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  1. What is a collateral matter?
    • 1) immaterial to the issues in the case
    • 2) says nothing about the credibilty of the witness, except to just contradict him
  2. when is foundation requirement (admit/deny) required?
    • impeachment with
    • 1) prior inconsistent statement
    • 2) bias/motive
  3. non-hearsay exemption
    • 1) prior inconsistent statement
    • 2) admission by party opponent
    • 3) prior consistent statement offered to rebut a charge of recent fabrication or improper influence
    • 4) prior identification of a person made after perceiving the person
  4. common scheme or development
    • implied reciprocal negative covenant
    • can only be for a NEGATIVE covenant (refrain from doing something).
    • cannot imply an obligation to affirmatively do something.
  5. equitable servitude
    • an equitable servitude is a covenant that, regardless of whether it runs with the land, equity will enforce against successors
    • WITN
  6. what is marketable title?
    marketable title is title that is reasonably free from doubt, that a reasonably prudent buy would be willing to accept.
  7. can land acquired by adverse possession provide marketable title?
  8. fixture definition?
    chattel that has beeen so affixed to land that it has become part of the realty
  9. when tenant installs chattel onto the land, what factors tell whether it's a fixture?
    • 1) nature of the article
    • 2) manner in which it is attached to the land
    • 3) amount of damage that would be caused by its removal
    • 4) adaptation of the item to the use of the realty
  10. procedural due process is violated when?
    when the govt acts to deprive an individual of life, liberty, or property without due process.
  11. What is a deprivation of liberty?
    when a person is denied a freedom provided by the Constitution
  12. if there is a deprivation of life, liberty, or property, then what kind of process does due process require?
    • the process required depends on
    • 1) importance of the individual interest
    • 2) value of specific procedural safeguards to that interest
    • 3) govt interest in fiscal and administrative efficiency.
  13. contracts clause - when can a state interfere with an existing private contract?
    • must meet intermediate scrutiny
    • 1) law must be necessary for an IGI
    • 2) impairment of the contract is justified by the public purpose at issue
  14. content-based prior restraint, what level of review?
    SS: necessary to acheive a CGI
  15. what procedural safeguards needed for a system of prior restraint?
    • 1) standards are narrowly drawn, reasonable, and definite
    • 2) restraining body must seek an injunction
    • 3) must be a prompt and final determination of the validity of the restraint
  16. DCC
    • 1) if discriminates against out of staters AND unduly burdens IC, then unconstitutional unless
    • ---a) market participant
    • ---b) necessary for a IGI
    • ---c) favors govt performing govt functions
    • 2) if doesn't discriminate
    • ---a) benefits outweigh the burdens on IC
  17. P&I Article IV
    • 1) govt cannot discriminate against out-of-state citizens in favor of in-state citizens for a fundamental right
    • 2) level of review: necessary for a IGI
    • only applies to citizens, not corporations!
    • only applies to out-of-state discrimination
  18. P&I 14th Am
    • 1) only applies to citizens being discriminated in their own state
    • 2) only applies to right to travel (residency requirements)
  19. what is inadequate legal remedy?
    • SUMI
    • 1) speculative damages
    • 2) insolvent defendant
    • 3) multiple suits necessary
    • 4) unique property
  20. what requirements for specific performance?
    • 1) inadequate legal remedy
    • 2) feasibility
    • 3) defenses (latches, unclean hands, unconscionability)
  21. compensatory damages checklist
    • 1) caused by breach
    • 2) foreseeable
    • 3) definite and certain
    • 4) unavoidability
  22. what are foreseeable and unforseeable damages?
    • 1) damages from the injury are foreseeable
    • 2) economic damages are not foreseeable from the wrong, and must be specially pleaded
  23. damages judgement, how is it paid?
    • 1) single lump sum
    • 2) discounted to present value
    • 3) no inflation
  24. punitive damages, what requirements?
    • 1) P was first awarded non-punitive damages
    • 2) D's fault greater than mere negligence
    • 3) must be roughly proportionate to actual damages (< 10x)
  25. constructive trust vs. equitable lien, value of property goes down, which should you pick?
    • equitable lien. forced sale + deficiency judgment
    • constructive trust just conveys to you the property or profits, but no deficiency.
