PARA 86 FINAL EXAM STUDY GUIDE

The Midterm will be 25 MC questions, and two, 25 point essay questions. You will need both a Scantron and a Blue Book. The essay questions will ask you to analyze a legal question; the topics for analysis will come from the three cases we have studied: Backley, Medina, Norcross, Marvin, Albertson’s, Spriggs

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Elements ofo Negligenceo Fraud

Motion Brief Authority:

o Anything a court may rely on in deciding an issue.o Primary:

The law itself: Enacted law: constitutions; statutes; ordinances;

regulations Common law: here, created by the courts: e.g. SPL

o Secondary Non-law sources on which the court may rely. For background

and broad understanding of a specific area of law. List is infinite, but some are used regularly.

Legal resources:o Law dictionaries: Blackso Law reviews

Published by law schools: Obama was Harvard Law Review

o Legal encyclopedias Corpus Juris Secundum; American Jurisprudence = Am. Jur. 2nd

o Restatements Published by American Law Institute Drafted by experts and used as models by

legislatures

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Common error: to site Restatements as primary source: [they tend to look like controlling authority in Published Decisions]

o Treatise By an expert in a specific area of law;

covers the entire topic In CA: Witkin treatises: four sections

Mandatory Authorityo What a court “must” follow when deciding an issueo Trial courts must follow Courts of Appeal and Supremeo Courts of Appeal must follow Supreme

Persuasive Authority:o Court may follow; is not boundo Both secondary source law and Primary law from outside the

Jurisdiction: CA does not have to follow an Ohio Appeals court decision, but

it might be instructive on an issue Elements

o Substantive law Procedural law

o Some cases are decided or dismisses on procedural grounds; you must know which

Ethics and internet researcho Free websites, e.g. Wikipedia, have no legal duty to be accurate; you

do.

PARA 86 CH 2

What law governs?o State or Fedo Are there both Criminal and Tort issues presento Is it a contract case: an agreement that ought to be enforced

Goods or services? The law is very different

PARA 86 CH 3

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Analyzing a statuteo Short title: for organization and search o Purpose clause

States the legislative purpose in enacting the law Important for interpretation

Court must implement what the legislature intendedo Scope section

Legislation is always bound within a scope Overbroad; vague

o Definition section For terms used in the statute; great if included; can’t expect it

o Substantive provisions This is the body of the statute

o Reference information Annotations are here: good for focusing research; These have no legal authority

Process:o Find all statutes that may applyo Identify the statutory elementso Compare to the facts of your case

CANNONS OF CONSTRUCTION (how a court interprets a statute)

Plain meaning ruleo If the meaning of a statute is clear on its face, it will be interpreted

according to its plain meaning.o Ambiguity must be reconciled

Define ambiguity Legislative history

o Can be very helpful to determine legislative intent; goes to clarity and guides the court for interpretation

o e.g.: did the legislature intend persons to include non-natural or natural persons only

Lists in statuteso First step:

If there is a list of what is covered, everything else is excluded BUT: not always true: statute should state if list is to be

so read

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(expressio unius)o Ejusdem generis

When a general term or phrase follows a list, the general term will be interpreted to include only things of the same type as those listed

Ex: List: horses, cattle, sheep, pigs, goats, or any other barnyard animal

Despite the breadth of the term, it really only included four legged, hoofed mammals: no chickens

o Last antecedent rule Qualifying words or phrases apply only to the words or phrases

immediately preceding EX: Texas Courts, California Courts, and New York

courts in the Federal system; should not extend to California or Texas courts in the Federal System; only New York’s

PARA 86 CH 4

Syllabus:o Brief summary

Head noteso Prepared by publisher: summary of points of law in opinion

Key numberso Westlaw thing: refer to specific subtopics within the headnotes; are

searchable through wests Digests Body of the opinion

o Facts; proceedings; issues;o They are not always obviouso Rule of law: statute, case law, etc.o Holding: the Court’s ruling on this case

Case briefingo Depends on what you are using it for

Marbury v. Madisono Judicial Review; the law is what the SC says it is.

