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184 Cards in this Set
- Front
- Back
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Crim Law
Embezzlement |
•Fraudulent •conversion •of property •of another •by a person in lawful possession.
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Crim Law
Larceny |
• A trespassory •taking •and carrying away •of another’s tangible personal property •with the intent to permanently deprive
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Crim Law
False Pretense |
• Obtaining title •to the property of another •by an intentional false statement of past or existing fact •with intent to defraud the other
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Crim Law
Trick |
•Obtaining possession •to the property of another •by an intentional false statement of past or existing fact •with intent to defraud the other
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Crim Law
Violent Crimes Robbery |
•A taking •of another’s personal property •from the other’s person or presence •by force •with the intent to permanently deprive
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Crim Law
Violent Crimes Burglary |
•Breaking and entering •of another’s dwelling •at night •with the intent to commit a felony
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Crim Law
Violent Crimes Battery |
•Unlawful •application of force •to the person of another •resulting in bodily injury or an offensive touching
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Crim Law
Violent Crimes Aggravated Battery |
Battery PLUS
•Deadly weapon OR •serious bodily injury •victim woman, child, police officer |
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Crim Law
Violent Crimes Arson |
•Malicious (intent or reckless disregard) •burning •of another’s dwelling
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Crim Law
Violent Crimes Mayhem |
• Dismemberment or •disablement
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Crim Law
Violent Crimes Mayhem |
• Dismemberment or •disablement
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Crim Law
Violent Crimes Assault |
•Attempt to commit a battery OR
•Intentional creation •of a reasonable apprehension •imminent bodily harm |
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Crim Law
Violent Crimes Homicide |
•Unlawful killing of another
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Crim Law
Violent Crimes Murder |
•Unlawful killing of another •With malice aforethought
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Crim Law
Violent Crimes Malice Aforethought |
•Intent to Kill
•Intent to inflict great bodily harm •Reckless indifference to an unjustifiably high risk to human life •Intent to commit a felony (inherently dangerous, or robbery, mayhem, burglary, arson) |
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Crim Law
Violent Crimes First Degree Murder |
•Deliberate (cold and dispassionate decision to kill) and •Premeditated (reflection on idea of killing)
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Crim Law
Violent Crimes Second Degree |
All murders are 2nd degree, unless you can bump it up to 1st degree, or down to Manslaughter
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Crim Law
Violent Crimes Voluntary Manslaughter |
•Provocation
•Provoked (subjective and objective) •Cool Down (objective and subjective) |
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Crim Law
Violent Crimes Involuntary Manslaughter |
•Negligence OR
•During the commission/as a result of misdemeanor/infraction |
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Crim Law
Inchoate Crimes Attempt |
•Intent to commit a specific crime and an• overt act in furtherance of that crime
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Crim Law
Inchoate Crimes Solicitation |
•D urges another • to commit a crime • with intent that said person commit the crime.
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Crim Law
Inchoate Crimes Conspiracy |
• Intentional • Agreement between 2 or more people to commit a crime • And the intent to commit the crime
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Crim Law
Inchoate Crimes Accomplice |
• D encourages or aids another • Who commits a crime • Intending to promote the crime's commission.
