Searching FREE answers key for all California Bar Exam topics? If YES, check below for the right answers:
NOTE: All California Bar Exam questions and answers to different topics below are checked twice before publishing them to you. So, please do share as well if it helps
- California Bar Exam Questions and Answers – 999+ Q&A Solved [+BONUS]
- California Bar Exam Questions and Answers – BOYS STATE
- California Bar Exam Questions and Answers – ESSAY Model
- California Bar Exam Questions and Answers – WILLS & TRUST
- California Bar Exam Questions and Answers – CIVIL PROCEDURE
- California Bar Exam Questions and Answers – EVIDENCE
- California Bar Exam Questions and Answers – PROPERTY LAW
- California Bar Exam Questions and Answers – PROFESSIONAL RESPONSIBILITY
- California Bar Exam Questions and Answers – TORTS
- California Bar Exam Questions and Answers – REMEDIES
- California Bar Exam Questions and Answers – CRIMINAL LAW
- California Bar Exam Questions and Answers – MORTGAGES
- California Bar Exam Questions and Answers – BUSINESS ASSOCIATIONS
- California Bar Exam Questions and Answers – CONTRACTS
- California Bar Examination [Previous Question Paper & Answers]
- About California Bar Exam
California Bar Exam Questions and Answers – 999+ Q&A Solved [+BONUS]
Below you can find the list of different questions and answers coming under the California Bar exam…
You can select any topic of your wish and get the answers for FREE:
California Bar Exam Questions and Answers – BOYS STATE
Find the answers below:
Q. What is the supreme law of the land?
Ans: The US Constitution
Q. What are the three branches of government?
Ans: Legislative “makes laws” – Executive “carries out laws” – Judicial “evaluates laws”
Q. Is it possible to amend the US Constitution by plebiscite?
Ans: Yes, the Amendments to state constitution are ratified by a vote of the people.
Q. How many amendments have been added to the US Constitution?
Ans: 27 amendments (as of 2017)
Q. When and how did California become a state?
Ans: California applied for statehood (1849) and became a state (September 9, 1850) after the treaty of Guadalupe Hidalgo was signed and Mexico gave the land to the US.
Q. When was the present-day California Constitution adopted?
Ans: Our present-day Constitution was adopted on May 7th, 1879.
Q. How many amendments have been added to the California Constitution?
Ans: The California Constitution has 512 amendments (as of 2017)
Q. What is an “ex post facto” law?
Ans: A law that makes illegal an act that was legal when committed, increases the penalties for an infraction after it has been committed, or changes the rules or evidence to make conviction easier.
Q. Which state official represents the state in court?
Ans: State’s attorney
Q. What is the difference between a civil and criminal suit?
Ans: A civil suit usually deals with private corporations or individuals in order to make money or a jail sentence. A criminal suit deals with a person who has committed a crime and is being treated to a court case.
Q. What are the duties of a Grand Jury?
Ans: To determine if there will be criminal charges brought against a convicted individual
Q. What are the duties of a Coroner’s Jury?
Ans: They are a body convened to assist a coroner in an inquest, to determine the identity of a deceased person
Q. At a trial, does a jury decide the points of fact or the points of law?
Ans: The points of fact, only a judge can decide points of law.
Q. Explain: acquittal, judgment, subpoena, warrant, recognizance, recidivist
Acquittal – a judgment where the person accused of the crime is free.
Judgment – the final verdict
Subpoena – a writ making someone attend a court
Warrant – a document issued by the government, allowing an individual to be searched, contained, etc
Recognizance – a bond a person undertakes before a court to observe a condition.
Recidivist – a convicted criminal who reoffends
Q. True or false: A bailiff is one who does not report for trial and forfeits bail
Q. Define: felony, misdemeanor, and indictment
Felony – a crime, typically involving violence and worst than a misdemeanor
Misdemeanor – a minor crime
Indictment – a formal accusation towards a person that committed a crime
Q. What courts can issue a Writ?
Ans: In California, the Superior Courts, District Courts of Appeal, and the Supreme Court may issue writs.
Q. How many court levels are there according to the CA Constitution? Name them.
Ans: 3 levels-
1. Superior Court
2. District Court of Appeal
3. California Supreme Court
Q. How many California Supreme Courts are there?
Q. How many California Supreme Court Justices are there?
Ans: 7 (including the Chief Justice)
Q. How do CA Supreme Court Justices get the job, and how long do they serve?
Ans: Appointed by the Governor, and they serve a 12-year term
Q. Is the CA Supreme Court a trial court or an appellate court?
Ans: Appellate court
Q. What cases does the CA Supreme Court hear?
Ans: The CA Supreme Court ONLY HEARS cases it chooses to hear. The ONLY EXCEPTION to this is in cases of death penalty convictions (they hear all of these)
Q. How does an amendment occur to the CA Constitution?
Ans: It can occur in two different ways-
1. An amendment may be proposed by either house (Assembly or State). If it’s agreed upon by 2/3 in each house, it then is submitted directly to the electors of the State for their approval and ratification by a majority vote of the people
2. By the People: The electors may amend the Constitution by initiative
Q. How many US Representatives are from CA? How long is each representative’s term?
Ans: 53 and they serve two-year terms
California Bar Exam Questions and Answers – ESSAY Model
Find the answers below:
Q. Duty of Competence
Ans: A lawyer shall represent the client with the legal knowledge, skill, thoroughness and preparation reasonably necessary. Includes mental and physical. May associate with another attorney or study to become competent.
Q. Conflict of Interest (Concurrent, General Rule)
Ans: The general rule is that the lawyer may not represent a client where there is a conflict of interest.
Q. Conflict of Interest (Between Current Clients)
Ans: A concurrent conflict of interest exists if the representation of one client is directly adverse to another client.
Q. Conflict of Interest (Between Current Client and Another)
Ans: A concurrent conflict of interest exists if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.
Q. ABA Exceptions to Concurrent Conflicts
Ans: Lawyer reasonably believes he will be able to provide competent and diligent representation to each client, the representation is not limited by law, the clients are not asserting a claim against each other and each client gives informed written consent.
Q. CA Exceptions to Concurrent Conflicts
Ans: May still represent where there is informed written consent.
Q. Written Disclosure
Ans: Lawyer may still represent client with only written disclosure where the conflict results from the lawyer’s relationship with a party or witness in the same matter. ABA requires written consent.
Q. Aggregate Settlements
Ans: A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims or an aggregate plea unless each client gives informed written consent.
Q. Insurance (California Rule)
Ans: Lawyers are permitted to represent both insurers and clients whereby the insurer has the contractual right to select counsel for the insured, resulting in no conflict of interest.
Q. Common Law vs. UCC
Ans: UCC covers all contracts for the sale of goods. Common law governs all other contracts.
Q. UCC Trigger
Ans: Sale of goods, which are movable, tangible property.
Q. UCC Merchant
Ans: A UCC merchant is someone who deals in goods of the kind or holding oneself out to have special knowledge or skills. Special rules apply for merchants.
Q. Duty of Confidentiality (General Rule)
Ans: A lawyer shall not reveal information relating to the representation of a client, unless the client gives informed consent.
Q. Duty of Confidentiality (ABA Only Exceptions)
Ans: Implied authorization, reasonably necessary to prevent death or substantial bodily harm, to prevent, mitigate or rectify crime or fraud resulting in substantial financial injury if client has used lawyer’s services to do so, to secure legal advice about lawyer’s compliance with rules, to establish claim or defense between lawyer and client and to comply with another law or court order.
Q. Duty of Confidentiality (CA – Death or Bodily Injury)
Ans: Optional and only after making good faith effort to dissuade and informing client of lawyer’s ability to report.
Q. Elements of a Valid Contract
Ans: Mutual assent, which consists of an offer, acceptance and consideration.
Q. Essential Terms of a Valid Contract
Ans: QTIPS – Quantity, Time of performance, Identity of the parties, Price and Subject matter
Q. Statute of Frauds
Ans: Contracts that are unenforceable unless in writing – Marriage, Interest in real property over a year, Promise to pay debt of another, Contract incapable of being performed within one year of making, Sale of goods $500 or more.
Q. Statute of Frauds Mnemonic
Ans: Mr. Sour- Marriage, Sureties (including executor’s promise to pay for the estate’s debt), One Year, UCC over $500, Real Property
Q. Types of Standing
Ans: Individual, third-party, organizational, taxpayer
Q. Individual Standing
Ans: Must prove actual or imminent injury, caused by the conduct complained of, which would likely be redressed by favorable decision.
Q. Third-Party Standing
Ans: Must prove individual standing, a special relationship between plaintiff and third party and that it is difficult for the third party to assert his own rights.
Q. Organizational Standing
Ans: Must prove members have standing in their own right, interests are related to organizational purpose and the case does not require participation of individual members.
Q. Taxpayer Standing
Ans: Federal taxpayer has standing to sue over federal tax or spending program which violates the Establishment Clause.
Q. Contract Remedies (General types)
Ans: Legal damages, legal restitution, equitable remedies, injunction
California Bar Exam Questions and Answers – WILLS & TRUST
Get the answers by clicking the below link:
Q. Issue Checklist – Wills
Ans: Validity, Components, Revocation, Revival, Distribution, Intestate Distribution
Q. A valid will must:
Ans: Meet the requirements of 1. writing 2. signed, and 3. witnessed
Q. The will requires the signature of two witnesses who:
Ans: 1. Know the document is a will 2. Both are present at the same time to witness
Q. If witness requirements are not satisfied, the will can still be treated as properly executed if the proponent establishes:
Ans: By clear and convincing evidence that the testator intended the document to be his will at the time that he signed it
Q. An interested witness creates a rebuttable presumption that:
Ans: The witness procured the devise by duress, menace, fraud, or undue influence UNLESS there are two other uninterested witnesses
Q. if the holographic will does not have a date and there is doubt as to whether it or another will controls:
Ans: The holographic will is invalid to the extent of any inconsistencies
Q. An individual is not mentally competent if at the time the will is made, he is unable to understand:
Ans: 1. Nature of testamentary act 2. situation of his property or 3. relations with family members that are affected by the will.