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Access to courts: Live controversy requirmentso Ripenesso Advisory Opinionso Mootnesso Standing

1st Amendmento Speech and assembly

Content v. Conduct In schools: read ch 6 Cohen v. Caifornia

Fuck the draft Time, place and manner Less protected

Commercial Advertising Un protected

Obscenity Appeals to the prurient interest and lacks societal value

o Religion Establishment clause Free expression clause

o Press In theory: no greater protection

Can use illegally obtained info, if not involved in the illegality

Access to trials 2nd amendment

PARA 86 CONTRACTS LECTURE

K requires: Offer, Acceptance, Considerationo Agreement that is enforceable in a court of law

Offeror Offeree Agreement (mutual assent)

o The manifestation of two or more persons of the substance of a contract

Consideration

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Capacity Defenses to enforcement

o Genuineness of assento Writing and form

If required, may be a defense; may still be enforceable withouto Unjust Ks can be ‘avoided’

ADR and arbitration What does Common Law mean? UCC and what it covers

o Article 2 sales; 2a leases Bilateral K

o A promise for a promise Unilateral K

o A promise for an act; can only be accepted by performanceo Classic exampleo The ‘if’ wordingo Offeror cannot revoke if performance has begun

Express K Implied in Fact K

o Elements Π provided prop or services to Δ Π expected payment Δ had opportunity to reject

Quasi Ko Also called implied in law Ko To prevent unjust enrichment/detrimento One party receives benefit conferred by anothero Realization by Δo It would be unjust to allow recipient to receive without pay

The Powell case She benefitted from father in law’s loan She is bound by QK

Unjust Enrichment Void K

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Voidable K Unenforceable

o Due to some defense Offer

o The manifestation of willingness to enter into a bargaino Offeror must objectively intend to be bound by the offero Terms must be definite or reasonably certaino Must be communicated to offeree

Objective theory of K’so Reasonable person would conclude that the parties are bound

Power of Acceptance Advertisement

o When offero Classic example

Rewardo Knowledge before acting

Auctiono w/ reserve

the default position it is an INVITATION TO MAKE AN OFFER

that means: the auctioneer puts items before the audience, and they are INVITED to make offers for the item

So, the auctioneer retains the right to refuse the highest bid and withdraw the item for sale

o w/out reserve here, the auctioneer is the offeror, not members of the audience here, the auctioneer expressly gives up his right to withdraw the

goods from sale, and must accept the highest bid however, the auctioneer can still set a minimum bid

Termination of offerso By action of Parties:o Revocation (offeror)

Express or by actiono Rejection (Offeree)

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o Counteroffer McLaughlin

M.I.R = Mirror Image Rule Changed terms created couter-offer

o By operation of law:o Destruction of subject mattero Death/ incompetenceo Supervening Illegalityo Lapse of time

Mirror Image rule Moral Obligation

o A duty binding in conscience, but not in lawo But, abstaining from engaging in behavior to which one has a right to

engage, can be seen as consideration Acceptance

o A manifestation of assent by the offeree to the terms of the offer in a manner invited or required by the offeror

Silence as acceptanceo By statement of offeroro By agreemento Prior dealingso Taking benefit

Mail Box Ruleo Acceptance on dispatch

Even if offeror hears that offeree has changed his mind before he receives the acceptance, too late- the acceptance sent controls

o Revocation is not effective until received So, if Sally offers Ed a job, and Ed sends his acceptance, there

is a contract when that acceptance is sent, even if Sally sends a revocation of the offer before she receives the acceptance

o Rejection: when receivedo Counteroffer: when received

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Contract: a promise, or set of promises for the breach of which the law gives a remedy or the performance of which the law, in some way, recognizes a duty

Common law v. Art 2 goodso Art 2 UCC covers contracts about goodso Goods:

All things moveable at the time they are identified to the K So: most tangible things; not:

Real estate Services Intangibles (a patent) Construction contracts Corn after harvest Cow after being born

o Merchant Non-merchant Many sales are interpreted differently whether the parties

involved are merchants or not Merchant: one who regularly deals in goods of the kind sold; or

Who, by his profession, holds himself out as having specialized knowledge or skills about the goods involved

