gifts to relatives, 5) specific gifts to non-
relatives, then 6) specific gifts to relatives.
e. Exoneration. Unlike the common law view, California does not require automatic exoneration of
debt encumbering specific gifts. Rather, the devisee takes the specific gift “subject to” the
encumbrance, unless T’s will states otherwise (general direction “to pay all my just debts” NOT
good enough)
f. Will Substitutes.

- 30 -
i. Gifts Causa Mortis: a gift of personal property made in contemplation of imminent
death that is delivered, either actually, symbolically, or constructively (modernly found
whenever donor has done everything possible to effectuate delivery & no issue of fraud /
mistake).
1. Survival. If donor survives the peril, the gift is revoked by operation of law.
ii. Totten Trusts. [Look in Trusts Outline]
IX. OTHER ISSUES
a. Contracts To Make/Not Revoke A Will or Devise:
i. Contracts concerning wills are valid in the following circumstances
1. if the will states the material provisions of the contract,
2. there is express reference in the will to a contract,
3. there is a signed writing by the decedent evidencing a contract,
4. there is clear and convincing evidence of an agreement between decedent and
promisee (estoppel) OR
5. there is clear and convincing evidence of an agreement between decedent and a
third person for benefit of claimant. (estoppel too)
ii. Cause of action accrues when the decedent dies. Exception: unless D is engaging in
conduct that amounts to fraud
b. Joint Wills: wills of two or more people on one document are probated once when one person
dies and again when other dies;
c. Mutual Wills (Reciprocal Wills): separate wills of two or more people on one document which
are reciprocal
i. There is no presumption of a contract not to revoke or make a will
ii. It may be evidence of a contract, in conjunction with other evidence.
d. Remedies Available to the Promisee: plaintiff can sue decedent’s estate for damages, specific
performance, or a constructive trust remedy
e. Restrictions on Testamentary Dispositions:
i. Community property: a testator can only dispose of ½ of the community property
ii. Quasi-community property: a testator can only dispose of ½ of the quasi-community
property at death.
1. Inter Vivos Transfers. A testator may transfer his QCP in an inter vivos
transfer except the transfer is not allowed if deemed illusory & surviving spouse
invokes widow’s election.
iii. Widow’s election: Arises when T attempts to dispose of more than ½ of the CP or ½ the
QCP
1. the widow can elect to take the testamentary share or the ½ community property.
a. An inter-vivos transfer by decedent of the QCP to a 3rd person is
allowed, however:
i. Exception: When the transfer is illusory in that the decedent
retained some interest or control over the property (ownership,
use, co-tenancy), then the widow can restore ½ of the QCP to
the decedent’s estate.

- 31 -
PROPERTY CHECKLIST
10 SECOND CHECKLIST
I. Estates in Land
II. Adverse Possession
III. Landlord/Tenant
IV. Rights in the Land of Another
V. Covenants
VI. Conveyancing
VII. Security interests in Land
VIII. Fixtures
IX. Natural Rights
X. Zoning
Estate Concurren AP L/T Lnd Conve Securitie Fixture Water/ln zoning/tak

s t anth y s s d e
r
FSA JT HOAC Types E SOF Mortg Laterl/ Taking
E subj
Defeas TBE Ass/sub P DEED Forecl Watercour Zoning
l s
FSD TIC L L War Rip
Duties
Del C Record Prior app
FSSCS poss
To ES Grnd
FSSEI repar water
Life E QU & RNE Surface
E
EI CE
R IWH
Con
REvict
Vest T
Duties
R
R
W
DETAILED OUTLINE
I. ESTATES IN LAND
a. Present Possessory Estates
i. Fee Simple Absolute (FSA): is an absolute ownership of potentially indefinite duration;
freely divisible, descendible, and alienable
ii. Defeasible Fees: is an estate of infinite duration but may terminate on happening of
specified event.
1. Fee simple determinable (FSD):
a. GR must use clear durational language: “To A so long
as/during/until/while”
b. FSD is an estate where upon the happening of a stated event, the estate
automatically forfeits in favor of the grantor, called the possibility of

- 32 -
reverter. Devisable, descendible, alienable but always subject to
condition.
2. Fee simple subject to condition subsequent: GR must use clear durational
language AND reserve the right of reentry: “To A, but if X event occurs, GR
reserves the right to reenter and retake”
a. Upon the happening of a stated event, GR has option to exercise his
right of re-entry. (not automatic, must bring action to get land)
3. Fee simple subject to executory interest: “To A, but if X event occurs, then to
B”
a. FSSEI is an estate of where upon the happening of a stated event, the
estate automatically forfeits in favor of a Third Person, through a
shifting or springing executory interest.
i. A shifting executory interest: is an EI that follows the end of
the grantee’s interest.
ii. A springing executory interest is an EI that follows the end
of the grantor’s interest.
iii. Fee Tail: is an estate that used to descend to the grantor’s lineal heirs; now virtually
abolished and just creates a fee simple absolute
iv. Life Estates (consider waste): is an estate that is measured in life terms; a life estate pur
autre vie is measured by a life other than the grantee’s life.
1. Rents and profits: a life tenant is entitled to all ordinary rents and profits from
the land.
a. Must pay the interest on the loans, and pay taxes
2. Waste: a life tenant must not commit waste. Waste can be voluntary,
permissive, or ameliorative.
a. Voluntary waste: occurs when the life tenant affirmatively acts in a
way that decreases the value of the land.
i. The life tenant has a duty to not consume or exploit natural
resources unless [PURGE] Prior Use (Open Mines Doctrine-
only applicable in a life estate), Reasonable repair and
maintenance, Granted of right, OR Exploitation (land is only
suitable for exploitation).
b. Permissive waste: occurs when the life tenant allows the land to fall
into disrepair.
i. The life tenant has a duty to make reasonable repairs and pay
all ordinary taxes on the land to the extent there is
income/profits or, if none, then ordinary land taxes on land to
extent of premises’ fair rental value.
c. Ameliorative waste: occurs when the life tenant makes improvements
that increase the value of the land.
i. The life tenant has a duty to obtain consent of all known
remainderman before making improvements.
b. Future Interests
i. In grantor
1. Possibility of Reverter
2. Right of Entry
3. Reversion
ii. In Grantee or 3rd person
1. Executory interest

- 33 -
a. is a future interest created in a transferee, which is not a remainder and
which takes effect by either cutting short a transferee’s interest
(shifting) or cutting short a grantor’s or his heirs’ interest (springing).
i. Shifting executory interest: always follows a defeasible fee
and cuts short someone other than grantor
ii. Springing executory interest: cuts short O, the grantor
2. Remainders: are future interests created in a grantee that is capable of
becoming possessory upon the expiration of a prior possessory estate created in
the same conveyance in which the remainder is created and never follows a
defeasible fee. Remainders can be vested or contingent.
a. Vested Remaniders: are future interests created in an ascertainable
person and is not subject to any precedent conditions. Vested
remainders can be indefeasibly vested, subject to complete defeasance,
or subject to open.
i. Indefeasibly vested remainders: are future interests with no
conditions attached.
ii. Vested remainders subject to complete defeasance: are
future interests that are not subject to any condition precedent
but can be cut short by a subsequent condition.
1. Under the comma rule, when conditional language
in a transfer follows language that, taken alone and
set off by commas, would create a vested remainder,
the condition is a condition subsequent and you have
a vested remainder subject to complete defeasance.
If the conditional language appears BEFORE the
language creating the remainder, the condition is a
condition precedent and you have a contingent
remainder.
a. Example: "To A for life, remainder to B,
provided, however, that if B dies under the
age of 25, to C." A is alive. B is 20 years
old.
iii. Vested remainders subject to open: are future interests that
are vested in groups of takers.
1. Under the rule of convenience, the class closes
whenever one member can demand possession.
2. Womb rule: To A for life, then to B’s children. A is
alive. B has two children, C and D. Here, a child of
B in the womb at A’s death will share with C and D
b. Contingent remainders: are future interests created in an
unascertained person or subject to precedent conditions or both.
i. A precedent condition exists where a condition appears
before the language creating the remainder or is woven into
the grant to remaindermen.
1. Example: "To A for life, then, if B graduates from
college, to B." A is alive. B is now in high school.
Before B can take, he must graduate from college. He
has not yet satisfied this condition precedent

- 34 -
ii. Under the doctrine of worthier title, when a grantor tries to
create a future interest in his heirs, the grantor will have a
reversion, not his heirs.
1. Example: “To A for life, then to O’s heirs.”
iii. Under the rule of destructibility of contingent remainders, a
contingent remainder is destroyed if it was still contingent
when preceding estate ended; thus, O and O’s heirs would take
in fee simple absolute. ABOLISHED
1. Example: "To A for life, and if B has reached the age
of 21, to B."
iv. Under the rule in Shelley’s case, when a grantor creates a
future interest in the grantee’s heirs, the future interest merges
into a fee simple absolute in the grantee. ABOLISHED
1. Example: "To A for life, then, on A's death, to A's
heirs."
iii. Other issue to consider
1. Fixtures
iv. Limitations to consider
1. Rule Against Perpetuities: A future interest is void if there is any possibility,
however remote, that the given interest may vest more than 21 years after the
death of a measuring life.
a. Application: RAP applies to contingent remainders, executory
interests, certain vested remainders subject to open.
b. Measuring life: is one where that person’s life or death is relevant to
the condition’s occurrence; the interest must be specific to that person.
i. Under the fertile octogenarian rule, any person at any age
can be fertile.
c. Four-step approach: (1) determine the applicability, (2) identify the
condition precedent, (3) find a measuring life, (4) will we know if it
will vest or fail within 21 years of the measuring life’s death?
i. “Bad as to one, bad as to all”: to be valid, it must be shown
that the condition precedent to every class member’s taking
will occur within the perpetuities period (21 years). Any
possibility that it will vest too remotely with any class member
will void it entirely.
ii. Shifting executory interests: an executory interest with no
time limit to vest will violate the RAP and the offensive clause
is stricken.
d. Charity-to-charity exception: RAP never applies to charities
e. Reform doctrines: USRAP provides for an alternate 90 year vesting
period; others use “cy pres”
i. Wait and see or second look doctrine: the validity of any
suspect future interest is determined on the basis of the facts as
they now exist, at the end of our measuring life.
ii. Uniform Statutory Rule Against Perpetuities (USRAP): an
alternative 90 year vesting period
iii. Both the "wait and see" and USRAP reforms embrace: Cy
Pres Doctrine: "as near as possible"

- 35 -
1. If given disposition violates the rule, a court may
reform it in a way that matches grantor's intent while
still complying with the RAP; reduction of any
offensive age contingency to 21 years
c. Concurrent Estates
i. Joint Tenancy: is an estate of 2 or more parties w/ alienable right of survivorship
(expressed clearly by GR) and is created by 4 unities: time, title, interest, possession (T-
TIP INTENT)
1. Requirements:
a. Time: Take at same time
b. Title: same instrument
c. Interest: identical in kind and amount
d. Possession: same right to possess all parts
e. Intent: in the writing itself
2. Severance of a JT
a. Voluntary
i. Partition
b. Involuntary:
i. Death,
ii. Conveyance (taker is TIC with person)
iii. Mortgage:
1. Title Theory: Yes severance because the mortgagor
takes title
2. Lien Theory (majority): No Severance because no
change in title, rather only lien
iv. Creditor sale of interest in JT: creditor attempts to reach his JT
interest b/c of bad debts – no severance until the judicial sale.
ii. Tenancy by the Entirety: Marital estate akin to a Joint tenancy with a right of
survivorship
1. T-TIP (intent) + Marriage
a. Individual spouse cannot convey or encumber property, a deed or
mortgage executed by only one spouse is ineffective.
2. Severance:
a. Death, divorce, mutual agreement in writing, execution by a joint
creditor of both H & W
iii. Tenancy in Common:
1. each tenant owns individual parts and each pass a right to possession of the
whole. No right of survivorship. Each interest is descendible, devisable, and
alienable.
iv. Rights and Duties of Co-Tenants (include waste: look above)
1. Right to possess and enjoy the whole: wrongfully excluding a cotenant from
possession is “wrongful ouster.”
2. Right to rent from third parties: fair share of rental income
3. Duty to pay fair share of carrying costs: including taxes and mortgage interest
payments
4. Right to contribution for reasonable and necessary repairs: tenant seeking
contribution must first give notice
5. Duty not to commit waste; co-tenant has right to bring action for waste during
life of co-tenancy

- 36 -
6.
Right to bring an action for partition
7.
NO right to contribution for “improvements”: but at partition, the improving
cotenant is entitled to a credit for any increase in value and bear full liability for
any decrease in value of the property caused by her efforts.
8. NO right to adverse possession: no hostility, unless ousted
II. ADVERSE POSSESSION
a. Requirements [HO ACE)
i. Hostile
ii. Open and notorious
iii. Actual
iv. Continuous
v. Exclusive
b. Tacking- one adverse possessor may tack onto his time with the land his predecessor’s time so
long as there is privity which is satisfied by any non-hostile nexus (i.e. K, deed, will) UNLESS
there has been an ouster.
c. Disabilities: SOL will not run against the true owner who is afflicted by a disability (insanity,
infancy, imprisonment) at the inception of the adverse possession.
d. Related Issue: Marketability of Title: no marketable if by Adverse Possessor, but can perfect title
via a quiet title action
III. LANDLORD/TENANT
a. Nature of the Leasehold
i. Tenancy for Years: is a lease for a fixed period of time that automatically terminates at
the end of the term w/o notice.
1. Termination by surrender prior to expiration of the term is permitted if L
accepts and T gives proper written notice.
a. Note: A term of years greater than one year must be in writing to be
enforceable because of SOF
ii. Periodic Tenancy: is a lease for a successive intervals and renews automatically until L
or T give written notice of termination.
1. Arises expressly or by implication when: 1) land is leased w/no mention of
duration but provision is made for the payment of rent at set intervals, 2) where
oral term of years violates the SOF and results in a periodic tenancy measured
by the way rent is tendered, 3) or in a residential lease, where L elects to hold
over a T who has wrongfully stayed past the original lease.
2. Notice of termination must be equal at least the length of the period except that
only 6 months notice is required for a tenancy from year-to-year or greater.
iii. Tenancy at Will: is a tenancy for no fixed duration and will terminate at any time by
either party, but requires a reasonable demand to vacate.
1. Note: unless the parties expressly agree to a tenancy at will, the payment of
regular rent will cause a court to treat it as an implied periodic tenancy
iv. Tenancy at Sufferance: is a created when T wrongfully holds over after expiration of the
lease; gives wrongdoer a leasehold estate to permit L to recover rent.
1. HOLDOVER DOCTRINE: Holdover tenant: L either evicts T or elects to hold
him to a new term. If a tenant is given notice of rent increase before holdover,
then the tenant will have been deemed to acquiescence to the new rent rate
a. Commercial lease: year-to-year tenancy; residential lease: month-to-
month
b. Assignments and Subleases

- 37 -
i. An assignment is where a tenant transfers his entire interest. L and T2 becomes privity
of estate and becomes liable to each other for all covenants in the original least that “run
with the land.” L and T2 not in privity of K unless T2 expressly assumed all promises in
original lease. L and T1 no longer privity in estate but remain in privity of K thus
secondarily liable to each other.
ii. A sublease is where a tenant transfers less than his entire interest. L and T2 are neither
in privity of estate nor contract. Instead, T2 is responsible to T1 and vice-versa. T1 is
still on the hook to L.
c. Landlord’s duties
i. Duty to deliver possession
1. CL: No duty to deliver actual physical possession, rather only right to
possession
2. ML: Must deliver actual physical possession
ii. Duty to Repair
1. Unless specified in the lease, via statute or imposed by implied warranty of
habitability, L has NO duty to repair, especially in commercial settings
a. If L does have a duty to repair and fails to do so, T should make repairs
directly, and offset the cost against future rents or abate rent to an
amount equal to the fair rental value in view of the defects, or seek
damages against L. T’s obligation to pay rent is NOT relieved.
iii. Covenant of Quiet Use and Enjoyment: the L may not disrupt the T’s right to quiet
enjoyment and possession of the premises through actual or constructive eviction
1. Actual eviction: occurs where the L wrongfully evicts T or excludes T from
premises
2. Partial eviction: occurs when person is physically excluded from part of her
land. Partial eviction by the landlord means that T does not need to pay any
rent. If 3rd person comes in and asserts better title, then rent is abated in
proportion to the land seized.
3. Constructive eviction: occurs where the L breaches some legal obligation that
causes substantial interference with the T’s use of the premises and makes the
property inhabitable. T must give L notice of problem and L must fail to act
meaningfully.
a. T must vacate within a reasonable time after L fails to correct and seek
damages (or else risk waiving his rights to terminate the lease and seek
damages). T may terminate the lease and sue for damages.
iv. Implied Warranty of Habitability: (residential) in residential leases only, premises
must be fit for basic human habitation. If breached, T can move out and terminate the
lease, repair and deduct, reduce rent or withhold in escrow, or remain in possession, pay
rent and sue for money damages.
v. Retaliatory Eviction: if T lawfully reports housing code violations, L is barred from
penalizing T
vi. Tort liability:
1. CL: No duty to make premises safe, buyer beware
2. ML:[CLAPS]
a. L must maintain ALL common areas
b. Latent defects rule: L must warn T of hidden defects of which L has
reason to know
c. Assumption of repairs: If L voluntarily repairs, must do so with
reasonable care

- 38 -
d. L who leases public space and who should know, because of the
problem and length of lease, that T will not repair, is liable for any
defects on premises
e. In a short term lease of furnished dwelling, L is responsible for any
defect with harms T
d. Tenant’s Duties
i. Duty to pay rent:
1. If T is IN possession: L can evict through the courts or sue for rent due.
2. If T is out of possession: L can 1) choose to treat T’s abandonment as an
implicit offer of surrender that L accepts, 2) ignore the abandonment and hold T
responsible for unpaid rent, or 3) re-let the premises and hold the wrongful T
liable for any deficiency in rent [SIR = Surrender, Ignore, Re-Let]
3. CL & ML: independent of any action by the L, so must pay rent even if there is
a breach by L
ii. No Duty to Make Repairs: If lease is silent, T must maintain premises, make ordinary
repairs, not commit waste, and not remove fixtures. If T has expressly covenanted in the
lease to maintain the property in good condition, (common law) T liable for any loss to
property, including loss due to force of nature; (majority view) T may terminate lease if
premises destroyed w/o T’s fault.
iii. Duty not to commit waste: [See Life Tenant Section]
1. Ameliorative waste
2. Permissive Waste
3. Affirmative waste
iv. Duty not to abandon premises:
1. Landlord’s duty – unlawful detainer
2. Landlord cannot engage in self-help
3. Landlord’s duty to mitigate damages
v. Duty not to use it for illegal premises
IV. RIGHTS IN THE LAND OF ANOTHER
a. Easement: The grant of a nonpossessory property interest that gives its holder the right to use and
enjoyment of another's land.
i. Creation:
1. Express: easement for more than one year must be in writing that complies with
formal elements of a deed (SOF)
2. Implied from Prior Use:
a. Continuous
b. Apparent
c. Reasonably necessary
3. Prescriptive:(HO ACE)
4. Necessity: servient estate chooses location
ii. Characteristics:
1. Appurtenant: an appurtenant easement benefits the owner of an adjoining
parcel of land.
a. Passes automatically w/the dominant tenement, whether or not
mentioned in the conveyance.
b. Passes w/the servient tenement unless new owner is BFP who has no
notice of easement.

- 39 -
2.
In gross: confers upon its holder only personal/pecuniary advantage not related
to his use/enjoyment of his land (rt to place bill board on another’s lot, rt to
fish/swim in another’s pond, pwr co’s rt to lay pwr lines on another’s land)
a. Not transferable unless it is for commercial purposes.
3. Affirmative: an affirmative easement allows the holder to enter upon and use
the land.
4. Negative: a negative easement prevents the serviant estate owner from using the
land in a specified manner. (LASS: Limited to light, air, support, stream water
from an artificial flow. Minority & CA: scenic view)
iii. Scope: Has the scope of the easement expanded past its original intent
iv. Has it been terminated
1. Release: a written release, given by easement holder to servient holder
2. Estoppel: servient owner materially changes his position in reasonable reliance
on easement holder’s assurance that easement will no longer be enforced
3. Abandonment: easement holder must demonstrate by physical action the intent
to never use the easement again
4. Merger: Servient and Dominant land merge at some point
5. End of necessity: Easement by necessity ends when necessity ends
6. Prescription: servient owner may end easement by interfering within it in
accordance with elements of adverse possession HO ACE (hostile, open and
notorious, actual, continuous, and exclusive)
b. Profits: is a right to enter the servient land and take from the soil or some substance of the soil
(timber, minerals, oil). Profits share rules pertaining to easements
c. Licenses: is a privilege to enter another’s land for some delineated purpose; not subject to SOF,
revocable (subject to estoppel)
i. License estoppel theory: licensee invests substantial amounts of money in reliance on
license, irrevocable
ii. License coupled with an interest is irrevocable
iii. Invalid oral easement can be a license
d. Covenants: a promise between buyer and seller to do or refrain from doing something related to
land. (not a proper interest grant)
i. Real Covenants:
1. Requirements for burden to run [WITCH NV] (analyze 1st)
a. Writing: Must be a written promise (gives notice)
b. Intent: Intent to have successors bound
c. Touch & Concern: Promise touches the land
d. Horizontal Privity: At time of covenant the two must have shared some
interest in the land
e. Vertical Privity: successor in interest must hold the entire durational
interest
f. Notice: actual, constructive, inquiry
2. Requirements for benefit to run (analyze 2nd & reference law above)
a. Intent
b. Touch & Concern
c. Vertical Privity
3. Remedy = money damages only!!
ii. Equitable Servitudes:
1. Elements for the burden to run
a. Writing (gives notice)

- 40 -
b. Intent
c. Touch & Concern
2. Elements for the benefit to run
a. Intent
b. Touch and Concern
3. Remedy = injunction/equitable remedy only!!!
iii. Implied Reciprocal Negative Easement/Common Scheme:
1. Will be implied only if, at the time that sale in the subdivision began, the
developer had a plan that all parcels would be subject to the restriction. The
scheme may be evidenced by 1) a recorded plat, 2) general pattern of
restrictions, or 3) oral representations.
a. Must have notice, but need not be in the deed, rather can be inquiry
2. Do same burden/benefit analysis as Equitable Servitudes: notice, intent, touch
and concern
V. CONVEYANCING
a. Conveyancing Needs 3 things:
i. Writing that satisfies SOF
ii. Delivery of the deed
1. Intent
a. To a third party with no conditions is valid delivery
b. If there are conditions, then grantor may get back the property as long
as 1) the condition is not met, 2) no contract to convey
iii. Acceptance
1. Is presumed
b. Statute of Frauds: Land Ks must be in writing, signed by the party to be bound, and describe the
land, and state consideration.
i. Exception. Doctrine of Part Performance: if 2 of 3 satisfied, equity will decree
specific performance of an oral K: (i) buyer takes possession of land, (ii) makes payment
of all/part of purchase price, (iii) makes substantial improvements to premises
c. Risk of Loss: Under Equitable Conversion Doctrine, once the K is signed, B is the equitable
owner of the land, subject to the condition that he pay the purchase price at closing. If, b/t K
execution and closing, property is destroyed through no fault of either party, B bears the risk of
loss, unless K states otherwise.
d. Implied promises in every land K: (2 types):
i. S promises to provide at closing, marketable title (free from lawsuits and threat of
litigation). 3 circumstances will render title unmarketable: adverse possession,
encumbrances (mortgages, servitudes unless B waives), zoning violation.
1. Note: S has right to satisfy an outstanding mortgage or lien at closing with the
proceeds of sale. B cannot claim title is unmarketable because it is subject to a
mortgage prior to closing so long as parties understand that closing will result in
mortgage being satisfied/discouraged.
ii. S promises not to make any false statement of material fact or fail to disclose latent
material defect. (disclaimer will not excuse seller; S responsible for material lies and
omissions)
iii. Note: Land K contains no implied warranties of fitness or habitability. Exception:
implied warranty of fitness and workmanlike construction applies to sale of a new home
by the builder-vendor.
e. Closing: The deed passes legal title from seller to buyer if lawfully executed and delivered.

- 41 -
i. Lawful execution of the deed: deed must be in writing signed by GR; land description
must be unambiguous and provides a good LEAD. (need not recite consideration, nor
must consideration pass)
ii. Delivery: transfer is effective once the deed has been delivered and accepted.
1. Test: Delivery is met if GR had a present intent to be immediately bound
(physical delivery not req’d)
f. Deeds
i. Quitclaim deed has no covenants (not even title). GR implicitly promises in land K to
provide marketable title at closing.
1. General warranty deed warrants against all defects in title, including those
attributable to GR’s predecessors. Contains:
a. Present covenants (breached from time of delivery so SOL for breach
runs from time of delivery)
i. Covenant of seisin: GR promises he owns the estate that he
now claims to convey.
ii. Covenant of right to convey: GR promises there’s no
temporary restraints on his power to sell.
iii. Covenant against encumbrances: GR promises there are no
servitudes or mortgages
b. Future covenants (not breached until grantee disturbed in possession;
SOL beings to run on future date)
i. Covenant for quiet enjoyment: GR promises that GE will
not be disturbed in possession by a TP’s lawful claim of title.
ii. Covenant of warranty: GR promises to defend GE should
there be any lawful claims of title by others.
iii. Covenant for further assurances: GR promises to do
whatever future acts are reasonably necessary to perfect the
title if it later turns out to be imperfect.
2. Statutory special warranty deed: GR promises he has not conveyed the same
estate to anyone other than GR AND that the estate is free of encumbrances
made by GR. (GR makes no representations on behalf of his predecessors in
interest)
ii. Recording system
1. Recording acts protect only BFPs and mortgagees. BFP is one who purchases
BA for value and w/o notice that someone else got there first.
a. Recording statutes do NOT protect donees, heirs or devisees, unless the
Shelter Rule applies.
2. 3 types of notice: Actual, Inquiry, Constructive
3. Recording Statutes
a. Types
i. Race: whoever records first wins. Notice irrelevant.
ii. Race-Notice: subsequent BFP wins over prior grantee who
failed to record if he had no notice at the time he takes
regardless of whether he records at all
iii. Notice: a subsequent BFP wins if he had no notice and
records FIRST
b. How can you Tell?
i. Look at conveyance, if it says “without notice” or in “good
faith,” then Notice or Race-Notice. Then if it says “recorded

- 42 -
first” or “first recorded”, it is a Race-Notice. All others are
Race statutes
c. To give record notice, deed must be recorded properly within chain of
title.
d. Chain of title problems:
i. Shelter Rule: One who takes from a BFP will prevail against
any entity that the transferor-BFP would have prevailed
against, even though he otherwise fails to meet BFP status –
ie. Has notice of earlier transfer. (Transferee “takes shelter” in
the status of her transferor)
ii. Wild deed: If a deed, entered on the records (A to B), has a
GR unconnected to the chain of title (O to A), the deed is a
wild deed, and it is incapable of giving record notice of its
existence (as if it was never recorded at all)
iii. Estoppel by deed: One who conveys realty in which he has
no interest is estopped from denying the validity of that
conveyance if he later acquired the interest previously
transferred.
VI. SECURITY INTERESTS IN LAND
a. Mortgages: is a conveyance of a security interest in land intended to be collateral for repayment of
debt.
i. Legal mortgage is evidenced by writing. (aka mortgage deed, the note, security interest
in land, deed of trust)
ii. Equitable mortgage: is created where parties understand that BA is the collateral for
debt, but instead of executing a mortgage deed, owner hands creditor a deed absolute on
its face. Still must foreclose on it like regular mortgage. (Parol Evid admissible to show
parties’ true intent)
iii. Parties’ rights: Unless and until foreclosure, debtor-MR has legal title and right to
possession. Creditor-ME has a lien.
iv. Transfer: Mortgage automatically follows a properly transferred note. ME can transfer
his interest by endorsing the note and delivering it to the transferee OR by executing a
separate document of assignment.
1. Holder in due course: the transferee takes the note free of any personal
defenses that could have been raised against the original ME if the note was
negotiable, endorsed, delivered to the transferee, the transferee takes it in good
faith, and pays value. Thus, the holder in due course may foreclose the
mortgage despite any such personal defense. But he is still subject to real
defenses the maker might raise.
a. Personal defenses: lack of consideration, fraud in the inducement,
unconscionability, waiver, estoppel.
b. Real defenses: include material alteration, duress, fraud in the factum,
incapacity, illegality, infancy, and insolvency. (MAD FIFI4)
2. If debtor-MR sells mortgaged land, the lien remains on the land, so long as the
mortgage was properly recorded.
a. Note: all mortgaging statutes apply to mortgage as well as deeds.
Thus, a subsequent buyer takes subject to a properly recorded lien.
3. If buyer “assumed” the mortgage, buyer is primarily liable, and MR remains
secondarily liable.

- 43 -
4.
If buyer takes “subject to” the mortgage, buyer assumes no personal liability.
Only MR is personally liable, but if recorded, the mortgage remains on the land
(may be foreclosed).
v. Foreclosure
1. Deficiency: ME can bring a deficiency judgment against debtor.
2. Surplus: Junior liens are paid off in the order priority and any remaining surplus
goes to the debtor.
3. Effect of foreclosure: terminates junior interests, but will not affect senior
interests. Buyer at the F/C sale takes subject to the senior interest
4. Necessary parties: MR and those with interests subordinate to those of the F/C
party. Failure to include a necessary party results in the preservation of that
party’s claim (his mortgage remains on the land), despite F/C sale.
vi. Priorities
1. A creditor has no priority until he properly records the mortgage. Once
recorded, priority determined by norm of first in time, first in right, and so on.
2. Purchase money mortgage: is a mortgage given to secure a loan that enables
the debtor to acquire the encumbered land. Purchase money ME has superiority.
3. Subordination agreements- senior creditor may agree to subordinate its
priority to a junior creditor
vii. Redemption:
1. Redemption in equity: anytime prior to the F/C sale, debtor has the right to
redeem the land and free of it of the mortgage. Debtor cannot waive this right.
2. Statutory redemption: recognized in 1/2 the states, it gives debtor a statutory
right to redeem for some fixed period after the F/C sale has occurred. Debtor
must pay the sale price, rather than the amount of original debt. Debtor has right
to possession during the statutory period. When debtor redeems, F/C is
nullified.
VII. FIXTURES
a. Residential fixtures
i. Fixtures: personal property that has been attached to the land; the objective intent of the
person attaching the property determines whether it is a fixture; the courts will also
consider
1. Degree of attachment,
2. Degree of harm to premises if removed, and
3. The general custom
ii. Trade Fixtures are NOT fixtures
VIII. NATURAL RIGHTS
a. Lateral and subjacent support
i. If land is improved by buildings and an adjacent landowner’s excavation causes that
improved land to cave in, the excavator is liable only if he was negligent.
ii. Strict liability does not attach to the excavator’s actions unless P shows that b/c of D’s
actions, P’s improved land would have collapsed even in its natural state (meaning,
improvements on P’s land did not contribute to the collapse)
b. Water Rights
i. Watercourses (streams, rivers, lakes) [natural use (domestic) > artificial use (cotton,
agric)]
1. Riparian doctrine: Landowners bordering rivers and lakes have a right to a
reasonable amount of water (majority)

- 44 -
2.
Prior appropriation doctrine: any landowner may acquire water rights by
actual use, whether or not he is a riparian owner. Rights are determined by
priority of beneficial use, first in time, first in right. Any productive/beneficial
use of water create right (minority rule- use only if given in fact pattern)
ii. Ground water (percolating water; water beneath surface that’s not confined to a known
channel)
1. Surface owner entitled to make reasonable use of ground water. Must not be
wasteful.
iii. Surface waters (rainfall, seepage)
1. Natural flow theory: landowner cannot alter natural drainage patterns
(reasonable changes allowed)
2. Common enemy theory: landowner can take any protective measure to get rid
of water unless it would cause unnecessary damage to others’ lands
3. Reasonable use theory: balancing utility of the use against gravity of the harm
IX. ZONING/REGULATORY TAKINGS
a. Takings
i. The government may take private property for public use if it provides just compensation
1. Possessory Taking: Govt. confiscating or physical occupation is always a taking
2. Regulatory Taking: Govt. regulation that:
a. Leaves no reasonable economic viable use of the property = Taking
b. Decreasing economic value – Balancing test
i. Social goals sought to be promoted
ii. The diminution in value
iii. Owner’s reasonable expectation
c. Temporary denial not a taking
ii. Public Use: Any conceivable legitimate public purpose qualifies
b. Zoning
i. Zoning ordinances are generally invalid if they have no reasonable relation to public
welfare, are too restrictive, are discriminatory as to a particular parcel, are beyond the
grant of authority, violate due process, or are racially discriminatory.