  26. TRO & preliminary injunction standard?
    • 1) irreparable injury
    • 2) likelihood of success on the merits
  27. permanent injunction standard?
    • 1) inadequate legal remedy
    • 2) feasibility
    • 3) hardship balances in P's favor
    • 4) defenses
  28. replevin/equitable lien/constructive trust - BFP?
    • equitable rights are cut off by transfer of legal title to a bona fide purchaser
    • Note: title must be held by the defendant to impose constructive trust
    • Note: must be a transfer of *legal* title
  29. personal jurisdiction - broad standard?
    • 1) sufficient contacts
    • 2) offend traditional notions of fair play and substantial justice
  30. traditional basis for PJ?
    • 1) residence
    • 2) service in person
    • 3) consent
  31. detailed constitutional test for personal jurisdiction?
    • 1) Minimum contacts: a) personal availment; b) foreseeability
    • 2) Relatedness: a) specific jurisdiction; b) general jurisdiction
    • 3) Fairness: a) Convenience; b) forum state's interests
  32. specific jurisdiction
    claim arises from activity in the state
  33. general jurisdiction
    • "essentially at home" in the state
    • systematic and continuous contact
  34. venue
    • venue is proper in
    • 1) district in which any defendant resides, if all defendants are residents of the forum state
    • 2) district where substantial part of the T/O arose
    • 3) any defendant is subject to personal jurisdiction
  35. where is a corporation deemed to reside for purposes of venue?
    • 1) any district where it is subject to PJ
    • 2) [if multiple districts] any district where the corporation's contacts would be sufficient to subject the corporation to PJ if the district were a state
  36. res judicata applies when?
    • plaintiff is barred by res judicata when:
    • 1) a final judgment on the merits has been rendered on a particular cause of action
  37. mandatory bringing all claims?
    Fed: required to assert all claims arising out of the same transaction or occurrance
  38. what is federal question jurisdiction?
    • plaintiff's claim arises under federal law
    • plaintiff is trying to enforce a federal right
  39. supplemental jurisdiction
    • SUBJECT TO DISCRETION, there is supplemental jurisdiction if the supplemental claim arises from the same nucleus of operative facts (same transaction/occurrance)
    • exception:
    • 1) the claim is asserted by P
    • 2) in a diversity case (no FQ), and
    • 3) the claim would violate complete diversity
  40. when does the court exercise its discretion NOT to hear a supplemental Jx claim?
    • 1) federal question is dismissed early in the proceedings
    • 2) state law claim is complex
    • 3) state law issues would predominate
  41. counterclaims
    • 1) must be filed with D's answer
    • 2) must have proper subject matter jurisdiction for them
  42. compulory counterclaim?
    • 1) D's claim arises from the same transaction/occurrance as P's claim
    • 2) always proper subject matter jurisdiction under supplemental jurisdiction
    • must be filed, or it's waived in future cases
  43. permissive counterclaim?
    • does not arise from same T/O
    • can sue in a separate action
    • must check for subject matter jurisdiction (independent of supplemental jurisdiction!)
  44. crossclaim
    • claims between co-parties (e.g., D1 sues D2)
    • 1) must be from same T/o
    • 2) must have subject matter jurisdiction (typically, supplemental jurisdiction will work)
    • 3) not compulsory
  45. removal
    • 1) P can never remove
    • 2) for diversity cases, no removal if one of the defendants is an in-state resident
    • 3) if case later becomes removable, you get 30 days to remove
    • 4) all defendants must agree on removal
    • 5) diversity case cannot be removed more than 1 year after it was filed (unless bad faith by P)
  46. relation back - adding a claim?
    • as long as it's the same T/o as original pleading, relates back
    • treat the amended claim as though it was filed when the original pleading was filed
  47. relation back - changing a defendant?
    • relates back if
    • 1) same T/O
    • 2) new party knew of this case within 120 days of its filing
    • 3) new party knew that, but for a mistake, he would have been named originally
  48. scope of discovery?
    any nonprivileged matter that is reasonably calculated to lead to admissible evidence (basically, relevance!)
  49. permissive joinder of co-def or co-plaintiffs?
    • 1) arise from the same T/O
    • 2) raise at least 1 common question (fact or law)
    • think T/O test!
    • -> check PJ and SMJ
  50. for a non-party, who is a necessary party?
