b'\nEVIDENCE\n\nI.  Relevance\n\n   A. Two-Step Inquiry\n        a. Is the evidence relevant (tends to prove or disprove a material\n           fact)?\n              i. General Rule: evidence that has any tendency to make a\n                 material fact more probable or less probable than it would\n                 be without the evidence it\xe2\x80\x99s relevant (logical relevance),\n                 but evidence must relate to the time, event, or person\n                 involved in the present litigation\n             ii. Exception: certain similar acts may be relevant if\n                 probative of a material issue: (1) to prove cause and\n                 effect, (2) to show common plan or scheme of fraud, (3) to\n                 show instrumentality, (4) to infer intent from prior\n                 conduct, (5) to rebut impossibility, (6) to establish\n                 value, (7) habit (need specific description + recurrence),\n                 (8) business routine.  Must show: substantial identity of\n                 material circumstances.\n        b. If relevant, should the evidence nonetheless by excluded based\n           on:\n              i. Judicial discretion: exclude if the probative value of the\n                 evidence is substantially outweighed by the danger of (1)\n                 unfair prejudice, (2) confusion of issues, (3) misleading\n                 the jury, (4) undue delay, (5) wasting time, or (6)\n                 cumulative evidence.\n             ii. Public policy:\n                    1. Liability insurance: not admissible to show\n                       negligence or ability to pay\n                         a. Rationale: to encourage use of insurance.\n                         b. But, admissible when relevant to show ownership\n                            and control, or impeach credibility of witness\n                            by showing interest or bias\n                    2. Subsequent remedial measures: not admissible to show\n                       negligence, culpability, defect, or a need for a\n                       warning or instruction.\n                         a. Rationale: encourage subsequent repairs.\n                         b. But, admissible to show ownership and control,\n                            or impeachment (to controvert feasibility of\n                            precautionary measures).\n                    3. Settlements: not admissible to prove fault, liability\n                       or damage.\n                         a. Includes: actual compromises, offers to\n                            compromise, offers to plead guilty in a\n                            criminal case, withdrawn guilty pleas, pleas of\n                            nolo contendere, admissions of facts, liability\n                            or damage made in the course of settlement\n                            discussions.\n                         b. Limitations:\n                               i. There must be a claim w/ a claimant that\n                                  gives some indication that he plans to\n                                  file a claim.\n                              ii. The claim must be disputed as to either\n                                  liability or amount\n                             iii. An offer to pay hospital or medical\n                                  expenses is not admissible either.  But,\n                                  an admission that accompanies the naked\n                                  payment offer IS admissible.\n   B. Character Evidence\n        a. 4 Preliminary Questions:\n              i. For what purpose do you seek to offer character evidence?\n                    1. When character is the ultimate issues in the case \xe2\x86\x92\n                       ok\n                    2. To impeach the credibility of a witness \xe2\x86\x92 ok\n             ii. What method to prove character?\n                    1. Specific acts\n                    2. Opinion testimony\n                    3. Testimony as to the person\xe2\x80\x99s general reputation in\n                       the community\n            iii. What type of case? Criminal or civil?\n             iv. What trait of character? It must be the specific trait\n                 which is substantively at issue in the case.\n        b. Civil cases: character evidence NOT admissible as circumstantial\n           evidence to prove conduct.  But, character evidence is\n           admissible in a civil case IF character is directly at issue\n           (e.g. defamation, negligent entrustment, loss of consortium).\n           May prove by any method.\n\n\n\n        c. Criminal cases:\n              i. Basic Rules: Bad character, in any form, is NOT admissible\n                 at the initiative of the prosecution if the sole purpose is\n                 to show criminal propensity\n                 UNLESS & UNTIL\n                 The accused opens the door by presenting evidence of good\n                 character for the pertinent trait in the form of reputation\n                 and opinion to show innocence.  Only then may the\n                 prosecution respond by showing the bad character of the\n                 accused by:\n                    1. Cross-examining the character witness (including\n                       whether he knows of or has heard of specific\n                       instances of the D\xe2\x80\x99s misconduct)\n                    2. Calling qualified witnesses to testify to D\xe2\x80\x99s bad\n                       reputation, or give their opinion as to D\xe2\x80\x99s\n                       character.\n             ii. Evidence of the victims bad character\n                    1. In cases other than rape \xe2\x80\x93 self defense: D may\n                       present evidence of the victim\xe2\x80\x99s bad character when\n                       it is relevant to show the D\xe2\x80\x99s innocence.\n                         a. By reputation or opinion (to show victim\xe2\x80\x99s\n                            violent disposition).  By knowledge of specific\n                            acts (to show D\xe2\x80\x99s state of mind).\n                         b. Prosecution may counter with reputation or\n                            opinion evidence of the (i) victim\xe2\x80\x99s good\n                            character, or (ii) the defendant\xe2\x80\x99s bad\n                            character for the same trait.