- 45 -
Torts Essay Checklist
V-ID-ND-DD-PLD-SLD-MT
I. Vicarious Liability
a. Vicarious liability: Rule: vicarious liability is liability that is derivatively imposed. This means
that another person will be held liable to that third party based on his other relationship with the
tortfeasor.
i. Respondeat Superior:
1. Rule: a master/employer will be vicariously liable for tortuous acts committed
by her servant/employee if the tortuous acts occurred within the scope of
employment.
ii. Independent Contractor
1. In general a principal will not be vicariously liable for tortuous acts of her agent
if the agent is an independent contractor subject to two broad exceptions.
a. The IC is engaged in inherently dangerous activities or
b. The duty, because of public policy considerations is non-delegable
iii. Partner of Joint venture
1. Rule: each member of a partnership or joint venture is vicariously liable for the
tortuous conduct of another member committed in the scope and course of the
affairs of the partnership or joint venture.
iv. Driver of Automobiles
1. Rule: Generally, an automobile owner is not variously liable for the tortious
conduct of another person driving his automobile. In some JDX, courts employ
theories other than VL to hold an automobile deriver liable.
v. Bailees
1. Rule: Generally bailor is not liable for tortuous conduct of his bailee
vi. Parent-child
1. Rule: A parent is not vicariously liable for the torts of the kid at common law.
Some courts however, make a parent liable for the willful and intentional torts of
their minor children up to a certain dollar amount.
vii. Patron of tavern
1. Rule: Common law: no liability for tavern owner for over-serving someone
2. Modern Law: Dramshop Acts have imposed liability on tavern keeper for
injuries sustained to third parties resulting from being intoxicated.
b. Joint and Several Liability: Rule: Where two or more negligent acts combine proximately to cause
an indivisible injury, each negligent actor will be jointly and severally liable. If the injury is
divisible, each D will be liable for only the identifiable portion. However, those defendants acting
in concert will be jointly and severally liable, no matter what the percentage breakdown.
i. Releases
1. Rule: At common law, a release of one joint tortfeasor was a release of all joint
tortfeasors. A majority of the state now provide that a release of one tortfeasor
does not discharge other tortfeasors unless expressly provided in the release
agreement.
ii. Contribution
1. Rule: allows a D who pays more than his share of the damages under joint and
several liability to have a claim against other jointly liable parties for the excess.
a. Comparative contribution, found in most states, impose contribution in
proportion to relative fault of the various Ds.
b. In a minority of states, apportionment is in equal shares regardless of
degrees of fault.

- 46 -
iii. Indemnification
1. Rule: Involves the shifting of the entire loss between or among tortfeasors.
Indemnity is available in the following circumstances
a. By contract
b. In vicarious liability situations
c. Under strict products liability
d. And in some JDXs, where there has been an identifiable difference in
degree of fault.
c. Survival Acts
i. Survival of Tort actions
1. Rule: survival actions allow one’s cause of action to survive the death of one of
more of the parties. The acts apply to action involving torts to
a. Property
b. Personal injury
2. However, torts invading intangible personal interests, expire at the person’s
death. Those causes of action are
a. Defamation
b. Invasion of the right of privacy
c. Malicious prosecution
ii. Wrongful Death
1. Rule: Wrongful death acts grant recovery for pecuniary interest resulting to the
spouse and next of kin. A decedent’s creditors have no claim against the
amounts awarded. Recovery is allowed only to the extent that the deceased
could have recovered in the action if he had lived.
d. Tort Immunities
i. Intra-family Tort Immunities
1. Rule: Under traditional common law, one member of the family could not sue
the other. Most states have abolished husband-wife immunity. A slight majority
have also abolished child-parent immunity, but don’t allow children to sue for
negligent supervision.
ii. Government Tort Immunity
1. Federal Govt.
a. Rule: Under Federal Tort Claims Act, US has waived immunity for
tortious acts. However, immunity will still attach for
i. Assault
ii. Battery
iii. False imprisonment
iv. False arrest
v. Malicious prosecution
vi. Abuse of process
vii. Libel and slander
viii. Misrepresentation and deceit, and
ix. Interference with contract rights.
b. Immunity also not waived for acts characterized as “discretionary” as
distinguished from ministerial.
2. State and Local Govt.
a. Rule: Most states have substantially waived their immunity to the same
extent as federal governments.
3. Immunity of Public Officials

- 47 -
a. Rule: Public officials carrying out official duties are immune from tort
liability for discretionary acts done without malice or improper
purpose. Liability attaches, however, for ministerial acts.
II. Intentional Torts FATT BIC

a. False imprisonment
i. Rule: An intentional act or omission on the part of the defendant that confines or
restrains plaintiff to a bounded area with intent. Threats are sufficient, but an act of
restraint is only actionable if P is aware or harmed by the act. A shopkeeper has a
privilege to detain someone on the suspicion of theft if all four of the following are
reasonable
1. The grounds
2. Investigation
3. Force, and
4. Time
b. Assault
i. Rule: D creates a reasonable apprehension in P of an immediate harmful or offensive
contact to the person of P, with intent. Conditional threats and those words that promise
future conduct do not constitute assault.
ii. Always bring up assault with battery
c. Trespass to Land
i. Rule: A physical invasion of plaintiff’s real property
d. Trespass to chattels
i. Rule: An intentional act by D that interferes with plaintiff’s right of possession in chattel
with intent
ii. Always bring up trespass to chattels with conversion
e. Battery
i. Rule: battery is a harmful or offensive touching to the plaintiff’s person with intent. The
offensiveness of the conduct is measured by the average person while the person includes
anything that is connected with the plaintiff. The battery need not be instantaneous, nor
does the battery need to be direct. An indirect battery can occur when the D doesn’t
actually touch the P, however, in P moving to avoid the contact causes harm via contact
with another person or thing.
ii. Always bring up battery with assault
f. IIED
i. Rule: An act by D amounting to extreme and outrageous conduct with intent or reckless
resulting in severe emotional distress.
1. If the extreme and outrageous conduct is witnessed by a 3rd person, the IIED
actor must be aware that the person is there. LOOK INTO MORE
g. Conversion
i. Rule: Like, trespass to chattels, conversion is an intentional act by D that interferes with
plaintiff’s right of possession in chattel with intent. With conversion, the interference is
so serious that it warrants D to pay the chattel’s full value.
ii. Always bring up conversion with trespass to chattels
III. Defenses to IT [D^2 CSN]
a. Defense of Others
i. Rule: One may use force to defend another when the actor reasonably believes that the
other person could have used force to defend himself. A reasonable mistake as to

- 48 -
whether the other person is being attacked is permitted and the defender can use as much
force as he could have used in self-defense if the injury were threatened to him.
b. Defense of Property
i. Rule: One may use reasonable force to prevent the commission of a tort against her real
or personal property. F must have a reasonable belief that the invasion is going to happen
and deadly force cannot be used to defend against such property. D must request the
actor to cease and desist, unless that request would be futile.
c. Consent
i. Rule: A valid defense to a intentional tort is that the D had consent to do the act or
omission that P complains of. Only people with legal capacity can give consent.
Children can give consent to age-appropriate conduct. Consent is either express or
implied. Express consent is when P literally says or writes words to consent to the
challenged action. However, express consent cannot be given when it is given under
duress or because of fraud. Implied consent occurs through custom or usage or when D
engages in an activity where violations routinely occur. A case by case analysis of P’s
objective conduct must be done to ascertain whether a reasonable person would have
thought consent was given. Here, the P [ X ]……
d. Self-defense
i. Rule: When a person reasonably believes that she is being or about to be attacked, she
may use such force as is reasonably necessary to protect against injury. Self-Defense is
not available to the initial aggressor unless he communicates his withdrawal and retreats
or deadly forced is used against him in retaliation for non-deadly force. The majority
view is that a D, who is not the initial aggressor, need not retreat before using deadly
force. The minority and common law view states that one must attempt to retreat if safe
do so, unless they are in their own home. Further, three exceptions exist where the
common law courts allowed for deadly force without retreat
1. If victim in their own home
2. Victim of violent felony such as rape or robbery and
3. Police officers have no duty to retreat.
e. Necessity
i. Rule: A person may interfere with the real or personal property of another when it is
reasonable and apparently necessary to avoid threatened injury from a natural or other
force and when the threatened injury is substantially more serious than the invasion that
is undertaken to avert. Necessity is two types - Public and private.
1. Public necessity occurs when the act is done for the public good, the
community, or a significant amount of people. It is an absolute defense whereby
the actor is absolved of any liability
2. Private necessity occurs when P invades the property of another to protect his
own interests. This is a limited defense and the D is
a. Obligated to pay for harm done
b. D never obligated to pay nominal damages
c. As long as emergency persists, D may remain on P’s land until over.
ii. When you talk about necessity, bring up both private and public even if one is
definitely not correct – bring up and dismiss
IV. Negligence
a. Rule: In order for P to prevail in a cause for negligence, plaintiff must show duty, breach, actual
and proximate causation, and damages
i. Duty

- 49 -
1. A duty of care is owed to all foreseeable plaintiffs. Under Cardozo’s majority
view, a foreseeable P is anyone in the zone of danger. Andres’ minority view is
that everyone is a foreseeable party. A rescuer is always a foreseeable person in
the zone of danger.
2. The standard of care owed in most instances is the reasonably prudent person
standard, an objective standard that measures one’s conduct against what a
normal person would do.
a. The reasonably prudent person standard is modified in six specific
situations
i. Children
1. The duty owed by children depends on the age of the
actor. For children 0 to 4, no duty is owed. From
age 4-18, the child is held to the care of a child of
similar age, experience, education, and intelligence,
unless the child is engaged in an adult activity, which
then the care owed converts back to the RPP
standard.
ii. Professional Defendants
1. A professional D is someone with special
occupations skills. The duty owed by a professional
is that the professional is required to posses the
knowledge and skill of a member of the profession or
occupation in good standing in similar communities.
Medical specialists are held to a national standard of
care.
iii. Entrants on Land of Another
1. If ANYONE is hurt by an ACTIVITY on the land,
then RPP standard applies. Here, ...
2. Undiscovered Trespasser
a. No duty is owed to undiscovered trespasser
3. Discovered Tresapasser/Anticipated Trespasser
a. A possessor must warn or make safe:
i. Artificial conditions
ii. Highly dangerous capable of killing
or maiming
iii. Concealed or hidden
iv. Possessor had knowledge
b. D is only liable for known, man-made death
traps.
4. Licensee
a. A licensee is one who enters on the land
with the possessor’s permission for her own
purpose or business, rather than for the
possessor’s benefit.
b. Possessor owes a duty to warn if
i. The condition is concealed or
hidden
ii. The condition is known by D

- 50 -
c. Possessor must protect a licensee from all
known concealed traps on the land.
5. Invitee
a. An invitee enters the land with permission to
either confer a commercial benefit on the
possessor or come onto the land that has
been thrown open to the general public.
b. A possessor will be liable for
i. Concealed conditions
ii. Either P knew or could have
discovered though reasonable
inspection.
6. Children – Attractive Nuisance
a. Most courts impose a duty on the landowner
to exercise ordinary care to avoid reasonably
foreseeable risk of harm to children caused
by artificial conditions on the property. P
must show
i. A dangerous condition on the land
that owner is or should be aware
ii. The owner knows or should know
children frequent the vicinity of the
condition
iii. The condition is likely to cause
injury and
iv. The expense of remedying the
situation is slight compared with
the magnitude of the harm
iv. Statutory Standards of Care
1. A statutes specific duty may replace the more general
common law duty of due care if
a. The statute provides for a criminal penalty
b. The statute clearly defines the standard of
conduct
c. The plaintiff is within the protected class
and
d. The statute was designed to prevent the type
of harm suffered by plaintiff.
v. Duties to act affirmatively
1. A person does not have a duty to act affirmatively
unless
a. D caused the peril or
b. Pre-existing relationship triggers the duty.
2. A person that chose to rescue is measured by the RPP
standard, and there never is a duty to put your own
life in jeopardy.
vi. NIED

- 51 -
1. The duty to avoid causing emotional distress to
another is breached when a defendant creates a
foreseeable risk of physical injury to P either by
a. Causing a threat of physical impact that
leads to emotional distress or
b. Directly causing severe emotional distress
that by itself is likely to result in physical
symptoms.
2. P can only recover if the D’s conduct caused some
actual physical injury except
a. Erroneous report of a relative’s death, and
b. A mishandling of a relative’s corpse
3. Furthermore, if the P’s distress is caused by threat of
physical impact, most courts require that the person
be within the zone of danger to recover.
ii. Breach
1. The breach of the duty occurred when [FACTUAL CITATIONS]
2. And this actions is below the standard of care because a reasonably prudent
person would not have done [X]
3. Sometimes, the very occurrence of the event may tend to establish a breach of
the duty. This is the doctrine of res ipsa loquitur. If the following factors are
satisfied, then breach is satisfied and the case will go to the jury and will survive
a motion for a directed verdict. In order for a breach to be found, P must show
that the
a. Accident causing the injury is a type that wouldn’t normally occur
unless someone was negligent AND
b. The negligence is attributable to D (happens because of negligence of
someone in D’s position)
iii. Actual Causation
1. Before D’s conduct can be considered a proximate cause of P’s injury, it must
first be a cause in fact of the injury. Several tests exist:
a. The But-For test says that an act or omission is the cause in fact of the
injury when the injury would not have occurred but for the negligent
act of the D. This test applies where several acts occur, and each would
have been insufficient on its own to cause the injury.
b. Where Joint Causes are to blame for the injury to P, the Substantial
factor test is used. Joint Causes occur when several causes bring about
injury and any one of them alone would have been sufficient to cause
the injury, D’s conduct is the cause in fact if it was a substantial factor
in causing the injury.
c. Unascertainable Cause Approach occurs when two acts occur, only one
of which caused the injury, but it is not known which one. The burden
of proof shifts to the defendants, and each must show that his
negligence is not the actual cause.
2. Here, because the act or omission was [X], the [X] test applies. Thus, …..
iv. Proximate Causation
1. In addition to being a cause in fact, the D’s conduct must also be the proximate
cause of the injury. A defendant is generally liable for all harmful results that

- 52 -
are the normal incidents of and within the increased risk caused by his acts.
This is a foreseeability test.
a. In a direct cause case, where there is an uninterrupted chain of events
from the negligent act to P’s injury, D is liable for all foreseeable
harmful results, regardless of unusual manner or timing.
b. In indirect cause cases, an intervening force comes into motion after the
D’s negligent act and combines with it to cause P’s injury.
i. Foreseeable result caused by foreseeable intervening force = D
liable
ii. Foreseeable result caused by unforeseeable intervening force =
D usually liable
iii. Unforeseeable result caused by Foreseeable intervening force
= D not liable
iv. Unforeseeable result caused by unforeseeable intervening
force = D not liable.
v. Damages
1. In order to hold D liable for negligence, P must have incurred some damage.
Here, ……
2. EGGSHELL SKULL
a. Under the Eggshell Skull doctrine, D must pay for all harm suffered by
P even if that amount of harm is surprisingly large in scope because of
the pre-existing physical characteristics of P. Here, …
3. Also, a majority of jurisdictions do not allow recovery for only emotional
damages – need accompanying physical injury in negligence.
V. Defenses to Negligence
a. Contributory Negligence
i. Rule: Contributory negligence is negligence on the part of the P that contributes to her
injuries. The standard of care for contributory negligence is the same as ordinary
negligence. It is not a defense to wanton and willful misconduct or intentional tortuous
conduct. At common law, Contributory negligence completely barred P’s right to
recovery. Almost all jdx’s now favor a comparative negligence system.
1. Exceptions to Contributory negligence
a. Last Clear Chance
i. Permits P’s recovery despite contributory negligence. Under
this rule the person with the last clear chance to avoid the
accident who fails to do so is liable for negligence. If the D’s
negligence was earlier in time, then this doctrine will not rebut
D’s assertion of contributory negligence.
b. Helpless Peril
i. In many states, where the plaintiff is in “helpless peril,” D will
be liable if he knew or should have known of Ps predicament.
c. Inattentive Peril
i. In “inattentive peril” situations, (ie. P could have extricated
herself if attentive, D must actually have known of P’s
predicament.
b. Comparative Negligence
i. Rule: P’s comparative negligence is not a complete bar to recovery. Rather, the trier of
fact weighs plaintiff’s negligence and reduces damages accordingly.

- 53 -
1.
A majority of states allows plaintiff to recover only if her negligence was less
serious or not more serious than that of D (partial comparative fault)
2. Pure comparative fault allows P’s recovery no matter how great her negligence.
c. Assumption of Risk
i. Rule: Plaintiff may be denied recovery if she assumed the risk of any damage caused by
the defendant’s act. Plaintiff must have known of the risk and voluntarily proceeded in
the fact of the risk. Here,….
ii. Always bring up AOR for strict products liability and negligence (products liability)
VI. Defamation
a. Overall Rule: A defamation is a defamatory statement of or concerning the P, published to a third
party that causes damage to P. Where the matter is of public concern, then the plaintiff must also
prove the additional elements of fault and falsity to prove constitutional defamation.
i. Defamatory statement
1. A defamatory statement is one which tends to lower P’s reputation within the
community. Here, …
ii. Of or concerning the P
1. A reasonable person must have understood the statement was of or concerning
the P. Here, …
iii. Published to a Third Party
1. The statement must have been published to a 3rd party who understood the
statement. Here,…
iv. Damages
1. General damages are presumed for slander per se and libel. Here, ….
v. Fault of the Statement
1. The type of fault P must prove depends on whether the P is a public or private
figure. A public figure is one who achieves fame or notoriety or is in
government office.
2. If the P is a public figure, P must prove malice, which requires a showing of
knowledge that the statement was false, or reckless disregard as to whether it
was false. This is a subjective test. If the plaintiff is a private figure then he
must prove negligence, which means he only show negligence regarding the
falsity of the statement if that statement involves a matter of public concern.
Where D is only negligent, only actual injury damages are recoverable.
However, if private plaintiff can show malice on the part of the D, then damages
may be presumed and plaintiff may be able to recover punitive damages. Here,
…
vi. Faulsity of the D
1. Plaintiff is required to prove the falsity of the statement. Here,…
b. Types
i. Libel
1. Rule: Is the written or printed publication of defamatory language. P need not
prove special damages and general damages are presumed. The minority
position distinguishes between libel per se and libel per quod (not defamatory on
its face)
ii. Slander
1. Rule: Slander is spoken defamation. P must prove special damages, unless
defamation falls within the slander per Se categories,
iii. Slander Per Se

- 54 -
1. Rule: Slander is slander per se, and P need not prove special damages when that
statement
a. Adversely reflect on one’s conduct in a business or profession
b. One has a loathsome disease
c. One is or who was guilty of a crime involving moral turpitude; or
d. A woman is unchaste
c. Privacy Torts
i. Misappropriation
1. Rule: Unauthorized use of plaintiff’s picture or name for D commercial use.
ii. Intrusion on Seclusion [the actual intrusion on the space of the person, as long as REP]
1. Rule: An invasion of the P’s seclusion in a way that would be objectionable to
an average person. The P must be in a place with a reasonable expectation of
privacy and there is no requirement the D engage in trespass.
a. It is not the act of publishing the word where liability attaches, but how
the person obtained the information.
i. Truth is not a defense because we are not talking about the
words spoken, rather the intrusion to get the words.
iii. False Light
1. Rule: Widespread dissemination of a material falsehood that is objectionable to
an average person.
a. Obviously, truth is a defense
2. First Amendment considerations: Need malice for public issues.
iv. Public Disclosure of private facts
1. Rule: Widespread dissemination of confidential information of P that would be
objectionable to an average person. Liability may attach even if the comment is
true. An exception to this general rule is that the 1st Amendment allows for
disclosure of information that is newsworthy, legitimate public interest.
2. Truth is not a defense to disclosure
3. Newsworthiness exception
v. Other
1. When you have defamation and 1 privacy tort, raise IIED as a third claim
VII. Defenses to Defamation
a. Consent
i. Rule: Consent is a complete defense and may be either express or implied. Here, …
b. Truth
i. Where plaintiff does not need to prove falsity, the D may prove truth as a complete
defense
c. Privilege
i. Absolute
1. Rule: D may be protected by an absolute privilege for the following, and can
never be lost:
a. Remarks made during judicial proceedings
b. By legislators in debate
c. By federal executive officials
d. In “compelled” broadcasts, and
e. Between spouses
ii. Qualified
1. Rule: Speakers may have a qualified privilege for the following:
a. Reports of official proceedings;

- 55 -
b. statements in the interest of the publisher such as defense of one’s
actions, property, or reputation;
c. statements in the interest of the recipient; and
d. Statements in the common interest of the publisher and recipient.
2. This privilege may be lost if
a. The statement is not within the scope of the privilege, or
b. It is shown that the speaker acted with malice. D bears the burden of
proving that a privilege exists.
VIII. Products Liability
a. Strict Products Liability
i. Rule: A commercial seller who places a product in the stream of commerce may be
strictly liable in tort for injuries caused by a defective product. In order to prevail in a
cause for Strict product liability, P must show a strict duty owed by a commercial
supplier of a product, breach, actual and proximate causation, and damages.
1. Duty
a. A commercial seller has a strict duty to supply safe products. Here, [D
is a commercial seller]
b. Whether or not contractual privity exists between the plaintiff and the
D will not prevent P from recovering because any foreseeable
plaintiff, including a bystander, can sue any commercial supplier in the
chain of distribution regardless of a contractual relationship
2. Breach
a. A breach of the strict duty can be shown by proving there was a
manufacturing defect, design defect, or inadequate warning, or non-
compliance with a government safety standard
i. Manufacturing Defect
1. If a product emerges from a manufacturing different
and more dangerous that the products made properly,
it has a manufacturing defect. One way to prove a
manufacturing defect is with the Consumer
Expectation test
2. The consumer expectation test says that D will be
liable if P can show that the product failed to perform
safely as an ordinary consumer would expect (D must
anticipate use). Here, …
ii. Design Defect
1. For a design defect, liability is imposed on all
products of a line when the Feasible Alternative Test
establishes the D could have made the product safer
without serious impact on the product’s price or
utility.
iii. Inadequate Warnings
1. A Product may be defective as a result of the
manufacturer’s failure to give adequate warnings as
to the risk involved in using the product. For liability
to attach, the danger must not be apparent to users.
iv. Govt. Safety Standard
1. A product’s noncompliance with a government safety
standards establishes that it is defective, while

- 56 -
compliance with safety standards is evidence, but not
conclusive, that the product is not defective.
3.
Actual Causation
a. To show actual cause, the P must show that the defect existed when the
product left the defendant’s control. Here, ….
4. Proximate Causation
a. The type of injury must have been foreseen as the time the product was
placed in the stream of commerce. D will not be liable for dangers not
foreseeable at the time of marketing. Here, ….
5. Damages
a. Here,..[list damages]
b. In addition, the Eggshell Skull Doctrine – [see above]
ii. Defenses to Strict Products Liability
1. Unforeseeable Misuse
2. Contributory negligence
3. Comparative negligence
4. Assumption Of Risk
b. Negligence [in products liability sense]
i. Duty
1. A duty of care is owed to all foreseeable plaintiffs. Under Cardozo’s view, a
plaintiff is foreseeable if he is in the zone of danger. Under Andrews’ minority
view, all plaintiffs are foreseeable.
2. Users of products, bystanders and consumers of the product are all foreseeable
plaintiffs. Privity with the defendant is no longer required. Here, ….
3. Foreseeable P’s are owed a standard of care of that of a reasonably prudent
manufacturing company. Here, the requisite standard of care is that of a
reasonably prudent [product] manufacturing company.
ii. Breach
1. Breach is shown by negligent conduct of the D leading to the supplying of a
defective product. Here….
iii. Actual Causation
1. To show actual cause, P must show that the defect existed when the product left
D’s control. Here, ….
iv. Proximate Causation
1. The type of injury must have been foreseen at the time the product was placed in
the stream of commerce. D will not be held liable for dangers not foreseeable at
the time of marketing.
2. A wholesaler’s/intermediary negligent failure to discover a defect does not
supersede the original manufacturer’s negligence unless the wholesaler’s
conduct exceeds ordinary foreseeable negligence.
3. Here, ….
v. Damages
1. Physical or property damage must be shown to recover. Here, …
2. In addition, EGGSHELL SKULL – [see above]
vi. Defenses to Negligence in Products Liability
1. Contributory Negligence – See above
2. Comparative Negligence – See above
3. Assumption of the Risk – See above
vii. Always bring both strict products liability and negligence product liability together

- 57 -
c. Warranties
i. Implied Warranties
1. There are two warranties implied in every sale of goods that can serve as a basis
for suit by a buyer against a seller. Most courts do not require privity, however
limit potential plaintiffs to the buyer, family, household, and guests. Those two
implied warranties are:
a. The implied warranty of merchantability and
b. Implied warranty of fitness for a particular purpose.
2. Rule: IWM refers to whether the goods are of average acceptable quality and
are generally fit for the ordinary purpose of which the goods are used. Here,
because of [X], the goods fell below the average acceptable quality for which
they are ordinarily used which is a breach of the implied warranty.
a. Furthermore, Causation, damages and defenses are handled just like in
ordinary negligence actions …..
3. Fitness for a particular purpose arises when
a. Rule: the seller knows or has reason to know the particular purpose for
which the goods are required AND
b. that the buyer is relying on the seller’s skill and judgment in selecting
the goods.
c. Here, the seller knew or had reason to know of the particular purpose of
the goods because [ X ], and B was relying on his skill in selecting
because [ X]. Thus when [ X] occurred, it was a breach of the implied
warranty.
i. Further, Causation, damages and defenses are handled just like
in ordinary negligence actions ……
ii. Representation Theories – Express Warranty and Misrepresentation
1. In addition to the implied warranties, a D may be liable when a product does not
live up to some affirmative representation made by D.
2. Express Warranty
a. Rule: Any affirmation of fact or promise concerning the goods that
becomes part of the basis of the bargain creates an express warranty.
Any consumer, user, or bystander can sue. A person NOT in privity
need not have relied on the representation as long as someone did.
b. Fault need not be shown, P need only show that the product did not live
up to its warranty.
c. Causation, damages and defenses are handled just like in ordinary
negligence actions.
3. Misrepresentation
a. Rule: A seller will be liable for misrepresentation of facts concerning a
product where
i. The statement was of a material fact concerning the quality or
uses of goods and
ii. The seller intended to induce reliance by the buyer in a
particular transaction.
4. Always bring express warranty and misrepresentation together
d. Intentional
IX. Defenses to PL
a. Contributory Negligence
i. See above: Defenses to negligence

- 58 -
b. Comparative Negligence
c. Assumption of Risk
X. Strict Liability
a. Wild animals
i. Rule: Strict liability is imposed in some circumstances that involve injuries from wild
animals.
1. One can be held strictly liable for injuries sustained from a domesticated animal,
if the person knows of the dangerous propensities of the domesticated animals.
Propensity and knowledge is proven if the owner knows the animal has bitten
someone before. Thus, every dog gets one bite before strict liability is imposed,
however the animal owner can still be liable for negligence in connection with
the first bite.
2. Owner of livestock that graze onto another’s property, causing damage are held
strictly liable for the damage.
3. In addition, the owner of any wild animals that causes harm will be held strictly
liable.
b. Ultra-Hazardous Activities
i. Rule: One can be held strictly liable for damage caused during the conduct of ultra-
hazardous activities. In order to hold the person liable, the:
1. Activity is one that cannot be made safer no matter how much care is taken
2. The activity must involve a risk of serious harm to persons or property
3. The activity is not commonly engaged in the particular community.
c. Strict Products (see above)
XI. Miscellaneous Torts
a. Litigation Torts
i. Malicious Prosecution/Wrongful Civil Proceeding
1. Rule: One will be liable for wrongful prosecution if the following elements are
satisfied
a. Institution of criminal proceedings against plaintiff
b. Termination in plaintiff’s favor
c. Absence of probable cause for prior proceedings
d. Improper purpose and
e. Damages
i. Wrongful civil proceedings extends malicious prosecution to
cover civil cases and has the same elements as above.
ii. Abuse of Process
1. Rule: To be liable for abuse of process,
a. The wrongful use of process for an ulterior purpose and
b. Definite act or threat against plaintiff in order to accomplish ulterior
purpose
iii. Bring both Malicious Prosecution/Wrongful Civil Proceeding and Abuse of Process
at the same time
iv. Also, bring IIED claim whenever you bring Malicious prosecution and abuse of
process
b. Economic Torts
i. Tortious Interference with Contract

- 59 -
1.
Rule: One may be held liable for an interference with business relations if there
was
a. In existence a valid contractual relationship between the plaintiff and a
3rd party or valid business expectancy of plaintiff and
b. D had knowledge of the relationship or expectancy, AND
c. Intentional interference by D inducing a breach or termination of the
relationship or expectancy, AND
d. Damages
c. Misrepresentation
i. Intentional
1. Rule: Occurs when there:
a. Is a misrepresentation of material fact
b. When D made the statement, she knew or believed it was false or that
there was no basis for the statement
c. Intent to induce P to act or refrain from acting in reliance upon the
misrepresentation
d. Actual reliance
e. Justifiable reliance
f. Damages
ii. Negligent
1. Rule: misrepresentation by a D in a business or professional capacity
2. Breach of the duty toward a particular plaintiff
3. Actual reliance
4. Justifiable reliance
5. Damages
d. Nuisance
i. Private nuisance
1. Rule: private nuisance is a substantial, unreasonable interference with
another’s private individual’s use or enjoyment of property that he actually
possesses or to which he has a right of immediate possession.
a. Substantial interference is judged on an objective standard. A nuisance
is only unreasonable if the severity of the inflicted injury outweighs the
utility of the defendant’s conduct. This action is different than trespass
to land because in trespass there is interference with the landowner’s
possession and in private nuisance there is an interference with the use
or enjoyment of the land.
b. Self-Help abatement is available for private nuisance after notice to the
D and his refusal to act. Only necessary force may be used.
ii. Public Nuisance
1. Rule: Public nuisance is an act that unreasonably interferes with the health,
safety, or property rights of the community. Recovery by a private party is
available for a public nuisance only if the private party suffered unique damage
not suffered by the public at large.
2. In public nuisance cases only a public authority or a private party with unique
damages can seek an injunction or abatement.
iii. Always bring public and private nuisance up together
iv. Defenses to Nuisance
1. Legislative authority: authority for nuisance activity is not absolute defense, but
is persuasive

- 60 -
2. Conduct of Others: No one actor is liable for all damage caused by an event,
where more than one is contributing
3. Contributory negligence
4. Coming to the nuisance
a. It is generally not a bar to the plaintiff’s action unless she came to the
nuisance with the sole purpose of bringing a harassing lawsuit.