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Crim Law
Defenses Self Defense |
You may use reasonable force to protect yourself
Deadly force may be used if D is • Without fault • Confronted with unlawful force • Faces an objectively reasonable threat of imminent death or grave harm |
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Crim Law
Defenses Voluntary Intoxication |
Defense to specific intent crimes
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Crim Law
Defenses Involuntary Intoxication |
Defense to all intent crimes
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Contracts
Formation Which Law Applies? |
UCC: Sale of Goods
Restatement: All other contracts |
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Contracts
Formation Offer |
•Promise to enter into a contract •which contains definite terms •and is communicated to the Offeree
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Contracts
Formation UCC Firm Offer |
•Offeror is a Merchant •SOF applies
Offer is held open for a certain amount of time No consideration needed |
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Contracts
Formation Acceptance |
•Assent (assent, performance, silence)
•Rejection and Counter Offer •Reject |
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Contracts
Formation Mailbox Rule |
•Acceptance: dispatch (except in option K, then receipt)
•Rejection: receipt •Revocation: receipt •EXCEPT: when Offeree mails a rejection and acceptance, whichever is received first |
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Contracts
Formation Consideration |
•Not required for changes in Merchant contracts
•Required by Restatement contract |
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Contracts
Formation 2-207: Additional Terms |
•Precatory (would like, not must have) terms merge if not inconsistent with offer
•New and Different terms will merge if not inconsistent with the offer •Terms will not merge if there is a rejection of the terms •If the terms do not merge, Offeror’s terms will govern •If only one party is a merchant, other party must accept new terms in order to merge (no magical merging for non-merchants) |
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Contracts
Formation 2-207: Different Terms |
•Knock out different terms and •fill in with terms provided for in the UCC OR •look to the parties behavior
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Contracts
Defenses to Formation Statute of Frauds |
•Contracts must be in writing if
•over 1 year is required to perform and/or •goods of $500+ •land interests •suretyship (taking over responsibility of another. Debtor/new party) |
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Contracts
Defenses to Formation Statute of Frauds Exceptions |
•other side admits there is a K (works for all types of Ks under SOF)
•performance (for goods) •pay or improve or possess (land) |
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Contracts
Defenses to Formation Unconscionability |
Balance these factors
•Unfair bargaining Power •Adhesion Contracts •Surprise |
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Contracts
3rd Party Beneficiaries Intended v. Incidental |
Intended: contemplated in the K
Incidental: receiving benefits, but not contemplated by the contract (family using park) |
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Contracts
3rd Party Beneficiaries Creditor v. Donee |
Creditor: creditor can sue either original contract holder, or the new person
Donee: a purely gratutitous gift, donee may sue anyone |
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Contracts
3rd Party Beneficiaries Vesting (cementing the rights of the 3rd party) |
•Sue
•Assent (sign on to the contract) •Estoppel (rely to their detriment on a promise from A) |
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Contracts
Assignment/Delegation |
giving your rights under the contract to a third party
giving your duties under the contract to a third party |
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Contracts
Assignment/Delegation When Permissible |
•Permissible unless it affects the obligors adversely (performance contracts: unique obligee) (output K: production changes) (insurance: alters risk for obligor)
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Contracts
Assignment/Delegation Writing Requirement |
•Must be in writing if:
•wage assignments •interest in land •claims of action •over $5,000 •security interests |
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Contracts
Assignment/Delegation Vesting of Assignees Rights |
•Vesting (rights of the assignee)
•Obligor performed •delivery of tangible claim •claim of action – writing •estoppel (assignee relies to their detriment) |
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Contracts
Assignment/Delegation Defenses |
•Defenses (when obligor is suing assignee under the K)
•Obligor has all defenses they would have against obligee •Counter claims against oblige that arise after the assignment cannot be brought against the assignee |
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Contracts
Parol Evidence Exclusionary Rule |
When oral statements made before or during the formation of the K are excluded
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Contracts
Parol Evidence Requirements for Exclusion |
•IF the K is complete it will be excluded
UNLESS •Overriding reason for allowing info in? We will allow oral statements regarding these (clarification, illegal, mistake, ambiguous, duress, fraud, showing consideration) |
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Contracts
Parol Evidence UCC |
•In UCC, if oral terms are consistent, evidence of them will be allowed, unless there is a merger clause (nothing else can be added to the K)
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Contracts
Conditions on Performance Precedent |
•Precedent: if X happens, I will perform Y
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Contracts
Conditions on Performance Subsequent |
•Subsequent: If X happens, I stop performing Y
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Contracts
Conditions on Performance Types |
•Express
•Implied (based on parties intent, but may not be written specifically) •Constructive (legal fiction, such as impossibility or any other tiny little thing, such as money changing hands) •Impossibility (physical impossibility, NO ONE can do it) •Impracticability: unforeseen conditions, that are not anyone’s fault, and will hurt (not just monetary) the parties. (dead carrots in CA example) |
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Contracts
Rescission |
•Unilateral Mistake: (one party knows, or should have known, the other was under a mistaken belief as to a material fact)
•Mutual Mistake: each party is making a mistake, then contract is undone (unless there is a waiver of liability/allocation of risk, or one party should have known.) |
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Contracts
Remedies Damages |
•Certain
•Causal •Foreseeable •unavoidable (could not have mitigated) |
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Contracts
Remedies UCC Remedies |
•Accept non-conforming goods + sue (k price and value of non-conforming goods)
•Cover (reject and go into the market to replace the goods, you get •Reject + sue (get the k price) •Replevin (if you paid already) |
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Contracts
Remedies Liquidated Damages |
•Hard to ascertain
•Good forecast of actual damages |
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Contracts
Remedies Specific Performance |
•Valid Contract
•P has not breached •no adequate legal remedy •Feasibility (they can actually perform, no smacking of slavery) •Mutual (both parties must be able to sue for specific performance) |
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Torts
Vicarious Liability |
Liable for servants’ torts committed while in the scope of employments
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Torts
Intentional Torts Assault |
•Volitional act •Done with the intent to cause •And actually and proximately causes •Apprehension •Of an imminent harmful or offensive contact •In another
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Torts
Intentional Torts Battery |
•A volitional act •Intending to cause harmful or offensive contact or apprehension thereof •And actually and proximately causes such harmful or offensive contact.
