Civil Procedure
What is the rule statement for Subject Matter Jurisdiction?
Subject matter jurisdiction refers to a court’s authority to hear a particular type of case, established through federal question jurisdiction or diversity jurisdiction.
What is the rule statement for the Community Property Presumption?
California is a CP state. All property acquired during marriage by the labor or earnings of either spouse is presumed CP. All property acquired before marriage or after divorce, death, or permanent physical separation is presumed separate property. All property acquired during marriage by gift, bequest, devise, or descent is separate property. At divorce, spouses are entitled to one-half interest in community property. The characterization of an asset as community property or separate property depends on 1. The source of the item, 2. Actions of the parties that may alter the character of the item, and 3. The statutory presumptions affecting them.
What is the rule statement for Battery?
Battery is the intentional, harmful, or offensive contact with the plaintiff. Offensive is assessed by the reasonable person standard. Contact can include any items in the possession of or connected to the plaintiff.
What is the rule statement for Valid (Formal) Will?
For a will to be valid it must be 1. in writing, 2. signed by the testator with capacity, 3. with present testamentary intent, 4. in the presence of two disinterested witnesses, 5. the witnesses must sign however they do not have to sign at the same time, and 6. The witnesses must understand the document they are signing is a will.
What is the rule for Criminal Battery?
Battery is 1) unlawful to application of force, 2) to another person 3) that causes bodily harm or constitutes an offensive touching.
What is the rule statement for Personal Jurisdiction
Personal Jurisdiction is required for the courts to exercise authority over the defendant and usually falls into two categories: (1)Traditional Bases and (2) Modern bases.
What is the rule statement for Marital Economic Community( MEC)
The marital economic community begins at marriage and ends 1. Upon divorce, 2. Either spouse dies, or 3. Permanent physical separation with no intent to continue the marriage.
What is the rule statement for False Imprisonment?
False imprisonment occurs when a defendant unlawfully, intentionally confines a person in a bounded area and the person is either aware of or harmed by the confinement. The defendant has a privilege when reasonably believing that the plaintiff committed a felony. A shopkeeper privilege or a citizen' s arrest defense may be appropriate.
What is the rule statement for Capacity?
Capacity exists if (1) the testator is at least 18 years old and intends to create a will, (2) Understands the nature and extent of their property, and (3) Understands to whom they are gifting their assets. (In CA, testator does not have to sign)
What is the rule for Common Law Murder?
Common law murder is the unlawful killing of another with malice aforethought.
What is the rule for Venue?
Venue is proper in (a) any district where a substantial portion of the claim occurred or where a substantial part of the property is located, (b) where any defendant resides, if all defendants reside in the same state, or (c) if no district satisfies (a) or (b), where any defendant is subject to personal jurisdiction.
What is a Transmutation?
Transmutation is the process of changing the characterization of property by an agreement between spouses. Beginning January 1, 1985, transmutations must be by a written express declaration of the spouse whose property interest is adversely affected unless the transmutation involves 1. gifts between spouses, 2. tangible personal articles, or 3. it is not substantial in value.
What is the rule statement for Negligence?
A claim for negligence can be made when a breach of duty of care to another has actually and proximately caused harm resulting in damages. This requires a duty owed, a breach of that duty, actual and proximate causation, and damages. Remember, purely economic loss is not generally allowed; there must be some damage.
What is the rule statement for Holographic Will?
CA recognizes holographic wills. To be valid, the testator must (1) have capacity, (2) intend the document to be a will, (3) handwrite the material provisions, and (4) sign. A holographic will does not need to be formally witnessed.
What is Malice Aforethought?
Malice aforethought may be determined in four ways (1) the intent to kill (2) intent to inflict great bodily injury (3) reckless disregard of an extreme risk to human life (depraved heart) and (4) felony murder.
What is the Scope of Discovery Rule?
Discovery is proper for any non-privileged matter that may lead to the discovery of any relevant evidence. Relevant evidence is evidence which tends to make any fact more or less likely. However, discovery does not have to be admissible in court in order to be discoverable; so long as it is relevant, the evidence may be properly discoverable.
What is the Joint Checking Account Rule?
A joint checking account is community property, and anything purchased from this account is community property.
What is the rule statement for Products Liability?
There are five (5) theories under Products Liability that a plaintiff may bring against a manufacturer as a cause of action. They are: 1. Negligent, 2. Strict Liability, 3. Warranty, 4. Misrepresentation, and 5. Intent.
A valid will can be revived if the testator has a valid will, attempts to revoke the will with a new instrument, but for some reason the second will fails to be valid. Here, the testator would not have revoked their first will except for their mistaken belief that their second will would have been valid.
What is the rule for Burglary?
Burglary is the breaking and entering the dwelling house of another at night with the intent to commit a felony.
What is the difference between Claim Preclusion and Issue Preclusion?
Claim Preclusion (Res Judicata) prevents relitigation of a claim that has been fully litigated, while Issue Preclusion (Collateral Estoppel) prevents relitigation of specific issues that were actually litigated and necessary to the prior judgment.
What is the Periera Method?
This method favors the community. Courts apply the Periera method when business growth is mostly due to the spouse's labor and abilities. Here, the owning spouse receives the original principal value, OPV, of the business, plus an annual rate of return calculated at 10% OPV, and the remaining value of the business is community property.
What is the rule statement for Strict Prioducts Liability?
A commercial seller who places a product in the stream of commerce may be strictly liable in tort for injuries caused by a defective product. In order to prevail in a cause of action for Strict Products Liability, the plaintiff must show a strict duty owed by a commercial supplier of a product, breach, actual and proximate causation, and damages.
What is the rule statement for Pre-Marital Agreement?
Premarital agreements allows parties to contract outside of Community property laws and is valid if in writing and signed by both parties. These agreements are not valid if involuntary or if unconscionable.
What is the rule statement for Conspiracy?
A conspiracy is an agreement between two or more persons with the intent to commit an unlawful act. The agreement can be implied or inferred and does not require that all persons commit the actual act. Modernly, a conspiracy can occur unilaterally. Common law requires a conspiracy be bilateral with two guilty minds.