- 61 -
CRIMINAL PROCEDURE
10 SECOND CHECKLIST
I. 4th Amendment
II. 5th Amendment
III. 6th Amendment
IV. 8th Amendment
V. 14th Amendment
4th Amendment 5th Amendment 6th amendment 8th Amendment 14th amendment
S&S Self-Incrimination Right to Attorney Cruel & unusual Voluntary
Confessions
Intro – 14th states Confessions Confrontation Bail Voluntary Waivers
Clause
GC Miranda Speedy trial Bad Lineups
REPrivacy Double Jeopardy Right to jury trial Prosecutor’s duty
Warrant State Grand Juries Guilty pleas Juvenile court
proceed
Exclusion “Attorney confronts Forefeiture actions
speedy juror’s
pleas”
Fruit
GF
No warrant
BEGS 4 CHAPS
DETAILED OUTLINE
I. 4th AMENDMENT
a. Search and Seizure
i. Intro
1. 4th Amendment protects citizens against unreasonable searches and seizures.
The 4th Amendment is applicable to the states via the 14th Amendment. In order
for D to assert a 4th Amendment, he must show both government conduct and a
reasonable expectation of privacy in the place searched or item seized.
ii. Government Conduct
1. In order to establish government conduct, D must show that the
police/government was involved in a search or seizure. Here, the cops
[searched/seized] [X]. Therefore we have government conduct.
iii. Is it a seizure?
1. A seizure occurs when a reasonable person would believe that she is not free to
leave to terminate an encounter with the government
a. A passenger in the car is seized when car pulled over, so he has
standing to assert that the car was wrongfully pulled over.
iv. Standing
1. In order to have standing, the person must establish a Reasonable Expectation of
Privacy (REP) in the item seized or the place searched. To show REP, the
person must own the premises/item searched, Live on the premises, or be an
overnight guest at the premises searched. Here, D had a [possessory] interest in
the place searched or item seized. Thus D has a REP
2. Because the D can show both government conduct and REP, he has standing to
assert a 4th Amendment challenge to the police’s search of his apartment.
b. ROUTE 1 – WARRANT USED

- 62 -
i. Warrant Requirement
1. A valid warrant requires that it
a. Be issued based on probable cause
b. Stated with specificity and particularity and
c. Issued by neutral and detached magistrate
2. Mention good faith exception - ALWAYS raise if warrant is involved
a. The exclusionary rule, as defined below does not apply when the police
act in good faith reliance on a defective search warrant unless
i. The underlying affidavit was so lacking in probable cause that
it could not reasonably be relied upon.
ii. The warrant was defective on its face
iii. The affiant lied to or misled the magistrate, OR
iv. The magistrate wholly abandoned his judicial role
b. Here, there was/was not good faith reliance when [FACTS]
ii. Exclusionary Rule
1. This doctrine prohibits introduction of evidence obtained in violation of the
Defendant’s 4th, 5th, and 6th Amendment rights. Under the rule illegally obtained
evidence is inadmissible at trial, and all fruit of the poisonous tree evidence must
also be excluded.
a. Harmless Error Test: If the illegal evidence is admitted, a resulting
conviction should be overturned on appeal unless the G can show it
was harmless error.
iii. Fruits of poisonous Tree
1. Fruits of poisonous tree refer to evidence obtained from exploitation of the
illegally obtained evidence. It must also be excluded unless the evidence falls
into one of the exceptions
a. Fruits derived from Miranda statements
b. Evidence obtained from a source independent of the original illegality
c. D’s intervening act of free will
d. Inevitable discovery
e. Violations of the knock and announce rule
2. Other limitations to the exclusionary rule
a. Inapplicable to grand juries, civil proceedings, internal agency rules,
and parole revocation proceedings
b. Good faith reliance on law, defective search warrant or clerical error
c. Can use for impeachment purposes
d. Knock and announce rule
iv. Conclude
c. ROUTE 2 – NO WARRANT USED
i. In order for a search and seizure to be valid, the G must have acted pursuant to a valid
warrant. If a valid warrant was not used, then all of the evidence will be deemed
inadmissible under the exclusionary rule unless an exception to the warrant applies. Here
the government did not use a warrant when they [FACTS], therefore all evidence is
inadmissible unless an exception applies. [BEG 4 CHAPSS]
1. Good Faith
a. A limitation to the exclusionary rule in general, evidence that is
gathered in reliance on a defective warrant is still admissible, unless
(from above)
i. The underlying affidavit was so lacking in probable cause that
it could not reasonably be relied upon.
ii. The warrant was defective on its face
iii. The affiant lied to or misled the magistrate, OR
iv. The magistrate wholly abandoned his judicial role
2. SILA Exception
a. The SILA exception allows an officer, subsequent to a lawful arrest to
search the immediate area within the arrestee reach where he might

- 63 -
obtain a weapon or destroy evidence. This search does not require
probable cause.
i. Protective sweeps: immediately adjoining = permitted if
reasonable belief, not immediately adjoining = reasonable
suspicion
b. SILA & AUTOMIBLE: The SILA exception also applies to arrest
while the arrestee is in the car, or has very recently been an occupant in
the car. The entire interior compartment may be searched, however
not the trunk.
3. Automobile Exception
a. If the police have probable cause to believe the automobile contains the
fruits, instrumentalities or evidence of a crime, they may search
anywhere in the car, including the trunk and containers, where probable
cause takes them.
4. Border Searches
a. No warranty is need for border searches. No 4th Amendment rights
exist at the border. Roving patrols inside the US border may stop a
vehicle for questioning if an officer reasonably suspects it contains
illegal aliens.
5. Plain View
a. The police may make a warrantless search when they are
i. Legitimately on the premises
ii. Discover evidence, fruits or instrumentalities of a crime, or
contraband,
iii. See that evidence in plain view, And
iv. Have probable cause to believe that the item is evidence.
6. Stop and Frisk
a. An officer may make a warrantless search of someone without probable
cause if the police have an articulable and reasonable suspicion of
criminal activity. The officer may frisk over the exterior of the
suspect’s clothing for weapons where there is a reasonable suspicion to
believe the suspect is armed. Then can reach in if they think it is a
weapon or CONTRABAND, as long as they believed armed.
7. Consent
a. A warrantless search is valid if the police have a voluntary and
intelligent consent. Knowledge of a right to withhold consent is not
required. The only issue is whether the scope of the search went
beyond the scope of the consent.
8. Evanescent
a. This general exception allows for warrantless seizure anytime the
evidence could significantly disappear in time to obtain a warrant.
9. Hot Pursuit
a. The police are allowed warrantless search and seizure when the police
are in hot pursuit of a supposed criminal. When in hot pursuit, the
police may even pursue a suspect into the dwelling of a non-suspect.
ii. Conclude
d. Wiretap Evidence
i. Need a warrant to do so. Will get one if:
1. Probable Cause
2. Suspected persons are named
3. Warrant describes w/ particularity the conversations that can be overheard
4. Limited to a short period of time
5. Wiretap terminated when desired info is obtained
6. Return to court is made showing what conversations have been intercepted
a. Exception to warrant: We all assume the risk that the person to whom
we are speaking has agreed with the police to listed to the conversation

- 64 -
II. 5th AMENDMENT
a. Privilege against self-incrimination
i. Can be asserted at civil or criminal trials, however only applies to testimonial evidence
1. Corps cannot invoke this protection.
2. Unconstitutional for a prosecutor to comment negatively on D’s failure to testify
ii. Can be waived:
1. By taking the stand and talking about it
2. If no longer possible W would be incriminating himself
a. SOL has run
b. D has already been acquitted or convicted and cannot be retried
c. Derivative Use Immunity: if granted immunity, then can speak.
However, if G obtains evidence from independent sources, then D can
be prosecuted by D, no matter if immunity given. Get Absolute
Immunity instead.
b. Confessions
i. Initial Point-Getters
1. 14th Amendment Due Process Clause
a. For self-incriminating statements to be admissible under the Due
Process Clause, the waiver must be voluntary, as determined by the
totality of the circumstances.
i. Harmless Error Test applies
2. 6th Amendment Right to Counsel – Applies only post charge
a. If the self-incriminating statement was obtained after charge without
the presence of the attorney, then it violates the 6th amendment right to
counsel. This right if offense specific, and thus police are allowed to
question the person in regards to unrelated crimes.
ii. Miranda
1. For an admission or confession to be admissible under the 5th Amendment
privilege against self-incrimination, a person in custody (reasonable person not
ok to leave), prior to interrogation (likely to elicit incriminating statements),
be informed, in substance that he:
a. Has a right to remain silent
b. Anything he says can be used against him in court
c. Has the right to the presence of an attorney (5th Amendment right), and
d. If cannot afford an attorney, one will be appointed for him if he so
desires.
2. Waiver:
a. D has burden to prove he exercised the right, burden on G to show the
waiver was voluntary and intelligent.
3. Right to remain silent
a. If the accused indicated he wishes to remain silent, the police must
honor this request by not badgering the witness, however, SCOTUS has
held that he may be questioned about unrelated crimes.
4. 5th Amendment Right to Counsel via Miranda
a. If the accused unambiguously indicates that he wishes to speak to
counsel, ALL QUESTIONS MUST CEASE until counsel is provided.
The police may not be questioned about unrelated crimes.
5. Effect of violation

- 65 -
a. Can be used to impeach, but not in the prosecutors case in chief. The
fruits of any statements will be allowed as evidence.
c. Double Jeopardy (Criminal actions ONLY)
i. Attaches: In jury trial, when jury sworn in, In bench trial, when 1st W takes stand
ii. Exceptions:
1. Hung Jury in 1st
2. Mistrial granted by D wanted one or manifestly necessary
3. Successful defense appeals, unless based on insufficient evidence
4. Failure of D to keep an agreed upon bargain.
iii. Once attaches, cannot be tried for same offense or lesser offense in the same sovereign,
unless new evidence
1. SAME SOVEREIGN: A state and a federal
2. SAME OFFENSE: 2 crimes are the same offense unless EACH crime requires
proof of an additional element. Both need 1 different element.
3. New Evidence Exception: conduct had not occurred at time of the prosecution
for lesser crime (try them for attempted murder, then V dies later – go after them
for murder)
d. 5th amendment right to Grand Juries
i. Need them in federal court, but not in state courts.
th
III. 6 AMENDMENT
a. Right to attorney – attaches upon charges being brought
i. A suspect has a right to the presence of an attorney at any post-charge lineups or
showups, and to be present at all critical steps in the litigation process. It is offense
specific, and thus police may question the alleged without an attorney about unrelated
crimes.
ii. A D has a 6th amendment right ot counsel for misdemeanors only if imprisonment is
actually imposed.
iii. Lineups
1. 6th Amendment right to counsel at post-charge lineup or show up
2. 14th Amendment Due Process: the lineup is so unnecessarily suggestive as to
create a substantial likelihood that it will produce a misidentification.
a. Independent Source Rule: A W make an in-court identification
despite the existence of an unconstitutional lineup if the in court
identification has an independent source.
i. W’s opportunity to observe the D at the time of the crime
ii. The ease with which the W can identify the D AND
iii. The existence or absence of prior misidentifications
b. Suppression hearing: should be done outside the presence of jury. G
bears burden of proving: 1) counsel present, 2) D waived counsel 3)
independent source for the identification
iv. Limitations:
1. No right at photo ID or taking of physical evidence
2. Waiver and right to defend one’s self
3. Attaches for misdemeanors only when imprisonment is actually imposed.
b. Confrontation Clause – 6th
i. 6th Amendment grants to a D in a criminal proceeding the right to confront adverse
witnesses. Occurs when the Prosecution attempts to admit a co-defendant’s confession
without putting the co-Defendant on the stand. Such statement may be admitted if:
1. All portions referring to the other D can be eliminated

- 66 -
2.
The confessing D takes the stand and subjects himself to cross-examination
3.
Confession is being used to rebut the D’s claim that his confession was obtained
coercively.
c. Right to Speedy Trial
i. Totality of the circumstances AND attaches once D is arrested
1. The reason for the delay
2. Whether D objected to the delay
3. Length of the delay
d. Right to a Jury Trial
i. A person has a 6th Amendment right to a jury trial where imprisonment of over six
months is possible.
ii. Number and selection of jurors
1. Jury pool must represent a fair cross-section of the community, however, this
particular jury need not have a diverse make-up
a. Preemptory challenges and for-cause challenges. Can’t be race or
gender based.
2. Can have as many as 12, where 9-3 is OK, or as little as 6, but must be
unanimous
iii. Death Penalty Cases: Juror’s view must not prevent or substantially impair ability to sit
as a fair and impartial juror
e. Guilty pleas must be voluntary and intelligent
i. Judge must make sure please is voluntary and intelligent by making sure D knows:
1. The nature of the charges
2. Maximum possible penalty and mandatory minimum; AND
3. He has a right not to plead guilty and if he does plead guilty, he waives the right
to trial
ii. Collateral attack on plea after sentencing: can only be done if:
1. Involuntary
2. Lack of JDX
3. Ineffective counsel: D must prove
a. Deficient performance by counsel
b. Have affected the outcome of the case
4. Failure to keep a plea bargain
f. Right to Psychiatrist in an Insanity Defense
i. 6th amendment right to effective representation where P has made preoiminary showing
he is like able to use insanity defense , state must provide.
IV. 8th AMENDMENT
a. Cruel and Unusual Punishment
i. Death Penalty
1. Not inherently in violation of 8th amendment, and is allowed if the jury is given:
a. Reasonable discretion,
b. Full information concerning the D, and
c. Guidance in making the decision.
i. Not allowed for rape, and only for Felony Murder if material
participation with reckless indifference to human life.
2. Limitations
a. Can be no automatic death penalty
b. Jury should be allowed to consider mitigating circumstances
c. Those that cannot be put to death

- 67 -
i. Under 18 at time of commission
ii. Presently Insane person
iii. Presently retarded
ii. Punishment proportional to the offense
b. Bail – not clear if incorporated to the states
i. Preventative Detention constitutional when:
1. Releasing him would endanger the public
2. Courts decide no amount will ensure D’s appearance in court
V. 14th AMENDMENT
a. Voluntary confessions
i. G must prove it was voluntary
b. Voluntary and intelligent waivers
i. Waiver was not only voluntary, but also informed and intelligent.
c. Lineups
i. the lineup is so unnecessarily suggestive as to create a substantial likelihood that it will
produce a mis-identification.
1. The remedy for unconstitutional identifications is the exclusion of the in-court
identification and is rarely granted.
d. Prosecutor’s Duty
i. Prosecutor has a duty to disclose material exculpatory evidence to the D. Failure to do so
violates Due Process and warrants reversal of the conviction if:
1. The evidence is favorable b/c it impeaches or is exculpatory AND
2. Prejudice has resulted (reasonable probability case is different)
ii. D must tell P he has an alibi or is going to use the insanity defense.
e. Juvenile Court Proceedings: Rights that must be given to a child
i. Written notice of the charges
ii. Assistance of counsel
iii. Opportunity to confront + X-examine witnesses
iv. Right not to testify
v. The right to have guilt established beyond a reasonable doubt
f. Forfeiture Actions
i. Personal Property: not constitutionally entitled to notice and hearing before seizure, but
hearing required before final forfeiture
ii. Real Property: notice and opportunity to be heard required before seizure unless G proves
exigent circumstance
1. Excessive Fines clause of 8th Amendment: Penal forfeitures are subject to 8th
Amendment, but civil forfeitures are not
a. Forfeiture will not be excessive unless grossly disproportionate to the
gravity of the offense
iii. Innocent Owner Defense: Due Process does not require an innocent owner defense, at
least where the innocent owner negligently entrusted the property to the wrongdoer.
VI. OTHER
a. Magistrate may dismiss charge (to be w/o merit), if satisified there is PC to believe D is guilty of
crime charged, he may bind D over for trial.
i. PC strong suspicion that D committed the offense by preponderance of the evidence

- 68 -
CRIMINAL LAW
10 SECOND CHECKLIST (MAD PPIG)
I. General Principles
II. Accomplice Liability
III. Inchoate Offenses
IV. Murder
V. Person Crimes
VI. Property and Public Crimes
VII. Defenses
DETAILED OUTLINE
I. GENERAL PRINCIPLES
a. Actus Reus: Voluntary act needed for culpability (look out for sleepwalking/seizure striking)
i. Omission of act = culpability if: (SCRAP)
1. Statutory duty
2. Contractual Duty
3. Relationship (Parent-Child)
4. Voluntary Assistance
5. Peril caused by you
b. Mens Rea: A crime may require not only the act but a specific intent or objective
i. Specific Intent Crimes (SCARE BIFFAL)
1. Types
a. Solicitation, Conspiracy, Assault, Robbery, Embezzlement, Burglary,
1st Degree Murder, False Pretenses, Forgery, Attempt, Larceny
2. Defenses to Specific Intent Crimes (I DID RUV)
a. Insanity, Diminished capacity, Involuntary Intoxication, Duress,
Reasonable mistake of fact, Unreasonable mistake of fact, Voluntary
intoxication
ii. Malice Crimes
1. Types
a. Arson
b. Common Law Murder
2. Defenses to Malice Crimes
a. Insanity
b. Involuntary intoxication
iii. General Intent Crimes
1. Types:
a. Battery
b. Rape
c. Kidnapping
d. False Imprisonment
2. Defenses: (I RID “the General of Duty”)
a. Insanity, Reasonable mistake of fact, Involuntary intoxication, Duress
iv. Strict Liability
1. Types:
a. Statutory Rape
b. Selling liquor to Minors
c. Bigamy (some Jdxs)
2. Defenses: (I^2 D)
a. Insanity
b. Involuntary Intoxication
c. Duress

- 69 -
v. MPC: Eliminates distinctions between general and specific
1. Purposely: conscious object to engage in certain conduct or cause a certain result
2. Knowingly: aware or knows conduct will necessarily cause a particular result
3. Recklessly: knows (objective standard) of a substantial & unjustifiable risk and
consciously disregards it.
4. Negligence: Fails to be aware of a substantial and unjustifiable risk, which is a
substantial deviation from the standard of care
c. Concurrence
d. Causation
II. ACCOMPLICE LIABILITY
a. Elements of Accomplice Liability
i. D must have actually done something with the intent to assist in the criminal enterprise
OR
ii. Assisted in the actual perpetration in some significant way, with knowledge that the
assistance would be used in order to commit the crime
b. Liability
i. Liable for originally intended crimes AND
ii. All other foreseeable crimes committed by the principle
c. Defenses
i. Withdrawal from Accomplice Liability
1. Must occur before the crime becomes unstoppable
a. Repudiation sufficient if only encouragement
b. Attempt to neutralize if participation beyond encouragement
ii. Accessory After the Fact
1. Helping someone escape
a. Not liable for crime itself
b. A separate and lesser charge
d. Always bring up Conspiracy when you have accomplice liability and vice versa
III. INCHOATE OFFENSES
a. Solicitation
i. Elements: Asking, advising, counseling, commanding, urging someone to commit a
crime
ii. Defense: The refusal of the solicitee is NO defense
iii. Talk about MERGER
1. It merges with conspiracy because if the person agrees to commit the crime,
there is a conspiracy.
2. Also merges with the subsequent offense that is completed
b. Conspiracy
i. Elements
1. An agreement between 2 or more people
2. An intent to agree by 2 or more
3. An intent to achieve the objective of the agreement by 2 or more
4. Overt act [majority], no overt act [minority]
a. Mere preparation is enough
ii. Liability for Co-Conspirators
1. A co-conspirator is liable for the crimes committed by other co-conspirators if:
a. Were committed in furtherance of the objectives of the conspiracy
b. Were foreseeable result of the conspiracy
iii. Withdrawal
1. IN order to successfully withdraw:
a. Must inform ALL other co-conspirators of your withdrawal
b. Give notice in time for others to withdraw
2. If withdrawal successful then D still liable for all the crimes up to the point of
withdrawal but not for the crimes not yet committed.
iv. Multiple-Party Conspiracies:
1. Chain: Single, Large conspiracy with multiple layers – all liable for all crimes

- 70 -
2.
Wheel and Spoke: number of independent conspiracies linked by common
member. Common member liable for all but other s are not.
v. Talk about NO MERGER
vi. Defenses
1. Impossibility is NOT A DEFENSE
vii. Always bring up Accomplice Liability when you have accomplice liability and vice versa
c. Attempt
i. Elements
1. An act
2. With specific intent to commit the crime
3. That falls short
4. But has a substantial step.
a. Mere planning not enough
ii. Defenses
1. Factual impossibility is no defense
2. Legal impossibility is a defense [majority rule]: If it isn’t a crime, then no
attempt
3. Abandonment is no defense after substantial step
4. If the person is a part of the class that the statute is to protect, then they cannot
be guilty of attempt.
IV. MURDER GO THROUGH ALL DEGREES ON A TEST WHEN ASKED
a. Homicide
i. Common Law Murder: (Always 2nd Degree)
1. Murder is the unlawful killing of a human being with malice aforethought.
Malice aforethought exists if it was committed with one of the following states
of mind
a. Intent to kill
b. Intent to inflict great bodily harm
c. With reckless indifference to an unjustifiably high risk to human life
(depraved heart) OR
d. Intent to commit a felony
ii. 1st Degree Murder
1. Deliberate and Premeditated: even for a non-second
2. Felony Murder
a. Murder must be in the commission of an inherently dangerous felony
(Barrk)
i. Burglary, Arson, Robbery, Rape, Kidnapping
b. Defenses to Felony murder
i. Not guilty of underlying felony
ii. Felony not distinct from the killing
iii. Death not foreseeable
iv. D reached a point of safety
v. D not liable for Co-felons death
vi. Agency and Proximate Cause theories
1. Agency
a. D liable only for FM if innocent person
killed by D or his agents
2. Proximate Cause
a. D liable for innocent people no matter who
killed them
iii. 2nd Degree murder
1. All others that are not first degree, voluntary manslaughter, or involuntary
manslaughter.
2. Voluntary manslaughter (intentional act)

- 71 -
a.
Would be first degree if not for adequate provocation. Provocation is
adequate if (Heat of Passion): Only way to get to voluntary
Manslaughter is heat of pasion
i. Arouse a sudden and intense passion in the mind of the
ordinary person
ii. This D was in fact provoked
iii. Reasonable person would not have time to cool off
iv. This D did not actually cool off
b. Imperfect Self-Defense
i. Minority of states say that murder may be reduced to VM if
1. D was at fault in starting the altercation AND
2. D unreasonably but honestly believed in the necessity
of responding with deadly force.
3. Involuntary Manslaughter (unintentional act)
a. Occurs when the specific intent is not depraved heart, rather only
criminal negligence OR
b. A killing occurred during an unenumerated felony or a misdemeanor
V. CRIMES AGAINST THE PERSON
a. Battery
i. Unlawful application of force
ii. To the person of another
iii. Resulting in either bodily injury or an offensive touching
b. Assault: Two theories
i. Attempted battery: SPECIFIC INTENT CRIME
ii. As a threat
1. Intentional creation, other than mere words
2. Of a reasonable apprehension in the mind of the victim
3. Of imminent bodily harm
c. Rape
i. The unlawful carnal knowledge of a woman, not her husband, without effective consent.
Lack of effective consent includes
1. Intercourse accomplished by actual force
2. Intercourse accomplished by threats of great and imminent bodily harm
3. The victim is incapable of consent due to unconsciousness, intoxication, or
mental condition
4. The victim is fraudulently caused to believe the act is not intercourse
d. Kidnap
i. Unlawful confinement of a person that involves either
1. Some movement of the victim OR
2. Confinement of the victim in a secret place
e. Mayhem
i. Dismemberment or disablement of a bodily part
f. Sodomy
i. Butt Sex
VI. CRIMES AGAINST PROPERTY AND PUBLIC
a. Theft
i. Larceny: These must be present at time of the taking
1. Elements:
a. Wrongful taking
b. Carrying away
c. Tangible personal property
d. Of another in lawful possession
e. By trespass
f. With intent to permanently deprive
2. “Continuing Trespass”: If D takes property without intent to permanently
deprive (“I’ll just give it back”) and later decides to keep the property she is

- 72 -
guilty of larceny when she decided to keep it. However, if original taking is not
wrongful, then no larceny (“I thought the umbrella was mine, but I’ll keep it
anyway”)
ii. Embezzlement
1. Fraudulent
2. Conversion
3. Of personal property
4. Of another
5. By a person in lawful possession of the property
a. If intends to replace exact property, then no embezzlement
iii. False Pretenses
1. Obtaining title (not possession)
2. To personal property
3. By an intentional false statement (present or past fact)
4. With intent to defraud
iv. Receiving Stolen Property: At the time of receipt
1. Receiving possession and control
2. Of “stolen” personal property
3. Known to have been obtained in an illegal manner
4. By another person
5. With intent to permanently deprive owner of his interest in it
b. Against Personal Property
i. Robbery
1. A taking
2. Of personal property
3. Of another
4. From the other’s person or presence
5. By force or threat of imminent death or physical injury
6. With intent to permanently deprive him of it
ii. Extortion
1. Obtaining property
2. By means of threats
3. To do bodily harm
4. Or to expose
iii. Malicious Mischief
1. The malicious
2. Destruction or damage to
3. The property of another
c. Against Real Property
i. Arson
1. Malicious
2. Burning (requires damage to the structure)
3. Of the dwelling
4. Of another
ii. Burglary
1. Elements: At time of burglary
a. A breaking and
b. Entering
c. Of a dwelling
d. Of another
e. At nighttime
f. With intent to commit a felony therein
2. Constructive Breaking and Entering: Gaining entry by fraud or
misrepresentation
d. Against the Public
i. Forgery

- 73 -
1. Making or altering
2. A writing with apparent legal significance
3. So that it is false (or representing something it is not)
4. With intent to defraud
ii. Misprison, Compounding a Felony
1. Failure to disclose knowledge of the commission of a felony.
iii. Bigamy
1. Two wives
VII. DEFENSES
a. Self Defense
i. Non-Deadly Force
1. A person is permitted to use non-deadly force at any time if person reasonably
believes that non-deadly force is about to be used against them.
ii. Deadly Force
1. Majority Rule:
a. A person is permitted to use deadly force at any time if person
reasonably believes that deadly force is about to be used against them.
Under majority rule, there is no duty to retreat.
2. Minority Rule
a. Prior to using deadly force in self-defense the person must retreat, if
safe to do so.
i. Exceptions:
1. If victim is in their own house, then don’t have to
retreat
2. Victim of violent felonies, such as rape and robbery
do not have to retreat
3. Police officers have no duty to retreat
iii. Initial Aggressor
1. Cannot claim self-defense unless:
a. Original aggressor has withdrawn by running for the door, and TELLS
everyone he is withdrawing, OR
b. He uses non-deadly force, but must defend against deadly force from
another.
2. In all JDXs, an initial aggressor must try to retreat if that avenue is safe for them
to do so.
b. Defense of Others
i. D has right to defend others if she reasonably believes that the person assisted has the
legal right to use force in his own defense.
c. Defense of Property
i. Non-deadly force = May be used to prevent unlawful entry or attack on dwelling
ii. Deadly force = May never be used to defend property alone
d. Insanity
i. M’Naghten
1. At the time of D’s conduct, as a result of his mental condition D lacked the
a. Ability to know the wrongfulness of his conduct OR
b. Could not understand the nature & quality of his acts
ii. Irresistible Impulse
1. D, as a result of his mental defect, lacked the capacity for self-control and free
choice.
a. He may have known what he was doing was wrong, but couldn’t
control himself.
iii. Durham Rule
1. The D’s conduct was a product of a mental illness
a. The most broad
iv. MPC Approach
1. The D, as a result of his mental disease or defect, lacked the capacity to either:

- 74 -
a. Appreciate the criminality of his conduct OR
b. Conform his conduct to the requirements of the law
e. Diminished Capacity
i. Mental illness short of insanity may be asserted in a specific intent crime to mitigate the
accused culpability or reduce the charge to a lesser offense.
f. Intoxication
i. Voluntary
1. Negates specific intent only
2. Can reduce 1st degree to 2nd degree murder, but cannot reduce murder to
manslaughter (only heat of passion does this)
ii. Involuntary
1. 3 instances of involuntary intoxication
a. When D takes a substance not knowing of intoxicating effects
b. Takes intoxicant under duress
c. Takes medication under advice of doctor without knowing of
intoxicating effects
2. Defense to everything
iii. TALK ABOUT DIMINSHED CAPACITY AND INSANITY TESTS ALSO
g. Entrapment
i. Only exists if:
1. The criminal design originated with law enforcement officers AND
2. The D was not predisposed to commit the crime prior to contract with G’s
officials
h. Mistake & Impossibility
i. Factual Impossibility
1. Is not a defense ever
ii. Legal Impossibility (not a crime)
1. Is a defense
iii. Mistake of Fact
1. Reasonable and unreasonable can negate specific intent
2. Only reasonable can negate general intent
iv. Mistake of Law
1. Generally not a defense even if belief was reasonable unless
a. Statue was not published or available
b. Reasonable reliance on judicial decision or statute
c. In some jdxs, reasonable reliance on official interpretation or adivice
i. Age, Infancy
i. Under 7 – no criminal liability
ii. 7-14 – rebuttable presumption no criminal liability
j. Necessity
i. Private: You are still liable for the damages to the property
ii. Public: absolute defense
k. Duress
i. D reasonably believes that
1. another person would
2. imminently inflict death or great bodily harm
3. upon him or a member of his family
4. if he did not commit the crime
a. Defense to all crimes but murder
l. Crime Prevention
i. Non-deadly force may be used to the extent that it reasonably appears necessary to
prevent a felony or serious breach of the peace. Deadly force only if to prevent felon’s
escape AND felon threatens death or serious bodily harm
1. Private person can use non-deadly force to arrest if crime was in fact committed
AND private person has reasonable grounds to believe person committed it.