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Torts
Intentional Torts Battery |
•A volitional act •Intending to cause harmful or offensive contact or apprehension thereof •And actually and proximately causes such harmful or offensive contact.
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Torts
Remedies Estoppel |
look up
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Torts
Intentional Torts False Imprisonment |
•An act intending to confine someone within boundaries fixed by the actor
•That directly or indirectly results in confinement •And the confined person is aware or harmed. |
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Torts
Intentional Torts Trespass to Chattels |
•Act that dispossesses or intermeddles
•With another’s personal property •That causes harm or loss or use of said property. |
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Torts
Intentional Torts IIED |
•Extreme and outrageous contract
•That causes severe emotional distress. |
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Contracts
Negligence Breach Violation of Criminal Statue |
•Violation of a criminal statute
•Criminal statute must be in effect •P is in the intended protected class •Harm must be what the statute tried to prevent. |
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Contracts
Negligence Landowners Duty to people not on property |
•Landowners have no duty to protect outside the property except:
•Unreasonably dangerous artificial conditions abutting adjacent land. •Due precautions of artificial conditions to passersby from dangerous conditions |
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Contracts
Negligence Landowners Duty to Invitees |
•Invitees
•Discover defects •Repair •Protect |
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Contracts
Negligence Landowners Duty to Licensees |
•Duty to protect against known dangers
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Contracts
Negligence Trespassers |
•Duty extends only to artificial dangerous conditions
•Knowledge of regular trespassers •Owner created or maintained •Likely to cause death or serious bodily harm. •Breach when owner fails to reasonably warn |
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Contracts
Negligence Actual Cause |
o But-for
o Substantial factor if there are concurrent causes |
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Contracts
Negligence Proximate Cause |
o D is liable for all harmful results naturally foreseeable as a result of his conduct.
o Economic harm rule (no economic damages absent injury) |
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Contracts
Negligence Defenses Contrib/Comparative |
o Contributory
•Complete bar to recovery •P can block defenses asserting last clear chance, if D knew of the risk and failed to avoid it. o Comparative •Pure – reduces recovery proportionately •Non-pure – If P is over 50% at fault, he gets no recovery |
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Negligence
Defenses Assumption of Risk |
Plaintiff is aware and voluntarily assumes the risk
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Negligence
Defenses Emergency |
D acted a reasonable person would in light of an emergency?
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Torts
Nuisance Private |
•Conduct
•Legally causing •An invasion of another’s interest •Intentional/unreasonable •Or unintentional but otherwise actionable •In the use and enjoyment of his property |
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Torts
Nuisance Public |
•Interference with the public health/safety/welfare,
•A violation of a statute. •Private party only has standing if they suffer a unique harm. |
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Torts
Trespass |
o Entry/remaining
o On another’s land o Without consent. o Mistake is no defense. |
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Torts
Strict Liability Wild Animals |
o Wild
•D owned a wild animal •That caused harm to Plaintiff. •Public zookeepers held to negligence standard. |
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Torts
Strict Liability Domesticated Animals |
•D knew/should have known
•Animal had vicious tendencies |
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Torts
Abnormally Dangerous Activities |
o Abnormally dangerous activity caused harm
•ADA factors: •Degree of risk of harm •How destructive the harm? •Is there a way to mitigate the harm through care? o The risk of which makes the activity dangerous. |
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Torts
Products liability Negligence |
Applies to anyone in the chain
Manufacturers liable to non-purchasers only if: • Manufacturer knows they will use the product without testing/inspecting it first • It is reasonably certain to place the user in peril. |
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Torts
Products Liability Breach of Warranty |
o Merchantability
•Warranty •Breach proximately caused loss. •No privity with buyer needed •Merchantability – ordinary use. o Express •Same as Merchantability; look @ statements made o Fitness for particular use •Same. Seller must know of buyer’s intended use and recommend a product for that use. |
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Torts
Products Liability Strict Liability |
o D in business of selling/distributing products
o D places the defective product in the stream of commerce •Manufacturer’s defect •Failure to warn •For drugs, warnings to doctors are sufficient. •Design defect •Risk utility (product dangerous, cheap alternative) •Feasibility •Cost •Consumer expectation •Product did not perform as expected •Would an ordinary consumer know that, if there were no defect, would there be a risk? o Defect causes harm. |
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Torts
Defamation Elements |
o Defamatory statement
o Concerning the plaintiff o That is published to a third party •Each republisher liable unless it was unforeseeable. o And harms the plaintiff o Sometimes falsity, fault |
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Torts
Defamation Special Damages |
Must be shown unless Slander per se
o Crime of moral turpitude o Contagious disease o Woman is unchaste o Causing economic injury |
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Torts
Defamation Libel Per Se |
No proof of special damages need be proved first.