\n                    2. In sexual misconduct cases (rape cases): victim\xe2\x80\x99s\n                       past sexual behavior is generally inadmissible.\n                         a. Exceptions in criminal cases: (1) to prove that\n                            someone other than the D is the source of\n                            semen, injury, or other physical evidence (2)\n                            specific instances of sexual behavior between D\n                            and V are admissible by the prosecution for any\n                            reason, and by the D to prove consent.\n                         b. Exceptions in civil cases: admissible if not\n                            excluded by any other rule and its probative\n                            value substantially outweighs the danger of the\n                            harm to the victim.  Evidence of the V\xe2\x80\x99s rep.\n                            is admissible only if placed in controversy by\n                            the V.\n            iii. Evidence of a person\xe2\x80\x99s other crimes or misconduct is\n                 generally inadmissible.\n                    1. But, such evidence is admissible IF it is relevant to\n                       some issue other than character or disposition.\n                         a. M.I.M.I.C.: motive (i.e. burn building to hide\n                            embezzlement), intent (lack of good faith),\n                            absence of mistake, identity (stolen gun used\n                            or \xe2\x80\x9csignature\xe2\x80\x9d crimes), or common plan or\n                            scheme.\n                         b. To impeach credibility \xe2\x80\x93 to show lack of\n                            truthfulness after the D testifies (perjury\n                            convictions, for example).\n                    2. Applies in both civil and criminal cases.\n                    3. To be admissible: (1) there must be sufficient\n                       evidence to support a jury finding that the D\n                       committed the prior act, and (2) its probative value\n                       must not be substantially outweighed by the danger of\n                       unfair prejudice.\n                    4. Evidence of prior sexual assault or child molestation\n                       is always admissible in a case where the D is accused\n                       of committing a sexual assault or child molestation.\n                       So, D need not open any doors for Prosecution to\n                       raise issue.  Not limited to prior convictions.\n                       Includes any evidence of prior acts.\nII. Judicial Notice\n\n   A. Judicial Notice of Fact: Court may take judicial notice of\n      indisputable facts that are either (1) common knowledge in the\n      community, or (2) easily capable of verification.\n                  Effect of judicial notice:\n        a. In a civil case: fact is conclusive\n        b. In a criminal case case, jury may, but is not required, to\n           accept as conclusive any judicially noticed fact.\n   B. Judicial Notice of Law: Courts must take judicial notice of federal\n      and state law and the official regulations of the forum state and the\n      federal government.  Courts may take judicial notice of municipal\n      ordinances, private acts, resolutions of Congress, or laws of foreign\n      countries.\n\n\n\nIII. Real Evidence\n\n   A. Defined: actual physical evidence addressed directly to the trier of\n      fact.  May be direct, circumstantial, original, or prepared\n      (demonstrative).\n   B. General Conditions of Admissibility\n        a. Authentication: object must be identified as to what the\n           proponent claims it to be, either by:\n              i. Testimony of a witness that she recognizes the object as\n                 what the proponent claims or\n             ii. Evidence that the object has been held in a substantially\n                 unbroken chain of possession.\n        b. If the condition of the object is significant, it must be shown\n           to be in substantially the same condition at trial.\n        c. Balancing test to weigh relevance of evidence v. convenience of\n           bringing it to the courtroom, indecency or impropriety, or undue\n           prejudice.\n   C. Particular Types of Real Proof:\n        a. Photos, diagrams, maps etc. admissible if relevant.  Evidence\n           used solely for explanatory purposes permitted at trial, but\n           usually not admitted into evidence.\n        b. Maps, charts, models are usually admissible to illustrate\n           testimony, but must be authenticated.\n        c. Child may be exhibited to prove race in paterntity suit.\n        d. Injuries may be exhibited, but court may exclude if unfair\n           prejudice\n        e. Court has discretion to permit the jury to view places at issue\n           in the trial\n        f. Court has discretion to permit experiments or demonstrations in\n           the courtroom.\n\nIV. Documentary Evidence\n\n   A. In general: court may admit relevant documentary evidence.  When you\n      get a question about a writing, ask yourself 3 questions: (1) Was it\n      authenticated? (2) Is it hearsay? (or an exception?) and (3) Is it the\n      best evidence?\n   B. Authentication: to be admitted, a writing must be authenticated by\n      proof that shows that the writing is what the proponent claims it is.\n      The proof must be sufficient to support a jury finding (a reasonable\n      jury could find that the document is valid).  Proper authentications\n      include:\n        a. Admission by party against whom the evidence is offered.\n        b. Eyewitness testimony\n        c. Evidence of the genuineness of the handwriting of the maker.\n           May be opinion of a lay witness with personal knowledge, or an\n           expert who has compared the writing to samples of the maker\xe2\x80\x99s\n           handwriting.  Jury may also determine genuineness through\n           comparison of samples.\n        d. Evidence that the document is at least 20 years old, regular on\n           its face, and was found in a place where such writings are kept\n           (ancient documents rule).\n        e. Evidence that it was written in response to a communication sent\n           to the claimed author.