- 75 -
- 76 -
CORPORATIONS CHECKLIST
10 SECOND CHECKLIST (FAIRF Chris Feldman)

I. Formation
II. Issuance of Stock
III. Actions by and Liability of Directors and Officers
IV. Rights of Shareholders
V. Fundamental Corporate Changes
VI. Controlling v. Minority Shareholders
VII. Federal Security Laws
Form Stock D&O Share Change CM Share Securities

P PV M P Req Sale of C 10b-5
share
S CS DOC SS T Secret sales IN
T TS BJR SV DR MIS
DJ P DOL M 16(b)
DF I D Sarbanes
E CC
FC PC
DETAILED OUTLINE
I. CORPORATE FORMATION
a. Pre-Incorporation Contracts
i. Promoters: Persons acting on behalf of a corporation not yet formed
1. 2 issues:
a. Corporation becomes liable when they adopt the contract by:
i. Express BOD resolution
ii. Implied Adoption: Corp has knowledge and accepts its
benefits.
b. Promoter remains liable on pre-incorporation contracts until novation
2. Fiduciary Duties of Promoter
a. Cannot make secret profit
i. Sale to corporation of property acquired before becoming
promoter = OK, unless sold for more than FMV
ii. Sale to corporation of property acquired after becoming
promoter = NOT OK, any profit recoverable by the
corporation (disgorgement)
ii. Subscribers: Persons or entities that make written offers to buy stock from a corporation
not yet formed.
1. Not revocable for 6 months
b. Formation
i. Types
1. De Jure Corporation: Actual legal incorporation needs a filing of the Articles
of Incorporation (A PAIN)
a. Authorized Shares: maximum number of shares corporation allowed to
issue. Can sell less
b. Purpose: If not specifically said, general purpose and perpetual duration
presumed
i. ULTRA VIRES: a corporation may not undertake activities
outside its stated purpose:
1. State can enjoin the ultra vires activity
2. Corporation may sue its own Director and Officers

- 77 -
3. A Shareholder may sue the corporation to enjoin the
act
c. Agent: Name and address of legal representative
d. Incorporators: Name and Address
e. Name of Corporation: Name must contain some indicia of corporate
status (e.g. inc., corp.)
i. Corporation need NOT adopt Bylaws
2. De Facto Corporation: A business failing to achieve De Jure status nonetheless
is treated as a corporation if the organizers have made a good faith, colorable
attempt to comply with corporate formalities, AND have no knowledge of the
corporate status.
a. Good Faith
b. Colorable Attempt
c. No Knowledge
3. Corporation by Estoppel: People who have dealt with the entity as if it were a
corporation will be estopped from denying the corporations existence.
4. Foreign Corporations: Corporation incorporated outside the state must file a
certificate of authority, which includes the same requirements as the Articles of
Incorporation (A PAIN)
II. ISSUANCE OF STOCK
a. Consideration
i. Par Value: “minimum issuance price” – Corporation must get at least this amount
ii. No Par Value: any consideration deemed adequate by the board will be valid
iii. Treasury Stock: previously issued stock that has been reacquired by the corporation.
Treated like no par value stock – can be reissued for any consideration deemed adequate
by the BOD will be valid.
iv. Acquiring Property with Par Value Stock: Ok to do. Must be deemed adequate by the
board
v. Consequence of Issuing stock for less than par value: Both corporation, for authorizing
below par value sale AND shareholder, up to par value deficiency, may be liable to the
corporation.
b. Preemptive Rights: Is the right of an existing shareholder to maintain her % of stock ownership by
buying stock whenever there is a new issuance of stock for cash.
i. Does NOT exist unless they are granted in the articles
III. ACTIONS BY AND LIABILITY OF: DIRECTORS AND OFFICERS
a. Statutory Requirements - Directors
i. Must be comprised of at least one member, elected by shareholders.
ii. Can be removed with or without cause, but under cumulative voting, the votes against
would be sufficient to elect her if a new election was held, then no removal.
iii. Valid Meeting
1. Unless all directors consent in writing to act without a meeting, a meeting is
required
2. Notice of directors meeting can be set in the bylaws
3. Proxies are not allowed. Also, no voting agreements
4. Quorum:
a. Must have a majority of all directors at the meeting to take action
(unless different in bylaws)
b. To pass a resolution, however, all that is required is a majority vote of
those PRESENT
b. Liability of Directors to their own corporation and shareholders
i. Duties
1. Duty of Care: Directors have a duty to manage the corporation:
a. In good Faith
b. With the Care of an ordinary prudent person
c. The person believes is in the best interest of the corporation

- 78 -
i. Directors may rely on reports of third parties if reliance is
reasonable and competent
d. Business Judgment Rule: the above three part test insulates directors
from liability for the consequences of a business decision. As long as
care was taken, no liability, no matter the result.
2. Duty of Loyalty: a Director may not receive an unfair benefit to the detriment
of the corporation or shareholders, unless there has been material disclosure and
independent ratification. Violations of Duty of Loyalty include:
a. Conflict of Interest: when a director or related person:
i. Is a party to the transaction
ii. Has a beneficial financial interest
iii. Is director/officer of another corporation doing business with
this corporation
b. Self-Dealing: director who receives an unfair benefit to herself (or
relative) in a transaction with her own corporation
c. Corporate Opportunity Doctrine: director receives an unfair benefit by
usurping for herself the opportunity which the corporation would
have/could have pursued.
d. Ratification: Need:
i. A majority vote of independent directors
ii. Majority vote of a committee of at least 2 independent
directors OR
iii. Majority vote of shares held by independent shareholders
3. Doctrine of Waste: Directors have a duty not to waste corporate assets.
ii. Which Directors Liable
1. A director is presumed to have concurred with board action UNLESS her dissent
or abstention is noted in writing in the corporate records (meaning in the
minutes or in writing to the corporate secretary at the meeting or registered letter
to the corporate secretary immediately after the meeting.)
a. Exceptions:
i. Absent directors are not liable (in some states they must
dissent in writing after learning of the board’s action),
ii. Good faith reliance on 1) the book value of assets, 2) the
opinion of a competent employee, officer, professional, or
committee of which she was not a member, or 3) financial
statements by auditors. Must have reasonable belief in the
competence of the persons providing such info.
c. Liability of Officers
i. Owe same duties of care and loyalty as directors
ii. Are agents of the corporation and bind the corporation by their authorized activities
1. Actual authority – given in the articles, bylaws, or by board action.
2. Apparent authority – where corp holds out the officer as having authority to bind
it and third parties rely on that authority
3. Inherent authority – exists by virtue of the office held.
iii. Corporations must have a President, Secretary, and Treasurer
iv. Directors have virtually unlimited power to select/remove officers, but Corp. liable for
any breach of K
d. Indemnification of Directors and Officers
i. Never Indemnify: Directors who lose a lawsuit to their own corporation
ii. Always Indemnify: When director wins lawsuit against any party, including own
corporation
iii. May Indemnify:
1. Liability to 3rd parties or settlement with Corp.
2. Director or officer shows he acted under BJR
3. Majority vote of a committee of at least 2 independent directors could approve it
4. Majority vote of shares held by independent shareholders could vote for it

- 79 -
5. Special legal counsel’s opinion could recommend it
IV. RIGHTS OF SHAREHOLDERS
a. Shareholder Liability
i. General Rule: SHs are generally NOT liable for the acts or debts of the corporation, but a
court might “pierce the corporate veil” to avoid fraud or unfairness.
1. Piercing the Corporate Veil: Generally, a shareholder is not liable for the debts
of a corporation. However, under the doctrine of piercing the corporate veil, the
courts will disregard a corporate entity and hold the individual liable for
corporate obligations if:
a. Alter Ego: failure to observe sufficient corporate formalities
i. No board/shareholder meetings, commingling funds, etc.
b. Undercapitalization at Time of Formation: failure to maintain sufficient
funds to cover foreseeable liabilities at start of corporation.
b. SH’s Control Over Management
i. Management– The power to manage the corp generally is vested in the Dirs. Generally,
SHs have no direct control in management of the corporation’s business, UNLESS the
corporation’s articles or a SH agreement provides otherwise. SHs exercise only indirect
control through their voting power.
ii. Direct Management by SHs – SHs can manage directly in a close corporation, if there is
a unanimous SH agreement that provides for SH management.
iii. Duty of Care & Duty of Loyalty – Managing SHs owe a duty of care and duty of
loyalty.
iv. Close corp – SHs owe each other fiduciary duties. (Watch for controlling SH who
oppresses minority SHs)
c. Shareholder Suits
i. SH may bring a suit as a direct action or derivative action.
1. Direct Action – may be brought for a breach of a fiduciary duty owed to the SH
by an Ofc or Dir.
a. To distinguish breach of duty owed to the corp vs. the SH, ask (i) who
suffers the most immediate and direct damage, and (ii) to whom did the
defendant’s duty run.
b. In a SH direct action, any recovery is for the benefit of the individual
SH, not the corporation.
2. Derivative Action – The SH is asserting the corp’s rights rather than her own
rights. Recovery in a derivative action generally goes to the corp rather than to
the SH bringing the action. Nevertheless, the corp is named as a D.
a. Standing: To bring a derivative suit, the SH must:
i. Have owned stock at the time the claim arose or gotten it by
operation of law from someone who did own the stock when
the claim arose and must continue so to own throughout the
litigation;
ii. Adequately represent the interest of the corporation;
b. Demand Requirement: Make written demand on the directors that the
corporation bring suit and wait 90 days unless
i. demand would be futile;
ii. SH notified earlier demand rejected OR
iii. irreparable harm would come about by waiting 90 days
iv. Post a security bond (in some states);
c. Not Best Interest: The corporation can move to dismiss if disinterested
Ds find it is not in the corp’s best interest., by a majority of
disinterested BOD.
d. Shareholder Voting
i. SH of record as of the record date may vote at the meeting. (“SH of record” = person
shown as the owner in the corporate records; “record date” = voter eligibility cut-off
date).

- 80 -
1. The corp does not vote treasury stock. SH’s executor votes if the SH dies after
the record date.
2. Proxies – a writing signed by the record SH and directed to the secretary of the
corp that authorizes another person to vote the shares. (valid for 11 months
unless stated otherwise)
a. Proxies are valid for 11 months unless they state otherwise.
b. Proxies are freely revocable UNLESS they state they are irrevocable
and are coupled with an interest.
c. Voting Trusts – Written agreement controlling how the shares will be
voted.
i. Legal title to the shares is transferred to a trustee
ii. Original SHs receive trust certificates and retain all SHs rights
except for voting
iii. Can endure a maximum of 10 years
d. Voting agreements
i. The agreement must be in writing and signed
ii. Specifically enforceable in some states but not in others
ii. Notice
1. For any meeting the corporation must give written notice to every SH entitled to
vote of when, where and purpose.
a. If proper notice not given to all SHs, any action taken at the meeting is
void unless those not sent notice waive the defect 1) Expressly in
writing and signed, or 2) Impliedly by attending without objection.
2. Annual meetings – no notice required.
3. Special meetings - Can be called by the board, president, holders of at least 10
percent of the voting shares; or someone else as provided in articles. Must be
called for a proper SH purpose.
iii. Quorum - There must be a quorum represented at the meeting. A quorum requires a
majority of the outstanding shares. SH quorum is not lost if people leave the meeting.
1. If the quorum requirement is met, a majority of the shares present (traditional
rule) or shares that actually voted (modern trend) may bind the corporation
unless the articles or bylaws require a higher vote.
iv. Types of Voting
1. Straight: One share = one vote. Think 9 separate elections.
a. 1000 shares, 1000 votes dispersed into 9 elections. One dir gets 1000
votes max
2. Cumulative: Each shareholder is entitled to a number of votes equal to the
number of voting shares multiplied by the number of directors to be elected.
Think one general election and top 9 directors win seats.
a. 9000 shares to vote for 9 candidates. 9000 votes can go to one dir
e. Shareholder Restrictions on Transfer of Stock
i. General Rule – Stock transfer restrictions will be upheld provided they are reasonable
under the circumstances—that is, not an undue restraint on alienation.
ii. The corp may proceed against the transferring SH but it has no recourse against the
transferee unless 1) the restriction was conspicuously noted on the stock certificate; or 2)
The transferee had actual knowledge of the restriction
f. Shareholder Inspection Rights
i. Traditional Rule – A SH has standing to demand access to corporate records (vs.
inspecting factory) if he has owned the stock for at least 6 months or owns at least 5% of
outstanding shares.
ii. Modern Trend – Any SH can demand access.
iii. Procedure – SH must make a written demand stating a proper purpose, which means
related to her role as SH.
1. If the corporation rebuffs a proper demand, the SH can move for a court order
and, if successful, recover costs and attorneys’ fees incurred in making the
motion

- 81 -
g. Dividends
i. General Rule – Declaration of dividend is within the discretion of the BOD and a strong
showing of abuse of discretion case is required to induce a court of equity to order the
directors to declare a dividend. (e.g., corp consistently makes profits and the board
refuses to declare a dividend but pays itself a bonus).
1. Limitation: Cannot do a dividend if:
a. Corp would not be able to pay its debts as they become due
b. The corp’s total assets would be less then sum of its total liabilities
ii. Priority:
1. Preferred Stock: Get paid first
2. Participating: These are both preferred stock and common stock – get paid
twice, effectively.
3. Cumulative: Get current preferred distribution AND any missed years’
distribution
4. Common Share: Get whatever is left and take equally
iii. Funds Used:
1. Earned surplus – OK source to fund distributions
a. A nimble dividend: paid out of current earnings when there is not
enough surplus for a dividend; not permitted in many states.
2. Stated capital—never OK to use for distributions
a. Generated by issuing stock.
b. With a par issuance, the par value of the issuance = stated capital. Any
excess over par value = capital surplus.
c. With a no-par issuance, the board allocates between stated capital and
capital surplus. If the board does not allocate, all the proceeds go to
stated capital
3. Capital surplus—OK to use for distributions but in many states the SHs must
be informed of the source
4. Directors are liable for excess or unlawful distributions [amount over what
legally could have been given] unless good faith. Can get contribution from
other assenting directors
a. Some states—director liability is strict
b. Other states—director liability based on breach of a duty, but possible
defense of good faith reliance.
h. Closely Held Corporations
i. Requirements:
1. Unanimous shareholder election evidenced in articles, bylaws, or filed written
agreement
2. A reasonable share transfer restriction
ii. If these are met, no Piercing of Corporate Veil even if fail to observe formalities. Look
for S corporation status: 1) limited liability, 2) pass through taxation. To be an S, need:
a.) no more than 100 shareholders, b.) must reside in America, 3.) only 1 class of stock.
i. Professional Corporations: may incorporate as a PC if:
i. Organizers file Articles with name of designated PC
ii. Shareholders must be licensed professionals
iii. The corporation may practice only one designated profession
iv. The professionals are personally liable for their own malpractice
v. But, professionals are not liable personally for each other’s malpractice or the obligations
of the corporation itself.
V. FUNDAMENTAL CORPORATE CHANGES
a. Rule – The general procedure for fundamental changes are: 1) the board adopts a resolution, 2)
written notice is given to SHs, 3) SHs approve changes by a majority of shares entitled to vote,
and 4) the changes in the form of articles are filed with state.
b. Types:
i. Merger (A becomes B)
ii. Consolidation (A and B become C)

- 82 -
iii. Dissolution (A dissolves)
1. Voluntary dissolution requires Board action and SH approval; or (in some
states) unanimous written SH agreement
2. Involuntary dissolution by court order: SHs can petition for dissolution on
grounds of 1) D abuse, waste of assets, or misconduct, 2) D deadlock that harms
the company; or 3) SH deadlock and failure to fill a vacant board position.
3. Creditors can petition for dissolution because the corporation is insolvent and
creditor either has an unsatisfied judgment against the corporation or the
corporation admits the debt in writing
iv. Fundamental Amendment to the Articles
v. Sale (not purchase) of Substantially All of the Corporation’s Assets
c. Dissenter Rights
i. A shareholder who does not vote in favor of a fundamental change has the right to force
the corp. to buy her shares at FMV. Procedure:
1. Before SH vote, file written notice of objection and intent to demand payment
2. Do not vote in favor of the proposed change
3. Make prompt written demand to be bought out.
a. If SH and Corp cannot agree on FMV, court will appoint a binding
appraiser to set value.
VI. CONTROLLING v. MINORITY SHAREHOLDERS
a. Controlling SH’s State (“Common Law”) Liabilities
i. Controlling SH must refrain from obtaining a special advantage or to cause corp to take
action prejudicing minority SHs.
1. A controlling shareholder need not have 50%, rather a disproportional amount is
OK for controlling shareholder liability.
ii. Controlling SHs are treated as “insiders” under the Securities & Exchange Act.
iii. Sale of Controlling SH’s Interest: A controlling SH can sell her controlling interest at a
premium, but she owes a duty to the corporation and to minority SHs:
1. Not to sell to looters. Duty to make reasonable investigation of the buyer (hint:
notice). Thus, you will be liable for selling to looters if you had reasonable
notice that the purchasers would loot the company.
2. Disguised sale of corporate asset: The controlling SH has no right to sell a
corporate asset. If she does, all SHs should share in the premium. (hint: buyer
paying premium to get corporate assets)
3. Sale of board position: A fiduciary cannot get paid to relinquish her board
position, though It’s OK for the new controlling SH to elect new directors.
a. Remedy: Disgorgement of the profit.
b. Controlling SH cannot oppress minority SHs
i. Close corp – Esp. in a close corp, courts may protect minority SHs b/c no public market
for the stock.
ii. Fraud: CL fraud may apply to misrepresentations in the sale of stock, allowing suit by
the defrauded buyer of seller. This covers overt lies, but not half-truth or failure to
disclose.
c. Common Law Duty
i. Affirmative duty to disclosure of “special facts” upon Dirs and Offcs in a securities
transaction with a SH (or maybe even non-SHs) and
ii. Generally required “privy” as compared to transactions carried out on stock exchanges.
iii. “Special facts” are those a reasonable investor would consider important in making an
investment decision. (This is CL insider trading)
iv. SH with whom the insider deals can sue. Some say a prospective SH may sue.
v. In some states, the corporation can sue the insider to recover profits she made in market
trading on inside info.
vi. Damages = Difference b/t the price paid and the value of the stock at a reason able time
after public disclosure.
vii. Tort of fraud or misrepresentation
VII. FEDERAL SECURITY LAWS

- 83 -
a. Federal 10b-5
i. General Rule: SEC Rule 10b-5 makes it illegal for any person to use any means or
instrumentality of interstate commerce for use in any fraudulent scheme in connection
with the purchase or sale of any security.
ii. P must show:
1. Instrumentalities of interstate commerce: phone calls, internet etc
2. Fraudulent conduct: includes making a material misstatement of fact, or
making a material omission of fact. In order to qualify as fraudulent, the
statement must have been made with intent to deceive (Scienter).
a. Materiality: A statement or omission is material if there is a substantial
likelihood that a reasonable investor would consider it necessary or
important in making an investment decision.
b. Scienter: Defendant must have intent to deceive, manipulate or
defraud. Recklessness as to truth may also constitute scienter, but not
negligence.
3. In connection with the purchase or sale of a security by P: An actual sale of a
security must take place for a 10b-5 violation to occur.
iii. Additional requirements for a private plaintiff (vs. the SEC)
1. Reliance: P must prove she actual relied on the material misstatement or
omission.
2. Damages: P must prove that she sustained monetary damages as a result of the
material misstatement or omission.
a. Damages = difference b/t the price paid or received, and the average
share price in the 90 day period after corrective info is disseminated.
b. Insider Trading
i. Rule 10b-5 also prohibits those that are in a fiduciary duty with the company from
trading securities on the basis of inside information. A person violates Rule 10b-5 if by
trading, he breaches a duty of trust and confidence owed to: (1) the issuer, (2)
shareholders of the issuer, or (3) in the case of misappropriation, to another person who is
the source of the material nonpublic information. The person must disclose or abstain
from trading.
ii. Who may be liable
1. Insiders are people who breach a duty not to use inside info for personal
benefit. (e.g., directors, officers, attorneys)
2. Tippers are individuals who give tips of inside info to someone else who trades
on the basis of such info. Tippers are liable if the tip was made for any improper
purpose.
a. Tips of inside info (was the tip made? What was the “inside” info?)
b. Improper purpose: e.g., in exchange for money, as a gift, for a
reputational benefit, etc.
3. Tippees are liable if the tipper breached a duty and tippee knew the tipper was
breaching a duty and traded on the tip.
4. Misappropriation: Under 10(b)(5)(2), a person can be prosecuted by the
government for trading on market information in breach of a duty of trust and
confidence owed to the source of the information. The duty need not be owed to
the issuer or shareholders of the issuer.
a. Defendant is not a true insider with a fiduciary duty, but is typically a
lawyer, accountant or someone who acquires the info by virtue of
having a close relationship w/ the company’s insiders. They don’t have
a fiduciary duty, but they have a duty of trust or confidence to the
company (by the virtue of their employment, which suggests they know
to keep certain info on the inside. It would be misappropriation to use
that info.)
c. Section 16(b)
i. The section applies to publicly held corporations (1) with more than $10 million in assets
and 500 or more SHs, or (2) whose shares are traded on a national exchange.

- 84 -
ii. General Rule: Section 16(b) provides strict liability recovery by the corporation of
“profits” realized by any Ds, Os, and 10% SHs from any purchase and sale, or sale and
purchase, of company’s stock within a 6-month period.
iii. The defendant must be:
1. A director when either when she bought or sold,
2. An officer either when she bought or sold; or
3. A SH owning more than 10% both before and after purchase and sale
a. The SH is classified by her ownership level immediately before the
purchase or sale
4. The transaction must be buying and selling company stock (i.e. equity
securities) within a single six-month period
iv. Recoverable “profits” is determined by matching the highest sales price against the
lowest purchase price for any 6-months.
d. Tender Offers: Williams Act
i. Offer by bidder to purchase shares from shareholder of target corporation. Bidder must
file 14D if would own more than 5% of class. 14D has
1. Bidder’s identity, source of funds, past dealings with target, future plans with
target
2. Bidder’s financial statements, if not an individual, AND
3. Any arrangements made with target’s officers, directors, etc.
ii. The Offer:
1. Offer must be open for 20 days AND must be open to all members of the class
2. SH must be permitted to withdraw tendered shares while offer remains open
3. Pro-rata purchase if too many people offer shares
4. If offer price is increased, the higher price must be paid to all tendering SHs
e. Sarbanes-Oxley Act of 2002
i. CEO and CFO must certify that based on the officer’s knowledge, SEC filings:
1. Do not contain material misrepresentations or omissions AND
2. Fairly represent the financial position of the company
ii. If false reports need restatement, officers profits from trading 12 months after report filed
may be disgorged.
iii. Corporation may also recover any profits made by officers from trading corporation stock
during “black out” periods of at least 3 days when at least 50% of the employees were
prohibited from trading in their retirement plan’s securities.

- 85 -
CONTRACTS CHECKLIST
10 SECOND CHECKLIST (Armadillos From Texas, Playing Rap, Eating Tacos)
I. Applicable Law
II. Formation
III. Terms
IV. Performance
V. Remedies
VI. Excuse of Performance
VII. Third Party Beneficiaries
Applicable Formation Terms Performance Remedies Excuse of 3rd Party Bens

Law Perfor
CL Offer Inter UCC Money Material Intend/incident
Breach
UCC Acceptance Mistake/ambig PTR ED Conditions Vest
Consideration Parol evide Cure Conseq Antic repud Assignment
Defenses Modific Accept Rel Discharge Who sues
NCG Who
SOF UCC terms CL Restit Resciss Limit on A
Mistake Shipm/destin Matrl/subs Inciden Acc and Delgation
perf Satis
Incap Risk of loss LD Modif
clause
Uncon Warranties Punitive Novation
Misrep Mitigate Imposs
Fraud, Uncertain Impractic
dures, ill
Equitable FOP
Quasi K
SP
Resciss
Reclama
Reform
DETAILED OUTLINE
I. APPLICABLE LAW
a. 2 issues to address right away
i. UCC or Common Law
1. UCC: Article 2 of the UCC, as well as common law, governs contracts for the
sale of goods, which are movable, tangible property.
2. Common law governs contracts for services.
a. Mixed services: Predominate factor test: cost, common sense. ALL OR
NOTHING RULE. DO BOTH if in doubt
ii. Merchants:
1. Some provisions of the UCC only apply to merchants. A merchant is generally
a person who deals in goods of the kind sold or who otherwise by his profession
holds himself out as having special knowledge or skill as to the practices/goods
involved.
II. FORMATION
a. Elements: Mutual assent (offer and acceptance, consideration and no defenses)
b. Offer

- 86 -
i. Has there been a valid offer
1. Manifestation of a willingness to be bound, with definite and certain terms,
communicated to the offeree
a. Common Law: Need identity of parties, subject matter, price, quantity,
time of performance
b. UCC: Needs quantity and parties. Quantity inferred in requirement and
output contracts
i. Requirement/Output: OK, as long as not disproportionate
increase in demand
c. Definite and certain terms specifically: Real Estate requires price and
identification of land. Goods need quantity, employment K needs
duration
d. Advertisements are not offers.
2. Option/Firm Offers
a. Option Contract (Common Law)
i. Is an offer that is irrevocable for a stated time, or if none
stated, a reasonable time not to exceed 3 months where a third
party has given the offeror consideration in order to keep an
offer open.
b. Firm Offer (UCC)
i. Is an offer that is irrevocable if it is by a merchant, signed by
that merchant, giving assurance that it will be left open for a
stated time, or if none stated, for a reasonable time not to
exceed 3 months.
ii. Has the Offer been terminated? A terminated offer cannot be accepted
1. By Operation of Law
a. Lapse of Time: The stated time expires or reasonable time passes
b. Death or insanity of either party before acceptance
c. Destruction of the K’s subject matter before acceptance
d. Supervening Illegality
2. By an act of the parties
a. Rejection: Occurs when offeree communicates his rejection of offer. It
is effective when received:
i. Expressly
ii. Making a counteroffer
1. Exception to rejection: rejection of an option does not
terminate the offer. Offeree is still free to accept the
offer within the option period unless offeror has
detrimentally relied on that rejection.
b. Revocation: Occurs when the offeror manifests an intent to terminate
the offer
i. Directly communicates
ii. Acts inconsistently with continued willingness to be bound
AND offeree is aware of this information
1. Irrevocable Offers:
a. Option/Firm Offer
b. Detrimental reliance AND offeror could
have reasonably expected such reliance

- 87 -
c. In Unilateral K, offeree has embarked on
performance (reasonable time to complete)
c. Acceptance
i. Valid Acceptance requires:
1. An offeree with power to accept, unequivocal assent to terms, and
communication of acceptance
2. Method of acceptance: Promise to perform (bilateral), starting to perform
(bilateral), full performance
3. Common Law: Mirror Image Rule
a. Mailbox Rule: Generally, acceptance effective when mailed
i. Limitations:
1. Rule does not apply if offer stipulates acceptance
effective when received
2. Rule does not apply to option contracts
3. Offeree sends rejection, then acceptance, which
arrives first is effective
4. Offeree sends an acceptance then rejection,
acceptance is effective UNLESS rejection arrives
first AND offeror detrimentally relied.
4. UCC: 2-207:
a. Non-Merchants: the terms of the offer control. New or different terms
are proposals
b. Merchants: Any seasonable expression of acceptance, including
shipping goods is acceptance. Sending non-conforming goods +
accommodation Letter = counteroffer (DO NOT USE WHEN
THERE IS A PRIOR CONTRACT, ONLY WHEN SHIPMENT IS
ACCEPTANCE)
i. New or additional become part of the contract unless they 1)
materially alter it, 2) Offer expressly limits acceptance to the
terms of offer; offeror objects within reasonable time to new
terms
1. If the offeror limits acceptance to terms, and offeree
sends his own form that says acceptance is
conditioned on acceptance of these terms, then NO
K, unless performance. If performance, then keep
terms they agree on and KNOCKOUT the different
terms, + UCC Gap fillers
d. Consideration
i. Bargained for exchange of something with legal value including: 1) performance, 2)
forbearance, 3) promise to perform, 4) promise to forbear
1. Not consideration: Adequacy irrelevant, past consideration, pre-existing duty
2. Yes consideration
a. Promise IN WRITING to pay a debt that has been barred by the SOL
ii. Consideration substitutes
1. Promissory Estoppel/Detrimental reliance
a. Promisor makes a promise, promisee reasonably relies on the promise,
reliance is foreseeable, to his detriment, and enforcement necessary to
avoid injustice
e. Type:

- 88 -
i. Unilateral v. Bilateral
1. Unilateral – one can only accept by performing, not promise to perform
f. Defenses to FORMATION
i. Statute of Frauds (MY LEGS)
1. The contract is not enforceable unless it is signed by the party to be bound.
a. Contract that come under: Marriage K, Longer than One Year, Land,
Executor, Goods, Surety
2. Is satisfied by: (Look out for contract modification coming under SOF)
a. Performance
i. Service K: full performance by either party
ii. Sale of goods: part performance for ordinary goods (to extent
of part performance), seller’s “substantial beginning” of
making specially manufactured goods.
iii. Real Estate: need 2 of 3: payment (part or full), possession, or
improvements
b. Writing
i. CL: identity of parties, subject matter, terms and conditions,
consideration, signature of party to be bound
ii. UCC: writing must contain quantity and signed by person to
be bound
1. Merchants Confirmatory Memo: In contracts
between merchants, if one party, within a reasonable
time after an oral agreement, sends a writing that
evidences quantity, it will satisfy the SOF if he had
reason to know of its contents, UNLESS he objects to
its contents in writing within 10 days after receipt.
ii. Mistake of Fact
1. Mutual mistake: No k if both parties mistaken, concerning a basic assumption
of fact, that materially affects exchange, AND not a risk anyone bears
2. Unilateral Mistake: Only a defense if the other party knew or had reason to
know of the mistake
iii. Incapacity: voidable. Under 18, insane, intoxicated. Can affirm after majority expressly
or accepting benefits. Necessities = contract
iv. Unconscionability: unfair surprise (procedural) or oppressive terms (Substantive)
v. Ambiguity of Terms: NO K if: material term open to 2 reasonable interpretations, each
party attaches different meaning, and neither party know or had reason to know the
other’s interpretation
vi. Misrepresentation: misrepresentation, known to be false, to induce, causes reliance,
reliance reasonable, damages
vii. Fraud: scienter,
viii. Duress: bad guy with improper threats, vulnerable guy no alternatives
ix. Illegality: if K is illegal then not valid. If purpose illegal but itself is not illegal, then
voidable at innocent’s option
III. TERMS
a. Interpretation
i. K is construed as a “whole” and according to ordinary meaning of words. If parties’
intent is unclear, courts look to: (in this order)

- 89 -
1.
Course of performance: repeated occasions for performance and a party has
opportunity to object to performance; any performance acquiesced to is relevant
in determining the meaning of the K.
2. Course of dealings b/t the parties establishing a common basis of
understanding.
3. Custom and usage in the industry
b. Mistaken or Ambiguous Terms
i. There is no K if parties use material terms reasonably susceptible to more than one
meaning, each party attaches a different meaning to the term, and neither party knows of
the ambiguity unless both intended the same meaning.
1. Where one party was aware, K is based on what the ignorant party reasonably
believed.
c. Parol Evidence Rule:
i. Evidence of prior or contemporaneous agreements that contradict, modify or vary
contractual terms is inadmissible if the written K is intended as a complete and final
expression of the parties.
1. Exceptions: Parol evidence is admissible to show formation defects (e.g., fraud,
duress, mistake, illegality), existence of an oral condition precedent to the K, the
parties’ intent regarding ambiguous terms, mistake in the integration, a collateral
agreement if it does not contradict or vary the main K, and subsequent
modifications.
2. UCC Parol Evidence Rule: The terms of a contract cannot be contradicted by
evidence of any prior agreement or contemporaneous oral agreement. However,
they can be explained or supplemented by: consistent additional terms, course of
dealing, usage of trade or business, or course of performance. A contract term
need not be ambiguous.
d. Modification
i. CL: Need new consideration for a modification to a contract. Make sure SOF is satisfied
on the modification
ii. UCC: No new consideration is needed. Make sure SOF is satisfied on the modification
iii. If contract says all subsequent modifications must be in writing
1. CL: Ignored
2. UCC: Valid unless waived
e. UCC Terms
i. Type:
1. Shipment K: In a shipment K seller completes delivery obligations when it gets
the goods to a common carrier, makes reasonable arrangements for delivery
AND notifies buyer.
2. Destination K: In a destination K seller completes delivery obligations when
the goods reach the buyer.
3. No place stated: Where no place of delivery has been agreed upon, it is the
seller’s place of business unless the parties know it is someplace else, in which
case, delivery is there.
ii. Risk of Loss
1. Agreement of the parties control
2. If there is a breach, the risk of loss stays on the breaching party
3. If there is no breach, then when the seller completes his delivery obligation:
Shipment puts goods in hands of carrier, makes contract and gives buyer notice.