Q. Common Law Undue Influence is Found When:
Ans: (SOUP) 1. testator was Susceptible 2. beneficiaries had Opportunity to influence 3. Unnatural disposition of property 4. beneficiaries were active in Procuring disposition
Q. California Statutory Undue Influence is Found When:
Ans: (Every Powerful Car Operates From Inside VIA An Ignition) 1. Excessive Persuasion 2. Causes another person to Act or Refrain from acting 3. by overcoming that person’s Free will 4. resulting in Inequity. The court can consider Vulnerability, Authority of influence, and Acts of Influencer
Q. Fraud or undue influence is presumed when transfer is to:
Ans: 1. Drafter 2. Fiduciary who transcribed 3. Care custodian 4. Cohabitant or Employee of 1-3
Q. There are exceptions to the presumption of fraud when:
Ans: 1. Blood relative or cohabitant 2. $5,000 or less 3. Independent Attorney Reviews 4. Clear and convincing evidence otherwise
Q. A written will is validly executed if it complies with the law of:
Ans: 1. Domicile at death 2. Domicile at time of execution 3. State of execution
Q. Papers will be integrated if they were:
Ans: 1. Present at the time of the execution of the will 2. testator intended them to be part of the will
Q. A writing outside the will may be incorporated by reference into the will if:
Ans: 1. Writing existed at time the will was executed 2. Will manifests intent to incorporate it and 3. writing is sufficiently described so that it is identifiable
Q. CA Special Rule for Limited Tangible Personal Property:
Ans: A writing, even if it cannot be incorporated by reference, may be admitted to probate when it was referenced in the will, is dated, either in testator’s handwriting or signed by him, describes items and beneficiaries with reasonable certainty, and each item doesn’t exceed $5,000 (total value no more than $25,000)
Q. A will may dispose of property by reference to acts and events if:
Ans: They have independent legal significance apart from their effect on the will
Ans: An amendment to an existing will made by the testator to change, explain or republish the will.
Q. Pour-Over Will:
Ans: A will that identifies a trust created by the testator into which he can pour over his probate assets if less than $100,000
Q. A Pour Over Will is valid if:
Ans: 1. Trust is identified in the will 2. terms are set forth in an instrument other than the will and 3. Trust was executed concurrently or before the will execution
Q. Revocation by Physical Act Includes:
Ans: Will being burned, torn, canceled, destroyed, or obliterated WITH the simultaneous intent to revoke it
Q. Presumed revoked:
Ans: It is presumed that the testator destroyed the will with the intent to revoke it if the will was last in the testator’s possession and he was competent until death
Q. Crossing out a gift
Ans: Cannot increase the remaining beneficiary’s gift. The remaining portion goes to will’s residue.
Q. A device is revoked by operation of law to accommodate:
Ans: An unintentionally omitted spouse or child or subsequent domestic partner, or to remove all devices to a previous spouse/domestic partner after dissolution
Q. Omitted Spouse or domestic partner will receive an intestate share if they were married after the will was made unless
Ans: 1. Intentionally omitted as evidenced by the face of the will 2. Otherwise provided for outside the will with an intent to do so in lieu of a will 3. Waived through valid agreement
Q. Omitted children will receive an intestate share if they were born or adopted after the will was made unless:
Ans: 1. Intentionally omitted as evidenced by the face of the will 2. Otherwise provided for outside the will with an intent to do so in lieu of a will 3. Devised substantially all of the estates to the other parent of the omitted child
Q. Dependent Relative Revocation
Ans: Testator revokes his first will on the mistaken belief that a substantially similar second will or codicils would be effective, but it is not effective at death, and but for the mistake, the testator would not have revoked the will
Q. DRR is not applicable when:
Ans: the second will is invalid due to fraud, duress, menace, undue influence, or ineffective execution
Q. Demonstrative Legacy:
Ans: A general gift that specifies the property or a particular fund from which the gift should be made
Q. Residuary Gift:
Ans: What remains of the estate after all other gifts have been satisfied and debts and taxes are paid
Q. Ademption arises when
Ans: the specific gift devised has changed form from that identified in the will or no longer exists
Q. Ademption by extinction arises when
Ans: The specified item identified in the will is not part of the estate at the time of the testator’s death
Q. A gift adeems by satisfaction when
Ans: (i) the testator’s will provides for a deduction of a lifetime gift (ii) the testator or beneficiary declares in writing that the gift has been satisfied or (iii) the same property is given to the beneficiary during his lifetime
Q. Order of gift abatement
Ans: Property not disposed of in will, residuary gifts, general gifts to nonrelatives, general gifts to relatives, specific gifts to nonrelatives, specific gifts to relatives
Q. Exoneration applies when a gift of property is made that
Ans: is subject to an encumbrance, and the will requires that the encumbrance to be paid off so that the devisee takes property free and clear
Q. Lapse and antilapse rules apply when:
Ans: the persons taking under a will are no longer alive at the time of the testator’s death
Q. Traditional Lapse Rule:
Ans: When a beneficiary predeceases the testator, the gift to the beneficiary lapses and falls to the residue
Q. Antilapse Modern/CA Rule:
Ans: When a beneficiary predeceases, the issue of the beneficiary takes his place, unless a contrary intention appears in the will (kindred only)
Q. Trust Definition:
Ans: A relationship in which a trustor gives a trustee the right to hold legal title to the property under a fiduciary duty to manage, invest, and safeguard the trust assets for the benefit of the designated beneficiary.
Q. A trust can be created by:
Ans: (i) declaration by a property owner that he holds the property as trustee (ii) transfer of property during the owner’s lifetime to another as trustee (iii) transfer of property by means of a will (iv) an exercise of a power of appointment to another person as trustee (v) an enforceable promise to create a trust
Q. Requirements for a Valid Trust:
Ans: (i) intent (ii) identifiable property (iii) lawful purpose (iv) an ascertainable beneficiary
Q. The existence of an oral trust of personal property must be established by:
Ans: Clear and convincing evidence
Q. Express Trust:
Ans: Property is transferred from one owner to another, such that a trustee holds legal title for the benefit of a beneficiary, with the settlor having a present manifestation of intent to create the trust for a legal purpose
Ans: A trust is created by a will, and the will contains the material provisions of the trust, and the trust arises upon the death of the testator
Q. Pour Over Trust
Ans: Structured to receive and dispose of assets at the settlor’s death
Q. Secret Trust:
Ans: The settlor leaves a gift to the beneficiary on the face of the will without indicating an intent to create a trust in the will, but does so in reliance on a promise that the beneficiary will hold the property in trust for another
Ans: Occurs when the settlor leaves a gift in his will to a person in trust but does not identify the beneficiary of the trust (majority rule= invalid)
Q. Spendthrift Trust:
Ans: occurs when the beneficiary cannot voluntarily alienate his interest such that his interests are protected from creditors unless for necessities, alimony and child support, or government creditors
Q. Support Trust
Ans: Directs the trustee to make limited distributions to pay for the beneficiary’s support, health, maintenance, or education and is not accessible by creditors to the extent that it would interfere with support
Q. Discretionary Trust
Ans: Gives the trustee discretion to distribute or withhold payments, principal, or income to the beneficiary
Q. Charitable Trust
Ans: A trust for charitable purposes and benefits society
Q. Cy Pres Doctrine
Ans: When a charitable objective becomes impossible or impracticable, courts substitute another similar charitable object to match settlor’s intent (otherwise apply a resulting trust)
Q. Honorary Trust
Ans: There is neither a private beneficiary nor a charitable purpose. Generally, these are invalid except to care for pets or maintain cemetery plots
Q. Totten Trust
Ans: The settlor places money in a bank account with instructions that the named beneficiary takes any amount left at death
Q. Resulting Trust
Ans: a trust implied in law from the intentions of the parties to a given transaction and transfers the property back to the settlor upon the occurrence of certain events
Q. Constructive Trust
Ans: Applied as a remedy to prevent unjust enrichment
Q. Powers of the trustee:
Ans: Trustees have all enumerated powers expressed in the trust itself and pursuant to the law. Trustees have all the implied powers necessary and appropriate to carry out the terms of the trust.
Q. Duties of the Trustee:
Ans: (AND I DID SLIDE) (i) Account (ii) Not Delegate (iii) Impartial (iv) Due care (v) Investigate /Diversify/ Segregate (vi) Loyalty (vii) Invest (viii) Defend (ix) Enforce
Q. Common Law Statutory Prudent Investments
Ans: Federal Bonds, Federally Insured CDs, first deeds of trust in real estate, and stock of publicly traded corporations
Q. Liabilities of the Trustee:
Ans: A trustee is personally liable for (i) violations of trustee duties (ii) torts committed by him or an agent (iii) contracts made within the scope of trust supervision
Q. Liabilities of Third Parties:
Ans: 1. Transfer of property to a BFP cuts off beneficiary’s interest and 2. a third party who knowingly receives trust property will hold property as a constructive trustee and will be liable for any losses
Q. Modification/Revocation of the Trust (Majority Rule)
Ans: A settlor can modify or revoke the trust only if the power is expressly reserved in the trust
Q. Modification/Revocation of the Trust (Minority/CA Rule)
Ans: Trusts are revokable unless stated otherwise
Q. Termination by a Trustee:
Ans: A trustee has no power to terminate except as provided in the trust
Q. Termination by Beneficiary:
Ans: A beneficiary may compel termination of the trust if they are all competent, all consent, and termination does not frustrate the purpose of the trust
Q. Termination by Settlor:
Ans: A settlor can terminate the trust if he reserved the power to do so
Q. Termination by Court:
Ans: A Court can terminate the trust if the purpose becomes frustrated, impossible, or illegal, or there are changed circumstances
>> Find more answers here <<
California Bar Exam Questions and Answers – CIVIL PROCEDURE
Find the answers below:
Q. Multiple claims by same π
Ans: If all claims are based on diversity, total value of claims is AIC. If one claim is based on fed’l Q jdx, nonfederal claim(s) may be joined only if diversity jdx exists or if same T/O as fed’l Q claim(s) (in which case, supplemental jdx applies).
Q. Multiple πs and 1 ∆
Ans: Can only aggregate if enforcing a single title or right to which they have a common or undivided interest. If separate and distinct claims, supp. jdx applies (so if one π meets AIC and common nucleus of operative fact, ct has jdx).
Q. 1 π and multiple ∆s
Ans: Can aggregate div jdx claims if same T/O.
Q. Joinder of parties
Ans: Compulsory: no supplemental jdx.
– Supplemental jdx applies for joining π’s (need only b diverse and 1 π must beet AIC req).
– No supplemental jdx for joining ∆s.
– Intervention as of right: no supplemental jdx.
– Permissive intervention: no supplemental jdx.
Ans: Rule interpleader: no supplemental jdx. Statutory interpleader: special supplemental jdx ($500 AIC, nationwide service, and at least two adverse claimants citizen of different states – claimants don’t include person who filed the action).
Q. Joinder of claims
Ans: If original claim based on diversity: supplemental jdx applies. If original claim is based on fed’l Q jdx, nonfederal claim may be joined only if diversity jdx exists or if same common nucleus of operative fact (in which case, supplemental jdx applies).
– Compulsory: supplemental jdx applies.
– Permissive: no supplemental jdx.
Ans: Supplemental jdx applies.
Ans: Supplemental jdx applies to ∆ v. 3P-∆, and no need for ∆ and 3P-∆ to be diverse.