\n        f. Witness familiar with the scene in a photograph may authenticate\n           the photo by testimony that it is a correct representation of\n           certain facts.  When no one can authenticate the scene,\n           authenticate by showing that the camera was properly operating\n           at the relevant time, and that the photo was developed from film\n           obtained from that camera.\n        g. X-rays: must show that the process used is accurate, the machine\n           in working order, and the operate was qualified.\n        h. Oral statements: may be authenticated by anyone who has heard\n           the voice at any time.  Or for telephone conversations,\n           testimony from one of the parties to the call that (1) he\n           recognized the other party\xe2\x80\x99s voice, (2) the speaker had\n           knowledge of certain facts that only a particular person would\n           have; (3) he called a particular person\xe2\x80\x99s number and voice\n           answered as the person; or (4) he called a business and talked\n           w/ the person answering the phone about matters relevant to the\n           business.\n        i. No authentication needed for: (1) certified copies of public\n           records, (2) official publications, (3) newspapers and\n           periodicals, (4) trade inscriptions or labels, (5) acknowledged\n           documents, (6) commercial paper (7) certified business records.\n\n\n\n   C. Best Evidence Rule: To prove the content of a writing, the original\n      writing must be produced.  Secondary evidence of the writing (e.g.\n      oral testimony) is only admissible if the original is unavailable.\n        a. Applies where (1) the writing is a legally operative or\n           dispositive instrument; or (2) a witnesses knowledge of a fact\n           results from having read it in the document.\n        b. Does NOT apply where (1) facts to be proven exist independently\n           of the writing (witness has personal knowledge), (2) the writing\n           is of minor importance to the controversy (collateral document\n           rule), (3) records are voluminous (can produce summary instead,\n           must provide access to opposing side, and notice that you\xe2\x80\x99re\n           presenting a summary); (4) public records.\n        c. Machine generated duplicates/exact copies of an original are\n           admissible unless (1) the authenticity of the original is\n           challenged or (2) unfairness would result.\n        d. If proponent can\xe2\x80\x99t produce the original, he may offer secondary\n           evidence if a satisfactory explanation is given for non-\n           production of the original.  Valid excuses include:\n              i. Loss or destruction of the original\n             ii. Original is in possession of a 3rd party outside of the\n                 jurisdiction, and is unobtainable\n            iii. Original is in possession of an adversary who fails to\n                 produce the original.\n        e. Judge decides admissibility of duplicates, other copies, etc.\n           But the jury decides:\n              i. Whether the original ever existed\n             ii. Whether a writing, etc. produced at trial is an original\n            iii. Whether the evidence offered correctly reflects the\n                 contents of the original.\n   D. Parol Evidence Rule: if an agreement is reduced to writing.  The\n      writing constitutes the whole agreement.  Prior contemporaneous\n      negotiations or agreements are inadmissible to vary the terms of the\n      writing.  Rule does NOT apply \xe2\x80\x93 prior contemporaneous negotiations are\n      admissible to\n        a. Complete an incomplete K, or explain an ambiguous term\n        b. Reform a mistake in a K\n        c. Show that the K is void or voidable, or that it was subject to\n           condition precedent\n        d. Show subsequent modification or discharge of the written\n           agreement.\n\nV. Testimonial Evidence\n\n   A. Competency of Witnesses: witness must pass test of basic reliability;\n      but they are generally presumed to be competent until the contrary is\n      established.\n        a. Qualification under the Federal Rules\n              i. Witness must have communicable personal knowledge AND\n             ii. Witness must declare that he will testify truthfully.\n        b. Special groups\n              i. Children may testify depending on capacity/intelligence as\n                 determined by the judge.\n             ii. An insane person may testify provided he understand the\n                 obligation to speak truthfully and he has the capacity to\n                 be truthful.\n            iii. Presiding judge and jurors may NOT testify\n             iv. Dead Man Act (state law): bars an interested party from\n                 testifying to a personal communication w/ a deceased when\n                 such testimony is against the deceased\xe2\x80\x99s successor unless\n                 there is a waiver (rationale: fear of perjury).\n   B. Form of Examination of Witness (Judge controlled)\n        a. Leading questions generally improper on direct examination.\n           But, permitted\n              i. On cross-examination\n             ii. To elicit preliminary or introductory matter\n            iii. To refresh a witnesses\xe2\x80\x99 memory\n             iv. When a witness is hostile.\n        b. Other improper forms of questions\n              i. Misleading (can\xe2\x80\x99t be answered w/out making an unintentional\n                 admission)\n             ii. Compound (more than one question)\n            iii. Argumentative\n             iv. Conclusionary\n              v. Cumulative\n             vi. Unduly harassing/embarrassing\n            vii. Calls for narrative or speculation\n           viii. Assumes facts not in evidence\n\n\n        c. Answers that may be stricken\n              i. Lacks foundation (witness has insufficient personal\n                 knowledge)\n             ii. Non-responsive (witness did not answer the specific\n                 question asked).\n            iii. Note: request must be made before W answers if the question\n                 is objectionable\n        d. Witness can\xe2\x80\x99t read her testimony from a prepared writing.  