- 90 -
4.
No agreement, no breach, no delivery by common carrier, determining factor is
whether the seller is a merchant: YES: on the buyer’s receipt of the goods, NO:
when he or she tenders delivery – 1) tell where the goods are located, 2) tells
how the goods can be picked up
iii. Warranties
1. Express: words or conduct that express promises.
2. Implied warranty of merchantability: If seller is a merchant that deals in the
goods of the kind sold, a warranty is implied that goods are fit for ordinary uses
for which they are used.
3. Implied warranty for a specific purpose: Goods must be fit for a particular
purpose if buyer seeks goods for a particular purpose, buyer relies on seller to
select suitable goods, and seller has reason to know of purpose and reliance.
iv. Disclaimer of warranties
1. Express warranties CANNOT be disclaimed, implied can be with “as is”, “with
all faults” or other CONSPICUOUS language
v. Limitation of remedies for breach
1. Limitation of remedies for breach of warranties do not eliminate warranties
but limit the amount of recovery for breach of warranty unless it is
unconscionable. Limitation is prima facie unconscionable if the breach causes
personal injury.
IV. PERFORMANCE
a. Sale of Goods
i. Perfect Tender Rule: Applies only to the sale of goods. Seller’s performance must be
perfect. Less than perfect generally give the buyer the option of rejecting the delivered
goods.
1. Rejection of Goods
a. Occurs when:
i. Within a reasonable time after delivery,
ii. Buyer seasonably notifies the seller,
iii. Buyer must hold rejected goods with reasonable care AND
iv. Follow reasonable seller instruction with regard to the goods.
Can sell them for the seller’s account.
b. When there has not been a perfect tender AND the date of performance
has passed, the buyer may 1) reject the goods, 2) accept the goods, 3)
reject part and accept part
i. Cure: Under the UCC, if time for performance has not
become due, the seller has the ability to cure before the
original due date and send conforming goods.
1. Exception: Seller may cure AFTER time for
performance if he sent non-conforming goods
because he had reasonable grounds to believe that the
improper tender would be acceptable.
c. Exception to rejection: Installment Contracts
i. If the contract requires or authorizes delivery in separate lots,
then buyer right to reject an installment will only be ok if a
substantial impairment in that installment cannot be cured.
2. Acceptance of Non-Conforming Goods

- 91 -
a. Once a buyer accepts the goods, he cannot reject them. Acceptance
occurs through express acceptance or implied acceptance where buyer
retains the goods w/o objection after an opportunity for inspection
i. Revocation of Acceptance
1. permissible if a nonconformity substantially impairs
the value of the goods, buyer could not previously
have discovered the defect or buyer reasonably relied
on seller’s assurance of satisfaction, AND buyer
revokes w/in a reasonable time after discovering the
defect.
b. Excuse of Performance
i. Material Breach – COMMON LAW ONLY
1. If the breach is material, the non-breaching party does not receive the substantial
benefit of her bargain. Non-Breaching party must show willing + able to
perform. 1) may treat the K at an end, 2) immediate right to all remedies.
a. Amount of the benefit received by aggrieved party
b. Adequacy of compensation for damages to injured party
c. The extent of part performance
d. Hardship to the breaching party
e. Negligent or willful behavior by the breaching party
f. Likelihood that breaching party will perform
ii. Conditions: An event the occurrence or non-occurrence of which will create, limit, or
extinguish the absolute duty to perform; a promise modifier. It must be language in the K
that both agree to. Strict compliance standard
1. Types:
a. express, implied or constructive
b. Precedent
i. Agree pay $10k if my house is sold by April 1. No payment
unless sold by April 1
c. concurrent
d. subsequent
i. Agreement to buy Blackacre for $100k, unless zoning is
changed. If zoning is changed, no duty to pay $100k or
transfer deed
2. Excuse of condition:
a. Wrongful prevention
b. Voluntary disablement
c. Waiver: party benefitting from the condition may waive the condition
d. Estoppel: When person protected tells other party don’t worry I wont
enforce condition, then tries to
iii. Anticipatory Repudiation
1. is unequivocal statement that repudiating party will not perform. It only applies
if there are executory (unperformed) duties on both sides of a bilateral K. (If the
non-repudiating party has fully performed, he must wait until the time originally
set for performance.) The non-repudiating party has 4 alternatives:
a. Treat the repudiation as an immediate breach and sue immediately,
b. Suspend own performance and wait until the time that D’s performance
was due, or

- 92 -
c. Treat the repudiation as an offer to rescind and treat the K as
discharged.
d. Ignore the repudiation and urge performance (this is not a waiver)
2. Can be retracted if no material change in position. IF retracted, P wait for
adequate assurances
iv. Insecurity – Reasonable Assurances
1. under the UCC, the innocent party can demand adequate assurance in writing
where there is reasonable doubt as to performance. There is repudiation where
no written assurance is received w/in a reasonable time.
c. Discharge of Performance
i. Mutual Rescission: duties are discharged if both parties agree and the conditions were
still executory.
ii. Accord and Satisfaction: duties are discharged there is a new agreement by the parties
to accept a different performance in satisfaction of the existing obligation, and the
different performance is completed.
1. If the accord is not performed, the other party can sue on either the original
obligation OR the accord, but not both.
iii. Modification (substitute agreement): Duties are discharged if there is an agreement by
the parties to the existing obligation to accept a different agreement in satisfaction of that
obligation (substituted agreement)
iv. Novation: duties are discharged if all parties agree to extinguish the existing contract and
replace one party with another. (substituted party)
v. Impossibility: duties are discharged if: after the K is made, something occurs which was
unforeseen at time of K, which makes it impossible to perform. Judged on an objective
standard – could anyone have performed?
1. Death or incapacity. A contract is not discharged by the death or incapacity of
the person who was to perform the services if the services are of a kind that can
be delegated.
vi. Impracticability:
1. Something occurs after contract formation but before completion that was
unforeseen, requires extreme and unreasonable difficultly or expense, and not
reasonably anticipated at time of K formation. Judged on subjective standard
vii. Frustration of Purpose: supervening event, not foreseeable at time of entering into K,
which completely destroys the purpose of the K, that purpose being understood by both
parties
V. BREACH
a. Breach occurs when one of the parties to the K fails to perform to the terms of the K and that
performance was not excused.
b. Material breach. A material breach is one where the promisor has substantially failed to perform
its contractual obligations.
VI. REMEDIES AND DAMAGES
a. Money Damages
i. Expectation Damages
1. Various contract damage rules in California are all based on the protection of the
expectation damage interest. The expectation damage interest, simply, is that a
person who makes a contract expects it will be performed without breach. The
goal of money damages is to put the P in the same position as if the breach did
not occur.
2. Sale of Goods

- 93 -
a.
Seller breach & buyer keeps the goods. Buyer’s damages = FMV of
goods if perfect – FMV of goods delivered.
b. Seller breach & seller keeps the goods. Buyer’s damages = MKTp (or
replacement price) at time of breach – Kp
c. Buyer breach & buyer has the goods. Seller’s damages = Kp
d. Buyer breach & seller has goods (aka lost volume seller). Seller’s
damage = Kp – MKTp of goods at time of recovery (or resale price) +
lost profits OR Kp- RESALEp + lost profits
ii. Consequential: Must be reasonably foreseeable at the time of contract and certain
iii. Reliance: Put P in the same economic position as if the K never happened.
iv. Restitution: Put D in the same economic position as if the K never happened. P’s
damage based on D’s gain.
v. Incidental: cost of storing, shipping, reselling goods as a result of B’s breach
vi. Liquidated Damages: are valid if damage difficult to forecast when K was made and the
clause was a reasonable forecast of those damages.
1. Limitation on remedies is usually valid unless the amount is set too low under
unconscionability analysis.
vii. Punitive Damages: Not available for breach of contract, rather only tort (Look to see if
fraud is a possibility)
viii. Duty to mitigate: P cannot recover avoidable damages
ix. Damages must be certain
b. Equitable Remedies
i. Quasi-Contract: is available when P has conferred a benefit on D, P reasonably expected to get
paid, and D is unjustly enriched if P is not paid. Measure of recovery is the value of the benefit
conferred.
ii. Specific Performance: equitable remedy only applicable if remedy at law is inadequate.
1. Real estate K – legal remedies always inadequate b/c land is unique.
2. Sale of goods K – only for unique goods or other appropriate circumstances
3. Services K – NO specific performance (court has discretion to grant injunctive relief to bar
some action)
iii. Rescission
1.
iv. Reclamation:
1. B must have been insolvent at time it received goods
2. Seller must demand return within 10 days of B receiving the goods
3. Buyer still has goods at time of demand
v. Reformation
VII. 3RD PARTY BENEFICIARIES
a. Third Party Beneficiary: A (promise) contracts with B (promisor) that B will render some
performance to C (TP beneficiary).
i. Intended beneficiaries have contractual rights (not incidental beneficiaries). A
beneficiary is intended if beneficiary is identified in the K, receives performance directly
from the promisor, or has some relationship w/the promise.
1. Donee beneficiary is the person the promise intends to benefit gratuitously. He
can only sue the promisor.
2. Creditor beneficiary is a person to whom debt is owed by the promise. He can
sue either the promisor or promisee.
ii. Vesting. TP beneficiary’s rights vest when he learns of the K, and either assents to the
promise, sues for enforcement, or materially changes position in justifiable reliance on it.

- 94 -
1.
Once beneficiary’s rights vest, TP beneficiary can enforce the promise, and
parties cannot cancel or modify the K w/o her consent unless the K provides
otherwise.
2. Who can sue whom? TP beneficiary v. Promisor; Promisee v. Promisor; TP
beneficiary v. Promisee
b. Assignment of rights: occurs when a party to a K transfers his rights to a TP.
i. Rule. Assignment of rights are generally valid unless they materially alter the obligor’s
duty or risk or prohibited by law.
1. X (obligor) contracts with Y (assignor). Y assigns his right to X’s
performance to Z (assignee)
ii. Parties: A (promisee) contracts with B (promisor) that B will render performance to C
(TPB)
1. Assignor is the party to the K who later transfers his rights.
2. Assignee is not a party to the K but is able to enforce the K b/c of the
assignment.
3. Obligor is the other party to the K.
iii. Revocability
1. Assignment for consideration is irrevocable. The assignor impliedly warrants
not to do anything to defeat the assigned right, and that there are no defenses to
the assigned right unless notice is given at the time of the assignment.
a. Assignments for consideration always take priority over gratuitous
assignments.
2. Gratuitous assignments revocable unless the obligor has already performed, a
token chose is delivered, an assignment of a simple chose is put in writing, or
the assignee can show detrimental reliance on the gratuitous assignment.
a. If revocable may be revoked by death or bankruptcy, notice of
revocation by the assignor to the assignee, the assignor taking
performance directly from the obligor, subsequent assignment of the
same right by the assignor to another.
iv. Effect of assignment
1. Effect of assignment is to establish privity of K between obligor and assignee
while extinguishing privity between obligor and assignor
2. Assignee can sue the obligor (but obligor has the same defenses assignor would
have had assignee)
3. Payment by obligor to the assignor remains effective until obligor has notice of
the assignment.
4. Modification agreements b/t the obligor and assignor are also effective until the
obligor has notice of the assignment.
v. Whom can Sue Whom
1. Assignee v. Obligor: Yes, but O can use any defense he would have against the
assignee, but cannot use defenses assignor has against assignee.
2. Assignee v. Assignor: Maybe. Assignor is not liable to assignee if O does not
perform but assignor liabile if O asserts defense against assignee, or if revoke
irrevocable assignment.
3. Assignor v. Obligor: Maybe, an assignor that assigns to assignee for
consideration may NOT sue the Obligor
vi. Multiple assignments
1. Gratuitous assignments: the last assignee wins unless a prior assignment was
the subject of a writing delivered to the assignee, a prior assignee received some

- 95 -
indicia of ownership, or a prior assignee relied on the assignment in a way that is
reasonable, foreseeable and detrimental.
2. Assignment for consideration: the first assignee for consideration wins unless
subsequent assignee did not know of the earlier assignment and is the first to
obtain payment, judgment, novation or indicia of ownership.
a. Subsequent assignees for consideration can sue for breach of implied
warranty that the rights are assignable and enforceable.
vii. Limitation on Assignments
1. Contract Provisions:
a. Prohibitive language: takes away right to assignee but not power, thus
an assignor is liable for breach of K, but an assignee who does NOT
know of the prohibition can still enforce the assignment.
b. Invalidation language: language of invalidation takes away both the
right to assign and the power to assign so that there is a breach by the
assignor and not rights in the assignee.
2. Common Law
a. Even if K does not limit the assignment, CL bars an assignment that
substantially changes the duties of the obligor
i. Assignment of the right of payment never substantial change
ii. Assignment of the right to performance other than right of
payment usually substantial change.
c. Delegation of duties: is a transfer of burdens or duties by a party to the K to a TP.
i. Rule. Delegation of duties is permitted UNLESS: prohibited by K, the duties involve
personal judgment and skill, a special trust was reposed in the delegator by the other
party to the K, OR the delegation would change the obligee’s obligations.
1. Y (obligor/delegator) promises to perform for X (obligee). Y delegates her
duty to Z.
ii. If the TP does not perform, the delegating party always remains liable. The delegatee is
liable only if she received consideration from the delegating party

- 96 -
CONSTITUTIONAL LAW
10 SECOND CHECKLIST
I. Justiciability Doctrine/Preliminary Issues
II. Executive Powers
III. Legislative Powers/Federalism
IV. State Action
V. Procedural Due Process
VI. Substantive Due Process
VII. Equal Protection
st
VIII.1 Amendment – Freedom of Speech
P P
Justice Executive Federalism St. Proc Sub DP EP 1 st

P P
Action DP Amend
S D Supr Pblic lfe, Fundamen Eff/intent State
funct lib,prp action
R App N&P Sig st. prop privacy Facial
invol
M Rem CC Direct Ent 1st Am Fundamt
actn
P F 10 th
P Suspect 1 st
P P
Recpt
11 thP Con Preem Test Quasi Travel
AISG T-FL DCC St int Rational Vote
A-PC EA P&I Ind. Int alien
w/ex
S KC Furth Suspect
pro
Quasi
Rational
DETAILED OUTLINE
I. Case or Controversy ( MS. PEAAR ) U U
a. Standing (Always RAISE FIRST)

i. Elements
1. Injury in fact/Imminent injury – Must personally suffer injury and show
likelihood of future harm
2. Causation: D caused it
3. Redressability: Favorable outcome likely to remedy harm
ii. No Third party standing
1. Exceptions:
a. Close relationship: Parent/Child, Doctor/Patient
b. 3 rd party unlikely able to assert its own rights
P P
c. Associational Standing : an organization may sue for its members if:

U U
i. The members would have standing to sue AND

ii. The interests are germane to the association’s purpose
iii. The members are not needed for the action’s claim or relief
2. NO generalized grievances - ∏ must NOT be suing solely as a citizen or as a
taxpayer interest in having the government follow the law.
iii. Taxpayer Standing: have standing to sue to challenge spending as pursuant to federal
statutes as violating the Establishment Clause. U

- 97 -
b. Ripeness: A case will not be heard if it isn’t ripe, too early for adjudication. The test:
i. The fitness of the issues and the record for judicial review
ii. The hardship that will be suffered without pre-enforcement review
c. Mootness: Events after the filing of a lawsuit ends P injury, the case will be dismissed UNLESS:
i. Wrong capable of repetition to this particular P but evading review (Ex. Roe v. Wade)
ii. Voluntary cessation – (If you’re free to continue/resume practice at any time ∆ wants)
iii. Class Action Suits – (So long as one member of the class has an ongoing injury, it won’t
be moot)
d. Political Questions [get a GRIP]
i. Challenges to partisan Gerrymandering (drawing election districts to maximize safe seats
for that party)
ii. The “Republican form of government clause”
iii. Challenges to the Impeachment and Removal Process
iv. Challenges to President’s conduct of Foreign policy
e. Supreme Court Review
i. Virtually ALL cases come to the Supreme Court by writ or certiorari.
1. All cases from state court and U.S. Court of Appeals come to the Supreme Court
by writ of certiorari.
a. EXCEPTION: Appeal exists for decisions of 3 judge federal district
court.
2. S.C. has original and exclusive jurisdiction for suits between state governments
3. Case must exhaust all state/federal courts before it goes to the Supreme Court.
4. For Supreme Court to review a state court decision, there must NOT be an
independent and adequate state law ground of decision. If a state court decision
rests on 2 grounds, one state law and one federal law, if the Supreme Court’s
reversal of the federal law ground will NOT change the result in the case, the
Supreme Court CANNOT hear the case.
f. Sovereign Immunity [11 th Amendment]
P P
i. Based on the 11th Amendment, federal court, federal agencies and state courts cannot hear
suits against state governments from private parties or foreign governments.
1. Exceptions:
a. Waiver – Must be explicit consent.
b. States may be sued pursuant to federal laws adopted under Section 5 of
the 14 th Amendment ONLY. Congress can’t authorize suits against
P P
states under other constitutional provisions.

c. Federal government can sue state governments
ii. Bankruptcy proceedings
iii. Suits against state officials are allowed, but NOT if state treasury will be paying for
retroactive damages.
1. State officers may be sued for injunctive relief;
2. State officers may be sued for money damages to be paid out of their OWN
pocket.
g. Abstention
i. Federal court will not enjoin pending state court proceedings
U U
h. Adequate and Independent State Grounds

i. If the case was decided primarily on adequate and independent state grounds, then
SCOTUS will not hear the case.
II. THE FEDERAL EXECUTIVE POWER
a. Domestic Powers

- 98 -
i. Appointment Power : President appoints ambassadors, federal judges, and officers of US.
U U
1. Congress may vest the appointment of inferior officers in the President, the head
of departments or the lower federal courts.
2. Congress cannot give itself or its officers the appointment power.
ii. Removal Power : Unless limited by statute, the President may fire any executive branch
U U
officer/official.
1. Congress cannot prohibit removal, only say for good cause.
2. For Congress to limit removal, it must be an office that is independent from the
President. (Ex. Congress can’t limit removal of President’s cabinet but can for
independent counsel).
iii. Impeachment/Removal:
1. The President, Vice President, Federal Judges and officers of the United States
can be impeached and removed from office for treason, bribery, or for high
crimes and misdemeanors.
2. Impeachment does NOT remove person from office only if senate convicts is
there a removal from office. Impeachment is like indictment.
3. Impeachment by House of Representatives requires Majority vote.
4. Impeachment by Senate requires 2/3 vote.
iv. Executive Privilege/Immunity
1. Has executive privilege for presidential papers and conversations and to keep
national security issues secret, BUT such privilege must yield to other important
government interests (other overriding needs).
2. President absolutely immune from civil suits for money damages while in office
if performing official responsibilities – no immunity for actions that occurred
prior to taking office.
3. President has power to pardon those accused or convicted of federal criminal
crimes, but NOT state crimes or civil cases.
a. No pardon for crimes which impeached him
b. President has pardon for only federal liability, not state liability.
b. Foreign Policy
i. Treaties & Executive agreements
1. Treaties are agreements between the United States and a foreign country that are
negotiated by the President and are effective when ratified by the Senate.
2. Executive Agreements is an agreement between the United States and a foreign
country that is effective when signed by the President and the head of the
foreign nation (no senate ratification required)
3. Treaties and Executive agreements trump state law
4. If treaty conflicts with Federal statute, the one adopted last in time controls.
5. Federal law always trumps Executive agreements
6. Constitution beats all.
c. President has broad powers as Commander-in-Chief to use American troops in foreign countries
III. THE FEDERAL LEGISLATIVE POWERS
a. Congress’ authority to act
i. Congress can only exercise those powers that are enumerated in the Constitution – must
be express or implied Congressional power.
1. No General Police Power
a. EXCEPTIONS (MILD):
i. M: Military
ii. I: Indian Reservations

- 99 -
iii. L: Federal Land & Territory
iv. D: Washington D.C.
ii. Supremacy Clause: See Preemption right below
iii. Necessary and Proper Clause (Can’t be an answer by itself): Congress may take ALL
actions that are necessary and proper and use any means NOT prohibited by the
Constitution.
iv. Commerce Clause:
1. Congress may: regulate the channels of interstate commerce – (Ex. Highways,
waterways, internet)
2. Regulate the instrumentalities of interstate commerce (persons and things) –
(Trucks, planes, telephone, internet – Anything that crosses state lines).
3. Regulate economic activity that has a substantial effect on interstate commerce
a. Non-economic effects cannot be based on cumulative effect
b. Gender Discrimination = Non-Economic Activity
v. Tax & Spending Power: may tax and Spend for the General Welfare
1. Note on MBE: “General Welfare” answer choice is wrong UNLESS for taxing
and spending and the few police power exceptions (MILD).
vi. Property Power: Congress has power to dispose of and make rules for territories and
other properties of the US, subject to the limitation that federal takings must be fore
U U
some purpose of effectuating an enumerated power.

vii. Power over Citizenship: Congress may establish uniform rules of naturalization.
Congress has plenary power over aliens
viii. Foreign Policy
1. Congress has the power to declare war, raise and support armies, provide for and
maintain a navy
a. Economic regulations during and after wartime to remedy wartime
disruptions have been upheld.
b. Make military courts and tribunals
ix. LIMITS to Federal Government’s Power
1. 10 th amendment: All powers not granted to Congress reserved for the state:
P P
a. Congress can’t compel state regulatory or legislative action (ex. Force

U U
background checks for guns) but can induce state action through tax
U U
and grants, so long as conditions are expressly stated and relate to

U U U U
purpose of spending program (Ex. 21 year old drinking age and

highway building grants).
b. Congress can prohibit harmful commercial activity by state
governments.
i. Ex. Selling DMV lists.
2. Congress’ Enforcement Power under Section 5 of the 14 th Amendment P P
a. Congress may not create new rights or expand scope of right. Laws
must be proportional and congruent to remedying proven
U U U U
constitutional violations.
3. Congress may regulate state activities (even force them to do something) as long
as it occurs to both state and private entities (minimum wage laws).
U U
a. However, Congress cannot force state officials of enforcing state laws

because that would upset the Constitution’s “dual sovereignty.”
b. FEDERALISM (limits on State/Local government Power)
i. Preemption: The Supremacy clause of Article 6 provides that the Constitution and law
and treaties made pursuant to it are the supreme law of the land.

- 100 -
1.Express preemption : IF federal statute says federal law is exclusive, then
U U
preemption
2. Implied preemption:
U
a. If state & Federal mutual exclusive, then Federal law wins

i. BUT, states may set standards stricter than federal law
UNLESS congress clearly prohibits it.
b. If state law impedes the achievement of a federal objective, Federal law
wins (preempts state law)
c. If congress evidences a clear intent to preempt state law, Fed law wins
(preempts state law)
3. States may not tax or regulate the fed government activity or its agents (inter-
governmental immunity).
a. Ex. State cannot tax the Army PX store.
ii. Dormant Commerce Clause (Negative Implications of the Commerce Clause)
1. [Definitions]
a. Dormant Commerce Clause: State/Local laws are unconstitutional if
they place an undie burden on interstate commerce.
b. Privileges and Immunities Clause of Article VI: No state may deny
citizens of other states, the privileges and immunities it accords to its
own citizens.
i. Anti-Discrimination Provisions: No discrimination against
out-of-state citizens.
c. Privileges or Immunities Clause of the 14th Amendment: Always the
WRONG answer unless it involves the right to travel.
2. Even where Congress has not regulated in a certain area, state may not be able to
regulate in that area if it places an undue burden on interstate commerce.
3. First ask, does the state law discriminate against out of the state persons?
a. If the law does not facially discriminate against out of state persons:
U U U
i. The privileges and immunities clause of Article IV does not

apply
ii. A balancing test between the burdens and the benefits of the
law
1. If burdens greater than benefit then law will be struck
down
2. If benefits greater then burden, then it is valid
b. If the law discriminates against out of state persons on its face, then
the law is invalid unless :U U
i. The law is necessary to achieve an important government

U U U U U
interest and there is no reasonable non-discriminatory

U U U
Ualternatives
1. Ex. Preserving its natural resources. Must show no
less discriminatory means can achieve its goal.
ii. EXCEPTIONS:
1. The state is a market participant (a state or local
government may prefer its own citizens in receiving
benefits from government programs or in dealing

- 101 -
with government-owned businesses) (Ex. UC school
can charge out of state tuition) OR
2. Congressional Approval
iii. If the law discriminates against out of state persons with
regard to their ability to earn their livelihood, it violates the
privileges and immunities clause of Article IV unless it is
necessary to achineve an important government purpose.
1. The law must discriminate against out of state
persons.

- 102 -
2.
The discrimination must be regard to civil liberties
(rarely litigated under P&I clause) or important
economic activities (usually the ability to earn a
living and doesn’t apply to hobbies).
3. Corporations and aliens CANNOT use the privileges
and immunities clause, they can only use the
Dormant Commerce Clause.
4. The discrimination must be necessary to achieve a
substantial and important government purpose.
iii. Privileges and Immunities Clause (NIG w/ no alternatives) – Article 4 P&I
1. Definition: the P&I Clause prohibits discrimination by a state against non-
residents
2. The test:
a. Privileges and Immunities is only applicable be law is facially
discriminatory
b. If the law is facially discriminatory, then the P&I Clause asks whether
U U
it discriminates against the fundamental right - important economic U
activity or civil liberty – and will be held invalid unless it is necessary

U U U U U
to achieve an important government purpose with no adequate

U U U U
alternatives .
U U
i. Corporations are not protected under this clause

c. ALWAYS RAISE P&I and DCC together on an essay
iv. Fundamental Rights within P&I Clause – 14 th Amendment P&I (very narrow) P P
1. States may not deny their OWN citizens the P&I of national citizenship:
a. Right to vote for federal officers
b. The right to interstate travel
v. Contract Clause ([S]PLINTR)
1. State or local interference with private contract must meet intermediate scrutiny:
a. If it impairs a party’s rights under an existing K, the law must be
reasonable and narrowly-tailored means of promoting an important
U U U U U U
and legitimate public interest.

U U U U
i. Interference with its own contracts = strict scrutiny

vi. State Taxation of Interstate Commerce (rarely tested)
1. States may NOT use their tax system to help in-state businesses
2. A state may only tax activities if there is a substantial nexus to the state
3. State taxation of interstate businesses must be fairly apportioned.
vii. Full Faith and Credit
1. Courts in one state must give full faith and credit to judgments of courts in
another state, so long as:
a. The court that rendered the judgment had jurisdiction over the parties
and the subject matter; AND
b. The judgment was on the merits; AND
c. The judgment is final.
IV. STRUCTURE OF CONSTITUTION’S PROTECTION OF INDIVIDUAL LIBERTIES – Always
Raise before talking about individual rights arguments
a. The Constitution applies only to government action. Private conduct need NOT comply with the
Constitution.
b. Congress, by Statute, may apply constitutional norms to private conduct:
i. The 13th Amendment can be used to prohibit private race discrimination

- 103 -
1.
People cannot be or own slaves
2.
Congress has broad power to prohibit race discrimination
Only slavery violates the 13th Amendment. BUT discrimination can violate a
3.
Federal statute, adopted by Congress under the 13th Amendment.
ii. The Commerce Clause can be used to apply constitutional norms to private conduct (Ex.
Ali’s BBQ case)
iii. Congress cannot use Section 5 of the 14th Amendment to regulate private behavior (can
only regulate state/local governments).
c. Because the constitution generally applies only to governmental actions, to show a constitutional
violation state action must be involved. State action can be found in actions of seemingly private
U
individuals who U
i. Perform in Direct State Action OR

ii. Perform exclusive public functions (Constitution applies if private entity is performing a
U
task traditionally, exclusively done by the government) OR

U
iii. Have significant state involvement (entanglement) (Constitution applies if government

U
affirmatively authorizes, encourages, or facilitates unconstitutional activity) OR

1. Examples:
a. Courts cannot enforce racially restrictive covenants
b. There IS state action when government leases premises to a restaurant
that racially discriminates.
c. There IS state action when a state provides books to schools that
racially discriminate.
d. There IS NOT state action when a private school that is over 99%
funded by the government fires a teacher because of her speech (state
had no done anything to encourage the firing).
e. There IS NOT state action when the NCAA orders the suspension of a
basketball coach at a university.
f. There IS state action when a private entity regulates interscholastic
sports within a state.
g. There IS NOT state action when a private club with a liquor license
from the state racially discriminates.
d. Application of Bill of Rights:
i. Bill of rights applies directly only to the Federal government
ii. The Bill of Rights is applied to state and local governments through its incorporation into
the Due Process Clause of the 14th Amendment
1. EXCEPT:
a. The 2nd Amendment Right to Bear Arms
b. The 3rd Amendment right to not have a soldier quartered in a person’s
home.
c. The 5th Amendment right to grand jury indictment in criminal cases
d. The 7th Amendment right to jury trial in civil cases
e. The 8th Amendment right against excessive fines
e. Levels of Scrutiny:
i. Rational Basis Test (Tremendously deferential to the government)
1. A law will be upheld if it is rationally related to a legitimate government
purpose.
2. Challenger has the Burden of proof to show:
a. No conceivable legitimate purpose OR
b. Law is not rationally related.

- 104 -
ii. Intermediate Scrutiny (Narrowly Tailored)
1. A law will be upheld if it is substantially related (narrowly tailored) to an
important government purpose (looks to government’s Actual
purpose/objective).
2. Doesn’t have to be the best way/least restrictive alternative.
3. Government has the burden of proof.
iii. Strict Scrutiny
1. A law will be upheld if it is necessary to achieve a compelling government
purpose.
2. Government’s objection must be vital. Looks to government’s “actual purpose.”
3. Least restrictive alternative cannot achieve the goal
4. Government has burden of proof – usually loses.
V. PROCEDURAL DUE PROCESS (applicable to states via 14 th , fed via 5 th )
P P P P
a. Due Process [The procedures that must be followed when taking someone’s life, liberty, or
property]
i. Has there been a deprivation of life, liberty or property without due process of law:
1. Loss of significant freedom provided by the Constitution or statute
U U
a. Ex. Before an adult can be institutionalized, there must be notice +

E
hearing unless in an emergency.

b. Ex. If parent is institutionalizing a child, only a screening by a neutral
3rd party is required
c. Harm to reputation itself is NOT a deprivation of liberty.
d. Prisoners don’t have claims for liberty
OR
2. A deprivation of property occurs if there is an entitlement and entitlement not
U U
fulfilled:
a. Entitlement exists if there is a reasonable expectation of receipt of
benefit.
b. NOTE: Rights/privilege distinction has been abolished (WRONG
ANSWER)
ii. Government negligence is not sufficient for deprivation of process. There must be an
intentional government action or reckless action for liability to exist. But in emergency,
government is liable under due process if it “shocks the conscience”
iii. Government’s failure to protect people from privately inflicted harms doesn’t deny due
process (only if government creates danger in government custody cases) does the
government have any duty to provide protection.
iv. If no deprivation = Government need not provide procedural due process.
v. If there is a deprivation, what procedures are required.
1. Balancing Test [courts have a great deal of discretion]:
a. The importance of the interest to the individual
b. The government’s interest in administrative efficiency
c. Ability of additional procedures increase the accuracy of the fact finder
or reduce erroneous findings.
2. Examples:
a. Before welfare benefits can be terminated, there must be notice +
hearing.
b. When social security disability benefits are terminated, there only need
a POST notice + hearing.

- 105 -
c.
When student is disciplined by public school, there must be notice of
charges + opportunity to explain. No trial type hearing is necessary.
i. Corporal punishment (spanking) doesn’t require Due Process.
d. Before parent’s right to custody of child can be permanently
terminated, there must be notice + hearing.
e. Punitive Damages require instruction to the jury and judicial review.
i. Grossly excessive punitive violate Due Process.
f. American citizen detained as an enemy combatant must be accorded
Due Process.
g. Expect in exigent circumstances, government seizure of assets or pre-
judgment attachment must be proceeded by notice + hearing
i. Government may seize property used in illegal activity even if
the property has an innocent owner.
VI. SUBSTANTIVE DUE PROCESS (applicable to states via 14 th , fed via 5 th )
P P P P
a. Asks whether government has adequate justification for taking of the life, liberty, or property.
(LOOK to see if the law limits EVERYONE from doing some activity, not just a particular group
– Equal Protection)
b. Fed: found in the due process clause of the 5 th Amendment, State: Due Process of the 14 th
U U P P U U P P
Amendment
i. Does the law impinge On:
1. Fundamental Right or Suspect Classification: Strict Scrutiny
a. Fundamental Rights in Substantive due process: 1 st Amendment
PU UPU
Rights , PRIVACY , marriage, divorce, procreate, raise children,

U U U
purchase and use contraceptives, homo sex

b. Suspect Classifications: race, national origin, and alienage
2. Quasi-Suspect classification: Intermediate Scrutiny
a. Quasi: gender and legitimacy
3. Economic/Non-Fundamental Right: Rational Basis
a. Non-fundamental: Age, Disability, and Poverty
c. CONTRACTS CLAUSE:
i. No State shall impair the obligations of contracts (Article I Section 10)
1. Applies only to state/local interference with existing contracts (doesn’t interfere
with future K and never applies to Federal government – can only be challenged
with due process)
ii. State/Local interference with private contracts must meet intermediate scrutiny.
1. Does the legislation substantially impair a party’s right under an existing
contract?
2. If so, is the law a reasonably and narrowly tailored means of promoting an
important and legitimate public interest?
iii. State/Local interference with government contracts must meet strict scrutiny.
iv. The ex post facto clause does NOT apply in civil cases.
1. An ex post facto law is a law that criminally punishes conduct that was lawful
when it was done or that increases punishment for a crime after it was
committed.
2. Retroactive civil liability is a law that directs the punishment of a specific
person or persons without a trial.
d. PRIVACY [Strict Scrutiny for Privacy/Fundamental rights]
i. Privacy is a fundamental right under substantive due process.
1. The right to marry

- 106 -
2.
The right to procreate
3.
Right to custody of one’s children (a state may create a law that holds an
irrebuttable presumption that the father of a child is the Husband)
4. Right to keep the family together (includes extended family but must be related)
5. The right to control the upbringing of one’s children (violates Due Process for
court to order visitation rights of grandparents over parent’s objection)
6. The right to purchase and use contraceptives.
7. Right to privacy protects right to engage in private consensual homosexual
activity (Lawrence v. Texas)
a. Doesn’t identify level of scrutiny
8. The right to refuse medical treatment
a. Competent adults have the right to refuse medical treatment, even life-
saving medical treatment (even food/water)
b. A state may require clear and convincing evidence that a person wanted
treatment terminated before it is ended/terminated.
c. A state may prevent family members from terminating treatment for
another.
9. There is not a constitutional right to physician-assisted suicide
10. The right to abortion
a. Undue Burden Test
i. Prior to viability, states may not prohibit abortions, but may
regulate abortions do long as they don’t create an undue
burden on the ability to obtain an abortions.
1. Ex. 24 hour waiting period is NOT undue burden
2. Ex. Requirement that abortions be performed by
licensed physicians is NOT an undue burden
3. Ex. Prohibition of “partial birth abortions” is not an
undue burden.
ii. After viability, states may prohibit abortions UNLESS
necessary to protect woman’s life/health.
iii. Government has NO duty to subsidize abortions or provide
abortions in public hospitals
iv. Spousal consent and notification laws are unconstitutional.
v. A state may require parental notice and/or consent for an
unmarried minor’s abortion so long as it creates an alternative
procedure where a minor can obtain an abortion by going
before a judge who can approve the abortion by finding it
would be in the minor’s best interest or that she is mature
enough to decide for herself.
e. 2nd Amendment Right to Bear Arms:
i. Washington D.C. v. Heller:
1. Right to bear arms for personal use (self-defense) is okay aside from militia
BUT court doesn’t give level of scrutiny. Limited to personal use but state may
regulate it.
f. Right to Travel:
i. Fundamental right under the Privileges and Immunities Clause of the 14th Amendment
1. Laws that prevent people from moving into a state must meet strict scrutiny.
2. Durational residency requirements must meet strict scrutiny
a. Limited to 50 days max for durational residency for voting.