Q. Class actions
Ans: Supplemental jdx applies. Class Action Fairness Act of 2005: (1) class involves at least 100 members; (2) primary ∆s are not states; (3) aggregate AIC exceeds $5M; (4) minimum diversity exists (one π diverse from one ∆ – need not be named π).
Q. Arising under jdx – standard
Ans: Well-pleaded complaint rule
Q. Removal requirements for diversity jdx case
Ans: A case may be removed to federal court if the case COULD HAVE BEEN BROUGHT in federal court, all the defendants AGREE to it, and the motion is filed within 30 DAYS of service of the document that first made the case removable. For diversity jdx cases, removal only proper if NO ∆ IS A CITIZEN of state of removal.
Q. CA 3 categories of SMJ
Ans: Small claims, limited claims, unlimited claims
Q. CA SMJ reclassification standards
Ans: From limited to unlimited if there is a POSSIBILITY that verdict might be above $25,000. From unlimited to limited if verdict will NECESSARILY be $25,000 or below.
(1) Basis for exercising jdx
-Traditional bases – physical presence, domicile, consent;
(2) Const’n permits?
-Minimum contacts – purposeful availment, foreseeability, relatedness;
-Fair play and substantial justice – interest of forum state in adjudicating, burden on ∆, judicial efficiency, shared interests of both states.
(1) Is venue in original district proper?
-where any ∆ resides if all ∆s reside in same state
-where substantial part of events/omissions occurred
-where prop subject to action is located
-fallback = where any ∆ subject to PJ;
(2) Should case be transferred?
-appropriate venue, PJ, SMJ.
Q. Choice of law inquiry
(1) Is there a conflict b/w fed’l and state law?
-If no conflict–> apply both.
-If conflict–> (2)
(2) Is there a fed’l statute directly on point?
-If fed’l law directly on point–> (3)
-If no fed’l law directly on point –> (4)
(3) Does the fed’l law abridge, enlarge, or modify a substantive right? [Answer is never yes] If no–> apply fed’l law.
(4) Would the failure to apply state law change the outcome of the case? If yes–> apply state law. If no–> apply fed’l common law.
Q. CA choice of law standard – torts
Ans: Look to comparative governmental interest
Q. CA choice of law standard – contracts
Ans: If no choice-of-law clause, ct applies a comparative government interest standard.
Q. Standard for service of process
Ans: Reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action…
Q. Sufficient service of process under FRCP
Ans: List includes-
a. PERSONALLY SERVING summons and complaints on ∆;
b. Leaving the summons and complaint at the defendant’s usual place of ABODE with a person of SUITABLE AGE and DISCRETION who RESIDES there; or
c. Delivering the summons and complaint to an AGENT appointed by ∆ or otherwise authorized by law to receive service.
d. Can also apply law of state in which court sits.
Q. CA standard of pleading
Ans: Fact pleading
Q. TRO w/o notice standard
Ans: (1) IMMEDIATE AND IRREPARABLE INJURY will result prior to hearing adverse party’s opposition; and (2) movant’s atty certifies in writing any EFFORTS made to give notice and reason why notice shouldn’t be required.
Q. Preliminary injunction standard
Ans: (1) likelihood of success on the merits; (2) irreparable injury; (3) balance of hardships in π’s favor; (4) public interest.
Q. MTD standard
Ans: Viewing pleading in light most favorable to π and drawing all inferences in π’s favor, π failed to assert legal theory of recovery COGNIZABLE at law or allege facts sufficient to support cognizable claim.
Q. Amendment rules
Ans: Granted once as of right if timely (w/in 21 days) and then by leave of court. Generally, court will first determine if proposed amendment to pleading would be futile b/c it would immediately be subject to dismissal under Rule 12(b)(6). If not, amendment will be permitted unless would result in undue prejudice to opposing party.
Q. Relation back – adding new claim
Ans: Permitted if (1) original complaint was timely; and (2) new claim arises out of same T/O.
Q. Relation back – adding new party
Ans: Permitted if (1) concerns same conduct, T, or O as original pleading; (2) new party received notice of action w/in 90 days of original complaint; and (3) party to be added knew or had reason to know that action should have been brought against party but for mistake.
Q. Additional CA requirements for relation back
Ans: Amended pleading must (1) concern same accident and injuries and (2) refer to same offending instrumentality.
Q. Compulsory joinder – standard for necessary party
Ans: (1) court cannot afford COMPLETE RELIEF w/o the party; (2) Disposition in absence of that person MAY IMPAIR person’s ability to protect interest; or (3) absence of that person would leave existing parties subject to substantial risk of MULTIPLE OR INCONSISTENT OBLIGATIONS.
Q. Compulsory joinder – standard for truly indispensable party
Ans: (1) Extent to which judgment w/o party would PREJUDICE them or existing parties; (2) Extent to which protective measures could PREVENT PREJUDICE; (3) Whether a judgment rendered in party’s absence would be ADEQUATE; and (4) Whether π would have ADEQUATE REMEDY if action were dismissed for nonjoinder.
Q. CA req for joinder of claims
Ans: There must be at least one Q of law or fact common to all ∆s.
Q. Class actions standard
Ans: CAN’t Risk Failing in Court: (1) common Qs of law or fact, (2) adequacy of rep by class reps’ lawyers, (3) numerosity, and (4) typicality of claims by class reps; (A) risk of unfair prejudice; (B) final equitable relief; (C) common Q of law and fact predominate.
Q. Scope of discovery
Ans: Discovery is generally permitted with regard to any matter relevant to any party’s claim or defense in the action that is not otherwise privileged. Information may be discoverable if it “appears REASONABLY CALCULATED to lead to the discovery of admissible evidence.”
Q. Work Product Privilege
Ans: DAB: party can’t discover (1) DOCUMENTS and things (2) prepared in ANTICIPATION of litigation (not before cause of action arose); (3) BY OR FOR another party or her representatives unless SUBSTANTIAL NEED need and can’t, without UNDUE HARDSHIP, obtain substantial equivalent by other means.
Q. Right to voluntary dismissal
Ans: π has right to voluntary dismissal once at any time prior to ∆ serving answer or motion for SJ. If ∆ files MTD, π still has right to voluntary dismissal if before answer. After that, may seek dismissal w/o prejudice on leave of court.
Q. Exceptions to rule that involuntary dismissal is with prejudice
Ans: (1) lack of PJ; (2) improper venue; (3) failure to join necessary party; (4) failure to timely serve.
Q. SJ standard
Ans: Viewing pleading in light most favorable to nonmovant and drawing all inferences in nonmovant’s favor, no genuine issue of material fact and movant is entitled to judgment as a matter of law. In other words, no reasonable jury could find for the other party.
Q. CA requirements for number of jurors and unamimity
Ans: 12, unless parties agree to fewer. Only need 3/4 to convict.
Q. When can JMOL motion be made?
Ans: Any time before case is submitted to the jury.
Q. JMOL standard
Ans: Viewing pleading in light most favorable to nonmovant and drawing all inferences in nonmovant’s favor, no genuine issue of material fact and movant is entitled to judgment as a matter of law. In other words, no reasonable jury could find for the other party.
Q. Interlocutory orders not immediately appealable except:
Ans: (1) injunctions; (2) an order appointing or refusing to appoint a receiver; and (3) certain admiralty cases.
Q. Standards of review for: jury verdict, judge’s finding of fact, judge’s conclusion of law
Ans: jury verdict = substantial evidence
judge’s finding of fact = clearly erroneous
judge’s conclusion of law = de novo
Q. Claim preclusion requirements
Ans: (1) final judgment on the merits; (2) sufficiently identical parties; (3) sufficiently identical cause of action.
Q. CA claim preclusion differences
Ans: (1) judgment final when appeal concludes, not when decision is rendered; (2) primary rights doctrine to determine whether same claim, not transactional approach.
Q. Issue preclusion requirements
Ans: IAN Freaking Enjoys Preclusion: (1) same issues of fact; (2) issue was actually and (3) necessarily decided; (4) final, valid judgment; (5) essential to the judgment; (6) party to be precluded must have been party to first suit.
California Bar Exam Questions and Answers – EVIDENCE
Find the answers below:
Q. Logical RELEVANCE
Ans: Evidence is logically relevant if it has any tendency to make the existence of any fact of consequences to the determination of the action more or less probable than it would be without the evidence. CA: Same as Federal Rule: Under the CEC, evidence is logically relevant if it tends to prove or disprove a material fact in dispute.
Q. Legal relevance
Ans: logically relevant evidence may be excluded if the probative value of the evidence is outweighed by its prejudicial effect. If the court finds that the probative value of the evidence outweighs its prejudicial effect, the evidence should be admitted.
Q. DISCRETIONARY EXCLUSION
Ans: A trial judge has discretion to exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or waste of time. CA: Same as Federal Rule. Proposition 8 makes all relevant evidence admissible in criminal cases subject to CEC 352 balancing and a few other exceptions.
Q. LIABILITY INSURANCE
Ans: Evidence of liability insurance is not admissible to prove negligence or ability to pay but is admissible to prove ownership or control or to impeach a witness. CA: Same as Federal Rule.
Q. SUBSEQUENT REMEDIAL MEASURES
Ans: Evidence of safety measures or repairs after an accident is inadmissible to prove negligence or to prove defective design in a product liability case but it is admissible to prove ownership or control, to rebut a claim of no feasible precaution, or to prove the destruction of evidence. CA: Same as Federal rule except it does not apply in product liability cases. Thus, evidence that a product was redesigned is admissible to prove the original design was defective because it is not offered to prove negligence.
Q. SETTLEMENT OFFERS
Ans: Evidence of offers to settle a claim disputed as to validity or amount is inadmissible to prove liability or fault. Statements made during settlement discussions are also inadmissible. CA: Same as Federal Rule. This also applies to discussions during mediation proceedings.
Q. OFFERS TO PAY MEDICAL EXPENSES
Ans: Evidence of payments or offers to pay medical expenses is inadmissible to prove liability for the injuries in question. Accompanying admissions of fact, however, are admissible. CA: Same as Federal Rule except accompanying admissions of fact are inadmissible.
Q. WITHDRAWN GUILTY PLEAS
Ans: Evidence of withdrawn guilty pleas, offers to plea, and related statements are inadmissible. CA: Same as Federal Rule. Whether Proposition 8 would make such evidence admissible in a criminal case is unclear.
Q. EXPRESSIONS OF SYMPATHY
Ans: No corresponding Federal Rule. CA: Expressions of sympathy relating to the pain, suffering, or death of an accident victim are inadmissible in civil cases. However, accompanying statements of fault are admissible.
Q. CHARACTER EVIDENCE
Ans: Character evidence goes to the general character of a person and conveys a moral judgment. Habit evidence, by contrast, describes a person’s regular response to a specific set of circumstances and conveys no moral judgment. CA: Same as Federal Rule.