But,\n           a writing can be used:\n              i. To refresh a witnesses recollection\n                    1. Can use anything to refresh memory \xe2\x80\x93 no\n                       authentication, hearsay, or best evidence problems\n                       b/c writing is not offered into evidence.\n                    2. Witness must say \xe2\x80\x9cI can\xe2\x80\x99t remember.\xe2\x80\x9d\n                    3. The adverse party is entitled to have whatever\n                       writing is used to refresh a witness\xe2\x80\x99s recollection\n                       produced at trial, to cross-examine the witness\n                       thereon, and to introduce portions relating to the\n                       witness\xe2\x80\x99s testimony into evidence.\n                 = OR =\n             ii. Under the recorded recollection doctrine, if a witness\n                 still can\xe2\x80\x99t remember, the writing itself may be read into\n                 evidence IF the proponent proves that:\n                    1. The witness had personal knowledge of the facts in\n                       the writing at one time\n                    2. The writing was made by the witness or under her\n                       direction, or it was adopted by the witness\n                    3. The writing was timely made when the matter was fresh\n                       in the witness\xe2\x80\x99s mind;\n                    4. The writing is accurate; and\n                    5. The witness must be unable to remember all or part of\n                       the details.\n                 Note: this is hearsay, but recorded recollection is an\n                 exception to the hearsay rule.\n   C. Opinion Testimony\n        a. Lay opinion: admissible if: (1) rationally based on the\n           perception of the witness (personal knowledge), (2) the opinion\n           is helpful to the trier of fact (no legal conclusions), and (3)\n           not based on scientific, technical, or other specialized\n           knowledge.  Note: Lay opinions are NOT admissible re whether one\n           acted as an agent or whether an agreement was made.\n        b. Expert opinion: 4 basic requirements (as determined by the\n           judge):\n              i. Subject matter must be appropriate for expert testimony:\n                 the opinion must be sufficiently reliable that it is\n                 helpful to the trier of fact\n                    1. The methodology underlying the opinion must be\n                       reliable\n                    2. The opinion must be relevant (must fit the facts of\n                       the case).\n             ii. Witness must be qualified as an expert: qualifications need\n                 not be formal or academic.  Skill or experience is\n                 sufficient.\n            iii. Expert must possess reasonable certainty or probability\n                 regarding the opinion: more than mere speculation.\n             iv. Opinion must be supported by a proper factual basis.  Facts\n                 supporting the opinion must be either:\n                    1. Facts w/in the personal knowledge of the expert\n                    2. Facts not w/in personal knowledge, but supplied to\n                       the expert by the evidence\n                    3. Facts not w/in personal knowledge, not in evidence,\n                       as long as they are of a type that experts in that\n                       field would reasonably rely upon in making out of\n                       court professional decisions.\n        c. Learned trestises\n              i. Can be used to rebut or impeach your opponent\xe2\x80\x99s expert IF\n                    1. Your opponent\xe2\x80\x99s expert relies on that text or\n                       treatise\n                    2. Elicit an admission on cross-examination \xe2\x80\x9care you\n                       familiar w/ X, do you consider it authoritative or\n                       reliable?\xe2\x80\x9d\n                    3. Call your own expert witness to testify that the text\n                       is reliable.\n                    4. Judicial notice.\n             ii. Can be used for its truth IF (exception to the hearsay\n                 rule):\n                    1. Reliance by your expert on direct examination\n                    2. Admission on cross-examination of your opposing\n                       expert\n                    3. Testimony of any expert OR\n                    4. Judicial notice\n            iii. Limitations: (1) expert must testify (at trial or\n                 deposition) unless judge takes judicial notice (2) treatise\n                 is admitted by being read to the jury.  Text itself is not\n                 received as evidence.\n   D. Cross-Examination\n        a. Party has absolute right to cross-examine any witness who\n           testifies live (if witness refuses to answer any cross-\n           examination questions after testifying on direct, or dies before\n           direct, direct testimony must be stricken).\n        b. Limited to (i) the scope of direct examination, including all\n           reasonable inferences that may be drawn from it, and (ii)\n           testing the credibility of the witness.\n        c. Collateral (minor) Matters Doctrine: No extrinsic evidence is\n           allowed to contradict a witness as to a collateral matter\n           (anything whose only relevance is to show the contradiction).\n           Cross-examiner is bound by the answers given by the witness.\n   E. Credibility \xe2\x80\x93 Impeachment\n        a. Accrediting your own witness\n              i. No bolstering your own witness unless there has first been\n                 impeachment\n             ii. Prior statements of identification made by the witness are\n                 admissible (e.g. id in police line-up) (identifications are\n                 by definition NON-hearsay) (witness must be present in\n                 court and available for cross-examination).