- 107 -
3. No fundamental right to foreign travel – restrictions need only meet rational
basis.
g. Right to Vote:
i. Poll taxes are unconstitutional
ii. Property ownership for voting/holding public office is almost always unconstitutional.
iii. Laws that deny some citizens the right to vote must meet strict scrutiny, but regulations
of the electoral process ro prevent fraud only need to be on balance desirable (ex. Need
ID to vote is constitutional)
iv. One-person-one-vote must be met for all state/local elections.
v. The use of race is drawing election district lines must meet strict scrutiny
1. If government uses race as predominate factor, the government must meet strict
scrutiny.
vi. Counting uncounted votes without standards in a presidential election violates equal
protection.
vii. There is NO fundamental right to privacy.
VII. EQUAL PROTECTION
a. Equal Protection of the 14 th Amendment is limited to State Action. However, discriminatory
P P
action by the Federal government violates the Due Process Clause of the 5 th Amendment. P P
b. Classification based on RACE or NATIONAL ORIGIN

i. Facially Neutral:
1. Proving racial classification requires: 1.) discriminatory intent AND 2) U U
discriminatory Effect/Impact U
ii. Facially Discriminatory:

1. What level of scrutiny should be applied:
a. Strict Scrutiny b/c Fundamental: 1 st Amendment, Right to Travel,
U U P P
Right to Vote, national origin, race, alienage:

i. Exception to Alienage:
1. Rational basis that concern:
a. Self government and the democratic process
b. Congress discrimination against aliens
2. Intermediate scrutiny for undocumented alien
children
b. Intermediate Scrutiny: gender and legitimacy
U U
c. Rational Basis: All other including education, age, disability, poverty

U U
iii. Racial Classifications Benefitting Minorities:

1. Strict Scrutiny (doesn’t matter if it’s benign or discriminatory)
a. Numerical set-asides (quota) require clear proof of past discrimination
to remedy past discrimination.
b. Educational institutions may use race as one factor in admissions
decisions to help minorities.
c. Public school systems may not use race as a factor in assigning students
to schools unless it passes strict scrutiny.
iv. Gender Classifications:
1. Intermediate Scrutiny [to uphold gender discrimination there needs to be
exceedingly persuasive justification]:
a. If law is facially neutral, proving a gender classification requires
demonstrating both discriminatory impact AND discriminatory intent.
i. Ex. Discriminatory use of peremptory challenges based on
gender denies EP.

- 108 -
b. Gender classifications benefitting women that are based on role
stereotypes are NOT allowed
i. Ex. Women get alimony and men cannot based on stereotype
is Unconstitutional.
c. Gender classifications that are designed to remedy past discrimination
and differences in opportunity ARE allowed.
v. Alienage Classifications:
1. Strict Scrutiny (Generally)
2. Rational Basis (alienage classifications that concern self-government and the
democratic process.
VIII. TAKINGS CLAUSE

a. The government may take private property for public use if it provides just compensation
b. Types/Test
i. Possessory Taking : Govt. confiscating or physical occupation of property is always a
U U
taking
ii. Regulatory Taking : Govt. regulation that:
U U
1. Leaves no reasonable economic viable use of the property = Taking

2. Decreasing economic value – Balancing test
a. Social goals sought to be promoted
b. The diminution in value
c. Owner’s reasonable expectation
3. Government conditions on development of property must be justified by a
benefit that is roughly proportionate to the burden imposed; otherwise it is a
taking.
4. A property owner may bring a takings challenge to regulations that existed at the
time the property was acquired.
5. Temporarily denying an owner’s use of property is not a taking so long as
U U
government’s action is reasonable.

Public Use: Any conceivable legitimate public purpose qualifies, as long as government acts out
of reasonable belief the taking will benefit the public.
 Government must pay for property – just compensation (measured on the loss to
the owner in reasonable market value terms. Gain of taker is irrelevant).
st
IX. 1 AMENDMENT – FREEDOM OF SPEECH
P P
a. Facial Attacks
i. Vagueness and Overbreadth
1. A law is unconstitutionally vague if it fails to give persons reasonable notice of
U U
what is prohibited. The law must clearly define what speech is regulated, so that
person knows what speech is permissible.
2. A law is unconstitutionally overbroad if it regulates substantially more speech
U
than constitutionally allowed . U
ii. Unfettered Discretion: a regulation cannot give officials broad discretion over speech
issues, there must be defined standards for apply the law.
iii. Prior Restraint is any governmental action that would prevent a communication from
reaching the public, and they are generally disfavored.
1. Court orders or administrative rules that prevent speech before it occurs must
U U
meet strict scrutiny (GAG ORDERS included)

U U
a. Collateral Bar Rule: You must seek an immediate injunction if you

think a regulation against speech is unconstitutional. You are estopped

- 109 -
from claiming unconstitutionality of a restriction if you violate the
restriction.
2. Licensing: Government licensing of speech must have an important reason for U
licensing and a clear criteria leaving almost no discretion to the licensing

U U
authority and must provide certain procedural safeguards.

U U
3. Content Based Prior Restraint : [NT(LRA)CS] If government adopts a

U U
content-based prior restraint of speech, the govt. has the burden of proving that
the restriction is narrowly tailored (least restrictive alternative) to achieve a
U U
compelling or, at least, significant government interest.

U U
4. Procedural Safeguards. All prior restraint requires certain procedural

safeguards: the standards must be narrowly drawn, reasonable and definite, the
restraining body must seek an injunction and there must be a prompt and final
judicial determination of the validity of the restrain.
b. Content Neutral v. Content Based
i. Content Neutral Restrictions: generally only needs to meet intermediate scrutiny . The U U
restrictions must advance important interests unrelated to the suppression of speech and
U U
not burden substantially more speech than necessary to further those interests.
U U
1. Conduct regulations. The government can regulate conduct related to speech

and assembly by content neutral time, place and manner restrictions if it has an
important governmental interest, unrelated to suppression of the message , and if
U U
the impact on regulation is no greater than necessary to achieve the

U U U U
government’s purpose.
2. Time, Place, Manner Restrictions. The breadth depends on whether the forum
is public/designated public/nonpublic.
a. Public forums: government restrictions of public forums must be
content-neutral , narrowly tailored to serve an important govt interest ,
U U U U U U
and leave open alternative channels of communication . U U
b. Non-public forums: government restrictions of non-public forums

must be viewpoint neutral and must be rationally related to a
U U U U
legitimate government purpose .

U U
c. Private: No constitutional protections to free speech on private

property
ii. Content Based Restrictions: (strict) Restrictions on content of speech must be narrowly U
tailored to achieve a compelling government interest . The government has a compelling

U U U
interest in the following categories of speech which are deemed “unprotected” under the
1 st Amend: P P
1. Inciteful Speech: (clear and present danger test) speech can be burdened if it is
directed at producing imminent unlawful activity that is likely to produce the
U U U U
unlawful activity.
2. Fighting words: personally abusive words likely to incite immediate physical U U U
retaliation are not protected. U
3. Defamation: a public figure must prove actual malice and falsity of the
U U U U U U
statement; a private figure with public concern must prove falsity and
U U U U
negligence for actual damages (optional: malice for punitive damages); a

U U U U
private figure with matter not of public concern can recover presumed/punitive
U U
damages without proving falsity or showing actual malice

4. Obscenity: obscene speech is not protected; speech is obscene if taken as a U
whole by the average person, appeals to the prurient interest in sex (Community
U U U
standard), portrays sex in a patently offensive way by contemporary community U U

- 110 -
standards, and lacks serious scientific, literary, artistic, or social value (national
U U
standard)
5. Symbolic Speech: the government can regulate conduct that communicates if it
has an important interest unrelated to the suppression of the message and its
U U U U
impact on communication is no greater than necessary to achieve the U U
government’s purpose.
U U
6. Commercial speech: Advertising can be prohibited if it is for illegal activity , U U
false and deceptive , or true commercial speech that inherently risks deception .
U U U U
Regulation of commercial speech that is truthful and does not risk deception is
subject to intermediate scrutiny and must be narrowly tailored .
U U
c. Freedom of Religion
i. Free exercise clause prohibits govt from punishing someone on the basis of her religious
belief; it cannot be used to challenge a neutral law of general applicability . U U U U
ii. Establishment clause prohibits laws respecting the establishment of religion.

1. The government may not prefer one sect over another unless it is narrowly U
tailored to serve a compelling govt interest .

U U U
2. Under the Lemon Test if a govt regulation or action contains no sect preference,
it is valid under the Establishment Clause if it has a primarily secular purpose , it U U
neither advances nor inhibits religion , and does not excessively entangle the
U U U U
government with religion.

a. Government cannot discriminate against religious speech unless strict U
scrutiny is met. U
b. Government-sponsored religious activities in public schools are

unconstitutional, but religious groups must have same access to school
facilities as non-religious groups.
c. Government may give assistance to parochial schools, so long as it is
not used for religious instruction.
d. Freedom of the press: the First Amendment protects the right to publish information about a
matter of public concern restricted only by sanctions narrowly tailored to further a state interest
U U U U U U
of the highest order .

U U
i. The First Amendment protects the right to attend criminal trials , but that right may be U U
outweighed by an overriding interest articulated in the findings by the trial judge.

ii. Govt may not create liability for truthful reporting of information that was lawfully
obtained from the government.
iii. Liability is not allowed if the media broadcasts a tape of an illegally intercepted call if:
1. The media did not participate in the illegality AND
U U
2. It involves a matter of public importance

e. Freedom of Association: the First Amendment protects the right to associate for expression of U U
political activity . Infringement on this right may be justified by a compelling state interest that is
U U U U
unrelated to the suppression of ideas through means significantly less restrictive of associational
U U U
freedoms . U
i. Laws that prohibit or punish group membership must meet strict scrutiny ; to punish U U
membership in a group, the government must prove the person actively affiliated with U U
the group, knew of its illegal activities , with the specific intent of furthering those illegal
U U U
activities . U
1. Laws requiring disclosure of group membership must meet strict scrutiny . U U
ii. Laws that prohibit a group from discriminating are constitutional unless it interferes
U U
with: intimate association (small dinner party) OR expressive activity (KKK)

f. Retroactive Legislation

- 111 -
i. Ex Post Facto Laws: Laws that retroactively make something a crime; applicable only
in criminal cases (not civil)
ii. Bills of Attainder: Laws that direct punishment of specific person without trial
X. SUMMARY OF ALL SCRUTINY LEVELS
a. Undue Burden test
i. If an undue burden exists, a provision of law is invalid with respect to abortion, if its
purpose or effect is to place a substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability

- 112 -
CIVIL PROCEDURE
10 SECOND CHECKLIST (P^2 S^2: RAD CAVE)
I. PJDX
II. SMJ
III. Joinder
IV. Venue
V. Erie
VI. Pleadings
VII. Service of Process
VIII. Discovery
IX. Adjudication
X. Appeals
XI. Res Judicata and Collateral Estoppel
DETAILED OUTLINE
I. PERSONAL JURISDICTION – ARGUE BOTH WAYS, CONCLUDE (CA Analysis Same)
a. Step 1: Traditional Ways of asserting JDX
i. Domicile
ii. Presence in state when served
iii. Consent
1. Appearing in action
2. By contract
3. Appointment of agent for service
4. Implied consent
b. Step 2: Assertion of JDX over non-residents
i. Long arm statute
ii. Minimum Contacts (My Parents Frequently Forgot to Read Children’s Stories)
1. To have personal jurisdiction over the defendant, there must be such minimum
contacts with the forum so that exercise of jurisdiction does not offend traditional
notions of fair play and substantial justice.
a. Contact
i. Purposeful availment – D’s voluntary act reaches out to the forum
state
ii. Foreseeability – it was foreseeable to D that he would get sued in
this forum
b. Fairness
i. Relatedness between claim and contact: Does claim arise from the
contact
1. If no, is GENERAL jurisdiction Possible?
ii. Convenience
iii. State’s interest – state has a legitimate interest in providing redress
for its residents
iv. Systematic and continuous ties
1. Consistent business
2. Domicile
3. Incorporation (for business)
c. In Rem and Quasi In Rem
i. Here, jurisdiction is not based on the person but on the property. The statutory basis is an
attachment statute. Constitutionally, jurisdiction, even in rem or quasi in rem must satisfy the

- 113 -
minimum contacts test of International Shoe. Despite this, most courts hold that if the claim
arises from the property, jurisdiction is constitutional. If it does not arise from the property,
then it must satisfy International Shoe.
II. SUBJECT MATTER JURISDICTION – Which court can P sue
a. State Courts are courts of unlimited jurisdiction. The only limits are stator – bankruptcy, copyrights,
etc
b. For a federal court to have jurisdiction over parties, the action must be one based on a federal question
or diversity of citizenship
i. Federal Question –
1. To have jdx over the parties, the well-pleaded complaint must arise under federal
law, must show a right or interest founded substantially on federal law.
ii. Diversity Action (Test at time of filing)
1. To have jdx over the parties, there must be
a. Complete diversity of citizenship (no P same as any D)
i. Citizenship
1. Person (only one)
a. State of Domicile: Physical presence AND
Subjective intent to make it home
2. Corporation
a. All states of incorporation AND
b. Personal place of business
i. Muscle Center – where most of the
work is done
ii. Nerve Center – where decisions are
made
3. Unincorporated Entities: Look at partners’ state of
citizenship, general or limited
4. Decedents, minors, incompetents: Look at their
citizenship, not the representative
b. Amount OVER $75,000
i. You can aggregate 1P v. 1D, or 75,001 against joint tortfeasors
ii. Equitable relief (better = $75,001)
1. Plaintiff’s viewpoint: How much does blocked view
decrease value of house
2. Defendant’s viewpoint: How much to comply with order
2. Fed Courts, if diverse don’t hear divorce, alimony, child custody or probate
c. CA Subject Matter JDX
i. Superior Court: Hears any kind of civil case
ii. Classifications: (doesn’t include fees/costs)
1. Limited: $25,000 or less (P must label case), P cannot have judgment for more than
25k
2. Unlimited: Exceeds $25,000
3. Small Claims: If P is individual, $7500 or less; If P is entity, $5000 or less
iii. Reclassifications:
1. P amends = automatic reclassification by clerk; if amendment from limited to
unlimited, P pays fee
2. Party can reclassify OR court can on its own motion (notice required!)
3. Court reclassification occurs if judge is convinced matter will necessarily result in a
verdict in $25,000 or less; or possibility of a verdict exceeding $25,000.

- 114 -
iv. Aggregation: Proper if one P v. one D.
d. Supplemental Jdx
i. To have supplemental jdx, the court must have subject matter jdx over each claim
1. Test: Must share a “common nucleus of operative fact” with the claim that invoked
Federal SMJ
a. Must arise from the same transaction or occurrence as the underlying claim,
even if the anchor claim is by a different party than the one attempting to
get their claim in.
2. Limitation: In a diversity action, no claims by P against a D that would destroy
complete diversity
3. Discretion to Hear Supplemental Claims: Court has discretion to NOT hear the
supplemental claim if:
a. Federal question is dismissed early in the proceeding
b. State law claim is complex
c. State law issues would predominate
e. Removal
i. To have removal jurisdiction over the defendant, the case can only be removed by the
defendant to the federal district court embracing the state court in which the case was
originally filed, it could have been heard in federal court, and is removed no later than 30 days
after initial service of process.
1. All Defendants must agree to remove
2. Must be federal question or diversity case
3. One year rule: have only 1 year from original filing date to remove, if opportunity
arises later in case.
4. Procedure for removal: notice in fed ct w/ grounds, sign FRCP 11, attach docs, copy
parties, then file copy in state ct.
5. Home Court Diversity Advantage: If P brings an action in a state court in which a D
resides, the case cannot be removed.
III. JOINDER OF CLAIMS AND PARTIES
a. Joinder of Parties
i. Permissive Joinder (CA: same)
1. Proper Defendants and Plaintiffs: May be joined if arise from:
a. Same transaction or occurrence AND
b. Raise at least one common question (assess SMJ)
ii. Compulsory Joinder - Necessary and Indispensible Party (CA: same)
1. Who is necessary?
a. An absentee is necessary and indispensible and must be joined if:
i. Without B, the court cannot accord complete relief
ii. B’s interest may be harmed if he isn’t joined (harm to absentee),
OR
iii. B’s claims an interest which subjects a party to multiple
obligations (harm to existing Ds in the lawsuit)
2. If necessary, is joinder feasible?
a. Is there personal JDX over him?
b. Will joining him destroy diversity?
i. If B CANNOT be joined:
1. Proceed without him OR Dismiss the case
a. Factors:

- 115 -
i. Whether the judgment in the party’s
absence would prejudice the existing
parties
ii. Whether the prejudice can be reduced in
shaping the judgment
iii. Whether a judgment in the party’s
absence would be adequate
iv. Whether the P will be deprived of an
adequate remedy if the action is
dismissed.
iii. Impleader
1. is a claim involving a third-party defendant for indemnity or contribution and must
do so within 10 days after serving answer (ASSESS SMJ)
2. CA: same, but broader. Indemnity, contribution + any claim that TPD liable if same
transaction/occurrence
iv. Intervention
1. Allows an absentee to join a suit;
a. As a matter of right
i. Her interest may be harmed if not joined AND
ii. Her interest is not adequately represented now
b. Permissive intervention
i. allows the court to decide joinder if a claim or defense and the
pending case have at least one common question (court discretion
unless delay/prejudice)
v. Interpleader
1. One holding property forces all potential claimants into a single lawsuit to avoid
multiple litigation and inconsistency
a. Rule 22
i. Diversity: Stakeholder must be diverse from every stakeholder
ii. Amount in controversy: Must exceed 75k
iii. Service: Regular service
iv. Venue: Like regular case
b. Statutory
i. Diversity: One claimant must be diverse from one other claimant
(don’t care about stakeholder)
ii. Amount in Controversy: $500
iii. Service: Nationwide service (no personal JDX problems)
iv. Venue: Any district where any claimant resides
vi. Class Actions
1. Threshold Question
a. Numerosity: too numerous for joinder
b. Commonality: there are some questions of law or fact in common to class
c. Typicality: representative’s claims/defenses typical of those of the class;
and
d. Representative is adequate: the class representative will fairly and
adequately represent the class
2. 3 types:
a. Prejudice (avoid prejudice to a class)
b. Injunctive/Declaratory (trying to get injunction)

- 116 -
c. Damages (trying to get damages, mass tort)
i. Common questions predominate over individual questions AND
ii. Class action is the superior method to handle the dispute
1. In class actions for damages, the court must notify all
reasonably identifiable members, that they can opt out,
that the class judgment is binding on all class members,
and that they can enter a separate appearance through
counsel.
3. Certification
a. “At early practicable time” in certifying the class the court must define the
class, claims, issues, or defenses and appoint a class counsel who must
fairly and adequately represent the interests of the class.
4. Notice:
a. Type 1 & 2 = no notice; no opt out right; Type 3 = notification required (by
mail usually); can opt out and binds all reasonably identifiable members;
may appear separately through counsel and court must give members a
second chance to opt out
5. Settlement or dismissal of class claims require court approval
6. Under a class action involving diversity of citizenship only the representative must
have diversity.
7. CA:
a. Threshold Question:
i. ascertainable class;
ii. well-defined community of interest
1. common questions predominate;
2. substantial benefit to parties & court;
3. representative is adequate
b. Types: NO different types
c. Notice: NO and can be by publication / cost determined by court
d. Opt Out: Members are bound who do not opt out
e. Class Counsel: No court appointment of class counsel
f. Settlement/Dismissal: Approval by court required
g. Amount in Controversy: Fed – only look at reps claim, CA – can
aggregate claims so 76,000 people can be harmed for $1.
IV. VENUE
a. Tells us which federal court the case should be heard in.
i. Local Action
1. Actions over land must be filed in district where land lies (CA – county where land
lies)
ii. Transitory actions
1. P may lay venue in “any district where”
a. All D’s reside, if in the same state;
b. A substantial part of the claim arose or
c. If (a) or (b) are not possible, in diversity, where any D is subject to personal
jdx or
d. Where any D resides
2. CA - Venue proper in county where any D resides at case filing (in a k case  where
entered or performed; personal injury or wrongful death  where injury occurred
a. Corporations (PPB; K performance; breach occurrence/liability arises)

- 117 -
b. Where do D’s reside for venue purposes
i. Humans: Residence = domicile: physical presence and intent
ii. Corporations: Reside in all districts where they are subject to personal jdx when the case is
filed
c. Transfer of Venue
i. Can only go from federal district court to another where there is proper venue and personal
jurisdiction over defendant.
ii. When venue is proper, still may be transferred because of convenience:
1. Public Factors (what law applies; burden to community)
2. Private Factors (location of witnesses/evidence)
iii. Venue improper: Case can be transferred if in the interest of justice or dismissed
iv. CA:
1. Original venue proper = reason to believe impartial trial cannot be had; convenience
of witnesses and ends of justice promoted; or no judge qualified to act
2. Original venue improper = D files and serves notice + proof of service on P
d. Forum Non-Conveniens
i. can allow a court to dismiss the case and let the plaintiff sue defendant in a far more
convenient court because transfer is impossible
1. based on public and private factors above
ii. CA: Granted if “interest of substantial justice an action should be heard in forum outside of
California”; if granted court may condition on D waive PJ or SOL.
V. ERIE DOCTRINE
a. Erie doctrine: in diversity cases, federal court must apply state’s substantive law
i. If the issue is the following, it will use state substantive law:
1. Elements of the claim or defense that touches state law
2. SOL and Rules for Tolling SOL
3. Conflict of law rules (choice of law)
ii. If not above ask: IS there a federal law on point that directly conflicts with state law. If so,
Fed law wins on Supremacy Clause
iii. If still unsure ask:
1. Under the outcome-determinative test, if applying or ignoring state rule affects the
outcome, it is probably substantive and state law should prevail.
2. In balancing the interests, the system with the stronger interests should have its law
applied.
3. In avoiding forum shopping, if the federal court ignores state law on this issue and
causes parties to choose federal court, then state law should prevail.
VI. PLEADINGS
a. Rule: Notice pleading (“put someone on notice”); CA – Fact pleading; pleader must state the
“ultimate facts”
b. Rule 11: requires attorney to sign all pleadings, motions and papers certifying 1) paper not for
improper purpose, 2) legal contentions are warranted by law, 3) factual contentions and denials have
evidentiary support (CA - Same)
i. Continuous certification effective every time presented
ii. Purpose: To deter, not punish (CA – Same) Does not apply to Discovery (CA – Same)
iii. Motions for violations are served but not filed with court for at least 21 days because of
SAFE HARBOR to withdraw or fix problem. (CA: No safe harbor if bad faith or frivolous
tactics in litigation; punitive damages assessed by court if action by convicted felon and P
guilty of fraud, oppression, malice)

- 118 -
c. Complaint: Commences action and states: 1) statement of SMJ, 2) short plain statement of claim,
showing entitled to relief, 3) demand for judgment. Special Matters: Need pleading with particularity
– fraud, duress, and mistake
i. CA: Statement of facts, demand for judgment (amount needed); Exception = Personal injury,
wrongful death, punitives (must NOT state amount) but may seek statement of damages and P
must provide within 15 days
ii. Fact pleading = heightened pleading (fraud, civil conspiracy); verified pleadings (signed
under penalty of perjury; Doe Ds (genuinely unaware of identity + cause of action against
Doe)
d. Responses by motion or by answer within 20 days after service of process and must respond to
allegations or raise affirmative defenses. (Rule 12 motions)
i. Form Issues: motion for more definite statement (pleading so vague so cannot frame a
response), motion to strike (immaterial things)
ii. Defenses: lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue,
insufficiency of process, insufficiency of service of process, failure to state a claim, failure to
join indispensable party
1. Waivable motions must be put in the first Rule 12 response or are waived: lack of
personal jurisdiction, improper venue, insufficiency of process, insufficiency of
service of process.
iii. CA: 30 days after SOP complete (no extra time if waived by mail)
1. Defensive Responses: general demurrer (P failed to state facts sufficient to cause
state of action; OK to use to challenge SMJ); special demurrer (complaint uncertain,
ambiguous, unintelligible; not available in limited civil cases); motion to quash
service of summons (to challenge PJ by special appearance; to challenge service of
process; must be made before/with filing of demurrer/motion to strike; denial =
moving party can only seek appellate review by writ of mandate from court of appeal
within 10 days); motion to strike (improper, irrelevant; false matter)
e. Answer: 10 days of denial of Ds 12 motion; or 20 days of SOP if no motions; or 60 days of date P
mailed waiver if D waives
i. D serves answer to complaint by: responding to allegations (admit, deny, lack sufficient info)
(failure to deny = admission except on damages); raising affirmative defenses (if not plead =
risk of waiver thus MUST raise)
ii. CA: same; 30 days after SOP complete. If demurrer overruled, D must answer within 10
days of ruling.
f. Counterclaims are offensive claims against an opposing party.
i. Compulsory if arises from the same transactions or occurrences; filed in Ds answer or
waived
ii. Permissive if does not arise from the same transactions or occurrences.
iii. Note: Assess if counterclaim (compulsory or permissive) invokes federal SMJ (diversity or
federal question); if counterclaim fails to invoke either of those, assess supplemental jx.
iv. CA: Cross-complaints
g. Cross-claims are offensive claims against a co-party and must arise from same transactions or
occurrences but are never compulsory.
i. CA: Cross-complaints against P (same as fed); against co-party (same as fed).
h. Amended pleadings
i. Right to Amend
1. A plaintiff has a right to amend once before defendant serves his answer.
a. D must respond within 10 days or amount left on his 20 days, whichever
longer
2. A defendant has a right to amend once within 20 days of serving his answer.
3. If no right = leave of court required and court will grant “if justice so requires”
(granted unless delay/prejudice)
4. CA: P may amend before D files answer/demurrer OR after demurrer/before trial is
OK as a matter of course
a. Any party can seek leave to amend anytime (court discretion)

- 119 -
ii. Relation Back (SOL)
1. Amended pleadings relate back to the date of the original filing if they concern the
same conduct, transaction, or occurrence as the original pleading.
2. Amended pleadings changing a defendant after a statute runs relates back if same
transaction or occurrence as original; new D knew of the action within 120 days of
filing, and new D knew that but for the mistake it would have been originally named.
3. CA: OK to change D after SOL run if misnomer (P sued wrong D, right D knew
about it)
a. Fictitious Ds (Does): Proper if original complaint filed before SOL (with
Does); P genuinely ignorant of identity of Doe; pleaded ignorance in
original complaint (3 years to substitute Ds and it will relate back)
VII. SERVICE OF PROCESS
a. In addition to person JDX, must give notice to D by delivering to D 1) a summons (formal court notice
of suit and time for response) and 2) a copy of the complaint (Both together = process)
b. Who can serve: Any non-party who is 18 years old (CA – same)
c. How effectuate service:
i. Personal service while the D is in the state, or on the agent, if within scope of agency.
ii. Substituted service: Process is left at:
1. D’s usual abode, with someone of suitable age and discretion, and that person resides
there (sleep overnight)
2. CA – D’s usual abode, competent member of house at least 18 years old, must be
informed of contents, process must be mailed also to the address within 10 days
iii. Waiver by mail
1. Mailed to D. Returned within 30 days (CA – 20 days). Does not waive JDX
defenses. If doesn’t = pay for subsequent service.
d. Limitations:
i. Cannot serve D in another state unless forum state allows (via long-arm statute); (CA: OK in
any manner allowed by CA law; by mail).
ii. In federal court, use the methods permitted by the state
VIII. DISCOVERY
a. Discovery
i. Required Disclosures (FRCP 26) (CA – no such thing)
1. Initial (with 14 days of 26f conference): identify persons/docs; computation of
damages claimed; copies of insurance agreements)
2. Experts: those to be used at trial and produce reports, data used, qualifications
3. Pre-Trial: No later than 30 days before trial, must give detailed information about
evidence
ii. Discovery Tools
1. Depositions: (party or non-party); sworn oral statements by deponent to Qs
(oral/written) by counsel; party’s attendance compelled by notice of depo; non-party
must subpoenaed or else not compelled; one day = 7 hours unless court order/parties
agree
a. CA: Same except: no limit on depos unless court orders (time or #)
2. Interrogatories: Qs propounded in writing to another party (never non-party) and
answered in writing under oath (w/i 30 days)
a. CA: Same. Also form interrogatories (no limit); specific interrogatories
(may not contain subparts); maximum number in unlimited (35 but can
request more)
3. Request to Produce: Request to party/non-party (within 30 days); available for
review and copy docs or things; permit entry on designated property for inspection

- 120 -
a.CA: Same except no express permission to party to use those to get info;
but possible by taking non-party’s depo and serve subpoena duces tecum =
requires deponent to bring material with her
4. Physical/Mental Examinations: (court order needed): health in controversy + good
cause
a. CA: Same + lawyer right to attend if physical; if mental, requires court
order
5. Request for Admissions: request by one party to another to admit/deny any
discoverable matters
a. CA: Same; maximum number in unlimited cases = 35; no limit to admit
genuineness of docs; limited cases only 1 depo per party or combined total
of 35; case questionnaire in limited case; no medical exams in limited cases
6. Duty to Supplement: party must supplement its response
a. CA: no duty; requesting party can propound ‘supplemental interrogatories’
+ can propound ‘supplemental demands for inspection’ for
later/acquired/discovered docs/things. Allowed twice before trial date
initially set; applicable only in unlimited cases.
iii. Scope of Discovery
1. Relevance: anything relevant to a claim or defense. Something is relevant if it is
reasonably calculated to lead to admissible evidence
a. CA – anything relevant to the subject matter
2. Privileged Matters: not discoverable (CA – must keep privileged docs in a
PRIVILEGE LOG)
3. Work Product: Generally protected from discovery if it is prepared in the
anticipation of litigation, unless show 1) substantial need, 2) not otherwise available
(CA: only if denial = unfairly prejudice/injustice), but absolutely protected if
conclusions, opinions, legal theories
a. CA – more restrictive: only applies to attorney’s work product, not his
representatives
4. Experts: production of info required about experts used at trial (depo available)
a. CA: any party may request simultaneous exchange of witness info which
includes: exchange of expert list; declaration of nature and substance of
testimony; expert qualifications (note: no disclosure for consulting experts)
iv. Discovery Sanctions
1. Violations: Partial violations = receiving party answers some and objects to others
and objections not upheld; total violations = receiving party fails completely to
attend depos/respond
a. Note: Before sanctions, party must certify good faith to obtain info without
court involvement
2. Sanctions: Partial = order compelling party to answer + cost of bringing motion; if
violated order = heavy sanctions + cost + possibly contempt; failure to make
required disclosure = other party can elect to treat as partial/total + party in violation
cannot use info at trial unless justified/harmless; total = heavy sanctions + costs (no
contempt)
3. Heavy sanctions: order establishing facts as true; strike pleading regarding pertinent
issues; disallow evidence of party regarding pertinent issues; dismiss Ps case (bad
faith shown); OR default judgment (bad faith shown)
4. California Rules