Further narrowed by:o General business practices: anyone in any business

can be a merchant (SOF, firm offers)o Goods of the kind sold: implied warranty of

merchantability As to validity

Void K Totally without legal effect from the beginning; it can

never be enforced by either party Voidable K

When one or both parties may elect to void Unenforceable K

otherwise valid, but there is some extraneous defense to enforcement: SOL or SOF

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Mutual Assent: Offer and Acceptanceo One party must accept the other’s offer

Tested by Objective standard: did words or conduct manifest a present intention to enter into a K

o The offer: Creates Power of acceptance in offeree and a corresponding

liability on the part of the offeror To be an offer: a communication must create a reasonable

expectation in the offeree that the offeror intends to be bound by the terms of the offer

Detrimental relianceo If offeror should reasonably expect that offeree

will rely to her detriment on the offer, the offer will be held irrevocable as an option K for a reasonable length of time;

o Or, offeree will be entitled to relief to the extent of her reliance

Part performanceo Once offeree begins performance, offer can no

longer be revoked Promise, undertaking or commitment

o As opposed to invitation to make preliminary negotiationso Must be intent to enter the Ko Language:

Not rigidly defined; I am asking for N; I would consider selling for N are invitations to negotiate, not offers

o Surrounding circumstances Jest, anger, or bragging, and understood as such will have no

legal effecto Prior practice and relationship of the parties

One way of establishing reasonableness and expectancy o Method of communication

The broader the medium, the less likely it is an offer: Advertisements are usually invitations to make an offer

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Requirement: Buyer promises to buy from a certain

seller all of the goods the buyer requires, and the seller agrees to sell that amount to buyer

Output: Seller promises to sell to a certain

buyer all of the goods that seller produces, and the buyer agrees to buy that amount from the seller

o Requires good faith on both endso Order change cannot be unreasonably

disproportionate to: Any stated estimate; or Comparable prior output K’s

Communication to offerreeo To have the power to accept, offeree must have knowledge of the

offer; proposal must be communicated Consideration:

o Something of legal value in exchange for a promise Note: legal detriment/ benefit

o Must meet: bargained for exchange Gift promise (gratuitous promise)

o Unenforceable for lack of consideration Gratuitous promise- no consideration Delivery is not complete unless complete dominion and control

is surrendered by donoro Promises/ gifts during engagement

Ring comes back: symbolic meaning beyond gift The rest: tokens of affection, irrevovable

Illusory Promiseo If either party can chose not to perform

Moral obligation Pre-existing Duty Rule

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Past considerationo The retirement gift

Accord and satisfactiono Where parties agree to accept something different in satisfaction of

the original contracto Satisfaction:

The performance of the accord Equitable Remedies

o Sp Performanceo Rescission

Material breach; fraud; duress; undue influence; msitakeo Restitution o Injunction

Promissory Estoppelo A promiseo Promisor’s reasonable expectation of relianceo Actual, reasonable reliance by the promiseo Injustice if not enforcedo Or: reasonable, foreseeable reliance, on a promise, that results in an

injury that warrants some remedy Infancy Doctrine Disaffirmance Duty of Restitution

o The competent party returns the consideration to the minor Duty of Restoration

o Minor returns the goods to the competent party Ratification

o Minor becomes adulto Principal→ agento Corporation→ agent

Emancipationo Terminates Parent’s liability for necessities

Necessaries of life

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Non-compete clauseo Reasonable in three aspects:

Line of business protected Geographic area Duration

Unconscionabilityo Oppressive or manifestly unfair

Prima Facie case for Fraud: False representation of material fact With intent to deceive Justifiable reliance Injury

o Scienter = intent to deceive o Fraud by Concealment

Specific action to conceal a material facto Silence as misrepresentation

Usually no duty; unless: Non-disclosure would cause bodily injury or death Fiduciary relationship Statutory duty to disclose

Statute of frauds (154)o What it iso What K’s must be in writing

PARA 86 COMMUNITY PROPERTY LECTURE

NOTE: I will NOT be testing you on Van Camp/Periera.