Q. Leading question
Ans: A leading question is one that suggests the answer. Leading questions are not allowed on direct examination.
Ans: A non-responsive answer is one that provides more information in the answer than what is asked for.
Ans: An admission is a statement made or an act done that amounts to a prior acknowledgment by one of the parties of one of the relevant facts.
Q. Proposition 8
Ans: Proposition * is part of the California Constitution. Under Prop 8, all relevant evidence is admissible in California Criminal Cases unless the evidence falls within an exemption.
Q. Exemption under Prop 8
Ans: Proposition 8 does not affect the admissibility of this evidence since all privileges that were in existence in 1982 as well as all those added by the legislature since are exempt from Proposition 8.
Ans: Witnesses must have the capacity to observe, recollect, communicate, and swear or affirm to tell the truth.
Q. BEST EVIDENCE RULE
Ans: Applies only when evidence offered to prove material terms of writing, defined broadly to include any collection of data in tangible form. Original writing must be produced, subject to many exceptions.
Q. JUDICIAL NOTICE
Ans: FRE: The Court may take judicial notice of a fact when such a fact is a matter of common knowledge in the community or is easily verifiable from sources of undisputed accuracy. Judicially noticed facts are conclusive in civil cases but jury may disregard in criminal cases.
Q. LAY OPINION TESTIMONY
Ans: Inadmissible unless:
-Rationally based on the witness’s perception;
-Helpful to a clear understanding of his testimony; and
-Not based on scientific, technical, or other specialized knowledge.
Q. EXPERT OPINION TESTIMONY
Ans: An expert may state an opinion or conclusion provided that:
-Subject matter is appropriate for expert testimony and opinion is helpful to jury;
-Witness is qualified as expert;
-Witness believes in opinion to a reasonable degree of certainty; and
-Opinion is reliable and supported by proper factual basis.
Q. AUTHENTICATION of DOCUMENTARY EVIDENCE
Ans: FRE: Prior to being admitted, writing or other physical evidence must be authenticated by proof showing it is what the proponent claims it to be.
Q. CHARACTER EVIDENCE offered in CRIMINAL case to prove VICTIM’S conduct
Ans: Inadmissible unless:
-Defendant opens door by offering evidence of victim’s bad character.
-OT and RT admissible on direct examination
-OT, RT, and SIC admissible on cross-examination.
Q. IMPEACHING with PRIOR INCONSISTENT STATEMENT of WITNESS
Ans: Admissible but limited to impeachment purposes (cannot be used as substantive evidence) unless made under oath in prior legal proceeding, in which case it is admissible non-hearsay.
Q. IMPEACHING with evidence of SIC/BAD ACTS
Ans: Witnesses can be asked on cross-examination about SIC/bad acts (for which there was no conviction) that bear on character for truthfulness (i.e., acts of lying), subject to court’s discretion to balance unfair prejudice vs. probative value. Extrinsic evidence is not permitted.
Q. IMPEACHING with evidence of CHARACTER FOR UNTRUTHFULNESS
Ans: OT and RT that bears on the witness’s truthfulness or untruthfulness are always admissible.
California Bar Exam Questions and Answers – PROPERTY LAW
Find the answers below:
Q. Adverse Possession
Ans: Allows one who has wrongfully entered a property to obtain possession of that property where there has been (i) actual exclusive possession (ii) which is open and notorious (iii) and the possession is (iv) hostile (v) continuously for the statutory period.
Q. Open and notorious use is satisfied if
Ans: the use is sufficiently open to put the true owner on notice of the trespass by the adverse possessor
Q. Hostile Possession
Ans: Possession must be without the owner’s consent
Q. Ouster occurs when
Ans: a co-tenant claims an exclusive right to possession and refuses to occupy his co-tenant
Q. Seasonal use of a property may still satisfy the continuous possession element if
Ans: this is the way a typical owner of similar property would use the land
Ans: One adverse possessor may tack on to his time with the land his predecessor’s time, so long as there is privity.
Q. Merger Doctrine (Real Property)
Ans: The contract for the conveyance of an interest in real estate typically governs the agreement until the time of closing, at which time the deed becomes the operative document governing the land transfer
Q. The contract for the sale of land can be taken out of the SOF if:
Ans: (i) Possession of the land by the purchaser, (ii) Substantial improvements are made on the premises, or (iii) Payment for part or all of the purchase price.
Q. Marketable title is:
Ans: Title free from reasonable doubt about the seller’s ability to convey what he purports to convey
Q. Doctrine of Equitable Conversion
Ans: Under this doctrine, once the contract is signed equity treats the property as buyer’s land and therefore buyer bears the risk of loss. The doctrine does not apply if the seller is at fault.
Ans: A financing arrangement that conveys a security interest in land where the parties intend the land to be collateral for the repayment of the money obligation. A mortgage typically must satisfy the statute of frauds.
Ans: Document that serves to pass legal title from the grantor to the grantee when it is lawfully executed and properly delivered. A deed requires-
(i) Identification of the parties
(ii) in writing and signed by the grantor
(iii) Adequate description of the property
(iv) Words of intent
(v) no consideration required
Q. Quitclaim Deed
Ans: A deed to relinquish any interest in property which the grantor may have, without any warranty of title or interest
Q. Purchase Money Mortgage
Ans: A note secured by a mortgage or deed of trust given by a buyer, as borrower, to a seller, as lender, as part of the purchase price of the real estate.A PMM receives priority over non-PMM mortgages, but may not also get a deficiency judgment.
Q. General Warranty Deeds contain the following covenants:
Ans: (i) Seisin, (ii) Right to convey, (iii) Against encumbrances, (iv) Warranty of title, (v) Quiet enjoyment, (vi) Further assurances
Q. Warranty of seisin:
Ans: Grantor warrants he owns what he purports to own
Q. Right to convey
Ans: Power to make the conveyance
Q. Against Encumbrances:
Ans: No mortgages, liens, easements, or use restrictions on the land
Q. Warranty of Title:
Ans: Grantor promises to defend should there be any lawful claims asserted by others
Q. Quiet Enjoyment:
Ans: Grantor promises grantee will not be disturbed in possession by any third parties’ claims of title
Q. Further Assurances:
Ans: Grantor will do whatever future acts are reasonably necessary to perfect title
Q. Bona fide purchaser
Ans: One who takes for value and is without notice of the prior interest
Q. Actual notice arises when
Ans: the buyer has actual subjective knowledge of a prior, unrecorded interest
Q. Inquiry Notice occurs when
Ans: the purchaser of property is in possession of facts, or could make an inspection of property, which would lead a reasonable person to make further inquiry
Q. Record notice occurs when
Ans: the prior interest was properly recorded in the chain of title
Q. Estoppel by Deed:
Ans: If one purports to convey an interest in realty that he does not own, but he subsequently obtains an interest in that realty, the estate will automatically transfer to the grantee
Q. Shelter Doctrine:
Ans: One who takes from a BFP will stand in the shoes of the BFP and can prevail against any entity against which the transferor-BFP would have prevailed in his own action
Q. Fee simple absolute
Ans: Conveys absolute ownership of potentially infinite duration. There is no future interest.
Q. Fee simple determinableAns: automatically terminates at the occurrence of a specified event. Creates a possibility of reverter for the grantor.
Q. Fee Simple Subject to Condition Subsequent
Ans: carries the possibility of terminating at the occurrence of a specified event. Creates a right of reentry.
Q. Fee simple subject to an executory interest
Ans: Automatically terminates a preceding estate at the occurrence of a stated event, but the estate then passes to a third person, rather than reverting to the grantor.
Q. Life Estate (+ pur autre vie)
Ans: An interest that lasts for the lifetime of the identified party. A life tenant has a duty not to commit waste on the property.
Q. Vested Remainder
Ans: created in ascertained person and not subject to condition precedent
Q. Contingent Remainder
Ans: Created in unborn or unascertained persons, or subject to a condition precedent
Q. Rule Against Perpetuities
Ans: No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest
Q. Joint Tenancy
Ans: Two or more people hold a single, unified interest in property with the right of survivorship
Q. Automatic Right of Survivorship
Ans: At the death of one joint tenant, the remaining joint tenant automatically becomes the owner of the deceased joint tenant’s interest
Q. Tenancy in Common
Ans: Concurrent estate where two or more own a property with no right of survivorship
Q. Duty to Account for Profits and Losses
Ans: A co-tenant in possession has no duty to account to another co-tenant for (i) rental value of his own occupancy (ii) any profits retained from personal use of the land. Rents collected from third parties or profits from exploitation of the land must be shared. A co-tenant may not seek contribution for any losses.
Q. Ouster arises when
Ans: A co-tenant has refused occupancy to another co-tenant and claims an exclusive right to possession. The co-tenant must account to the ousted tenant for the fair rental value of the premises.
Q. Co-Tenant Improvements
Ans: Co-tenants have no right to reimbursement for improvements but can seek contributions for necessary repairs
Q. Partition occurs when
Ans: through voluntary agreement or judicial action if in the best interest of all parties, the property is divided, or ordered sold and the proceeds distributed
Q. Tenancy for Years
Ans: refers to any lease for a fixed period of time. Must satisfy the statute of frauds if for more than one year and automatically terminates at the end of the stated time period
Q. Periodic Tenancy
Ans: Automatically continues from one period to the next, unless one of the parties terminates the lease by giving notice of termination. Written notice is required to terminate a periodic tenancy.
Q. A holdover tenant is one whose
Ans: lease has terminated but who remains on the premises and tenders rent, which the landlord accepts. Considered to have a periodic tenancy with the time period of the previously expired lease.
Q. Tenancy at Will
Ans: Tenancy for no fixed period of time, which can be terminated at any time
Q. Tenancy at Sufferance
Ans: tenant fails to leave property after termination of lease. When a tenant holds over, the landlord has the option to evict the tenant or hold him over to another term as a tenant with a periodic tenancy
Ans: A landlord may not evict through self-help. A landlord must evict through the courts or continue the rental relationship, give notice, and sue for damages.