- 121 -
a. Meet and confer (required unless total failure to respond) and if failure =
monetary sanction;
b. Misuse of discovery (notice given to person sanctioned) occurs when not
playing by rules, unjustified objections, abusive motions, failure to confer,
refusal to respond;
c. Sanctions (party must indicate type it seeks) = 1) monetary; 2)
establishment order; 3) refusal to allow party to support position with
evidence; 4) striking pleadings; 5) default/dismiss the case
IX. ADJUDICATION
a. Pre-Trial
i. Voluntary Dismissal
1. P may do so before D serves answer or summary judgment. Only ONCE without
prejudice, no matter if different courts (CA – P can do this anytime before trial at
court’s discretion)
ii. Involuntary Dismissal (CA – Same)
1. Discretionary: Court discretion to dismiss if not brought within 2 years of filing
2. Mandatory: Dismissal required if case hasn’t went to trial within 5 years of filing
iii. Default Judgment: If D fails to respond to service (20 days), need judgment to enforce and
recover the money
1. Clerk can enter judgment if: 1) D made no response at all, 2) claim is for sum certain
3) claimant gives affidavit of money owed AND 4) D is not a minor or incompetent
(must go to court if any of these violated.
iv. Failure to state a claim: Taking P’s pleading as true, would she win a judgment. Only look
at the complaint itself.
v. Summary Judgment: moving party must prove: (Do not weigh credibility on SMJ motion)
1. No genuine dispute as to a material fact
2. Entitled to judgment as a matter of law
a. CA: Same standard as Fed
b. Burden Shifting: Burden shifts to opposing party to demonstrate triable
issues of fact exists; MP must file and serve separate statement of material
facts she claims is undisputed with supporting evidence for each fact
i. Opposing party responds indicating facts she believes in dispute +
supporting evidence for each fact
b. Conferences and Meetings
i. Pre-Trial Conferences: (no surprises at trial); expedite case & foster settlement; final
conference determines issues to be tried, evidence proffered and records in pre-trial
conference order; may be amended only to ‘prevent manifest injustice.’
1. CA: No Rule 26(f) conference; but California are ‘hands on’ to manage the litigation
and keep it going
ii. Recovery: Amount claimed in complaint doesn’t limit amount that can be recovered except in
default cases (CA: same)
c. Trial, Judgment and Post-Trial Meetings
i. Jury Trial
1. Right to Jury Trial: in writing, no later than 10 days after service of last pleading,
7th Amendment preserves right in civil case; if legal and equitable relief, jury on facts
underlying legal issues first, then equitable (by judge) (if damages claimed as part of
action seeking injunction, D cannot be denied jury
a. CA: 7th amendment doesn’t apply but same principles (but court tries equity
issues first)

- 122 -
2.
Number of Jurors: no fewer than 6, no more than 12; no alternates
a. CA: 12 in civil case unless parties agree in open court to lesser number;
alternate juror OK
3. Demand Requirement:
a. CA: announcement for demand for jury at time case set for trial/5 days after
notice of setting of trial; failure = waiver; deposit advance jury fees 25 days
before trial (each 2nd day of trial, deposit of jury fees and mileage)
4. Selection (Voir Dire) of Jurors: each side unlimited “for cause”, (CA: same) Each
side gets 3 preemptory challenges (race/gender neutral) (CA = 6)
5. Verdict: unanimous in federal court, CA 3/4 in CA, no need for unanimity
ii. Motion for Judgment as a Matter of Law (CA - Motion for a Directed Verdict)
1. Asks the court to take the case away from the jury and direct a verdict to the person
requesting.
2. Viewing the evidence in light of the non-moving party, reasonable people could not
disagree on the result (CA – Same standard)
a. D [asks for it 2x] – at close of P’s evidence, and at close of all evidence
b. P [asks for it 1x] – at close of all the evidence
c. CA – If D moves at close of P’s opening statement/evidence = motion for
non-suit
iii. Renewed Motion For Judgment as a Matter of Law (CA – Judgment not Withstanding
the Verdict)
1. Occurs where the jury reached a conclusion reasonable people could not have
reached; a JMOL must have been done at an appropriate time during trial (then must
file RJMOL within 10 days of entry, losing party asks court to set aside verdict and
enter in its favor)
2. To bring motion, party must have moved for JMOL at close of evidence as
prerequisite
a. CA: Party not required to make motion for directed verdict at trial
iv. Motion for a New Trial: prejudicial error, new evidence that could not have been obtained
with due diligence for the original trial, prejudicial misconduct of party or attorney, judgment
is against the weight of the evidence; must be done within 10 days after judgment.
1. CA: same except that error resulted in miscarriage of justice
X. APPEALS
a. Appeals: Appeal from federal district court to US Court of Appeals; CA – From Superior Court to CA
COA (limited case/small claims = appellate division of superior court)
b. Final Judgment Rule: appeals can only be made from final judgments within 30 days after entry of
final judgment; the court must have nothing left to do on the merits of the case (ultimate decision by
TC of merits of entire case)
i. CA: same; judgment as to one of several parties = final judgment and can be appealed
c. Interlocutory Review
i. may be appealable even though not final judgments; must seek review w/in 10 days of order
d. Extraordinary Writ: CA: If order not otherwise appealable, aggrieved party may seek: 1) writ of
mandate (to compel lower court); or 2) prohibition (to stop lower court)
i. Writ may issue by any court to inferior court; party seeking writ must demonstrate
1. 1) irreparable harm;
2. 2) normal route of appeal inadequate;
3. 3) beneficial outcome of writ proceeding
XI. RES JUDICATA AND COLLATERAL ESTOPPEL
a. Res Judicata (Claim Preclusion)

- 123 -
i. judgment in one case precludes litigation of any matters in another case or where the claim
should have been brought in the preceding action
1. Requirements: (VOSS Water)
a. Valid final judgment
b. On the merits (not based on jdx, venue, or indispensible parties)
c. Same claim
d. Same parties
e. Was actually litigated
2. Majority: defines “same claims” transactionally as arising out of the same
transaction or occurrence.
3. Minority: defines claims separate from property and personal rights. (CA -
“PRIMAY RIGHTS DOCTRINE”)
b. Collateral Estoppel (Issue Preclusion): Precludes the re-litigation of a particular issue
i. Requirements: (VIEA)
1. valid final judgment on the merits,
2. Issue actually litigated and determined
3. Essential to the judgment
4. Against a party in case 1 or their privies (mutuality)
ii. Whom can assert it?
1. Mutuality
a. Traditional Approach: Mutuality = only someone who was a party to
Case 1 can assert collateral estoppel in Case 2
b. Federal and CA allow non-mutual collateral estoppel = collateral
estoppel asserted by someone in Case 2 who was not a party in Case 1 (a 3rd
PARTY IS USING IT offensively or defensively)
i. Non-mutual defensive collateral estoppel (shield): asserted by
non-party defendant: Federal and California law allow it if
person against whom it is used had a full opportunity to litigate in
Case 1
ii. Non-mutual offensive collateral estoppel (sword): asserted by a
non-party plaintiff. Although disfavored, Federal and California
law allow it if not unfair based on factors:
1. D had a full opportunity to litigate in Case 1
2. D could foresee multiple litigation
3. P could not have joined easily in Case 1
4. There are no inconsistent judgments already on record

- 124 -
EVIDENCE CHECKLIST
10 SECOND CHECKLIST
I. Form
II. Purpose
a. Logical
b. Legal
III. Presentation
a. Witness
i. Personal Knowledge/Reliability
ii. Character
iii. Impeachment
iv. MIMIC
b. Document
c. Opinion
d. Judicial Notice
IV. Hearsay
V. Privileges
DETAILED OUTLINE
I. Prop 8: “Truth in Evidence” is apart of the California constitution. Under Prop 8, all relevant
evidence is admissible in CA criminal cases unless the evidence falls within an exception
a. Exclusions
i. Exclusionary rules under US Constitution, such as Confrontation Clause
ii. Hearsay law
iii. Privilege law
iv. Limits on character evidence about the victim in a rape case
v. The rule prohibiting prosecution from offering evidence of D’s character before D opens
the door
vi. Secondary evidence rule (best evidence rule)
vii. CEC 352 – court’s power to exclude if unfair prejudice substantially outweighs probative
value
II. FORM: In what way is the evidence being produced
a. Sequence of witness examination – direct, cross, etc.
i. Scope of cross limited to scope of direct.
ii. Leading questions improper on direct unless: on cross, hostile W, forgetful W, to elicit
preliminary information
b. Objections to questions and answers
i. Leading Question: One that suggests the answer. Not allowed on direct but is allowed:
1. On Cross Exam
2. Hostile W
3. Forgetful W
4. To elicit preliminary information
ii. Non-Responsive Answer
1. Offers more information in the answer than what is asked
2. Put in Motion to strike
iii. Calls for a Narrative: Open-ended question that requires more than a short response
iv. Assumes Facts not in Evidence: Whenever a question incorporates facts that have been
entered into evidence
v. Compound Question: A question that asks more than one question
vi. Calls for Speculation
vii. Misleading
viii. Lack of Foundation
III. PURPOSE: What is the purpose for introducing the evidence?

- 125 -
Relevance a.
i. Logical relevance: Something is relevant if it tends to make the existence of any fact of
consequence to the outcome more or less probable than it would be without it. CA: the
fact of consequence must be in dispute.
1. Usually must relate to event/person in involved in the present litigation. But
certain similar occurrences are relevant to show:
a. Similarity in time and place
b. Prior accidents / claims brought by P to show pattern of fraudulent
claims or preexisting condition
c. Previous similar acts relevant to prove intent
d. Rebut a defense of impossibility
e. Comparable sales relevant to establish value
f. Habit
g. Routine business practice
h. Industry custom as evidence of standard of care
ii. Legal Relevance: Even if the evidence is relevant, the court has discretion to exclude if
probative value is substantially outweighed by unfair prejudice
1. Prejudicial impact against probative value AND
2. Public policy exclusions even though the evidence is relevant they will be
excluded on public policy grounds
a. Liability insurance: Inadmissible to show negligence or ability to pay
b. Subsequent remedial measures: are inadmissible to prove negligence
unless D says there was nothing he could have done.
i. FRE: inadmissible to prove defective product, CA – to prove
defective product OK
c. Settlement offers: are inadmissible to prove liability/fault UNLESS no
claim yet asserted or no dispute as to liability/damages (nothing to
settle). RELATED statements are inadmissible. CA: discussions
during mediation proceedings also inadmissible.
d. plea bargains: inadmissible CA - “CA courts have not yet decided
whether Prop. 8 allows a prosecutor to use statements a D made during
a failed plea negotiation, but a prudent prosecutor would not do so
because it would discourage future plea bargaining. Even if Prop. 8
applies to such evidence, the court still may exclude for unfair
prejudice.”
e. Payment or offer to pay medical expenses: are inadmissible to prove
liability, but RELATED statements are admissible. CA: admissions of
fact accompanying payment or offers inadmissible.
f. Expression of sympathy. CA: expressions of sympathy relating to
suffering or death of an accident victim inadmissible in CIVIL actions.
Statements of fault made in connection with such an expression
ADMISSIBLE. No FRE counterpart.
iii. Legal and logical relevance: Prop 8 preserves judicial discretion to exclude evidence
that would be otherwise admissible.
PRESENTATION
IV. WITNESS
a. Competence: Requires (insane/disabled can still testify if these are met):
i. Requirements:
1. Personal knowledge
2. Under oath
3. Communicated
4. Present recollection
5. CA: W must also understand legal duty to tell truth

- 126 -
ii. Refreshing Recollection: Anything can be used to refresh the recollection of a W.
Whatever is used may be inspected by the adverse party and only they can admit it into
evidence
iii. Grounds for disqualification of W: All Ws competent except judges and jurors. CA:
hypnotized W disqualified except in criminal case if police use procedures that protect
against suggestion.
b. Character Evidence: ASK is it 1) to prove conduct in conformity/substantively (inadmissible) or
2) to impeach someone (might be admissible) or 3) MIMIC (is admissible)
i. As Substantive Evidence
1. Rule: character evidence used to prove conduct in conformity with a particular
character trait is generally inadmissible.
2. Civil Cases
a. Character in issue, then OK to use character evidence to prove conduct
i. Defamation
ii. Negligent Entrustment
iii. Custody case
b. Not in issue
i. Cannot use character evidence at all to prove conduct unless
sexual assault or child molestation
3. Criminal Cases
a. Defendant’s character [separately IRAC]
i. Government cannot open the door, But D can. Once open, G
can rebut as to that same character trait that was supported by
D.
1. 2 exception to open door rule:
a. Sexual assault/child molestation cases
b. Where court has admitted evidence of V’s
character offered by D, G may offer
evidence as to D’s character for that same
trait.
i. CA – Narrower – Where court has
admitted evidence of V’s character
for violence, P may offer evidence
that accused has violent character.
ii. CA - In domestic violence case,
pros can say D committed other
acts of domestic violence
ii. On direct, only reputation and opinion testimony allowed, on
cross examination specific acts, reputation and opinion
allowed.
1. CA – Never specific Acts, even on cross
a. However, PROP 8 makes everything,
including Specific Acts ADMISSIBLE,
subject to 352 balancing
b. Victim’s character [separately IRAC]
i. Most of same rules apply. G cannot open the Door, but D can
1. 1 exception. In a HOMICIDE case, if D offers
evidence that V attacked him first, prosecutor may
offer evidence of V’s character for peacefulness
a. CA – PROP 8, if evidence of victim’s
character is relevant, it is admissible, subject
to 352 balancing
4. Rape Shield Statutes: Prop 8 = no effect
a. Criminal rules. Reputation and opinion evidence of victim’s character
is inadmissible. Specific acts of victim is inadmissible except to prove
i. third party is source of semen/injury or

- 127 -
ii. prior acts of consensual intercourse b/t D and alleged victim.
b. Civil rules. Reputation, opinion, and specific instances evidence
admissible if probative value substantially outweighs unfair prejudice
&, in case of reputation evidence, P put her reputation in issue
c. Impeachment of a testifying W
i. Evidence supporting credibility is inadmissible unless credibility has been attacked first.
ii. Ways to Impeach
1. Contradiction: Can use extrinsic evidence (EE), but no on collateral matter
2. Prior inconsistent statement: Are admissible to impeach and may be allowed a
substantive evidence
a. Extrinsic evidence admissible to prove it up only after W is afforded an
opportunity to explain/deny.
b. If prior inconsistent statement made under oath at prior proceeding,
then it is Not Hearsay and will be allowed in for BOTH impeachment
and substantive evidence of guilt.
i. CA – prior inconsistent statements is always allowed for truth,
as well as impeach, whether or not it was under oath or not.
3. Bias, motive, intent: Extrinsic evidence is admissible to prove it up after W is
afforded opportunity to admit/deny.
4. Convictions:
a. Involving false statements
i. All felony AND misdemeanor convictions involving false
statement or dishonesty less than 10 years old is admissible
(no balancing test).
1. CA: All felonies involving moral turpitude are
admissible but court must balance. Felonies not
involving moral turpitude inadmissible. (moral
turpitude: crimes of lying, violence, theft, extreme
recklessness, sexual misconduct)
a. By Rule, misdemeanors are not allowed in
to either civil or criminal. However PROP
8 makes misdemeanors admissible in
criminal trials, subject to 352 balancing.
b. Not involving false statements
i. Only felonies come in, to impeach only, not to prove person’s
conduct on this occasion. Greater than 10 years are
inadmissible unless probative value outweighs unfair
prejudice
5. Non-Convictions going to Truthfulness (prior bad acts of untruthfulness)
a. Allowed, but the act must be probative of lying AND no extrinsic
evidence is allowed. Must take D for his word.
i. CA – Inadmissible under rule but PROP 8 lets it in in
criminal trial IF relevant, which means it must be an act of
“moral turpitude”
6. Opinion and reputation regarding truthfulness
a. OK to do always
iii. Rehabilitation
1. An impeached W may be rehabilitated by:
a. Explanation on redirect. W on redirect may explain/clarify facts
brought out in cross.
b. Good reputation for truth. When W’s character for truth and veracity
attacked, other witnesses may be called to testify to good reputation for
truth of impeached W or to give opinion as to truthfulness of
impeached W.

- 128 -
c.Prior consistent statement. If W’s testimony attached by
express/implied charge that W is lying or exaggerating because of some
motive, a previous consistent statement is admissible to rebut.
d. MIMIC –SPECIFIC BAD ACTS for something other than character or disposition - Admissible
[separately IRAC]
i. Motive
ii. Intent
iii. Mistakes (lack of)
iv. Identity
v. Common Plan or Scheme
V. DOCUMENTS
a. Authentication
i. Every item of non-testimonial evidence must be authenticated, meaning proving it is
what the proponent claims it to be.
ii. A document can be authenticated by the W’s admission, eyewitness testimony or
handwriting proof.
1. Handwriting can be proved by a lay witness already familiar w/the writing, an
expert W comparing the disputed signature to the genuine specimen, or by jury
comparison of the disputed signature w/the genuine exemplar.
2. Ancient documents rule: authenticity established if document is 20 or more
years old, regular on its face, and found in its place of natural custody
3. Solicited reply doctrine: a document can be authenticated if it was a written
response to a communication sent to the claimed author.
4. Note: the evidence gets admitted in addition to the conflicting evidence and the
jury decides for themselves
iii. Self-authenticating documents
1. FRE: include certified copies of public documents (deeds), acknowledged
documents (where original signature is attested before notary), official
publications, newspapers, periodicals, business records, trade inscriptions
(tag/label that purports to have been attached in course of business and indicates
ownership, control or origin)
a. CA: all of the above except business records (FEDERAL ONLY) and
trade inscriptions (FEDERAL ONLY)
iv. Photographs: are authenticated if W of personal knowledge of the scene testifies it is a
fair and accurate representation of what it purports to represent
v. CHAIN OF CUSTODY (Non-unique items) are facially indistinguishable from other
like items. To authenticate, proponent must lay chain of custody demonstrating that this
is the item that the proponent claims it to be. Small breaks in the chain ok.
b. Best Evidence Rule (CA: Secondary Evidence Rule):
i. party offering evidence to prove contents of a writing must produce the original or
account for absence of original.
ii. Writings: any tangible collection of data; documents, videos, photos, x-rays, audio-
recordings, computer disks
iii. Applies to: legally operative documents and cases where a W’s sole knowledge comes
from a document, i.e. W lacks personal knowledge and wishes merely to recite orally
what he read.
iv. Does not apply to
1. W has knowledge of fact independent of the writing
2. Collateral documents of minor importance
3. Computer printouts and certified copies are considered originals
4. If witness has PK of the facts she’s testifying to, it’s not obtained from writing
and BER does not apply
v. Substitute:
1. Voluminous documents exception: can be summarized if originals available for
inspection
2. Duplicates unless a genuine questions raised about authenticity of original

- 129 -
a.CA: duplicates and other written evidence of contents of original (such
as handwritten notes)
vi. Note: testimony regarding writing contents admissible if original lost or destroyed unless
bad faith by proponent of testimony
VI. OPINION TESTIMONY
a. Lay opinion is admissible if rationally based on W’s perception and helpful to trier of fact (not
merely a legal conclusion) and subject is proper for lay opinion (not based on scientific or other
specialized knowledge).
b. Expert opinion is admissible when opinion would be
i. Requirements
1. Helpful to the jury,
2. Expert is qualified,
3. Believes in his opinion to reasonable degree of certainty,
4. Opinion must be supported by proper factual basis (PK, admitted evidence or
inadmissible evidence reasonably relied on by experts in that field), and
5. Opinion must be based on reliable principles.
ii. “Reliable Principles”: Factors:
1. FRE:
a. Publication or peer review
b. Error rate
c. Results tested and ability to retest
d. Level of acceptance (Daubert)
2. CA: principles generally accepted in the field (Kelly-Frye)
a. Learned treatise hearsay exception: CA does not apply Kelly-Frye to
non-scientific expert opinion evidence or medical testimony
VII. JUDICIAL NOTICE
a. Judicial Notice
i. The court may take judicial notice of a fact that is not in reasonable dispute because it is
either generally known within the court’s jurisdiction, or capable of determination from
sources whose accuracy cannot reasonably be questioned.
1. Criminal Case: the jury may take as conclusive, but not required to do so
a. CA – jury must take as conclusively proven
2. Civil Cases: Jury must take fact s conclusively proven
VIII. HEARSAY CA: Hearsay law is exempt from Proposition 8 (meaning, in criminal case, usual rules of
evidence apply)
a. Rule: Any out of court statement offered for the truth of the matter asserted
b. Specific Non-Hearsay b/c not for truth
i. Independent legally operative facts: The words spoken or written have independent
significance not for what they say, but by the virtue of having been spoken or written
(words of offer/accept, defamation, conspiracy, bribery, misrepresentation, waiver,
permission)
ii. To show effect on listener
iii. To show speaker’s knowledge of facts
iv. Circumstantial evidence of state of mind
1. E.g. a defense W testifies that one day before murder he heard D, who is
pleading insanity, say “I am the pope”
c. Specific Exemptions to Hearsay even though they are for the truth (CA – They are Hearsay but
exceptions to the rule)
i. Admissions by Party Opponent: An admission is a statement made or act done that
amounts to a prior acknowledgment by one of the parties about a relevant fact.
ii. Vicarious Party Admission: Statement made by an authorized spokesperson of party or
employee of party concerning matter within scope of employment and made during
employment relationship
1. CA: employer responsible for employee’s words ONLY if also responsible for
employee’s conduct (respondeat superior)
2. Other Admissions:

- 130 -
a.
Co-Conspirator: statement made during course and in furtherance of
conspiracy- considered an admission by ALL of the conspirators
b. Adoptive: nonparty makes statement and party indicates belief in truth
iii. Prior inconsistent statement taken at a deposition: See above in Impeachment
iv. Prior Consistent statement offered to rebut a recent charge of fabrication or
improper influence or motive: If made before the bribe
v. Prior statement of identification of a person made after perceiving that person
(“Guy who robbed me”)
d. Exceptions to hearsay
i. Unavailability exceptions:
1. Note: Declarant unavailable if court exempts declarant from testifying due to
privilege, declarant dead/sick, proponent of statement cannot procure declarant’s
attendance by process or other reasonable means
a. FRE: two additional bases: declarant refuses to testify or declarant’s
memory fails on subject of her statement
b. CA: two additional bases: if declarant suffers TOTAL memory loss or
refuses to testify out of fear
2. Declaration against interest: A statement by an unavailable declarant is
admissible if, at the time it was made, it was against his pecuniary or penal
interest at the time it was made and he/she knew it was against her interest.
a. CA also recognizes statements against social interest

b. FRE: in criminal case, if statement offered to exculpate D, there must
be corroborating evidence to admit the statement.
3. Dying declarations:
a. FRE: declaration by person who believes he is about to die and
describes cause/circumstances leading to his death is admissible in a
CIVIL action and in a HOMICIDE prosecution if declarant
unavailable.
b. CA: exception applies in all civil and criminal cases and declarant must
be DEAD
4. Former testimony [separately IRAC]:
a. Testimony given in earlier proceeding or deposition by an unavailable
declarant is admissible if party against whom testimony is now offered
was a party in the earlier proceeding, had opportunity to examine the
witness, and its motive to conduct that exam was similar to motive it
has now OR
i. FRE: in a CIVIL case, party against whom testimony is now
offered was not a party in earlier proceeding but is in a privity-
type relationship with someone who was a party to that earlier
proceeding AND who had an opportunity and an interest to
conduct that exam similar to the interests of the party against
whom testimony is now offered OR
ii. CA: in a CIVIL case, party against whom testimony is now
offered was not a party in earlier proceeding but a party in that
earlier proceeding had an opportunity to examine the witness
and an interest to conduct that exam similar to the interests of
the party against whom the testimony is now offered OR
iii. CA: the former testimony is offered against the person who
offered it in evidence in her own behalf in the earlier
proceeding or against a successor in interest of such person
1. Related CA law: deposition testimony in same
CIVIL action in which the HS if offered at trial is
admissible for all purposes if the deponent is
unavailable at trial or lives more than 150 miles from

- 131 -
the courthouse. Otherwise, the former testimony
exception does not apply to deposition testimony
given in the same case in which HS is offered at trial.
ii. Reliability Exceptions
1. Excited utterance: A statement made in response to a startling/exciting event is
admissible when made while the declarant was still under the stress of the
excitement caused by the event.
2. Present sense impression: FRE: A statement describing an event while
declarant was perceiving the event or immediately thereafter.
a. CA: (narrower exception) A statement explaining conduct of the
declarant made while the declarant was engaged in that conduct. (CA
has no hearsay exception for PSI)
3. CA: (related exception): Statement describing infliction or threat of physical
abuse
a. A statement made at or near time of injury or threat by unavailable
declarant describing/explaining infliction or threat, in writing or
recorded or made to police or medical professional, under trustworthy
circumstances.
4. Bodily condition:
a. A statement in regards to a present bodily condition is admissible when
said to ANYONE
b. A statement in regards to a past bodily condition is admissible if said to
a doctor and pertitent to diagnosis or treatment
i. CA: (narrower) A statement of past/present mental/physical
condition is admissible if made for medical
diagnosis/treatment and if declarant is a minor describing an
act or child abuse or neglect.
ii. CA: (related exception): A statement of past physical/mental
condition, including a statement of intention, is admissible to
prove that condition if it is an issue in the case. No req’t that
statement be made for medical purposes. Declarant must be
unavailable.
c. Note: rule does not require that a patient directly speak to a dr. Child
to mom to doctor ok.
5. Present state of mind: Declaration of declarant’s then-existing physical or
mental condition or state of mind is admissible to show the condition or state of
mind.
iii. Documentary exceptions
1. Past recollection recorded:
a. A writing:
i. made by the W or under W’s direction or was adopted by W,
ii. at or near the time of an occurrence,
iii. which was an accurate statement at the time it was made,
iv. is admissible if the W now has insufficient recollection to
testify as to the matters contained in the document.
b. The writing will be read into evidence.
2. Business records: FRE:
a. Records of events, conditions, opinions or diagnoses
b. Kept in course of regularly conducted business activity is admissible if
c. Made at or near time of matters described,
d. By person with knowledge of the facts, and
e. It was regular practice of business to make such record.
i. Court may exclude if untrustworthy
f. CA: same as FRE except CA exception does not refer to opinions or
diagnoses but courts still will admit simple opinions and diagnoses
3. Public/Official records:

- 132 -
a. FRE: the record of a public office is admissible if it is within one of
the following categories:
i. (1) record describes office activities,
ii. (2) record describes matters observed pursuant to duty
imposed by law, or
iii. (3) record contains factual findings resulting from an
investigation made pursuant to authority granted by law,
unless untrustworthy.
1. In a criminal case, prosecution cannot use 2 and 3.
b. CA: (does not place same restrictions on prosecution) record made by
public employee is admissible if making record was within scope of her
duties, record as made at or near time of the matters described AND
circumstances indicate trustworthiness.
iv. Others
1. Ancient documents: Authenticated if: (1) at least 20 years old, (2) in such
condition as to be free from suspicion as to authenticity, AND (3) found in a
place where such a writing would likely to be kept.
2. Learned treatises: Admissible if established as reliable by admission of
opposing expert, testimony of other expert, or judicial notice.
a. Admissible for IMPEACHMENT + SUBSTANTIVE EVIDENCE
i. FRE: Admissible to prove anything if treatise is accepted
authority in the field.
ii. CA: Only admissible to show matters of general notoriety and
interest.
3. Federal catch all: statement is admissible if it is trustworthy, strictly necessary,
AND notice given to adversary as to nature of statement.
e. 6th Amendment Confrontation Clause: Out-of-court statements will not be admitted against the
accused in a criminal case if the declarant is unavailable and the statement is “testimonial” unless
1) the accused had an opportunity to cross-examine the statement when it was made or 2) the
prosecution shows the accused has forfeited his right of confrontation by wrongfully preventing
the declarant from testifying at trial.
IX. PRIVILEGES
a. (CA: Privilege law exempt from Proposition 8 (this means that even in a criminal case, the usual
rules of privilege apply)
b. FRE: in a civil suit brought in federal court under diversity jurisdiction, state privilege law
applies
c. Privileged relationship
i. Professional
1. Doctor-Patient (not in federal court)
a. Only for those statements that are for medical diagnosis or treatment.
b. Confidential communications between patient and doctor are privileged
provided that a professional relationship exists, the information is
acquired while attending patient in course of treatment, and information
is necessary for treatment.
i. INAPPLICABLE if: [FRE and CA] waived, patient puts his
physical condition in issue (personal injury suit), physician’s
assistance sought to aid wrongdoing, malpractice suit, patient
waived privilege by contract, federal case applying federal law
of privilege
ii. CA: inapplicable in criminal cases or to info. that dr. is
required to report to public office (gunshot wounds and some
communicable diseases)
iii. Note: if lawyer hires doctor, there’s an attorney-client
privilege
2. Attorney-Client

- 133 -
a. confidential communication b/t attorney and client or their
representatives intended by client to be confidential and made to
facilitate legal services is privileged in all civil and criminal
proceedings unless waived by client.
i. Does not apply where professional services were sought to
further a crime/fraud, communication put at issue by the
client, in disputes b/t the attorney and client, or
communications b/t joint clients offered by one against the
other.
1. CA: privilege does not apply where attorney
reasonably believes disclosure of communication
necessary to prevent crime that is likely to result in
death or substantial bodily harm
b. Communication from a corporation employee to the corporation’s
attorney privileged
i. FRE: Privilege applies to communications from
employees/agents if they were authorized by the corp to make
the communication to the lawyer.
ii. CA: Applies to communications from employee/agent if she is
the natural person to speak to the lawyer on behalf of the corp
in the matter (e.g. in house counsel or CEO) or
employee/agent did something for which corporation may be
held liable and the corp instructed her to tell its lawyer what
happened.
1. Note: no significant difference in the scope of these
standards
3. Psychotherapist – patient
a. Communication between psychotherapist (psychiatrist, psychologist)
and patient or licensed social worker and client, intended by pt/clt to be
confidential and made to facilitate rendition of professional
psychological svcs is privileged in ALL civil and criminal proceedings
UNLESS waived by pt/clt.
b. CA: inapplicable if psychotherapist has reasonable cause to believe that
pt is a danger to himself or others and that disclosure is necessary to
end the danger.
4. Social worker and client
5. Clergy Privilege
6. Accountant Privilege
7. Privilege against Self-Incrimination
8. Government Privileges
ii. Martial (RAISE BOTH AT SAME TIME)
1. Spousal testimonial privilege (criminal). In criminal case, spouse cannot be
forced to testify against spouse (spouse can testify if she wants to but she can’t
for forced to testify. It doesn’t matter what the evidence is or when the spouse
learned about evidence)
a. Privilege belongs to: W-spouse in federal courts, party-spouse in state
courts
b. Requirements: valid marriage at time of trial. If marriage exists,
privilege can be asserted even as to matters that took place before
marriage
c. FRE: only applies in criminal cases
d. CA: applies to civil & criminal cases, & privileged spouse cannot even
be called to witness stand.
2. Confidential marital communications privilege (criminal or civil) in any
case, spouse can refuse to disclose or keep a spouse from disclosing confidential
communications made between spouses during marriage:

- 134 -
a. Privilege belongs to both spouses
b. Requirements: communication made during valid marriage +
communication made in reliance on intimacy of martial relationships
3. Note: neither privilege applies in civil action between spouses or in criminal
prosecution where one spouse charged with crime against other spouse of one of
their kids

- 135 -
PROFESSIONAL RESPONSIBILITY CHECKLIST
10 SECOND CHECKLIST
I. Attorney’s Duty to the Client (Clients Love Fierce Counsel)
a. Confidentiality
b. Loyalty
c. Financial Integrity
d. Competence
II. Attorney’s Duty to Third Parties
a. Opposing Parties in Litigation
b. Duty to accept representation
c. Special duty of prosecutors
III. Attorney’s Duty to the Court
a. Candor
b. Honesty
c. Duty to Witnesses and Jurors
IV. Attorney’s Duty to the Profession
a. Duty to avoid unauthorized practice of law
b. Duty to avoid false or misleading advertisements
c. Duty to no improperly solicit clients
“Clients Love fierce counsel, courts feel differently”

Client D 3rd P Court Profess Sub L
C Opp P C UPL Liable
L F Advert Clerk
Potentl Dign Send Partner
Actual Solic
Financial
C
DETAILED OUTLINE
I. ESSAY: Exact rule statements, primarily fact anal, include what L should have done & some
unreasonable conduct, distinguish CA/ABA
II. DUTIES TO THE CLIENT “Clients Love Fierce Counsel”
A. Duty of Confidentiality: a lawyer has a duty not to reveal anything related to representation
of a client without her consent.
i. Timing: Duty can attach before AC relationship is formed or even if none is formed.
ii. Attorney-Client Privilege: The A/C privilege prohibits a court from compelling the
revelation of confidential communications b/t an attorney and a client pertaining to legal
services.
1. Only the holder of the privilege may wave A/C privilege.
2. Where an attorney represents a corporation, the A/C privilege extends to
communications b/t lawyer and any high-ranking corporate officials. The entity
is the holder of the privilege.
3. Duty of confidentiality encompasses any disclosure that could reasonably lead to
discovery of confidential info by a third party. Privilege only shield info
obtained from C or her agents; duty applies regardless of the source.
4. CA: Privilege terminates when C’s estate is settled. Duty of confidentiality
continues indefinitely.
iii. Exceptions:
1. Consent. L may reveal confidential info if client consents after consultation.
a. Implied consent to reveal info necessary to render legal services.