SPOUSAL SUPPORT

Reciprocal obligation to support each other CP; SP; and QCP – later Not just for post dissolution Dissolution

o Earning cap to maintain standard

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o Earning capacities Marketable skills How domestic life dimished earning cap of skills

Or increased cap of working spouseo Ecuation, etc.

Goal to make each party independent within reasonable period of time

One half length of marriage- guideline only Ten years = lengthy marriage

o Court can still deny support Here, new cohabitation DOES affect support

o Dies with either partyo Dies with remarriage

Putative spouseo Significant changeo Error in expectations

Community propertyo Presumption: All property acquired during marriage, except by

descent, devise, or gift, is CPo Equal management and control

SPo All prop owned prior to marriageo Gift, devise, descent, bequesto Profits of SP

QCPo Property that would be CP if it had been purchased in CAo Divided as CP upon dissolution

Source That which flows from SP is SP; vice versa What funds were used to acquire

Tracingo To overcome presumption

PROPERTY

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Real

Personal

Tangible/ intangible

Estates in property

o Tenancy in common

Percentage irrelevant; No right of Survivorship

To heirs

o JTWROS

Possession, interest, title, and time

ROS: interest to surviving spoouse

o TBE

Only for H and W

Not in CA

Community property

o Acquired during existence of MEC

o Except

Gift, bequest, devise, descent

Rents, issues, and profits of SP

Property acquired in exchange for SP

o Tracing can overcome presumption

o Problematic

Personal injury recovery; 3d P tortfeasor

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If injury caused during marriage = CP

Injury Post separation = SP

Against other spouse = injured spouses SP

Retirement pensions

CA: CP to extent earned during MEC

CA ignores wage replacement; sees as savings for old age

Vested

o Minimum met to qualify for benefit

o Unvested if not yet completed

CA treats both as CP

Stock options

o Time rule again

o Education and training

Default: not CP

But CA has “equitable right of reimbursement, if:

CP funds are used to pay for education, or are used to repay loan; AND

Ed/training substantially enhances the earning capacity of the educated spouse

Also applies if CP funds were used to pay off pre-maritally acquired student loans

If loan is still outstanding at divorce, payments are assigned solely to the educated spouse

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Dissipation

o One party intentionally depletes MEC

o Equitable remedy

Separation

o After date of, is SP

o Date: when marriage is truly over, with intent to remain single

Subjective: date shown by evidence

Objective: outward appearance

Presumptions: title in joint form; disproportionate contributiono Title creates presumption:

Howard and Wilma as JT = CP Wilma, as married woman, sole and SP = SP

o Title can be transmuted during marriage To CP; one spouse From CP to SP: both spouses

o SP funds contributed to CP and proof if SP inent: Right of reimbursement; no interest Includes improvements to other’s SP, or CP

Tracingo To prove source

Business and valuationo Goodwill

Likelihood of repeat business Is expected earnings

o Valuation of business Professional assessment

o Dates

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At marriage; at dissolution

When community funds or labor enhance value of SP businesso To apportion the SP component of the business the managing spouse

brought in to the marriage and the CP value added by her labor Two methods:

Which to useo Pereira when managing spouse was reason for

increase in valueo Van Camp when market rose on its own

QDRO (Qual. Dom. Rel. Order)o To secure interest in retirement income of ex spouse

Liability of community estateo All debts of either spouse, before or after marriageo Unless

Separate earnings are kept out of reach of debtor spouse; wall between, no comingling

o Reimbursement If CP funds pay support from former marriage, and SP funds

were available, Community estate has right of reimbursement Liability of SP

o for all debts self incurredo Not for debts of other spouse

Except for Necessities of life Debts at dissolution

o Divided equally as with propertyo SP of non-debtor spouse not liable for pre-marriage debts

Tort liabilityo Was tort committed for benefit of community?o If so, CP funds satisfyo If not CP funds do not

Quasi marital propertyo Marriage was ultimately not valid; innocent spouse is protected

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HEARSAY

NOTE: I will NOT test you on all the exceptions: I will let you know which to memorize early next week. It will only be three.