Q. Common Law Condition of Rental Premises
Ans: Tenant takes premises “as is” and the landlord has no duty to repair or make the premises fit or habitable
Q. Modern View of Condition of Rental Premises
Ans: Landlord must maintain all common areas, fix latent defects of which the landlord has knowledge, and, if the landlord chooses to make repairs, he must make repairs nonnegligently
Q. Implied Covenant of Quiet Enjoyment
Ans: Implied in every lease. The landlord warrants that he, or anyone acting for him or with superior title, will not interfere with the tenant’s use and enjoyment of the premises
Q. Constructive Eviction (for both residential and commercial leases) Requires that:
Ans: (i) The premises are virtually uninhabitable for their intended use because of substantial interference with the property use and enjoyment caused by the landlord, (ii) Notice is given to the landlord by the tenant, (iii) The landlord fails to meaningfully respond, (iv) Causes tenant to move out within a reasonable amount of time
Q. Actual Eviction
Ans: tenant excluded from entire premises due to a holdover tenant or paramount title holder
Q. Partial Actual Eviction
Ans: Landlord makes it physically impossible for the tenant to occupy all or some portion of the premises. Tenant has the option to-
(i) Terminate the lease and move out
(ii) Make repairs and deduct from the cost of the rent
(iii) Pay reduced rent, remain on the premises, and due for damage
Q. Retaliatory Eviction
Ans: A tenant may not be evicted, have a periodic lease terminated, or have a tenancy for years not renewed because the tenant has asserted that the premises are not habitable
Q. Doctrine of Waste
Ans: A tenant (under a life estate or regular rental tenant) must prevent waste and cannot damage leased premises without effecting repair
Q. Voluntary Waste
Ans: Tenant engages in conduct, intentionally or negligently, that causes a decrease in the value of the premises
Q. Permissive Waste
Ans: Tenant neglects the property and it falls into disrepair
Q. Ameliorative Waste
Ans: Tenant makes substantial alterations to the property even if they increase the value of the premises
Ans: Items that were once moveable chattel but that have become so attached to the premises they are deemed fixtures and considered part of the real estate. The Court may consider-
(i) Method of attachment
(ii) Adaptability (particularly fitted to the estate)
Ans: The right to use the land of another
Q. Easement Appurtenant
Ans: Easement that benefits a particular parcel of land and only occurs when the easement benefit is tied to a particular piece of land
Q. Easement in Gross
Ans: Benefit is provided to an individual and is not tied to a particular piece of land
Q. Reservation in Grantor
Ans: type of express easement where the grantor passes title to the land but reserves for himself the right to continue to use the land for some purpose
Q. Easement Creation by Implication from Prior Use:
Ans: (i) Land was originally one parcel, (ii) Land is severed, (iii) Use of the property existed prior to the severance, (iv) Easement is reasonably necessary to the dominant land’s use and enjoyment of the property
Q. Easement by Necessity:
Ans: (i) Common ownership of the dominant and servient parcels existed at some point, (ii) Easement is strictly necessary at the time of conveyance
Q. Easement by Prescription:
Ans: (i) Actual Use, (ii) Open and Notorious, (iii) Continuous Use, (iv) Hostile use
Q. Easement by Estoppel
Ans: can occur if a landowner gives an adjacent landowner permission to depend on her land such that it is reasonable that the user will substantially change his position in reliance on the belief that permission will not be revoked
Q. Remedy for Excessive Use
Ans: Enjoin the excessive use or sue for damages, but do not terminate the easement.
Q. Maintenance of Easement
Ans: Dominant owner has an implied right to repair and maintain the easement
Q. Termination of an Easement is possible through
Ans: (END CRAMPS) List includes-
(ii) Necessity Ending
(iii) Destruction of servient land
(iv) Condemnation of servient estate
(v) Release in Writing
(vi) Abandonment Action
(vii) Merger Doctrine
Q. Real Covenants
Ans: Written promises between two parties about how land is to be used. Remedy for breach of covenant is money damages
Q. Burden Run With the Land Requirement
Ans: List includes-
(i) In writing
(ii) Intent that the promise apply to successors
(iii) Touch and Concern the land
(iv) Horizontal and Vertical Privity
Q. Horizontal Privity
Ans: Privity between the original contracting parties. Some shared interest in the land apart from the covenant itself
Q. Vertical Privity
Ans: Successor is now the holder of the entire estate
Q. Benefit Run With the Land Requirement:
Ans: (i) Writing between original parties, (ii) Intent, (iii) Touch and concern the land, (iv) Vertical Privity
Q. Equitable Servitude
Ans: Restrictions on how land may be used. The remedy for a breach of equitable servitude is an injunction in equity.
(iii) Touch and concern the land
Q. A Court can imply a reciprocal equitable servitude when:
Ans: (i) Original owner intended a common plan or scheme, (ii) Purchaser has notice of the scheme
Q. A Profit entitles its holder to:
Ans: the right to enter the servient estate and remove soil or a product of the land itself
Ans: The mere right to use the licensor’s land for some specific purpose, and it is revocable at the will of the licensor. A license is merely a privilege and not an interest in land. Licenses can be created by oral agreements.
Q. Getting Rid of Surface Water:
Ans: 3 Doctrines-
(i) Common Enemy: May cast water onto neighbor’s land
(ii) Civil Law Rule: Owner has strict liability for interfering with natural flow
(iii) Reasonable Use
Ans: A property owner can seek a variance from zoning regulation if she can show unnecessary hardship
California Bar Exam Questions and Answers – PROFESSIONAL RESPONSIBILITY
Find the answers below:
Q. Sentence to memorize for PR essays
Ans: “The lawyer had a [insert duty] to [insert person or thing]”
Q. What are the 6 major duties a lawyer owes to clients?
Ans: 6 major duties include:
Q. What is the general rule of the duty of confidentiality to your client?
Ans: Rule: Don’t reveal anything “related to the representation” of a client OR use the information against her without consent.
Q. Can the duty of confidentiality attach before a lawyer-client relationship forms?
Ans: YES; (if no employment results, the party who wants to disqualify a lawyer will bear the burden of proving confidences were actually imparted)
Q. Once it attaches, how long does L’s duty of confidentiality to his client last?
Ans: In California, the attorney-client privilege terminates after the client’s death when the client’s estate is settled and the personal representative is discharged.
Q. Distinguish duty of confidentiality from attorney-client privilege
Ans: The duty of confidentiality is broader than the attorney-client privilege. The duty of confidentiality applies regardless of the source of the information, to anything not generally known, and to disclosures beyond the representation that could reasonably lead to information about the representation.
Q. What exceptions to confidentiality are recognized under the california rules?
Ans: 1. Death or substantial bodily harm but in CA: must first [i] make good-faith effort to dissuade if reasonable under circumstances, and  inform client you plan to reveal if reasonable under circumstances NOTE: This is the only formal exception included in the California Rules; however, the California Rules recognize that other exceptions may exist under California law, such as complying with a court order or other law.
Q. Define a lawyer’s duty of loyalty to clients (conflicts of interest): most tested subject
Ans: Rule: Lawyer has a duty of loyalty to client. If the interest of another client, the lawyer, or third party materially limits or is adverse to the representation, L has a conflict of interest
Q. What’s the lead-in sentence (rule) for the duty of loyalty.
Ans: “A lawyer owes his client a duty of loyalty and must avoid conflicts of interest.”
Q. Tip: For the lawyer’s duty of loyalty, watch the fact patterns for both _ and _ conflicts.
Ans: Potential and actual: be especially aware of evolving fact patterns, where a potential conflict becomes an actual conflict: IRAC each as a distinct issue.
Q. What are the differences between consent required under the ABA and CA generally?
Ans: Under the ABA that consent must be “informed.” This means that the affected client must be aware of all of the relevant circumstances, reasonable alternatives, and foreseeable ways the conflict might harm them. If the lawyer’s duty of confidentiality to a current or former client prevents them from disclosing information that the other client needs in order to understand the conflict of interest, the conflict can’t be waived.
Q. When must a lawyer continue representation despite good cause for permissive withdrawal?
Ans: When ordered to do so by a tribunal, a lawyer must continue representation even if there is good cause
Q. What is the special rule regarding conflicts for a lawyer representing an insurance company?
Ans: a lawyer who is retained by an insurance company to represent an insured also represents the insurance company for conflict purposes. Thus, the lawyer must not file a direct action against that same insurer in an unrelated case without the insurer’s consent. However, by statute, the lawyer has no duty of loyalty to the insurer when the insurer’s interest in each matter is only as an indemnity provider and not as a direct party to the action.
Q. What’s the rule for using non-public, confidential information against a former client?
Ans: You can never do it, unless you have consent.
Q. What’s the rule for gov’t lawyers moving to private practice and working on the same “matter.”
Ans: ABA bars a former gov’t lawyer who worked personally and substantially on a “matter” from working on the same “matter” in private practice, without the govt’s consent
Q. Use of a client’s confidential information to a client’s disadvantage, without C’s consent, violates which duty?
Ans: BOTH loyalty and confidentiality
Q. Conflict due to 3rd-party interference
Ans: General Rule: L’s sole duty is to C–not to any 3rd party.
Q. Payment by a 3rd-party for L’s services is permissible when?
Ans: 1. the client gives informed consent (2) there is no interference with the lawyer’s independence of professional judgement or with the lawyer-client relationship, and (3) information relating to the representation of a client remains confidential. CA requires that the client consents in writing
Q. What are the rules for contingent-fee arrangements when the L is terminated before the contingency/judgment?
Ans: L can recover fees (1) if and when C wins (not before), and then (2) only the amount in proportion to the work he did [in quantum meruit]
Q. Duty of diligence
Ans: L has a duty to diligently and promptly pursue a case to completion
Q. Duty to communicate
Ans: L has a duty to keep the client informed about the case, answer client communications, and convey settlement offers
Q. When are a lawyer’s fees too high?
Ans: ABA: Fees must be reasonable taking into account the labor, novelty, difficulty, skill, and time required, the result obtained, and L’s experience.
Q. Solicitation means __.
Ans: The individualized contact with a layperson (as opposed to an ad, which is communication with the public at large)
Q. What is the rule on solicitation
Ans: A lawyer may not seek professional employment for pecuniary gain by initiating a live or telephonic contact with a specific person with whom the L has no prior professional, personal, or family relationship.
Q. Duty to state the law truthfully.
Ans: Knowingly making a false statement of law or presenting frivolous claims or defenses to the court can subject you to discipline. Be candid about the law and cite to adverse authority, if controlling and on point.
Q. California Rules on MJP
Ans: California structures its more restrictive rules governing out-of-state lawyers by practice area: generally, Ls are required to register with the CA bar, pay dues, get CLE, and be subject to CA ethics rules. “Registered foreign legal consultants” are limited to advising on the law of their country of licensure.
California Bar Exam Questions and Answers – TORTS
Find the answers below:
Q. Tort Liability of Landlord
Ans: Landlord must-
(i) Maintain all common areas
(ii) Fix any latent defects of which the landlord has knowledge
(iii) Make any assumed repairs non-negligently
(iv) Inspect for defects if the premises are held open to the public
Q. Prima Facie Case for Intentional Torts
Ans: All intentional torts require a volitional act by the defendant, intent by the defendant to bring about some physical or mental effect upon another person, and the effect must have been legally caused by the defendant’s act.