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Torts
Defamation Libel Per Quod |
need add’l facts to show it was defamatory
Proof of inducement |
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Torts
Defamation Defenses |
o Truth
o Privilege •Absolute – official duty or legislative/adjudicative forum •Qualified – No malice, between interested parties, or through agents |
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Torts
Defamation Constitutional Privileges |
o Public officials/public figures may only recover if there is malice.
•Malice = knowledge/reckless disregard that it was false. •Negligence+ needed for public matters •If a newspaper is involved, you only get actual damages absent malice •No malice if it’s a private individual and a private matter. |
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Torts
Invasion of Privacy Elements |
Intrusion
Appropriation Public Disclosure False Light |
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Torts
Invasion of privacy Intrusion |
o Unreasonable/serious interference into the private spheres of another
o Who prefers to keep his affairs private |
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Torts
Invasion of privacy Appropriation |
o D’s use of another’s identity for economic/commercial gain.
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Torts
Invasion of privacy Public Disclosure |
o Publication
o Of a Private fact o That would be offensive/objectionable to a reasonable person o Not a legitimate public interest Social value Depth of intrusion Ostensibly private affairs Public position (voluntary) |
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Torts
Invasion of privacy False Light |
o Publication to the public
o Of private matters o That places P in a false light o That would be highly offensive to a reasonable person o D acted with malice. |
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Torts
Intentional Misrepresentation |
o D makes false representation about a presently existing material fact
o That D knew was false or made w/ reckless disregard to its likely falsity o P relied acting reasonably in ignorance of the falsity o Induced to act to his injury/damage |
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Torts
Negligent Misrepresentation |
o D makes false representation about a presently existing material fact
o D thought they were true o P relied acting reasonably in ignorance of the falsity o Induced to act to his injury/damage |
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Torts
Interference with Economic Relations |
o Intentional
o Improper or unlawful o Interference o With a contract between 2 other people o Causing one not to perform. |
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Torts
Damages |
o Causal
o Foreseeable o Certain o Unavoidable oMore latitude for intentional torts. o Punitives only available if there is completely reckless or intentional conduct. |
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Crim Pro
14th Amendment |
o Makes the amendments applicable to the states by the incorporation doctrine.
o Due process – For identification purposes, the circumstances may not be unreasonably suggestive or cause a substantial likelihood of misidentification. o Confessions are permissible if they are voluntary in light of the totality of the circumstances. |
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Crim Pro
4th Amendment |
The 4th Amendment protects people against unresonable searches and seizures.
A governmetn action is required |
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Crim Pro
4th Amendment Stop and Frisk (Terry Stop) |
Stop/Frisk
• Reasonable suspicion of criminal activity to stop • Reasonable suspicion of armed/dangerous to frisk |
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Crim Pro
4th Amendment Standing |
Standing
• Does D have subjective expectation of privacy? • Would society recognize the expectation as reasonable? |
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Crim Pro
4th Amendment Searches |
o Presumption that a warrant is required.