\n        b. Impeaching your own witness \xe2\x80\x93 allowed if the witness is\n              i. An adverse party or identified w/ an adverse party\n             ii. Hostile\n            iii. One whom the party is required by law to call\n             iv. Gives surprise testimony that is affirmatively harmful\n        c. Impeaching your adversary\xe2\x80\x99s witness: a witness may be impeached\n           by either cross-examination (eliciting facts from the witness)\n           or by extrinsic evidence (by putting other witnesses on the\n           stand who will introduce facts discrediting testimony) through:\n              i. Prior inconsistent statements\n                    1. Generally admissible only to impeach \xe2\x80\x93 not for its\n                       truth\n                    2. But, if the prior inconsistent statement was given\n                       under oath AND at a trial, hearing, or in a\n                       deposition, such a statement IS admissible for its\n                       truth.\n                    3. Extrinsic evidence is admissible to prove the prior\n                       inconsistent statement, but must give witness an\n                       opportunity to explain or deny the statement (at any\n                       time)\n                    4. Prior inconsistent statements of a party = an\n                       admission \xe2\x86\x92 so it\xe2\x80\x99s fully admissible for its truth\n                       (even when not made under oath).\n             ii. Evidence of bias: may be shown by extrinsic evidence after\n                 a foundation is laid by inquiry on cross-examination of the\n                 target witness.\n            iii. Prior conviction of crime\n                    1. Must be a felony or a crime involving dishonesty\n                       (deceit) or false statement (no discretion to exclude\n                       if involves dishonesty).  Can\xe2\x80\x99t use juvenile\n                       convictions or crimes from 10+ years since release.\n                    2. Extrinsic evidence of conviction is admissible\n                       (certificate of conviction and no foundation\n                       necessary).\n             iv. Specific acts of deceit or lying may be asked about in\n                 cross-examination\n                    1. E.g.: Did you lie on your 2005 income taxes?\n                    2. Good faith required, with reasonable basis for\n                       believing that the act was done by the witness.\n                    3. Act inquired about must involve deceit or lying\n                    4. No extrinsic evidence permitted.  You must take the\n                       answer of the witness.\n              v. Bad reputation or opinion for truth or veracity.  May call\n                 the community mouth to the stand, to testify to the\n                 witness\xe2\x80\x99s bad reputation.  Can\xe2\x80\x99t testify to specific\n                 instances of deceit or lying.\n        d. Rehabilitating After Impeachment\n              i. Explanation on re-direct\n             ii. Good reputation (opinion) for truth or veracity may be\n                 shown if impeachment involved a character attack (prior\n                 conviction; act of deceit or lying; bad reputation for\n                 truth).\n            iii. Prior consistent statements may be used to rebut an express\n                 or implied charge of fabrication or improper influence of\n                 motive (must be pre-motive statement).\n                    1. Can\xe2\x80\x99t use to rebut charge of prior inconsistent\n                       statement\n                    2. Admissible for its truth\n\n\n   F. Privileges\n        a. Attorney-Client: Confidential communications between attorney\n           and client made during professional legal consultation are\n           privileged from disclosure unless waived by the client or the\n           representative of the deceased client.\n              i. Elements:\n                    1. The right parties\n                    2. Confidential communication (not physical evidence of\n                       pre-existing docs)\n                    3. Intent by client to establish a professional legal\n                       relationship (includes retainer agreement\n                       negotiations, even if representation is ultimately\n                       denied).\n             ii. Note: applies to the atty\xe2\x80\x99s agent as well, including a\n                 doctor who examines the client at the attys request (e.g.\n                 to assess the extent of injury).\n            iii. Exceptions: situations where privilege does not apply\n                 (first 3 negate all prof privileges):\n                    1. Future crime or fraud\n                    2. When client or patient affirmatively puts\n                       communication in issue\n                    3. Dispute between the parties as to the professional\n                       relationship (actions for fees or malpractice).\n                    4. Where two or more parties communicate w/ attorney\n                       about a matter of common interest, no privilege\n                       between them\n        b. Physician/Psychiatrist-Patient: The patient has a privilege\n           against disclosure of confidential information acquired by the\n           physician/psychiatrist in a professional relationship entered\n           into for the purpose of obtaining treatment.\n              i. Key Elements:\n                    1. Patient must be seeking treatment\n                    2. Information acquired must be confidential and\n                       necessary for treatment.\n             ii. Note: doctor-patient privilege does not apply in federal\n                 courts.  Nor does it apply where the patient puts medical\n                 treatment at issue (personal injury).\n            iii. Waiver of the physician patient privilege is common\n                 especially because of the Patient Litigation Exception.\n                 Privilege is waived if patient sues or defends by putting\n                 physical or mental condition in issue.\n        c. Husband-Wife Spousal Privileges.\n              i. Does not apply to intra-family injury cases (i.e. child\n                 abuse, incest)\n             ii. Dual Privilege:\n                    1. Spousal Immunity Privilege: one spouse can\xe2\x80\x99t be\n                       forced to give adverse testimony against the other in\n                       a criminal case.  