Q. Intent can be achieved by:
Ans: Either direct intent when the D has a desire or purpose to bring about the effect or indirectly when the D knows with substantial certainty that a particular effect will occur
Q. Offensive Touching
Ans: Contact that offends a reasonable person’s sense of dignity
Q. Defenses to Assault
Ans: consent, self-defense, defense of others, defense of property
Q. Intentional Infliction of Emotional Distress
Ans: The intentional or reckless infliction of severe emotional or mental distress caused by the defendant’s extreme or outrageous conduct
Q. Defenses to Intentional Infliction of Emotional Distress
Q. Extreme and outrageous conduct
Ans: Conduct that transcends all bounds of decency
Q. False Imprisonment
Ans: D (i) intentionally causes the P to be (ii) confined, restrained, or detained to a (iii) bounded area with (iv) no reasonable means of escape of which the plaintiff is either (v) aware of the confinement or suffered harm
Q. Defenses to False Imprisonment
Ans: Consent, Shopkeeper’s Privilege
Q. Trespass to Land
Ans: Intentional physical invasion of the land of another
Q. Defenses to Trespass to Land
Q. Trespass to Chattels
Ans: Intentional interference with a person’s use or possession of chattel. Requires proof of damages.
Ans: An intentional interference with the P’s possession or ownership of property that is so substantial that it warrants requiring the D to pay the entire property value. Requires proof of damages.
Ans: Consent may not go beyond the scope given. Courts are split as to when the D’s acts against P are criminal in nature.
Q. Defense of others
Ans: A person may use reasonable force to defend another person when he reasonably believes that the other person could have used force to defend himself
Q. Duty of Care
Ans: A person has a duty to act as a reasonable person would toward all foreseeable plaintiffs. (Cardozo View) A minority of courts hold that a duty is owed to everyone, including unforeseeable plaintiffs (Andrews view)
Q. An invitee is one who
Ans: enters the land in response to an invitation by the owner to do business with the owner or as a public invitee for land open to the public at large. The owner owes a duty to make reasonable inspection to find hidden dangers and take affirmative action to remedy dangerous conditions
Q. A Licensee is one who
Ans: enters the land with the owner’s consent for his own purpose. An owner has a duty to warn of all known dangerous conditions that create an unreasonable risk of harm that the licensee is unlikely to discover. There is no duty to inspect.
Q. Breach occurs when
Ans: the D’s conduct fails to conform to the applicable standard of care
Q. Res Ipsa Loquitur
Ans: Creates a rebuttable presumption of breach when (i) the accident is a type that ordinarily does not occur in the absence of negligence and (ii) other causes are sufficiently eliminated by evidence
Q. Alternative Causes Where Only 1 Act at Fault
Ans: The burden of proof shifts to the D to show that the other caused the harm
Ans: D engages in negligent conduct that causes the P to suffer sever emotional distress. Most Courts require the P to be in the zone of danger to recover. Minority (including CA) allows recovery if P observes that danger.
Q. Contributory Negligence
Ans: A rule in tort law, abolished in most states, that completely bars the plaintiff from recovering any damages if the damage suffered is partly the plaintiff’s own fault.
Q. Assumption of the Risk
Ans: A defense to negligence. Plaintiff may not recover when they knew of the risk and voluntarily consented despite the risk.
Q. Risk-Utility Test
Ans: A product is defective if the risk of dangers inherent in the design outweigh the benefits of such design and the danger could reasonably be reduced or avoided by the adoption of a reasonable and cost-effective alternative design.
Implied Warranty of Merchantability
Ans: A warranty of merchantability is implied in every sale of goods, warranting that they are fit for the ordinary purposes for which goods are used
Q. Fitness for a Particular Purpose
Ans: Implicated in every sale of goods when the seller knows or has reason to know that the buyer wants goods for a particular purpose and buyer relies on the seller’s judgment to recommend a suitable product
Q. Private Nuisance
Ans: Substantial, unreasonable interference with another private individual’s use or enjoyment of his land
Q. Substantial Interference
Ans: Interference that is offensive, inconvenient, or annoying to the average person in the community
Q. Common law defamation occurs when
Ans: a false and defamatory statement of or concerning plaintiff is published to a person other than the plaintiff causing damage to plaintiff’s reputation
Ans: Publication can be made intentionally or negligently
Q. Constitutional Law Defamation Requirements
Ans: Must be analyzed if defamation is a matter of public concern. Requires that the P prove the elements of common law defamation and establish fault on the part of the defendant. The test to determine fault depends on the status of the P.
Q. Public Figure Defamation
Ans: A plaintiff is a public figure when he has achieved pervasive fame or notoriety or voluntarily assumed a role in a public controversy. Analysis includes an actual malice standard.
Q. Actual Malice exists when
Ans: The D made the statement with either (i) knowledge that it was false (ii) or reckless disregard to its veracity. Damages are presumed if actual malice is proven.
Ans: The unauthorized use of the P’s picture or name for the D’s commercial advantage
Q. Intrusion upon seclusion
Ans: intrusion into a private aspect of the P’s life in a private place that is highly objectionable to a reasonable person
Q. Tortious Interference with Business Relations
Ans: Prima facie case requires establishing-
(i) Existence of a valid contractual relationship between the P and a 3rd party or a valid business expectancy
(ii) D knew or should be known of the relationship
(iii) intentional interference inducing breach or termination of the relationship
California Bar Exam Questions and Answers – REMEDIES
Find the answers below:
Q. Contract Legal Remedies
Ans: (1) Expectation Damages, (2) Consequential Damages, and (3) Liquidated Damages.
Q. What remedies would be available in a contract to buy and sell a personal property?
Ans: It includes-
a. Damages – usually an adequate remedy
b. Specific performance is available if the chattel is unique or damages are highly speculative (output contract)
Q. What remedies would be available in a contract to buy and sell real property
Ans: It includes-
a. Damages – out of pocket losses OR benefit of bargain for the buyer when the seller breaches — where the buyer breaches, the seller recovers difference between market price and contract price.
b. restitution – could rescind the contract and get the return of benefits conferred.
c. specific performance – go through the four elements (inadequacy/feasibility/satisfaction (marketable title) / no defenses like SOF, laches, etc.)
Q. Personal injury cases – do we require certainty for non-economic losses?
Ans: No we do not! a jury can award all the damages it wants subject to a proper instruction.
Q. Form of judgment issues – do we take into account for inflation?
Ans: No we do not – unless it’s the modern view, in which case we do! And discount the present payment to adjust for future value. Example: you deserve 2 million in 20 years, invest whatever it would take now to reach 2 million in 20 years.
Q. Restitutionary remedies – legal (rule statement)
Ans: Use this language-
Restitutionary remedies are bsaed on the theory that the defendant should not be unjustly enriched. Therefore, we look at any benefit conferred on defendant as a product of his tortious conduct, and we give that value to plaintiff, based on the VALUE of the benefit conferred on defendant. This damage award focuses on the value to defendant as opposed to the injury suffered by plaintiff, which is the analysis in a compensatory damage award.
Q. Replevin – timing of recovery
Ans: The plaintiff can recover the chattel before the trial if he posts a bond, but defendant can defeat that recovery by posting a re-delivery bond. The defendant then keeps the chattel until after the trial.
Q. Constructive Trust / Equitable Lien
Ans: Constructive trust – imposed on the improperly acquired property to which defendant has title. The defendant serves as trustee and must return the property to the plaintiff.
Q. how do you get reformation?
Ans: The court modifies a written agreement to make it say something different – to conform to parties’ prior understanding. Requires a valid agreement. Grounds include mutual mistake of fact including scrivener’s error, unilateral mistake where one party knows of error but the other does not, mistake of law as to legal meaning of terms. and fraud.
Q. What remedies would be available in a construction contract?
Ans: Remedies includes-
a. Damages – lost profits/cost of completion
b. Restitution – if the owner breaches, a builder could rescind and get the value of what he built. if the builder breaches, restitution of benefits conferred in excess of the contract rate
c. Specific performance – tough.
Q. What remedies would be available in a personal service contract?
Ans: It includes-
a. Damages – obtaining a replacement/wages promised
b. Restitution – value of services rendered / paid but unearned wages
c. Specific performance – feasibility problems abound
Q. what remedies would be available for destruction of property?
Ans: It includes-
a. Damages – value of chattel plus interest minus salvage for destruction / full market value for conversion/cost of repair plus loss of use and maybe punitive damages
b. Restitutionary remedies – replevin, quasi-contract, constructive trust, mandatory injunction
What is an equitable lien and why would you want one?
If a wrongdoer misappropriates funds but then co-mingles them and purchases property with them, you have to get a lien on the account and the property.
Q. Why might a legal remedy be inadequate?
Ans: It includes-
a. damages too speculative – trademark infringement, stolen item of high personal value but not much actual value
b. multiplicity of suits – a factory emits noxious gas.
c. irreparable injury – building encroaches on a land, makes it not unique anymore.
Q. What is the most important factor in balancing the hardships for an injunction?
Ans: The defendant’s conduct must be INADVERTENT. If it was willful, the court will not consider the hardship to the defendant.
Q. What is laches?
Ans: It’s the concept that equity rewards the vigilant. If the EFFECT of the passage of time results in more hardship to the defendant while the plaintiff is not acting, the result will be that an injunction will not issue.
Q. What is unclean hands?
Ans: Any equitable relief is subject to the defense that the plaintiff engaged in unfair dealing.
Q. Injunctions against crimes
Ans: You (usually the state’s AG) generally can’t get them, unless you are seeking an injunction against a public nuisance (protecting the public, not punishing the defendant.
Q. Remedies Checklist
Ans: Torts Damages, Torts Legal Restitution, Torts Equitable Restitution, Injunction, Contracts Damages, Contracts Restitution, Specific Performance, Recession, Reformation
Q. Remedies 10 Second Checklist
Ans: T$, TLR, TER, Inj, K$, KR, SP, Rsc, Ref
Q. General Damages
Ans: Compensates for foreseeable losses
Q. Special Damages
Ans: Compensates for losses not necessarily foreseeable and must be specially pleaded
Ans: Restitution occurs when the D unjustly retains a benefit.
Q. Tort Legal Restitution
Ans: Money, Replevin, Ejectment
Q. Torts Remedies – list them all
Ans: List includes-
a. Legal Remedies – Damages
b. Restitutionary remedies – the legal ones
c. Equitable remedies – Injunctions
California Bar Exam Questions and Answers – CRIMINAL LAW
Get the answers by clicking the below link:
California Bar Exam Questions and Answers – MORTGAGES
Find the answers below:
Q. Define Mortgage
Ans: A mortgage is a type of security interest — a loan is given in exchange for a promise to repay, secured by an interest in a piece of real property. If the loan is not paid back, the holder of the security interest can take the land, sell it, and use the proceeds to pay the debt.