o Described with reasonable particularity the Place searched and Objects searched for |
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Crim Pro
4th Amendment Search Warrant Exceptions |
-Consent
-Auto -Lawful Arrest -Exigent Circumstances |
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Crim Pro
4th Amendment Search exception-Consent |
• Knowing
• Valid • Intelligent • With authority |
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Crim Pro
4th Amendment Search exception-Auto |
• Probably Cause
• Seizable contraband (looked for) • In automobile |
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Crim Pro
4th Amendment Search exception-Lawful Arrest |
• Search must be in the wingspan (not trunk in car) and immediately after arrest
o Officer sees D committing a felony/probable cause, or o Sees D committing a misdemeanor. |
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Crim Pro
4th Amendment Search exception-Exigent Circumstances |
• No time for a warrant
• Evidence will be lost or destroyed. • Probable cause |
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Crim Pro
4th Amendment Result of unlawful search |
Evidence will be excluded UNLESS
At trial, improperly obtained evidence can be used if: Police acted in good faith, or It is used to impeach D's inconsistent statements @ trial |
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Crim Pro
5th Amendment |
Right against self incirmination and Right to Counsel
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Crim Pro
5th Amendment Miranda |
Miranda Warnings must be given
Before custodial interrogation •Custody: seizure (cuffs) •D does not reasonably feel free to leave •D is not free to leave Interrogation •Statement or conduct reasonably likely to elicit incriminating response. |
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Crim Pro
5th Amendment Miranda Violations |
o Evidence gained despite violation can still be used to impeach.
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Crim Pro
5th Amendment Miranda Waiver |
o D can claim the right to counsel, and then waive it later. Questioning may resume after this waiver.
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Crim Pro
6th Amendment Right to Counsel |
o Right to counsel attaches as soon as charges are filed.
Includes post-charge lineup. No right @ fingerprinting or photo ID stages |
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Crim Pro
6th Amendment Confrontation Clause |
Co-defendants' confessions only admissible if statements regarding 2nd party are redacted of 1st is subject to cross.
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Civ Pro
Personal Jurisdiction |
In Personam
1. Physical Presence at time of personal service 2. Consent (express, implied, voluntary appearance) 3. Long Arm statutes In Rem (property is located within borders of state) |
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Civ Pro
Personal Jurisdiction Rule Statement |
II. Personal Jurisdiction stems from the due process clause of the 14th amendment which forbids the deprivation of life, liberty, or property without the due process of law. There are two types of personal jurisdiction, in personam and in rem. In personam jurisdiction is power over the person, in rem jurisdiction is power over the person’s property. Personal Jurisdiction is one of the three requirements for a court to be able to hear a case, which consist of notice, service, and jurisdiction. You can gain personal jurisdiction one of the following 5 ways: 1) min. contacts 2) consent 3) presence/personal service 4) residency, and 5) status.
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Civ Pro
Personal Jurisdiction Minimum Contacts (Specific) |
Specific Jurisdiction is imposed where the claims arise out of or relate to the contacts between the defendant and the forum state. Specific jurisdiction gives you power over the specific claim. To gain specific jurisdiction you need quality contacts, rather, less contacts that are related to the claim.
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Civ Pro
Personal Jurisdiction Minimum Contacts (General) |
General jurisdiction is imposed where the contacts are unrelated to the claim. General jurisdiction gives you power over all claims in that state? To gain general jurisdiction you need quantity contacts, rather, more contacts that are unrelated to the claim.
-In Helicopteros there were not enough contacts to gain general jurisdiction. The Court does not consider unrelated purchases alone enough to gain general jurisdiction. |
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Civ Pro
Personal Jurisdiction Long Arm Statutes |
Long Arm statutes are enacted by states (there is also a federal long arm statute) that can restrict personal jurisdiction from the full extent granted by the Constitution.
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Civ Pro
Personal Jurisdiction Minimum Contacts |
X. Minimum contacts comes from International Shoe. The test requires that the defendant have minimum contacts with the forum state such that the upholding of the law suit will not offend the traditional notions of fair play and substantial justice. A later case, Burger King held that the minimum contacts test applied to individual defendants. This test requires the consideration of 4 things.
-relatedness -purposeful availment -foreseeability -fair play and substantial justice |
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Civ Pro
Subject Matter Jurisdiction |
I. Subject matter jurisdiction is one way of obtaining the jurisdiction requirement in order for the court to be able to hear the case. This comes from Article III, section 2 of the Constitution, which states that the Federal Courts have jurisdiction over all civil actions arising under constitution, laws, or treaties of the US. There are three types of SMJ, 1) Federal Question 2) Diversity, and 3) Supplemental
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Civ Pro
Subject Matter Jurisdiction Federal Question |
Federal Question SMJ is when an element of the complaint (not the answer) arises out of constitutional or federal law. This is also called the “well-plead complaint” rule.
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Civ Pro
Subject Matter Jurisdiction Diversity |
Diversity jurisdiction is governed by 28 USC sec. 1332, which requires (for the federal courts, but not the supreme court) complete diversity, which means that you cannot have the same state on both sides of the claim.