    • 1) complete relief cannot be accorded without T
    • 2) T's interest may be harmed if he is not joined
    • 3) failure to join T could subject another party to multiple or inconsistent obligations
    • -> joint tortfeasors are never necessary
    • If a party is necessary, see if his joinder is feasible
  51. When is joinder of a non-party feasible?
    • 1) there is PJ over him
    • 2) joining him will not destroy diversity
  52. What if joinder of a non-party is not feasible?
    • 1) proceed without him
    • 2) dismiss the entire case
  53. how does a court decide how to proceed without a non-party?
    • 1) alternative forums available?
    • 2) likelihood of harm to T?
    • 3) can the court shape relief to avoid harming T?
  54. 3rd party impleader
    • 1) must be same T/O
    • 2) PJ over 3rd party
    • 3) SMJ
  55. intervention of right
    • 1) must be a necessary party (interests will be harmed if not joined)
    • 2) must be timely
    • 3) must be SMJ (most courts will not allow supplemental if intervenor is not diverse from the party on the other side)
  56. permissive intervention
    • 1) T's claim or defense and the pending case have at least 1 common question
    • 2) discretionary with court
    • 3) must be SMJ (most courts will not allow supplemental if intervenor is not diverse from the party on the other side)
  57. class action must satisfy what initial requirements?
    • class action - CANT
    • 1) numerosity - class is so numerous that joinder is impracticable
    • 2) commonality - questions of law or fact in common to the class
    • 3) typicality - class rep's claims or defenses are typical to the class
    • 4) adequate representation - rep will fairly and adequately represent the class
  58. what are the 3 types of class actions?
    • 1) Prejudice: class action is necessary to avoid harm either to class members or to adverse party of class (claimants to a fund)
    • 2) injunction/declaratory judgment: sought because the class was treated alike by the adverse party
    • 3) common question predominates: plus damages, and class action is the superior method to handle the case
  59. how does the court certify a class to allow it to proceed as a class action?
    • 1) define the class
    • 2) define class claims, issues, or defenses
    • 3) appoint class counsel (fair/adequate representation)
    • 4) Type 3, only: individual notice to class members (opt-out, binding)
  60. who is bound by a class action?
    all class members, except if they opted out of type 3. no opt-out for type 1/2.
  61. class action, dismiss or settle, do you need the court's approval?
  62. class action, what requirements for diversity jx?
    • 1) look at the rep for diversity and AIC
    • 2) CAFA: grants SMJ if any class member is diverse from any defendant, and aggregate claims of the class > $5MM
  63. res judicata
    • if a final judgment on the merits has been rendered,
    • 1) plaintiff (and privies) is barred by res judicata from trying the same cause of action in a later suit
    • FRE: cause of action = T/O
    • CA: primary rights doctrine, COA may be split into multiple law suits as long as that COA does not give rise to an invasion of a single primary right
    • primary right = right to be free from a particular harm
  64. collateral estoppel
    • judgment is conclusive in a subsequent action on a different cause of action between a party (and their privies) if
    • 1) issue was actually litigated (evidence presented at trial, decision rendered)
    • 2) issue was essential to the judgment
    • 3) final judgment on the merits
    • 4) asserted against someone who was a party in case 1
  65. who can assert collateral estoppel?
    • 1) traditional rule requires mutuality: party asserting collateral estoppel must have been a party to case 1
    • 2) nonmutual DEFENSIVE issue preclusion: permissible to bar P's claim if P had a full chance to litigate case 1
    • 3) nonmutual OFFENSIVE issue preclusion: permissible to bar D's defense if not "unfair"
  66. fairness factors, for nonmutual offensive issue preclusion?
    • 1) full and fair opportunity to litigate case 1
    • 2) foreseeability of multiple suits
    • 3) P could not easily have joined case 1
    • 4) no inconsistent judgments on record
  67. forum non conveniens
    • 1) A court may transfer a case to another district where it might have been brought, or to dismiss it if transfer is not possible, if there is another forum that is better suited to hear the case.
    • 2) the court must consider public and private factors.
    • 3) public: availability of the alternate forum, plaintiff's choice of forum, forum state's interest in providing a forum for its residents
    • 4) private: convenience of parties, location of evidence, and where the T/O arose
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2013-07-22 08:34:31
ca bar 22

ca bar 7-22
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