Q. Define a Debtor
Ans: A debtor / notemaker is the mortgagor; he gives the mortgage (along with the note) to the lender, who is the mortgagee. Most states require that the lender realize on the piece of property ONLY through a foreclosure proceeding, conducted by a court (through a sheriff).
Q. Absolute Deed – Equitable Mortgage
Ans: Sometimes people end up doing a “fake sale” of property – this is where you give me the actual land and I give you some money. No “interest” or anything like that, just fee simple. Except, we have a contract where – if I pay you back – you give me the land back.
Q. Transfers of mortgages in general
Ans: All parties to a mortgage can transfer their interests. The mortgagor (the one who owned the land and needs the cash from the loan) just deeds his property. The mortgagee (lender) usually transfers by indorsing the note and executing a separate assignment of the mortgage. These both must happen for the transfer to be complete.
Q. Transfer by lender (mortgagee) – when he transfers the mortgage interest but forgets the note.
Ans: Case law is divided on this one. Some states say “hey, you do that, you automatically transfer the note also.” This allows equitable relief. Other states hold that if you transfer the mortgage but forget the note, you haven’t actually done ****. (It’s void.)
Q. Let’s say I mortgage my ****. Who do I pay?
Ans: You have to pay the person who you KNOW has the note. In common sense terms, if you know the person has assigned your note to somebody else, you have to pay the assignee, not the original mortgagee. If you don’t know, then paying the original is cool.
Q. Transfer by mortgagor – what happens?
Ans: The grantee takes the land subject to the mortgage, which remains with the land. Unless the mortgagee/mortgagor wrote this into the contract, the mortgagee has no power to object to the transfer.
Q. Does the grantee ever “assume” the mortgage?
Ans: Yes, usually she does. She signs an agreement promising to pay the mortgage loan. That makes her primarily liable to the lender (who is now a third party beneficiary) and the original mortgagor is now secondarily liable as a surety. If the mortgagee and grantee modify the obligation at all, that cuts out the original debtor.
Q. What if I don’t “assume” the mortgage. I don’t want that ****!
Ans: That’s fine, you aren’t personally liable on the loan. But, the mortgage stays with the original property, so if the person defaults on their loan obligations, the property gets sold right out from under you.
Q. This all sounds weird. What do most modern mortgages do about this?
Ans: They have “due on sale” clauses, which allow the lender to demand full payment of the loan if the debtor transfers any interest in the property. These clauses protect the lender from sale to a person with no credit AND allow the lender to raise the interest rate when the property is sold.
Q. Defenses against a mortgage
Ans: Any defense against the underlying obligation is also a defense against the mortgage… so if you can assert a defense based on failure of consideration, fraud, duress, or mistake, that would get you out of the obligation (the debt owed), then you also get out of the mortgage.
Q. Mortgage discharge by payment
Ans: Generally, full payment of a note discharges the mortgage. There is no automatic right to pre-payment of the note… the mortgage itself may say otherwise, but if it does not, you pay that **** off according to the terms of the note.
Q. Mortgage discharge by merger
Ans: If the mortgagee somehow acquires the mortgagor’s interest, the mortgage merges with the title, and the liability of the mortgagor is discharged up to the value of the land.
Q. Possession prior to foreclosure
Ans: Usually this never happens, because most states follow a “lien theory” of mortgages, which keeps the Bank off your **** until after a foreclosure proceeding – they only have a “lien” on the value of your property, no right to step onto it. However, it can happen if the mortgagor and mortgagee agree on it, or in a “title theory” jurisdiction where the mortgagee can step whenever.
Q. What can the mortgagee do if he has possession?
Ans: He can intercept the rents, prevent waste, and make repairs. He can also lease out vacant space. However, most mortgagees don’t want to do this, because they have a very strict duty to account for all the rents, manage the property in a prudent manner, and they also assume liability in tort. So they sometimes just have “receiverships” do that sort of thing for them – a court-appointed third party who manages the property and handles all that ****.
Q. Foreclosure: what is it?
Ans: Foreclosure is the process by which the mortgagor’s interest in the property is terminated. The property is sold to whoever will buy it via auction (usually the mortgagee/lender is the only bidder) and the money that the person makes goes to paying off the debt.
Q. Redemption in equity
Ans: At any time prior to the foreclosure sale, the mortgagor has the right to redeem the land (free it from the mortgage) by paying that **** off, plus any accrued interest. You cannot waive the right to redeem in the mortgage itself. That’s known as “clogging the equity.” However, you can later waive your right of redemption for consideration, if you want to.
Q. Redemption by statute
Ans: This is NOT the same thing as equity by redemption… this is where some states allow you about six months or one year to pay back your mortgage AFTER the date of the sale.
Q. Mortgage Priority generally
Ans: Generally speaking, mortgages are determined by the old “first in time / first in right” principle. If you decide to take an interest in land that’s already subject to a mortgage, you get a piece of land that’s … you guessed it, subject to a mortgage.
Q. Effect of foreclosure on senior (prior) interests
Ans: A foreclosure has no effect on a senior mortgage. The buyer at the foreclosure sale buys a piece of property with a mortgage on it… and she best pay it off, otherwise the bank might foreclose on the bitch again.
Q. Effect of foreclosure on junior (post-mortgage-that-is-being-foreclosed) interests
Ans: A foreclosure destroys all the interests junior to the mortgage. It’s harsh – liens, leases, easements, all other interests… gone. If a lien senior to the mortgage is in default, the junior mortgagee has a right to pay it off (i.e. “redeem it”) in order to avoid being wiped out. So, you HAVE to join junior interests in your foreclosure action, and if you don’t … it stays with the land.
Q. What is a Purchase Money Mortgage?
Ans: A PMM is a mortgage given to the vendor of the property as part of the purchase price, or
a mortgage given to a third party lender, who is lending the funds to allow buyer to purchase the property. These take priority over NON-PMMs on the property, even if those liens are recorded first. PMM priority is defeated by operation of the recording statute, if it gets that far.
Q. Modification of senior mortgage: effect on priority
Ans: If the senior mortgage is modified to get more burdensome, the junior mortgages are only “junior” with respect to the original agreement, not the modification itself, which goes to the back of the line.
Q. Future advances from the lender
Ans: In general, if these are contemplated by the original mortgage, then they’re fine. If they’re NOT… in other words, if it’s just an “optional” advance of money, that advance itself goes to the back of the line.
Q. Proceeds of a judicial sale
Ans: First: attorneys fees, sale costs, court costs
Second: the foreclosed loan.
Third: anybody junior to the foreclosed loan.
Q. Practice time: Imagine a landowner mortgaged his property three times to three banks. One for 30K, one for 15K, and one for 10K. Ans: Now imagine Bank One comes for his ass through foreclosure sale. The property is auctioned and comes up with $50K. Where that money go?
Ans: First, attorneys, the court, and the auctioners are paid off. Then, the interest on Mortgage 1 gets paid off. Assuming those items are zero… All 30K to Mortgage 1. Mortgage 2 is wiped out, so he gets the 15K. There’s 5K left over… that goes to Mortgage 3 (Bank Three). Now, Bank Three is still owed 5K, so Bank Three can come after landowner PERSONALLY for that money.
Q. Practice time: imagine the same facts, except the property comes up with 60K in auction. Now what happens?
Ans: Now instead of 5K left over after the first two mortgages … there’s 15K left over. Therefore, Bank Three gets all its money, and there’s 5,000 left. That money goes back to Mortgagor. Thanks for playing.
Q. Practice time (one more): assume same facts, except mortgage TWO is foreclosed. Bank Two is entitled to foreclose, so they do… What happens? (in other words, how much will they sell the land for, assuming its worth 50K?) Probably 20K. Why?
Ans: Well, whoever buys the land in the foreclosure sale organized by Bank Two is buying a piece of property that has been mortgaged for 30K, and that mortgage is going to stick with the property. So if the land is worth 50K free-and-clear, you can only afford to pay up to 20K for it, because that other 30K needs to pay off Mortgage 1. Incidentally, Mortgage 2 is totally paid off, and Bank Three gets the remaining 5K and can proceed against Mortgagor for the 5K they still owe… personally.
California Bar Exam Questions and Answers – BUSINESS ASSOCIATIONS
Get the answers by clicking the below link:
California Bar Exam Questions and Answers – CONTRACTS
Find the answers below:
Q. A merchant is one who
Ans: Deals in the goods of the kind sold, or one holding himself as having special knowledge or skills regarding the practices or goods involved in the contract
Q. Predominant Purpose Test
Ans: Determine the predominate purpose of the contract as a whole and the law governing that area provides the applicable law for the entire contract
Q. A valid contract requires
Ans: mutual assent, which consists of an offer and acceptance and consideration
Q. Offer (Common Law)
Ans: An offer is a manifestation of willingness to enter into a bargain. An offer requires a demonstration of intent to enter into a contract, definite and certain terms, and communication to the offeree
Q. Intent is determined by
Ans: an objective standard of how a reasonable person would interpret the language
Q. The UCC requires that certain terms are included to be considered a valid contract including
Ans: Quantity, Identity of the Parties, and Subject Matter
Q. Offer (UCC)
Ans: Inviting acceptances in any manner and by any medium reasonable in the circumstances
Q. Revocation arises from:
Ans: Direct or indirect unambiguous words or conduct that is inconsistent with the intention to contract of which the offeree is aware.
Q. Firm options are irrevocable and require
Ans: (i) made by the merchant (ii) signed writing (iii) gives assurances it will be held open (iv) three-month limit on irrevocability
Q. Option contract:
Ans: The offeror grants the offeree an option to enter into a contract for a specified period of time and promises that the offer will be held open for that time. Consideration is required for an option contract. The offer will be irrevocable for the stated option period
Ans: Manifestation of assent to the terms of the offer. This can be by words creating an express contract or by conduct creating an implied in-fact contract
Q. Bilateral Contract
Ans: Both parties make promises to perform
Q. Unilateral Contract
Ans: exchanges the offeror’s promise from the offeree’s actual performance
Q. Acceptance must be made:
Ans: (i) within a reasonable time (ii) by the offeree (iii) in response to an offer (iv) in the manner specified by the offer
Q. Mailbox Rule:
Ans: An acceptance is effective upon proper dispatch. Proper dispatch requires that the offeree no longer has control or possession of the acceptance. Option contracts are effective upon receipt. If a rejection is dispatched before an acceptance, whichever is received first controls.
Q. Mirror Image Rule
Ans: Applies at common law. An acceptance must be a precise mirror image of the offer. If the response conflicts at all or adds terms, the purported acceptance is a rejection and a counteroffer.
Q. UCC Acceptance Varying From Offer
Ans: An expression of acceptance will act as an acceptance even if the terms are additional to or different from those contained in the offer, unless acceptance is expressly made conditional on assent to the different terms.