- 136 -
2.
Fraud or Financial Crimes. L MAY reveal confidential info to prevent fraud
or financial crimes if the client is using the lawyer’s services to commit the
crime and disclosure would prevent/mitigate substantial financial loss; CA: NO
exception for financial crimes.
3. Death or Substantial Bodily Harm. ABA: L MAY reveal only what is
necessary to prevent an act likely to result in reasonably certain death or
substantial bodily harm. Does not require a criminal act. CA: If reasonable
under the circumstances, the L must first (i) make a good faith effort to persuade
C not to commit the act, and (ii) Inform the C of intent to reveal confidences.
iv. Defending self: L may reveal confidential info to establish a claim or defense of himself.
v. Compelled by law, final court order, and other controlling ethical duties.
B. Duty of Loyalty: L has an actual or potential conflict of interest if an interest of the lawyer,
another client, or a TP materially limits or is directly adverse to the loyal representation of
the C.
i. Potential Conflicts
1. L must NOT take on representation (or withdraw from representation already
commenced), unless 1) L reasonably believes that a potential/actual conflict will
not adversely affect the representation of each C (objective test), 2) L informs
each affected C, 3) C consents (CA in writing/ABA verbal ok), and 4) the
consent is reasonable.
ii. Imputed disqualification: A lawyer and all members of his firm are treated as a unit for
purposes of conflict, UNLESS the conflict arises out of previous government
employment or purely personal relationship. In these cases, an ethical wall may make
representation reasonable by screening off the L from other firm members on the matter.
1. Remedy: refuse the case, advise multiple Cs to get separate counsel or
withdraw.
iii. In CA, insured and insurance company are joint clients.
iv. Conflicts b/t L and C
1. Interest in the subject of litigation
2. Business transactions or adverse interests: L must not enter into business w/or
obtain an interest adverse to a C unless the terms are fair to the C, terms are fully
disclosed in understandable writing, C has an opportunity to consult outside L,
and C provides a written consent.
3. Publication rights contracts: ABA: L cannot accept an offer to buy the
publication rights to a C’s story until after the representation ended. CA allows
them before proceedings end w/judge consent.
4. Loan and advances to C: ABA: L cannot give financial assistance to C in the
context of contemplated/pending litigation, except for cost and litigation
expenses of an indigent and repayment contingent on recovery. CA prohibits
promising a C’s debts to gain his business, but allows all manner of loans for
any purpose so long as the C promises to repay in writing.
5. Limiting professional liability: L cannot limit C’s right to report her for ethical
violations, and cannot limit malpractice liability unless the C is independently
represented in making the agr’t.
6. Use of information: Use or communication of info relating to the representation
to her disadvantage and w/o consent violates the duties of loyalty and
confidentiality.
7. Gifts to Ls or her family: L must not solicit a substantial gift from a C.
8. Close relationship w/opposing counsel: L cannot oppose a party represented
by a close relative w/o C’s informed consent. Close relations include immediate
family and other intimates. CA extends this rule to any intimate relationship.
9. Trial counsel as a necessary witness: CA prohibits Ls from testifying in jury
trials unless C consents in writing. ABA (more restrictive) prohibits serving as
counsel and witness in the same trial unless L’s appearance as a witness will not
prejudice C, testimony is uncontested or regarding the nature/value of services
rendered, or L’s withdrawal would impose substantial hardship on C.

- 137 -
v. Conflicts b/t Clients
1. Generally, L may represent Cs w/potential conflicts w/the proper consent of all,
but it is almost never proper if their interests are in actual conflict.
2. Representing opposite sides in the matter obviously improper.
3. Opposing a present C in an unrelated matter: ABA maybe, but consent in
such case is rarely reasonable. CA: absolute prohibition on taking a case that is
adverse to a present C, even if completely unrelated. (except in cases of joint
clients involving a policy holder and its insurer)
4. Two clients w/inconsistent positions: L may represent both clients w/both their
consent, but must nonetheless withdraw if either one would be disadvantaged.
5. Multiple clients in the same matter: If there is a potential conflict, L may
represent all Cs if there is reasonable consent. If there is actual conflict, L must
at least withdraw from one or both sides.
6. Opposing a former C When a former C has imparted confidential info, the L
must not then oppose the former C in any matter in which the confidential info
would be relevant. CA requires written consent of the C after full disclosure of
the conflict.
7. Representing new clients in matters related to former Cs: L cannot take a
new C w/interests materially adverse to a former C w/o the former C’s consent.
Imputed disqualification applies to L’s former firm if matters are substantially
related or the same, and any remaining L has confidential material info.
8. Former government L now in private practice: CA: explicitly bars
prosecutors from later working on the defense of the same case. CA has no
other general rule. ABA: A L cannot work on a matter if the L worked
personally and substantially on the same matter (i.e., a specific dispute b/t
specific people over specific issues) while in govt. Imputed disqualification
does not apply to the colleagues of a former govt L if the L is screened off, L
does not share in any part of the fee, and L’s former govt employer is informed.
vi. Conflicts from Third Party Interference
1. General rule: L’s sole duty is to her C not to third parties. Thus L can receive
compensation from a TP only:
a. w/informed C consent
b. And doesn’t effect his independence and professional judgment
2. Organizational clients: L must act in the best interest of the entity, even if an
officer, employee or other associated persons acts to the contrary.
a. Special rules for securities Ls under Sarbanes-Oxley: ABA: L who
discovers evidence of material violations of the securities law must
report matter to 2) the CEO or chief of legal counsel 2) the board or
highest authority, then 3) may disclose the matter w/o C consent to the
SEC if she reasonably believes it is necessary to prevent fraud or
substantial injury to the entity or its investors, or if her services were
used. CA merely permits but does not require reporting up the internal
hierarchy and prohibits outside reporting.
C. Financial duties
i. Attorney Fees
1. Non-contingent fee cases should include: how the fee is calculated, services are
covered, and duties of L and C.
a. CA also requires the req’t to be in writing UNLESS: the fee is under
$1000, corporate client, routine services for a routine client or an in an
emergency or otherwise impractical.
2. Contingent fee agreements: Must be in writing signed by the C and state L’s
percentage, expenses deducted from recovery, and whether L’s percentage is
taken before or after the expenses.
a. CA also requires that the agr’t state how work not covered by the fee
will be paid, and that L’s fees are negotiable. CA allows charging liens

- 138 -
to guarantee collection from an award to be written into contingency
agreements, but not hourly fee contracts.
b. ABA: Contingent fees may NOT be used in criminal cases or domestic
relations cases, where the contingency is securing of a divorce or the
amount of the property settlement.
c. CA allows contingent fee divorces, provided that fee arrangement does
not encourage the divorce.
d. Termination before judgment awarded: If and when C wins, L can
recover in quantum meruit.
ii. Excessive Fees: ABA: Fees must be reasonable taking into account, labor, novelty,
difficulty, skill and time req’d, etc.
1. CA: fees must not be unconscionably high.
iii. Fee splitting: is allowed with other Ls in her firm; or with Ls outside her firm only if the
total fee is ethical and there is a written disclosure and consent. ABA requires fee split to
be proportional, but not CA.
1. L may NOT split fees w/non-lawyers except for death benefits pension and
compensation plans.
2. Referral fees: ABA: Not permitted. CA: Permitted if total fee is not
unconscionable and not increased due to the split.
iv. Client trust accounts: Money held for the C must be placed in an individual interest-
bearing trust account (smaller funds held for short period of time for several Cs may
deposited into a “pooled C trust account).
1. L has duty to keep good records, render accountings, notify C of money
received, pay C promptly money due to him.
2. L has a duty to safeguard C’s property by labeling it and storing it in a safe
place, e.g., safe-deposit box.
3. CA requires L to keep records of C property for 5 years.
D. Duty of Competence: a lawyer has a duty to render competent service to his Cs.
Competence requires using legal knowledge, skill, thoroughness, and preparation reasonably
necessary for representation.
E. Duty to Communicate: L has a duty to keep Cs informed, including settlement offers and
returning phone calls.
F. Duty of Diligence: L has a duty to diligently, promptly and zealously pursue C’s case to
completion.
G. Accepting representation: General rule is that a L is free to accept or reject any case. L must
reject a case if taking it would violate a law or disciplinary rule.
H. Scope of representation: C makes decisions about her substantive rights, L makes decisions
about procedural and legal strategy.
I. Duties on withdrawal from representation: L a lawyer must give timely notice to the C and
return any unspent advances and all material papers and property of the client and cannot refuse to
return the C’s file to compel the C to pay outstanding fees.
i. Mandatory withdrawal: L must withdraw if continuing would violate a law or ethical
rule or C is using L’s services to commit a crime or fraud.
ii. Permissive withdrawal: a lawyer may withdraw with consent of the court or if
continuing would impose a Financial burden (CA narrows this to C’s breach of K to pay
expenses/fees), the client Acts illegally (ABA: has used L’s services to commit past
crime or fraud; this is not a valid ground in CA) or the C Insists on pursuing a repugnant
or imprudent objective, or C Refuses to fulfill an obligation. (FAIR)
III. DUTIES TO THIRD PARTIES “Courts Feel Differently”
A. Duty to deal fairly with others: In communicating w/adversaries and TPs, L must not make false
statements o fact or mislead as to her interests, violate a person’s legal rights to obtain evidence, or
use means w/no purpose but to delay, burden or embarrass.
B. Opposing parties
i. Contact with other parties: a lawyer may not make contact with a represented party
without consent of their counsel.

- 139 -
1.
If the opposing party is an organization, L must obtain counsel’s consent before
communicating with anyone who supervises or consults w/the organization’s L,
has authority to obligate the organization, or whose conduct may be imputed to
the organization.
ii. Dealing with the press: L must avoid out-of-court statements she reasonably should
know will have a substantial likelihood of materially prejudicing the case. Exception:
statements relating to matters in public record or routine booking info, warning the
public, informing it of an ongoing investigation or asking for help, and protecting the C
from substantial undue prejudice from recent publicity that was not self-initiated.
C. Prosecutors: a prosecutor has a duty to have probable cause, protect the accused’s 5th Amendment
right to counsel, and timely disclose evidence favorable to the defense.
IV. DUTIES TO THE COURT AND FAIRNESS TO YOUR ADVERSARY
A. Duty of Candor: L must refuse to make a false statement of material fact or offer evidence
he knows is false to the court and correct any false statement of material fact or law she
previously made to the court.
i. Perjury: a lawyer must not knowingly facilitate C perjury.
1. Remedies: in a civil case, the L must refuse to call the C as a witness she knows
intends to perjure herself. In a criminal case, the D has a right to testify on his
own behalf, but L must counsel D to testify truthfully or not at all, and seek
withdrawal, then…
2. ABA: If withdrawal will not remedy the situation, L must disclose the matter to
court.
3. CA: requires L to persuade the C not to testify false, and if that fails, L may seek
court’s permission to withdraw. If the court refuses to permit withdrawal, the L
must proceed w/the case. L may allow perjurious D to testify in a narrative
fashion, but not to further the deception.
B. Duty of Fairness
i. Produce evidence: L must not unlawfully alter, destroy, suppress or conceal evidence (it
is also a crime), notwithstanding the duty of loyalty. L may not obstruct access to or
tamper with fruits and instrumentalities of a crime; L must deliver to the authorities items
in her possession that she is reasonably certain are contraband, but L may retain the
evidence for a reasonable time to prepare his client’s case, but cannot alter or destroy the
evidence.
ii. State the law truthfully: a lawyer must cite adverse authority if it is from a controlling
jurisdiction directly on point, and L must not present frivolous claims or defenses.
C. Duty of Dignity
i. Improper influence: a lawyer must not try to improperly influence anybody or talk to
any prospective or empanelled juror.
ii. Delay: a lawyer must not try to delay cases to harass an adversary or for personal gain or
convenience.
V. DUTIES OF TO THE PROFESSION
A. Unauthorized practice of law: L must not engage in unauthorized practice of law or assist
someone in the unauthorized practice of law, which is defined as doing things that call for the
professional judgment of a lawyer.
B. False and misleading advertisements: A state may not prohibit L advertisement unless it is false
or misleading.
i. Unjustified expectations. Advertising must not raise unjustified expectations or make
unverifiable comparisons. CA presumes improper any ad that contains guarantees,
warranties or predictions of a result. Testimonials may not be used unless there is an
express disclaimer that it is not a guarantee, warranty or prediction.
ii. Limits on advertisements: must be clearly labeled as an “Advertising Materials”, and if
applicable, a “dramatization” or “impersonation”, identify at least one lawyer responsible
for its contents, and records must be kept for 2 years.
iii. First Amendment: The state can regulate L advertisements and solicitations if
government asserts a substantial interest, the regulation directly advances that interest,
and it is narrowly tailored.

- 140 -
iv. Specialization: L may not claim a specialization unless certified by the CA board of legal
specialization or a private organization approved by ABA or indicate it is not approved
by the State Bar.
C. Improper solicitation: a lawyer must not seek fee-paying work by initiating a personal or live
telephone contact with a prospective client with whom she has no prior professional, personal, or
familial relationship.
i. CA: communication to potential Cs are improper if it was made at the scene of an
accident or en route to a medical facility or when L should know the potential C is not in
the physical/mental state to exercise reasonable judgment.
ii. Targeted direct-mail solicitations: Absent actual knowledge that the prospective C does
not wish to receive communications from L, L is not prohibited from sending truthful,
nondeceptive letters to persons known to face a specific legal problem. (must be clearly
labeled as “Advertising Materials”)
VI. DUTIES OF SUBORDINATE LAWYERS
A. Guidance for subordinates under orders from a superior: If the action is a clear violation the
subordinate is subject to discipline. If the action is not a clear violation, the superior is
responsible.
B. Managing partners: must make reasonable efforts to ensure everyone’s conduct, including non-
lawyer assistants, comport w/a L’s professional obligation.
C. Inaction: CA you can be disciplined for merely knowing about a firm member’s ethical violation
and doing nothing to prevent it.

- 141 -
TRUSTS CHECKLIST
10 SECOND CHECKLIST
I. Creation of a Valid Trust
II. Types of Trusts
III. Trusts with Restraints
IV. Trusts Arising out of a Matter of Law
V. Modification and Termination of Trusts
VI. Trust Administration and Trustee’s Duties
VII. Income and Principal Allocation
VT Type Restr OOL T Mod D I/P A

Req M STDS C S CL ISS
DEAD
C R B
H S C
TT
TT
PO
R
DETAILED OUTLINE
I. CREATION OF A VALID TRUST

A. Valid Trust: is a fiduciary relationship with respect to specific property (Res) where the trustee
holds legal title to the property subject to enforceable equitable rights for a beneficiary. A valid
trust requires 1) intent, 2) a trustee, 3) trust property (Res), 4) beneficiary, and 5) valid trust
purpose
i. Intent: Settlor must have present intent to create trust (at the time settlor owned the trust
corpus).
1. No precatory words (words of hope, desire, etc); words must be mandatory; but
precatory words + parol evidence may create trust
2. Delivery of the deed to the trustee is sufficient, unless settlor/trustee is same
person
ii. Trustee: Person holding legal title to trust property and managing assets (must be named
or court will appoint one)
iii. Trust Property (Res): Must be presently existing property interest; illusory interests
cannot be corpus of a trust
ii. Beneficiaries: Person(s) holding equitable title and receiving benefit of assets (must be
definite and ascertainable);
1. Unincorporated Associations? CL: No; ML: Yes.
2. Class gifts. Valid, but may be invalid if beneficiary is too big.
iii. Valid Trust Purpose: Purpose cannot violate law or public policy
1. If trust is illegal at creation:
a. Excise bad from good and trust will stand; OR
b. If excise impossible, court has option to choose either 1) return
property to settlor or his estate; or 2) allow trustee to keep property for
himself as punishment to settlor
2. If trust illegal after creation: resulting trust in favor of settler or settlor’s estate.
B. Note: If an express trust fails, the trust property will revert back to the settlor or the settlor’s
estate by way of a resulting trust.
C. Effect. Trust may take effect either at settlor’s death or during settlor’s lifetime.
i. Effect At Settlor’s Death. Requires that trust instrument comply with the statute of
wills (CA Probate Code)

- 142 -
ii. During Lifetime. A trust to take effect during settlor’s lifetime may be accomplished by
transfer in trust or declaration in trust.
1. Transfer in Trust. Creates a trust with a third party as trustee. For real
property, instrument is subject to SOF. For personal property, res must be
delivered to trustee.
2. Declaration in Trust. Creates a trust with the settler as trustee. For real
property, instrument is subject to SOF. For personal property, res need not be
delivered. (trustee already has the prop - what’s the point?)
II. TYPES OF TRUSTS
A. Mandatory: trustee lacks discretion; must pay per the terms of the trust
B. Charitable: trust for charitable purposes ([REPS] religion, education, poor, sick)
i. Different than private trusts: Charitable must have indefinite beneficiaries because
society is beneficiary
1. Small group – private or charitable? Split of authority where private trust b/c
only a few people get benefit
ii. Cy Pres: “As Nearly as Possible” – when charitable purpose selected by the settlor is
impractical, court will select an alternative under the doctrine of Cy Pres. The court must
find a general charitable intent and ascertain primary purpose. (General/Specific intent:
Introduce both intrinsic [trust itself] and extrinsic evidence to support the intents)
iii. Note: RAP does not apply to charitable trusts
C. Honorary: A trust which has no ascertainable beneficiaries and no beneficial value. “A trust to
further fox-hunting” or “Take care of Buck, my dog”
i. Trustee has power but not required to carry out settlor’s goal (different from express trust
– just replace trustee)
ii. If trustee refuses, trust fails and resulting trust in favor of settlor or his estate
iii. RAP: almost always violated because no measuring life ; other courts allow to run for 21
years then decree resulting trust
D. Testamentary Trust: Created by the terms of a will and becomes effective upon testator’s death
E. Pour-Over Wills: Settlor creates inter vivos trust & puts provision in will devising part or all
estate to trustee of trust
i. Pour-over provision validated by 1) incorporation by reference; 2) act of independent
significance; 3) statute UTATA (so long as trust is valid and in existence before/at time
will executed)
ii. If trust modified after will executed 1) incorporation by reference no longer good b/c trust
as modified not in existence when will executed; 2) but provision can still be validated by
statute or as fact of independent significance
F. Revocable: settlor retains the right to amend or revoke during his lifetime.
G. Totten: Bank account for a third person (not a true trust b/c no fiduciary duty, more of a will
substitute)
i. It is a bank account where named beneficiary takes whatever is left in account, if
anything, at death of owner of the account. Account reads “Mary Smith as trustee for
John Jones”
ii. BUT: depositor may, by manifesting trust intent, elevate account to private express trust
(even by just telling the person, “I have created this trust for you” = trust, not Totten.
III. TRUSTS WITH RESTRAINTS
A. Spendthrift Trust: “limits voluntary and involuntary alienation”, “no creditor attachment”
i. Provision in private express trust that provides that:
1. Voluntary alienation: Beneficiary cannot transfer his right to future payments
of income/principal; and
a. But court will sometimes recognize an assignment on ground that
beneficiary has merely directed trustee to pay beneficiary’s agent
2. Involuntary alienation: Creditors cannot attach beneficiary’s right to future
payments of income/principal (they can in a regular express trust because free-
alienability of property)
a. But common law exceptions allow preferred creditors to attach
beneficiary’s right to future payments (preferred include: govt.

- 143 -
creditors (IRS); child/spouse for support; ex-spouse for alimony; tort
judgment creditor; those who provide necessities for life; any creditor
for surplus as measured by beneficiary’s station in life (subjectively
measured by reasonableness test))
ii. Self-settled spendthrift trust:
1. Involuntary alienation: trust itself may be valid but spendthrift provision is not =
violates public policy b/c just doing it to insulate one-self from judgment
creditors.
2. Voluntary alienation (split): some jdx ignore provision and allow settlor to
transfer her right to future payments; other jdx enforce provision based on
estoppel
B. Support Trust: provision in private express trust that provides that trustee is required to use only
so much of income/principal as is necessary for beneficiary’s “health, support, maintenance or
education” [HEMS]
i. voluntary alienation: beneficiary cannot transfer right to future payments (violates
purpose of trust/S’s intent)
ii. involuntary alienation: creditors cannot attach beneficiary’s right to future payments
of income/principal
1. CL allow preferred creditors to attach beneficiary’s right to future payments
2. Also, any creditor can attach ‘surplus” as measured by beneficiary’s “station in
life”
iii. Self-settled support trust (identical as spendthrift: see above)
C. Discretionary Trust: trustee has the “sole and absolute” discretion to pay income or principal to
the beneficiary.
i. Voluntary alienation: beneficiary is not assigning right but mere expectancy, BUT
beneficiary should be able to assign rights he does have with assignee stepping into his
shoes. But if trustee has notice of assignment and does decide to pay, he must pay
assignee or be held personally liable
ii. Involuntary alienation: creditors cannot attach beneficiary’s right to future payments
because trustee may never pay beneficiary anything and since beneficiary cannot force
payment, neither can creditors. BUT if trustee has notice of debt and creditor’s judgment
against beneficiary and trustee decides to pay, he must pay creditors or be held personally
liable.
iii. Self-Settled Discretionary Trust: Creditors cannot attach, but if the trustee has notice
of the judgment against the beneficiary, he must pay the creditors or become personally
liable.
IV. TRUSTS ARISING OUT OF A MATTER OF LAW
A. Constructive Trusts: Not a trust, but a remedy to prevent fraud and unjust enrichment;
wrongdoer obligation is to transfer property to intended beneficiary as determined by court; arises
when…
i. Trustee makes profit from self-dealing at expense of beneficiaries;
ii. Fraud in inducement/undue influence in execution of will;
iii. Will is a secret trust;
iv. Oral real estate trust (or breach of promise)
1. Deed on its face transfers land outright to A but in reality transfer was made on
the basis of an oral promise by A to hold property for the benefit of B
2. A will not be allowed to invoke SOF to keep property from B and will be
deemed constructive trustee if there was 1) fiduciary relationship between A and
transferor; 2) fraud in inducement on A’s part; 3) detrimental reliance by B
(possession alone is not enough)
B. Resulting Trusts: Trust implied in fact and based on presumed intent of parties that transfers
corpus to settlor (if alive) or settlor’s estate, or if none, takes via intestacy; arises when…
i. Private express trust ends by its own terms and no provision to what happens with corpus
ii. Private express trust fails because no beneficiary
iii. Charitable trust ends due to impossibility and Cy Pres Doctrine cannot be used
iv. Private express trust fails because illegal

- 144 -
v. Private express trust has excess corpus (trusts purpose easily accomplished via money
there)
vi. Purchase money resulting trust, arising when A pays consideration to B to have title to
property transferred to C
1. If A & C not closely related, rebuttable presumption that C holds as purchase
money resulting trust for A’s benefit
2. If A & C closely related, rebuttable presumption that A simply made gift to C
C. [NOT REALLY AS A MATTER OF LAW, BUT FIT WELL HERE]
i. Secret Trust is a gift made in reliance upon bene’s promise to hold the gift property in
trust for another. Promise is enforceable if sufficient proof of the agreement is produced.
To avoid unjust enrichment of the named bene, courts will allow the intended trust bene
to offer extrinsic evidence of the agreement. If the agreement can be proved by clear and
convincing evidence, a constructive trust will be imposed on the named bene. “Blackacre
to A when I die”, T and A agreed A would be trustee over land for benefit of C.
ii. Semi-secret Trust arises when the will makes a gift to a person to hold as trustee but
does not name the bene. It is unenforceable and courts will impose resulting trust. “I
devise Blackacre to A as trustee” (secret beneficiary)
V. MODIFICATION AND TERMINATION OF TRUSTS
A. Modification by Settlor: Settlor may not revoke or modify unless he expressly reserve that right.
B. Modification by the Beneficiaries: Beneficiaries may compel modification or termination only
when all consent, and the modification or termination will not frustrate any material trust purpose
(if all consent, trustee not liable) or contrary to testator’s intent.
C. Modification by Court: Court has power to modify under charitable trusts and the Cy Pres
Doctrine.
i. Also modification of charitable or express trust under the Deviation Power (Doctrine of
Changed Circumstances)
1. When the court exercises this power the court changes the administrative or
management provisions of the trust (“Can’t buy/sell stocks” b/c trust created
during Great Depression, 20 years later = good investment).
a. Need:
i. Unforeseen circumstances on the part of the settlor
ii. Necessity to deviate
D. Termination of Revocable Trusts:
i. Majority Rule: In order to be able to revoke the trust, the settlor must expressly reserve
the power in the trust instrument.
ii. Minority Rule: Settlor has the power to revoke, unless the trust is expressly made
irrevocable.
E. Termination of Irrevocable Trusts: Three ways an irrevocable Trust can terminate prematurely,
before time set for termination:
i. Settlor and all beneficiaries agree to terminate it
ii. All beneficiaries agree to terminate it and all material purposes have been accomplished;
OR
iii. By operation of law under Statute of Uses
1. Private express trust w/ corpus of real prop where trust is passive 
beneficiaries get legal title & trust terminates; might apply to personal property
by analogy b/c equity should not see a useless act done
VI. TRUST ADMINISTRATION AND TRUSTEE’S DUTIES
A. Trustee Powers: A trustee owes a fiduciary duty to administer the trust solely in the interest of
the beneficiaries; trustee can only exercise express or implied powers: [BILS]
i. Borrow (only modern trend),
ii. Incur expenses,
iii. Lease,
iv. Sell;
1. breach can mean personal liability for trustee
B. Trustee Duties Owed to Trust and Beneficiaries

- 145 -
i. Duty of Care: The trustee must exercise that degree of care, skill, and caution that
would be exercised by a reasonably prudent person in managing her own property. If
trustee has greater skill, held to that standard.
ii. Duty of Loyalty
1. A trustee must act in the best interest of the beneficiaries and not engage in self-
dealing to the detriment of the Bs or trust res; B’s can ratify the transaction if the
outcome is favorable or surcharge trustee/sue for damages.
a. Self-dealing: a trustee cannot buy, sell, or borrow trust assets for
himself or spouse;
i. If trustee engages in self-dealing, courts apply the no further
inquiry rule. Trustee’s good faith and reasonableness of
transaction are irrelevant
ii. Remedies:
1. Beneficiaries can ratify the transaction if outcome is
favorable
2. Surcharge the trustee: (sue trustee for damages)
3. Trace and recover the property: except if purchase is
BFP without notice of breach
iii. Duty to use assets Productively: trustee has a duty to not have assets sit idly by (vacant
property = should rent, etc.)
iv. Duty to Invest: Split of Authority: There are three alternative rules of the duty to invest.
DISCUSS ALL 3
1. State Lists: Some states have lists which trustee must follow in absence of
directions in the trust. Good investment in these Jdxs include
a. Federal Govt. bonds
b. Federally secured CDs
c. 1st deeds of trust in real estate
d. Depending on jdx, stocks of publicly traded corps
i. Never invest in new businesses
ii. Never invest in second deeds of trust in real estate
2. Common Law Prudent Test: The duty to invest requires the trustee to act as
reasonably prudent person investing his own property, trying to maximize
income while preserving corpus. If the trustee holds himself out as having
greater skill, he is held to the higher standard
a. Each individual investment is scrutinized. Good investments under the
common law test:
i. Federal government bonds
ii. 1st deed of trust in real estate
iii. Federally insured CDs
iv. Blue chip stocks
v. Mutual funds may be OK depending on the jdx.
1. Never invest in a new business.
3. Uniform Prudent Investor Act: Adopted by most states: the Act simply
provides that the trustee must invest as a “prudent investor”
a. Unlike the rules above, each individual investment is not scrutinized;
rather performance is measured in the context of entire trust portfolio.
Thus, no transaction is invalid per se
v. Duty to Diversify
1. Can’t put all the funds into 1 stock or mutual fund so that crash of that
stock/fund kills entire trust fund
vi. Duty not to Speculate
1. Under first two rules (State lists, CLPT): If in breach: investment goes up,
affirm, it goes down, make the trustee pay
vii. Duty to Earmark: Requires trustee to label property as trust property

- 146 -
1.
Consequences of breach: CL = trustee held personally liable for any loss;
modern = trustee held personally liable only for those losses caused by failure to
earmark
viii. Duty to Segregate: No commingling of the trust funds with his own
ix. Duty not to Delegate:
1. Common Law: A trustee may only delegate acts that would be unreasonable to
require her to perform personally; she may never delegate the entire
administration of trust. Can use advisors, but final discretion with trustee.
2. Modern Law: a trustee can delegate to money manager
3. Note: Look for liability imposed on an absent trustee, where another trustee
siphons money from the trust (in situation where two trustees)
x. Duty to Account: Trustee, on a regular basis, must give beneficiary a statement of
income and expenses on the trust.
xi. Remedies for Breach of Fiduciary Duties:
1. Damages (including dividends granted while property out of possession)
2. Constructive trust
3. Tracing and equitable lien on property
4. Ratify the transaction if beneficial
5. Remove the trustee
xii. FINAL NOTES on DUTIES TO CLIENT: Always pick at least 3 duties (Duty of Care
always one)
C. Trustees Duty Owed to 3rd Persons
i. Liability in Contract
1. CL: Trustee sued in personal capacity unless contract itself provides otherwise;
but trustee can get indemnification from trust assets if he acted within his
powers and not personally at fault
2. Modern: Trustee can be sued only in representative capacity where other party
to contract knew trustee was entering into contract in his representative capacity
ii. Liability in Tort
1. CL: trustee sued in personal capacity but can get indemnification if he was
without personal fault
2. Modern: trustee sued in personal capacity only if he is personally at fault
iii. Innocent Donee
1. An innocent donee (usually unknowing spouse of crooked trustee) is not liable
for violation of trust duties if he had no knowledge, however still must return
amounts spent to the trust.
VII. INCOME AND PRINCIPAL ALLOCATION
A. Income and Expenses Allocated to the Life Tenant:
i. LT receives cash dividends; interest income; net business income and pays for interest on
indebtedness; taxes and minor repairs
B. Income and Expenses Allocated to Remaindermen
i. Remainderman receives stock dividends; stock splits; net proceeds on sale of trust assets
and pays for principal on indebtedness; and major repairs or improvements
C. Adjustment Power of Trustee
i. All assets received by the trustee must be allocated to the trust principal or income
ii. Traditionally, cash dividends on corporate stock and capital gains are treated as income,
while stock dividends are allocable to trust principal.
iii. However, under Uniform Principal and Income Act, trustee has an adjustment power to
reallocate investment portfolio return if it is necessary to carry out the trust purposes
and the allocation is fair and reasonable to all B’s.
iv. Trustee can disregard above stated rules if a different allocation is necessary to
administer the trust fairly.

- 147 -

conversion/tmp/activity - Task - Scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

Uploaded by

Copyright:

Available Formats

conversion/tmp/activity - Task - Scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

conversion/tmp/activity - Task - Scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

Uploaded by

Copyright:

Available Formats

AGENCY AND PARTNERSHIP

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

II. PRINCIPAL LIABILITY FOR TORTS COMMITTED BY AGENT (VICARIOUS

III. WHAT DUTIES DOES AGENT OWE TO PRINCIPAL?

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

V. LIABILITY OF PARTNERSHIP TO THIRD PARTIES

VII. RIGHTS AND DUTIES OF PARTNERS

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

X. SHARE IN PROFITS AND LOSSES

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

LIMITED LIABILITY PARTNERSHIP

REGISTERED LIMITED LIABILITY PARTNERSHIPS (RLLP)

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

I. INTRODUCTION TO ESSAY QUESTION

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

Legal Restitution Equitable Misc Legal Restitution Equitable

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

10 SECOND CHECKLIST (RICE B ROID)

WCR – CIIS - BDO

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

Estate Concurren AP L/T Lnd Conve Securitie Fixture Water/ln zoning/tak

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM

/conversion/tmp/activity_task_scratch/541632757.docx Last Saved: 0/0/0000 0:00:00 AM