Requirements:\n                         a. Valid marriage at the time of trial\n                         b. Protects against any and all testimony\n                            (including pre-marriage facts)\n                         c. Holder of privilege is witness spouse not party\n                            spouse\n                         d. Applies only in criminal cases\n                    2. Confidential Marital Communications Privilege: spouse\n                       can\xe2\x80\x99t be required (or allowed without consent from\n                       other spouse), to disclose confidential communication\n                       made by the other during the marriage.  Requirements:\n                         a. Marriage not necessarily at time of trial, but\n                            at time of protected communication.\n                         b. Protects only confidences not all testimony.\n                            So spouse can take the stand, but may be\n                            stopped from revealing marital communications.\n                         c. Either spouse holds the privilege, not just the\n                            witness.\n                         d. Privilege applies in both civil and criminal\n                            cases.\n        d. Procedural Issue: federal evidence law applies in federal courts\n           b/c it\xe2\x80\x99s procedural.  But, there are 3 exceptions where state\n           evidence law applies in fed courts IF state substantive law\n           applies:\n              i. Presumptions and burdens of proof\n             ii. Competency of witnesses (state dead man\xe2\x80\x99s statute)\n            iii. Privileges  (if federal question case, federal common law\n                 applies)\n   G. Exclusion and Sequestration of Witnesses: generally judge may order\n      witnesses excluded from the courtroom (upon party request or on his\n      own motion).  But, the judge may not exclude: (1) a party or a\n      designated officer/employee of a party, (2) a person whose presence is\n      essential to the presentation of a party\xe2\x80\x99s case, or (3) a person\n      statutorily authorized to be present.\n\n\nVI. Hearsay\n   A. Definition: out of court statements offered for the purpose of\n      establishing the truth of the matter asserted in the statement.\n        a. 3 Questions\n              i. Is it an out-of-court statement?\n             ii. What precisely is the out-of-court statement?\n            iii. Is it being offered for the purpose of establishing its\n                 truth?\n        b. Rationale: it denies the opponent the opportunity to cross-\n           examine the person whose perception, memory and sincerity are in\n           issue.  Where we only care about the witnesses perception,\n           memory or sincerity (rather than the declarant) it\xe2\x80\x99s not\n           hearsay.\n        c. Non-Hearsay\n              i. Verbal Acts: words of offer, acceptance, defamation,\n                 conspiracy, bribery, cancellation, misrepresentation,\n                 waiver, permission.\n             ii. Out-of-Court statements offered to shows its effect on the\n                 hearer: to show notice to, or the good faith of, or reason\n                 for action or inaction by the person who heard or read the\n                 out-of-court statement.\n            iii. Out-of-Court statements to show declarant\xe2\x80\x99s state of mind.\n        d. Generally, a witnesses own prior statements are also hearsay.\n           But, certain prior statements are admissible:\n              i. Prior inconsistent statement given under oath as part of a\n                 proceeding or deposition\n             ii. Prior consistent statement to rebut charge of recent\n                 fabrication or improper motive\n            iii. Prior statements of identification made by a witness on the\n                 witness stand.\n        e. Party Admissions \xe2\x89\xa0 hearsay (statement of a party offered against\n           the party), so they ARE admissible.\n              i. Need not be against interest at time of making statement\n             ii. Need not be based on personal knowledge\n            iii. Can be in the form of a legal conclusion (\xe2\x80\x9cI was\n                 negligent\xe2\x80\x9d)\n             iv. Vicarious admission: a statement by an employee concerning\n                 a matter w/in the scope of her employment IS admissible\n                 against the employer if made during existence of the\n                 relationship.\n   B. Exceptions to the Hearsay Rule\n        a. Former testimony: testimony given in earlier proceeding by\n           person now unavailable is admissible if (1) meaningful\n           opportunity for cross; and (2) unavailability of the declarant.\n              i. Meaningful opportunity: (1) same issue and motive, and (2)\n                 same identity of party (party against whom offered must\n                 have been a party in the first proceeding or, in civil\n                 case, at least in privity with party in first proceeding).\n             ii. Unavailability: Court exempts declarant from testifying due\n                 to privilege; declarant refuses to testify b/c of privilege\n                 or other reason; declarant\xe2\x80\x99s memory fails; declarant is\n                 dead or sick; or proponent of statement cannot procure\n                 declarant\xe2\x80\x99s attendance by process of other reasonable\n                 means.\n        b. Statements against interest: declaration of a person, now\n           unavailable as a witness, against that persons\xe2\x80\x99 pecuniary,\n           proprietary or penal interest (or statement which would expose\n           declarant to civil liability or defeat a civil claim by\n           declarant) at the time the statement was made.  Requirements:\n              i. Statement must have been against interest when made\n             ii. Declarant must have personal knowledge of facts\n            iii. Declarant must be unavailable\n             iv. Does not have to be a party (distinguish party admissions).\n        c. Dying declaration: Statement made by a declarant while believing\n           his death is imminent.  Requirements:\n              i. Made under sense of impending death (need evidence that the\n                 declarant believed he was going to die)\n             ii. Declarant need not die but must be unavailable at time of\n                 trial\n            iii. Admissible in homicide or any civil cases\n             iv. Must concern cause or circumstances of impending death.