Q. Battle of the Forms
Ans: Merchant + Nonmerchant = Additional terms are a proposal and will not become part of the contract unless the other party assents
Merchant + Merchant = Additional term is a part of the contract unless (i) offer expressly limits acceptance to its terms (ii) material alteration (iii) the offeror objects to the additional term within a reasonable time
Q. Knock-Out Rule (Majority – UCC)
Ans: Conflicting terms cancel out each other and neither enters the contract. the contract then consists of the agreed-upon terms and the court will supplement terms if necessary
Minority rule is to treat different terms the same way as additional terms. Fall out rule means that offeror’s terms control.
Q. Shipment of Nonconforming Goods
Ans: check the following-
a. Shipment without acknowledgment = offer has been accepted and breached simultaneously
b. Shipment with acknowledgment = This is an accommodation. It serves as a counteroffer that the buyer is free to accept or reject.
Ans: A bargained for exchange of legal detriment
Q. Illusory Promise
Ans: Promise not supported by consideration and thus is not enforceable. Requirements and output contracts are not illusory.
Q. Promissory Estoppel
Ans: A promise that foreseeably induces reliance and is actually relied upon may be enforceable to prevent injustice, even without consideration/
Q. SOF Writing Requirements
Ans: There must be one or more writings that combined include the essential terms of the contract and that are signed by the party to be charged
Q. Merchant Confirmatory Memo
Ans: Allows a writing to be enforced against both the signer and recipient when:
(i) Between two merchants
(ii) One party receives signed confirmation and has reason to know its contents
(iii) Except if the recipient objects within 10 days of receipt
Q. Fraud Elements for Defense of Lack of Formation:
Ans: list includes-
(i) False statement of material fact
(ii) Knowledge of the statement’s falsity
(iii) Intent to induce reliance
(iv) Justifiable and Actual Reliance
Q. A contract can be voidable for mutual mistake if:
Ans: list includes-
(i) the mistake is as to a basic assumption that existed at the time the contract was formed
(ii) Material Effect
(iii) Lack of assumption of the risk
Q. A contract can be voidable for unilateral mistake if:
Ans: list includes-
(i) the mistake is as to a basic assumption that existed at the time the contract was formed
(ii) Material Effect
(iii) Lack of assumption of the risk
(iv) the other party knew or should have known of the mistake
Q. Waiver of Conditions
Ans: The party the condition is intended to benefit can waive the condition by;
(i) Receiving and keeping the benefit
(ii) Failure to insist on compliance
Q. Parol Evidence Rule:
Ans: The parol evidence rule limits the extent to which evidence of discussions or writings made prior to, or contemporaneous with, the signed written agreement can be admitted and considered as part of the agreement
Q. Partial Integration
Ans: A writing intended to be the final expression of the agreement but not intended to include all details. PER is not permitted to contradict any terms, but is permitted to supplement terms.
Q. Total Integration
Ans: A writing intended to be a final expression of the agreement, but is also intended to include all details. PER is not permitted to contradict or supplement terms.
Q. PER does not bar evidence regarding:
Ans: Contract formation, conditions precedent, ambiguous terms
Q. Contract Modification (UCC)
Ans: Mutual assent and good faith is required. Consideration is not required.
Q. Contract Modification (Common Law)
Ans: Mutual assent and consideration is required for a contract to be modified. “No oral modifications” clauses are not enforced.
Q. Creditor Beneficiary
Ans: Third party who benefits from contract in which promisor agrees to pay promisee’s debt
Q. Donee Beneficiary
Ans: Third party who benefits from contract in which promisor agrees to give a gift to third party
Q. Incidental Beneficiary
Ans: A third party who incidentally benefits from a contract but whose benefit was not the reason the contract was formed. An incidental beneficiary has no rights in a contract and cannot sue to have the contract enforced.
Q. A novation occurs when
Ans: the obligee expressly agrees to accept the performance of the delegatee instead of the delegator and releases the delegator of liability. A novation terminates the liability of the delegator.
Q. Anticipatory repudiation
Ans: An unequivocal expression by a party, occurring before the time for performance is due, that she will not perform under the contract
Q. The nonrepudiating party has four courses of action:
Ans: The four courses of action includes-
(i) Sue immediately for breach
(ii) Suspend performance and wait until performance is due
(iii) Treat the contract as discharged and the repudiation as an offer to rescind
(iv) Urge performance and sue later
Q. If there are reasonable grounds for insecurity regarding performance of a contract
Ans: the insecure party can demand adequate assurances of due performance. This must be done in writing. The insecure party may suspend his own performance until assurances are received. The other party has 30 days to respond before there is a total repudiation.
Q. Perfect Tender Rule
Ans: Applies to contracts for a single delivery and provides that if the goods tendered fail to conform to the contract in any respect, the buyer has three choices-
(i) Reject the whole within a reasonable time
(ii) Accept the whole
(iii) Accept any commercial unit and reject the rest
Q. Perfect Tender & Installment Contracts
Ans: The right to reject is based on “substantial conformity” and whether the nonperfect tender substantially affects the contract. The buyer cannot reject if the seller can cure.
Q. If a breach is minor, the nonbreaching party may:
Ans: recover damages but must still perform
Q. The contract warranties that may be violated are:
Ans: list includes:
(i) Express warranties
(ii) implied warranty of merchantability
(iii) Warranty of fitness for a particular purpose
(iv) Implied warranty of good faith and fair dealing
Q. Implied Warranty of Merchantability
Ans: Warrants that goods will be fit for the ordinary purpose for which such goods are used
Q. Warranty of fitness for a particular purpose
Ans: Applies where the buyer relies on the seller’s judgment to select appropriate goods for a stated purpose. Warranty can be disclaimed if in writing and conspicuous
Ans: An agreement where one party promises to render substitute performance and the other promises to accept that substitute in discharge of the existing duty. Consideration is required.
Ans: Performance of the accord, which then discharges both the original agreement and the accord. if the accord is breached, the other party can sue for the original contract or the accord.
Q. Impossibility occurs when
Ans: A supervening, unforeseeable event makes performance impossible and thus discharges performance. The event must be one that neither party assumed the risk of and performance must be literally impossible
Q. Impracticability occurs when
Ans: The occurrence of an event the parties assumed would not occur makes performance extremely and unreasonably difficult. The event must concern a basic assumption of the contract and the parties must not have allocated the risk of the event to the party seeking to use the defense.
Q. Frustration of purpose occurs when
Ans: A party’s purpose for entering the contract is destroyed by supervening events. Both parties must know the purpose of the contract, the event must not be reasonably foreseeable, and frustration must be total.
Q. Potential Limitations to Damages include:
Ans: See the following list-
Q. Expectation Damages
Ans: Compensate the plaintiff for the value of the benefit of the bargain the plaintiff expected to receive from the contract. Expectation damages put the plaintiff in the position he would have been in if the contract was performed.
Q. Expectation Damages – Real Property
Ans: Market Price – Contract Price (May include abatement if the actual property is less than contract)
Q. Expectation Damages – Services
Ans: Cost of the substitute performance
Q. Expectation Damages – Seller Has Goods + Seller in Breach
Ans: Cover Price – Contract Price OR Market Price – Contract Price (plus consequential and incidental damages)
Q. Expectation Damages – Buyer Has Goods + Seller in Breach
Ans: Value of perfect goods – Value Received
Q. Expectation Damages – Buyer Has Goods + Buyer in Breach
Ans: Full Contract Price
Q. Expectation Damages – Seller Has Goods + Buyer in Breach
Ans: If Seller Resold > Contract Price – Resale Price
Seller Did Not Resell > Contract Price – Market Price
Lost Volume Seller > Lost Profits
Q. A seller qualifies as a lost profit seller if
Ans: check below-
(i) Has a big enough supply to make both contracted sale and a resale
(ii) Would have likely made both sales
(iii) Would have made a profit on both sales
Q. Consequential Damages
Ans: Compensate for the damages that are a direct and foreseeable consequence of the contract nonperformance and are unique to each plaintiff
Q. Incidental Damages
Ans: Damages for expenses reasonably incurred by the buyer or seller as a direct result of the breach
Q. Reliance Damages
Ans: Put the plaintiff in the position she would have been in had the contract never been formed. They are typically used when there is a contract but the damages are too speculative to calculate. Damages are the expenses reasonably incurred in reliance on the contract
Q. Liquidated Damages
Ans: Damages in an amount stipulated to in the contract. Allowable when the damages are (i) difficult to calculate and (ii) the amount agreed to is the reasonable approximation of the anticipated loss from a breach
Q. Nominal Damages
Ans: Awarded when the Plaintiff’s rights have been violated but no financial loss has been sustained
Q. Punitive Damages
Ans: Not awarded for standard breach of contract
Q. Quasi Contract
Ans: Is a contract implied in law to prevent injustice where there is no enforceable contract but some relief is fair because the defendant has derived a benefit and it would be unfair to allow the defendant to keep that benefit without money to the plaintiff in restitution
Q. Specific Performance applies when:
Ans: (Chocolate Cheesecake is my favorite dessert)
(i) There is a valid Contract with definite and certain terms
(ii) Conditions imposed on the Plaintiff must be satisfied
(ii) there is an Inadequate legal remedy
(iv) Mutuality of performance
(v) Feasibility of enforcement
(vi) no applicable Defenses (laches & unclean hands)
Q. Unclean Hands
Ans: The non-breaching party is engaging in unfair dealings in the same disputed transaction
Q. Mailbox Rule:
Ans: An acceptance is effective upon proper dispatch. Proper dispatch requires that the offeree no longer has control or possession of the acceptance
Q. Mailbox Rule:
Ans: An acceptance is effective upon proper dispatch
California Bar Examination [Previous Question Paper & Answers]
>> check here <<
About California Bar Exam
There are many reasons why someone might want to take the California bar exam. Perhaps they have always dreamed of being a lawyer and want to practice in the state of California.
Maybe they went to law school in another state but now live in California and want to be able to practice law here.
Or maybe they just think the California bar exam is a challenge they are ready to take on!
No matter what your reasons are for taking the California bar exam, there are some things you should know before you get started.
First, the exam is two days long and consists of both a written and an oral component.
The written portion is made up of six essay questions and two performance tasks, while the oral component is an interview with a member of the California State Bar.
Second, you must register for the exam with the State Bar of California. You can follow these steps to apply for the examination here
Third, you will need to make sure you are familiar with the California Rules of Professional Conduct. These are the rules that all lawyers in the state of California must follow.
Finally, you should start studying for the exam as early as possible. The sooner you start, the better prepared you will be at exam time!
Hope you got access to California Bar Exam Questions and Answers by following the above model papers that we shared. Share with other students if you find it helpful.