In addition, the claim must also be more than $75,000 |
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Civ Pro
Eerie Doctrine Which Law should Apply? |
State Substantive Law Applies
-Elements of a claim or defense, statute of limitations, and choice of law are substantive Federal Procedural Law applies |
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Civ Pro
Eerie Doctrine What is substantive |
Is there a federal rule on point?
i. No, use the state law ii. Yes? Does the state and federal law conflict? 1. No? Use the federal Rule 2. Yes? Are the laws outcome determinative? a. Yes? Use state law b. No? Would using the Fed rule violate federalism or state sovereignty? i. Yes? Use state law ii. No? would use of state law encourage forum shopping? (No, use state law) |
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Civ Pro
Subject Matter Jurisdiction Supplemental jurisdiction |
i. The power of the federal courts to hear state claims which arise from the same transaction as the federal claim
1. Common nucleaus operative facts 2. P would be expected to try them together |
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Civ Pro
Removal |
a. Defendant may remove the case from state court, to federal court
i. Must have federal jurisdiction ii. All defendants must join in removal iii. Must be within 30 days of service |
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Civ Pro
Remand |
a. Defendant may remand a case from Federal court to state court
i. Only granted if Fed Court lacked jurisdiction |
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Civ Pro
Absention |
a. Fed Court can abstain from deciding a case until the state courts have interpreted the state law.
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Civ Pro
General Pleading Requirements |
CA: Fact Pleading
1. Must plead facts sufficient to constitute a cause of action Federal: Notice Pleading 1. Statement showing that the D is entitled to relief. |
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Civ Pro
General Pleading Requirements Doe Amendments (california) |
1. Allows Ficticious defendants when
a. Complaint is timely b. Alleges charges against all defendants c. P is ignorant i. to the true identity, ii. the facts giving rise to the cause of action, or iii. that the law provides a cause of action d. And P pleads their ignorance in the complaint 2. Relate back to the original filing, eliminating SOL problems |
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Civ Pro
Demurrer General |
i. Equivalent to Federal 12.b.6 motion
ii. Complaint fails to state facts sufficient to state a cause of action because 1. Failed to plead ultimate facts 2. Left out an element 3. Barred by SOL 4. No such cause of action 5. Court lacks SMJ |
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Civ Pro
Demurrer Special |
i. P lacks capapcity to sue
ii. Another action is pending between same parties on same matter iii. A party was not joined, or misjoined iv. Pleading is uncertain v. Fails to allege whether K is written or oral |
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Civ Pro
Joinder |
a. Compulsory
i. Call of the question will ask whether D”s motion to dismiss/failure to join should be granted b. Permissive i. Call of the question will ask whether P’s motion to add D should be granted |
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Civ Pro
To determine Compulsory or Permissive |
i. Is joinder proper
1. Without D complete relief cannot be afforded 2. OR the D claims an interest and without joining a. That interest will not be protected b. Leave remaining parties liable for multiple obligations ii. Is joinder possible without destroying jurisdiction 1. If it destroys complete diversity iii. If jo0inder is not possible, is the absent party “indispensible” 1. Should the action proceed without that person? a. The amount the unjoinded party will be prejudiced by the JJT b. Can the prejudice be avoided c. Does P have an adequate remedy if the matter is dismissed |
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Civ Pro
Discovery |
i. All matters relevant to the claims or defenses or reasonably calculated to lead to discovery of admissible evidence
1. Federal a. Limited to non-privileged matter that is relevant to a claim or defense b. Work product: i. Discoverable only upon a showing of substantial need and to avoid undue hardship 2. California a. Information relevant to the subject matter involved in the pending action b. Work Product i. Absolute privilege, unless the denial of the discovery will lead to an unjustice |
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Civ Pro
Summary JJT Motion |
a. No genuine issue of material fact
b. Movant prevails as a matter of law c. Fed (20 days after commencement) CA (60 days) |
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Civ Pro
Motion for JJT |
i. Made by D after the close of P’s evidence OR
ii. Made by either party at the close of all evidence iii. Will be granted if no reasonable person could differ on outcome |
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Civ Pro
Motion for New Trial |
i. May be made only after a Motion for JJT has been made
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Civ Pro
Waiver of Right to Jury Trial |
a. Fed
