Free California Bar Exam Flashcards

A manifestation of present intent to enter into a contract, communicated to the offeree with definite terms. Must create reasonable expectation that acceptance will conclude the deal. Advertisements generally are not offers but invitations to deal.

Unequivocal assent to the terms of an offer. Under common law, must be mirror image of offer. Under UCC, acceptance with additional terms may form contract. Silence generally not acceptance unless prior course of dealing.

Bargained-for exchange of legal value. Each party must give something of value. Past consideration is not valid. Adequacy not required, but courts may scrutinize gross inadequacy. Promissory estoppel can substitute for consideration.

Certain contracts must be in writing to be enforceable: marriage, year+ performance, land interests, executor promises, goods $500+ (UCC), surety agreements. MYLEGS mnemonic. Part performance can take contract out of statute.

Prior or contemporaneous agreements cannot contradict a fully integrated written contract. Exceptions: ambiguity, fraud, mistake, condition precedent, collateral agreement. Partially integrated writings allow consistent additional terms.

Expectation damages: put non-breaching party in position if contract performed. Consequential damages: foreseeable losses. Reliance damages: restore pre-contract position. Specific performance: for unique goods or land.

Duty, breach, causation (actual and proximate), and damages. Duty owed to foreseeable plaintiffs. Breach is failure to meet standard of care. Causation requires but-for cause and foreseeability of harm.

Reasonable person standard: what a reasonably prudent person would do under the circumstances. Professionals held to higher standard of their profession. Children held to standard of similar age, intelligence, and experience.

Legal cause limiting liability to foreseeable consequences. Superseding intervening causes break the chain. Eggshell plaintiff rule: take victim as you find them. Concurrent causes: both liable if substantial factor.

Require intent to cause harmful or offensive contact. Includes battery (harmful contact), assault (apprehension of contact), false imprisonment (confinement), IIED (outrageous conduct causing severe distress). Transferred intent doctrine applies.

Liability without fault for abnormally dangerous activities and defective products. No need to prove negligence. Applies to wild animal owners, ultrahazardous activities, and product manufacturers in the chain of distribution.

Employer liable for employee torts committed within scope of employment (respondeat superior). Independent contractors generally exclude liability. Joint venture members liable for each other's torts within venture scope.

California uses pure comparative negligence: plaintiff's recovery reduced by percentage of fault. Even 99% at-fault plaintiff can recover 1%. Replaces contributory negligence complete bar. Joint and several liability modified.

Plaintiff must show: injury in fact (concrete and particularized), causation (fairly traceable to defendant), and redressability (favorable decision would remedy injury). Third-party standing generally not allowed.

Congress can regulate channels of commerce, instrumentalities, and activities substantially affecting interstate commerce. Dormant commerce clause: states cannot discriminate against or unduly burden interstate commerce.

Fifth/Fourteenth Amendments protect fundamental rights from government interference. Strict scrutiny for fundamental rights (narrowly tailored, compelling interest). Rational basis for economic regulations.

Fourteenth Amendment prohibits states from denying equal protection. Suspect classes (race, national origin): strict scrutiny. Quasi-suspect (gender): intermediate scrutiny. All others: rational basis review.

Government cannot restrict speech based on content without compelling interest. Time, place, manner restrictions allowed if content-neutral. Unprotected speech: obscenity, fighting words, true threats, incitement.

Constitutional protections generally apply only to government action, not private conduct. Exceptions: public function doctrine, entanglement with government, and state encouragement of discrimination.

Purpose: conscious object to engage in conduct. Knowledge: aware conduct is of particular nature. Recklessness: conscious disregard of substantial risk. Negligence: should have been aware of substantial risk.

First-degree murder: premeditated and deliberate. Second-degree murder: intent to kill without premeditation. Voluntary manslaughter: adequate provocation heat of passion. Involuntary manslaughter: reckless or criminally negligent killing.

Death during commission of inherently dangerous felony is first-degree murder (BARRK: burglary, arson, robbery, rape, kidnapping). Merger doctrine: felony must be independent of killing. Co-felon deaths not included.

Attempt: specific intent plus substantial step toward completion. Solicitation: asking another to commit crime. Conspiracy: agreement between two or more with intent to commit crime plus overt act in most jurisdictions.

Reasonable belief of imminent unlawful force. Non-deadly force: reasonable force to repel non-deadly attack. Deadly force: only against deadly force or serious bodily harm. Duty to retreat varies by jurisdiction.

One who aids, abets, or encourages principal with intent that crime be committed. Liable for target crime and all foreseeable crimes. Mere presence insufficient. Withdrawal requires repudiation and notice to principal.