\n        d. Statements of personal or family history (e.g. birth, death,\n           marriage) made by family member or one closely associated with\n           the family.\n        e. Statement of unavailable declarant offered against party who\n           procured the unavailability.\n        f. Spontaneous statements (unavailability not required):\n              i. Then existing state of mind when state of mind is in issue\n                 (\xe2\x80\x9cI believe I am the pope\xe2\x80\x9d)\n             ii. Statements of existing intent to do something in the\n                 future: admissible to infer that what was intended was done\n                 (\xe2\x80\x9cIn ten days I will kill myself.\xe2\x80\x9d)\n            iii. Excited utterance: (1) startling event, (2) statement made\n                 under stress of excitement, (3) concerns the facts of the\n                 startling event.  Look for nature of event, time lapse,\n                 language.\n             iv. Present-sense impression: a statement describing or\n                 explaining an event or condition made while the event was\n                 happening (\xe2\x80\x9cSpano\xe2\x80\x99s at the door.\xe2\x80\x9d)\n              v. Declaration of then existing physical condition: admissible\n                 by anyone who hears it (\xe2\x80\x9cIt hurts!\xe2\x80\x9d).\n             vi. Declaration of past physical condition: statements made\n                 describing medical history.  Admissible if: (1) made to\n                 medical personnel, (2) pertinent to either diagnosis or\n                 treatment (even if diagnosis is only for the purpose of\n                 giving testimony).\n        g. Business records: Records made as a memo of any business\n           transaction is admissible if:\n              i. The record is germane to business\n             ii. It appears that the record was made in the regular course\n                 of business\n            iii. The business record consists of matters w/in the personal\n                 knowledge of the entrant or within the knowledge of someone\n                 with a duty to transmit such matters.\n             iv. Entry made at or near the time of the transaction\n              v. Authenticity established by the custodian (1) testifying\n                 that the record is a business record, or (2) certifying in\n                 writing that the record is a business record.\n   C. Important Test Notes:\n        a. Preliminary fact questions upon which admissibility depends are\n           decided by the judge, and she is not bound by the rules of\n           evidence to make this determination (i.e. she can use hearsay).\n        b. You are entitled to impeach the credibility of a hearsay\n           declarant, even when he\xe2\x80\x99s absent, by any evidence which would be\n           admissible for impeachment if the declarant had testified live.\n        c. Mixing hearsay and writings: remember best evidence rule.  Where\n           a witness want to testify to a recorded message, which meets a\n           hearsay exception, it is still inadmissible unless you satisfy\n           the best evidence rule (i.e. explaining the absence of the\n           recording itself).\n   D. Constitutional Issues: Sixth Am gives the accused in a criminal case\n      the right of confrontation.  Therefore, out-of-court statements, which\n      are \xe2\x80\x9ctestimonial in nature\xe2\x80\x9d (made to law enforcement personnel for the\n      use of investigation or prosecution of a crime) will be admissible\n      against the accused in a criminal case ONLY IF:\n        a. The declarant is unavailable AND\n        b. The defendant has a prior opportunity to cross examine\n        c. Exception: Does not apply if the prosecution demonstrates that\n           the D had forfeited his Confrontation Clause objection by\n           wrongdoing that prevented the declarant from testifying at\n           trial.\n\n-----------------------\nDeclarant must be unavailable\n\n\n'


b'\nCORPORATIONS\n\n   1) Organization of corporation\n        a. Formation requirements: people, paper, act\n              i. Ultra vires activities\n             ii. De Jure Corporation: acceptance of Articles by the\n                 Secretary of State\n            iii. De Facto: good faith attempt to comply with the inc.\n                 statute.\n             iv. Corporation by Estoppel: one dealing w/ a business as a\n                 corp. may be estopped from denying the business\xe2\x80\x99s corp.\n                 status.\n        b. Promoters\n              i. Pre-incorporation contracts.\n                    1. Promoter always liable until there is novation\n                    2. Corporation never liable until there is adoption\n             ii. Promoter cannot make a secret profit on her dealings w/\n                 corp.\n        c. Foreign corporations must qualify by getting a \xe2\x80\x9ccertificate of\n           authority\xe2\x80\x9d\n\n   2) Issuance of Stock\n        a. Only applies when corp. is selling its own stock\n        b. Subscriptions \xe2\x80\x93 written offers to buy stock\n              i. Pre-incorporation \xe2\x80\x93 irrevocable for 6 months unless\n                 provided otherwise\n             ii. Post-incorporation \xe2\x80\x93 revocable until acceptance\n        c. Consideration\n              i. Forms\n                    1. Traditional rue: (1) money, (2) tangible/intangible\n                       property; (3) services already performed\n                    2. Modern trend: \xe2\x80\x9cany tangible or intangible property or\n                       benefit to the corp\xe2\x80\x9d including promissory notes and\n                       future services.\n             ii. Par value \xe2\x80\x93 minimum issuance price\n            iii. Watered stock\n        d. Pre-emptive rights: right of a SH to maintain her percentage of\n           ownership by buying stock whenever there is an issuance of new\n           common stock for money.\n\n   3) Directors and Officers\n        a. Statutory Requirements \xe2\x80\x93 for directors\n              i. Number \xe2\x80\x93 one or more adult natural persons\n             ii. Election: SHs elect directors at the annual meeting\n                 (staggered, classified board)\n            iii. SHs can remove directors with or without cause\n             iv. Board action: (1) unanimous written consent, or (2) a\n                 meeting\n        b. Duty of Care \xe2\x80\x93 Owed to corp.  