i. Failure to include demand for jury trial is a waiver b. CA i. Failure to post jury fees |
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Civ Pro
Class Actions |
a. Numerosity
b. Commonality c. Typicality d. Adequacy of representation [competent P counsel] e. AND i. Risk of inconsistent results ii. Injunctive or declaratory relief appropriate, OR iii. Common questions among the class predominate over other claims |
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Civ Pro
Class Action Fairness Act |
f. Class Action Fairness Act
i. Any class member is diverse from any defendant ii. Controversy exceeds $5 million, AND iii. At least 100 members iv. UNLESS 1. D is state or gov 2. Claim re corporation internal affairs |
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Civ Pro
Class Actions Fed Court MUST decline |
i. 2/3 are citizens of state in which action was filed
ii. Major D is a citizen of that state iii. Injury incurred in that state |
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Civ Pro
Class Actions Fed Court MAY decline |
i. 1/3 to 2/3 are citizens of the same state
ii. Primary Ds are from the same state |
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Civ Pro
Res Judicata (claim preclusion) |
a. Bars an entire case once final JJT on the merits has been entered on a particular cause of action. Must show
i. Earlier JJT valid, final JJT on the merits ii. Same claimant against same defendant iii. Same cause of action is involved in later suit 1. Asserting different right (property damage as opposed to PI, is OKAY in CA) iv. The present cause was or could have been litigated in the prior action |
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Civ Pro
Collateral Estopple (issue preclusion) |
a. Earlier JJT valid, final JJT on the merits
b. Issue was litigated and determined in first case c. Issue is essential to JJT |
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Property
Adverse Possession |
a. Open and notorious (put a reasonable person on notice)
b. Actual and exclusive c. Continuous i. Tacking 1. No need for continuous possession by the same person 2. Adverse possessor can take advantage of periods of aadverse possession by predecessor IF a. Privity: Current possessor received through descent, devise, deed i. No privity for ouster or abandonment ii. Oral transfer is okay ii. Privity of ownership d. Hostile (without consent) e. Statutory period |
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Property
Estates in Land |
a. Life Estate
Always followed by a reversion (usually to grantor) b. Fee Simple Determinable i. Possibility of Reverter c. FS subject to a Condition Subsequent i. Right of Re-Entry d. Fee vs. Non-Fee i. Fee 1. Executory interests 2. Remainder e. Merger i. If the same person acquires both a present and future estate, they merge |
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Property
Class Gifts |
a. Rule of Convenience:
i. The class closes when any member can call for distribution |
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Property
Rule against Perpetuities |
a. An interest is void if there is any possibility, however remote, that the interest may vest more than 21 years after some life in being at the creation of the interest.
Validity is determined at the time the interest is created, by facts then existing |
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Property
Rule against Perpetuities Applies to these estates |
b. Applies to
i. Contingent Remainders ii. Vested remainders subject to open iii. Executory Interests iv. Class Gifts v. Options vi. Rights of First refusal vii. Power of appointment |
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Property
Rule against Perpetuities Measuring Lives |
d. Measuring lives must be in existence at the time the interest is created
i. Will: death of testator ii. Revocable trusts: when irrevocable iii. Irrevocable Trusts: creation of trust iv. Deeds: date of delivery |
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Property
Rule against Perpetuities Vesting |
e. Vesting must occur during the time window
i. Vest: present possessory ii. Indefeasibly vested remainder iii. Vested remainder subject to total divestment |
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Property
Concurrent Estates Tenancies in Common/Joint Tenancies |
i. Unities
1. Time 2. Title 3. Interest 4. Possession (both have right to possess) |
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Property
Concurrent Estates DIfference between Common/Joint |
Joint Tenants have right of survivorship
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Property
Concurrent Estates Severing JT |
ii. One can sever the joint tenancy by conveying their interest to someone else, then it is a tenancy in common
1. Maj: liens and mortgages do not sever a JT 2. Min: mortgage will sever JT |
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Property
Concurrent Estates Right to collect rents |
c. Right to collect rents
i. Co-tenant out of possession cannot bring a possessory action unless there has been ouster. 1. Wrongful exclusion from property ii. CO-tenant in possession has right to retain profits gained by their use of theproperty (no sharing) iii. Co-tenant out of possession has right to 1. Share in rents form third parties 2. Profits from uses that deplete the properties value |