Out-of-court statement offered to prove truth of matter asserted is inadmissible unless exception applies. Non-hearsay uses: impeachment, verbal acts, effect on listener, state of mind. Many exceptions exist.

Former testimony, dying declaration, statement against interest, statement of personal or family history. Declarant must be unavailable (death, privilege, refusal, lack of memory, or inability to procure attendance).

Present sense impression, excited utterance, state of mind, medical diagnosis statements, recorded recollection, business records, public records. No need to show declarant unavailable.

Generally inadmissible to prove conduct in conformity. Criminal defendant may offer pertinent trait; prosecution may rebut. Victim's character admissible in self-defense cases. Prior bad acts admissible for MIMIC purposes.

Evidence is relevant if it has any tendency to make a material fact more or less probable. Relevant evidence may be excluded if probative value substantially outweighed by unfair prejudice, confusion, or waste of time.

Attorney-client: confidential communications for legal advice. Spousal: testimonial (criminal) and communications privilege. Physician-patient (California). Psychotherapist-patient. Privilege holder can waive.

Court must have power over defendant. Traditional bases: presence, domicile, consent. Minimum contacts: purposeful availment plus reasonableness. Specific jurisdiction for claims arising from contacts; general for all claims.

Federal courts: federal question (arising under federal law) or diversity (complete diversity, amount exceeds $75,000). Cannot be waived. Supplemental jurisdiction for related state claims. Removal from state to federal.

Final judgment on merits bars relitigation of same claim between same parties. Claim includes all theories that could have been raised. Requires same transaction or occurrence. Promotes finality and efficiency.

Issue actually litigated and necessarily decided cannot be relitigated. Requires identical issue, actually litigated, necessarily decided, and final judgment. Mutuality not required in California for defensive use.

Granted when no genuine dispute of material fact and movant entitled to judgment as a matter of law. Burden on movant to show absence of dispute. Non-movant must present specific facts showing triable issue.

Requirements: numerosity, commonality, typicality, adequacy of representation. Types: injunctive/declaratory (23b2), limited fund (23b1), damages (23b3 requires predominance and superiority). Notice and opt-out rights vary.

Highest form of ownership with complete rights. Infinite duration, freely transferable, inheritable. Language: 'to A' or 'to A and her heirs.' No future interest in grantor. Most common estate in land.

Reversion: retained by grantor when granting lesser estate. Remainder: follows life estate in third party (vested or contingent). Executory interest: cuts short prior estate. Subject to Rule Against Perpetuities.

Right to use another's land. Created by express grant, implication, necessity, or prescription. Appurtenant: benefits dominant estate. In gross: benefits holder personally. Terminated by merger, release, abandonment, or end of necessity.

Race: first to record wins. Notice: subsequent BFP without notice wins. Race-notice: subsequent BFP who records first wins. California is race-notice. Notice types: actual, constructive (recorded), inquiry.

Acquire title through possession that is: actual, exclusive, open and notorious, adverse/hostile, and continuous for statutory period (5 years in California with payment of taxes). Color of title may reduce requirements.

Landlord: duty to deliver possession, implied warranty of habitability (residential), covenant of quiet enjoyment. Tenant: pay rent, avoid waste. Remedies: eviction, damages, rent withholding, repair and deduct.

Lawyer must provide competent representation requiring legal knowledge, skill, thoroughness, and preparation. Can become competent through study or associate with competent lawyer. Includes staying current on law and technology.

Lawyer shall not reveal information relating to representation without informed consent. Broader than attorney-client privilege. Exceptions: prevent death or substantial bodily harm, prevent client crime, establish defense, comply with court order.

Cannot represent client if directly adverse to another client or material limitation from other responsibilities. Concurrent conflicts: informed written consent if reasonable lawyer believes can provide competent representation. Former client conflicts.

Lawyer shall not knowingly make false statements of fact or law. Must disclose adverse controlling authority. Must take remedial measures if learns of client or witness perjury. Duty continues until matter concludes.

Must keep client property separate from lawyer's own (IOLTA accounts). Prompt delivery when due. Full accounting upon request. Commingling is grounds for discipline. Interest on trust accounts typically goes to legal aid.

Protects confidential communications between lawyer and client for purpose of legal advice. Client holds privilege. Survives client's death. Exceptions: crime-fraud, disputes between attorney and client. Different from ethical duty of confidentiality.

Mandatory withdrawal: representation will violate rules or law, lawyer's impairment. Permissive: client insists on objectionable conduct, fundamental disagreement, client fails to fulfill obligations. Must take steps to protect client interests.