Hearsay introo An out of court statement, offered into evidence, to prove the truth of

the matter assertedo Rationale

Party against whom testimony is offered has a (constitutional) right to cross examine the declarant

To test:o perceptiono Memoryo Articulatenesso Veracity

Contemporaneous cross examination The witness could be offering his own statement:

o I do not remember the accident, but I remember saying to my wife: wow, what a crash – the red car ran the light

o Statement was out of court, is for the proof, and its content cannot be challenged

o Truth of matter asserted: Witness testifies: “on April 2nd, Debbie said to me, ‘I was in

Buffalo yesterday” If issue is whether Debbie was in Buffalo on the 1st, it is

hearsay; If issue is whether Debbie was able to speak on the April 2nd, it

is NOT hearsay.

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Declaranto Person who makes a statemento Implied assertionso Assertive conducto Not

Radar, tracking dogs Not hearsay

o To show effect on listenero Verbal acts

Hearsay Exceptionso Prior inconsistent statements

Declarant must be testifying Inconsistent with current testimony If former statement made under oath;

o Admission by party opponent Admission that amounts to a prior acknowledgment of a

relevant fact Party cannot object that he does not have opportunity to

explain; covers cross exam need, = not hearsay Can be individual, adoptive (silence too), authorized, agent, or

co-conspirator Judicial:

Judicial: conclusive: verdict Evidentiary: can be explained: testimony at prior trial

o Former testimony Of now unavailable witness; as long as there is/was Sufficient similarity of parties and issues; Opportunity to cross was meaningful

GJ testimony does not fit: no chance to crosso Statements against interest

Unavailable declarant: statement against own pecuniary, proprietary, or penal interest, when made

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Unlike admission: this must have been against interest when made

o Dying declarations In prosecution for homicide, or in civil trial; Declaration of now unavailable declarant; Believing death was imminent; Concerns cause or circumstances of death

o Present state of mind I am gonna shoot you; I intend to leave next week; I love living

in Coloradoo Excited utterances

During or soon after startling event; Under stress; About immediate facts – no time to reflect

o Business records Any writing or record; Kept in normal course of business; Not for litigation Under duty to record

o Past recollection recorded Keep apart from “present recollection revived” Made by observer when facts were fresh in memory

o Reputation/Opinion Character

Citation: Blue Book and Association of Legal Writing Directors (ALWD)

1. Case name

2. Reporter: volume number, abreviated title of reporter; page number om which case starts

3. pinpoint page

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4. Parallel publication (not necessary today)

Federal Court:

United States v. Matlock, 415 U.S. 164 (1974)

United States v. Matlock is case name;

415 U.S. 164 ; gives Reporter and how to find case; U.S. is the Reporter for the U.S Supreme Court; 415 is the volume number; 164 is the page number

No need to include the court name because we know from the citation.

Fed Court of Appeals:

United States v. Martinez-Jimenez, 86f F2d 664 (9th Cir. 1989)

Need the court here, as it is not obvious for the citation.

United States v. Central R.R., 436 F Supp. 739 (N.D. Ill 1990)

State Court:

Marvin v. Marvin, 19 Cal.3d 660 (1976)

Norcross v. Winters, 209 Cal.App.2d 207 (2d Dist. 1962)

For Personal Names; cite only the last names

For businesses: Include organizastion's full name; but, only the legal desigantion once:

Correct: Davis v. Sally Smits Co.

Incorrect: Davis v. Sally Smits CO., Inc.

If Name of org is initials, and the org is well known, omit the periods:

ACLU v. Houseman; not:

A.C.L.U. v. Houseman

In re; Ex Parte and Ex Rel.

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In re Refers to an action that did not invlove adversarial parties

Ex Parte refers to an action of one party without contest from the other side: e.g. an uncontested divorce:

Ex Rel. refers to an action by one person on behalf of another, such as a parent on behalf of a child

Various:

Do not include "The" when it is the first name of a party

When property is a party, list only the first piece of property from the case name:

Maine v. One 1998 Cadillac Seville

there may be several items of property listed in the pleading; only cite the first.

U.S. Const art. IV § 3

Id. and Id at

Code of Civil Procedure:

CCP §§ 437c, 352a

Citation within Citation: Case Cite; Citing: Case Cite

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