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Property
Concurrent Estates Repairs |
1. Can seek reimbursement if one paid more than their pro rata share of necessary repairs.
2. Can seek contribution for necessary repairs if notice is given 3. No reimbursement for improvements |
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Property
Concurrent Estates Mortgage/Taxes |
1. Out of possession who pays may seek reimbursement
2. In possession who pays is only entitled to amount that exceeds the fair rental value. |
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Property
Landlord/Tenant LL Rights |
Receive rent
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Property
Landlord/Tenant LL DUties |
i. Deliver possession
ii. Quiet enjoyment iii. Implied warranty of habitability |
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Property
Landlord/Tenant Tenant Duties |
-Pay Rent
-Repair Damage they cause -Do not commit waste |
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Property
Landlord/Tenant Tenant Duties-Pay Rent |
Breach of lease: tenant liable for remainder of rent for term, less reasonable rent LL could have obtained.
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Property
Landlord/Tenant Waste |
an act by someone in rightful possession that does permanent injury to the land, harming the interest of someone entitled to future possession.)
1. Voluntary a. Deliberate destructive acts b. Can seek injunction c. Damages i. Diminution in property ii. Cost of repairs 2. Permissive Waste a. Omission or neglect b. Damages c. No injunction 3. Ameliorative Waste a. Alter property, but add value b. No damages c. Injunction depends on facts i. Short term more likely to be enjoined ii. Long term probably not |
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Property
Assignment |
i. Assignment is complete transfer of Leasee’ interest
ii. LL and assignee are in privity of estate and liable for all covenants that run with the land |
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Property
Sublease |
i. If the tenant retains any part of remaining term
ii. Covenants do not run |
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Property
Easements |
a. Right to use land for a particular purpose
i. License results from a failed attempt to create an express easement, and is terminable at will. |
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Property
Easements Types |
-Express
-Reservation (grantor reserves easement when transferring) -Implication 1.Permitted conduct over a long period of time amounting to consent -Necesity 1. Landlocked -Prescription 1. Adverse possession |
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Property
Easements Terminated |
i. Writing
ii. Orally plus action of abandonment |
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Property
Profit |
a. Right to take specific things (timber) from land
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Property
Covenants/Servitudes Run with the Land |
Can subsequent owners or possessors enforce the convenants/servitudes?
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Property
Covenants/Servitudes For the Burden on the servient estate to run |
1.Intent
2.Notice a. Actual b. Constructive c. Inquiry 3.Horizontal Privity a. Covenant was set forth in granting instrument between riginal parties 4.Vertical Privity a. Successor holds entire estate held by original covenantor b. Touch and Concern i. Makes land more useful or valuable |
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Property
Covenants/Servitudes For the benefit to run |
1. Intent
2. Vertical privity 3. Touch and concern |
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Property
Covenants/Servitudes Implied Reciprocal Servitudes |
1.Benefit
a. Intent b. Touch and concern 2.Burden a. Intent b. Notice c. Touch and concern |
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Property
Conveyances SOF |
i. Must include intent to transfer
ii. No oral conditions |
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Property
Conveyances Requirements |
i. Executed
ii. Delivered iii. Accepted |
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Property
Conveyances Quitclaim |
i. Only the interst the seller has
ii. Includes marketable title (title a reasonably prudent buyer would accept) |
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Property
Conveyances Title by AP |
Title by adverse possession is not marketable, because there is no record of it
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Property
Conveyances Warranty Deed |
i.Present Covenants (breached at the time of conveyance)
1. Covenant of Seisin (title and possession) 2. Right to convey 3. Against encumbrances (other than those recorded prior and appearing on prelim title report) ii.Future Covenants (breached at time of claim against title) 1. Quiet enjoyment 2. Warranty (defend grantee’s title) 3. Further assurances (perform whatever acts necessary to perfect title in the grantee) |
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Property
Conveyances Recording Statutes |
a. Race
i. Whoever records first wins b. Notice i. BFP (consideration, no notice of other purchaser) ii. Prevails over prior grantee who fails to record c. Race-Notice i. BFP who records before the prior grantee |
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Property
Conveyances Mortgages |
a. Deed of Trust is a Mortgage
i. Interest in property which can be recorded ii. Can get a deficiency JJT against owner if not a single family residence when they use judicial foreclosre iii. Non-judicial foreclosure cannot give you a deficiency JJT |
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Property
Water Rights Riparian |
a. Riparian
i. Majority: Lots bordering river can use water all of the contiguous land ii. Min: Smallest tract of land can use it iii. Right of reasonable use |
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Property
Water Rights Prior Appropriation |
i. Own a right to divert
ii. Priority in time |