She must act in good faith as a\n           prudent person would act in regards to her own business.  P\n           bears burden of proof.\n              i. Nonfeasance: only liable if caused loss to corp.\n             ii. Misfeasance: not liable if satisfies BJR (no review if good\n                 faith, informed, rational basis).\n        c. Duty of Loyalty \xe2\x80\x93 Owed to corp.  She must act in good faith in\n           the reasonable belief that she is acting in the best interest of\n           the corp.\n              i. Deals w/ interested directors VOID unless (1) fair to corp.\n                 OR (2) interest and relevant facts disclosed to corp. AND\n                 approval by a majority of disinterested directors or\n                 shares.\n             ii. Can\xe2\x80\x99t compete with the corp.\n            iii. Can\xe2\x80\x99t usurp corp. opportunities (D liable for any profits\n                 made at the corp.s expense)\n        d. Who\xe2\x80\x99s liable: a director is presumed to have concurred w/ Board\n           action unless her dissent or abstention is noted in writing.\n           Exceptions:\n              i. Absent directors\n             ii. Good faith reliance\n        e. Indemnification: depends largely on the outcome of the suit.\n              i. A director is entitled to indemnification for legal\n                 expenses incurred if the D is \xe2\x80\x9cwholly successful\xe2\x80\x9d or \xe2\x80\x9cto\n                 the extent\xe2\x80\x9d she was successful in defending a suit.\n             ii. A corporation may NOT indemnify a director where D is\n                 liable to the corp. or D received an improper personal\n                 benefit\n            iii. Other times it\xe2\x80\x99s permissive, the standard being whether the\n                 D breached duty of loyalty\n   4) Shareholders\n        a. Generally, a SH is not liable for the acts or debts of the\n           corporation, but the Court will pierce the corporate veil and\n           hold the SH personally liable to avoid fraud or unfairness.\n              i. Alter ego\n             ii. Undercapitalization\n        b. Generally, the board of directors not the SHs manage the corp.\n           Exception: close corporations.\n        c. SH Derivative Suits: where SH sues to enforce a corp.\xe2\x80\x99s claim\n           not her own personal interest.\n              i. P must: (1) have been a SH at the time of the conduct\n                 giving rise to the suit (2) adequately represent the corp.,\n                 and (3) make a written demand of the corp. to bring suit\n                 unless it would be futile.\n             ii. Recovery goes to corp.; SH-P gets costs and atty fees (if\n                 successful)\n            iii. Corp. can move to dismiss if a committee of disinterested\n                 SHs determines that the suit is not in the best interest of\n                 the corp.\n        d. SH Voting: Record SH as of record date had the right to vote.\n              i. Proxies: SH may authorize another to vote his shares\n                    1. Good for 11 months unless otherwise agreed\n                    2. Revocable unless \xe2\x80\x9cproxy coupled with an interest\n             ii. Voting trusts / voting agreements\n            iii. Quorum:\n                    1. For meeting: usually a majority of outstanding\n                       shares, but no less than 1/3 of shares entitled to\n                       vote.\n                    2. To pass resolution either (1) majority of shares\n                       represented at meeting OR (2) majority of shares\n                       actually voting (split in authority)\n             iv. Cumulative voting (only for directors): # of shares x # of\n                 director seats\n        e. Transfer restrictions \xe2\x80\x93 valid if reasonable under the\n           circumstances (e.g. not an undue restraint on alienation).\n        f. Right to Inspect Books:\n              i. Traditional view: must have owned stock for 6 months or own\n                 at least 5%\n             ii. Modern trend: any SH\n        g. Distributions:\n              i. Board has discretion to declare distributions.  To force\n                 distribution, must make a very strong showing of abuse of\n                 discretion.\n             ii. Which SH get dividends:\n                    1. Preferred: paid first\n                    2. Participating: paid again\n                    3. Cumulative: add them up\n            iii. Where does the money come from?\n                    1. Earned surplus: all earnings \xe2\x80\x93 losses \xe2\x80\x93 dividends\n                       already paid\n                    2. Capital surplus: income generated by stock over par\n                       value\n                    3. NEVER stated capital: par value.\n   5) Fundamental corporate change\n        a. Merger and Consolidation:\n              i. Requires that the Ds adopt a resolution setting forth\n                 proposed action, and submitting it for a vote at a SH\xe2\x80\x99s\n                 meeting.  Need approval by a majority of shares entitled to\n                 vote.\n             ii. Short form merger does not require SH approval\n            iii. Appraisal rights of dissenting SH.  Requires: (1) written\n                 objection before meeting, (2) vote against merger or\n                 abstaining, (3) file written demand for purchase.\n        b. Sale of Assets:\n              i. Substantially all \xe2\x80\x93 requires approval from directors and a\n                 majority of SHs entitled to vote\n             ii. De Facto Merger \xe2\x80\x93 sale of all assets\n                    1. May trigger appraisal rights\n                    2. Successor liability\n        c. Amendment of Articles: Board action + approval by a majority of\n           shares entitled to vote.\n        d. Dissolution:\n              i. Voluntary: board action + approval by a majority of shares\n                 entitled to vote (wind up)\n             ii. Involuntary: court ordered via SH petition b/c of director\n                 abuse, director deadlock that harms the company, or SH\n                 deadlock and failure for at least two annual meeting to\n                 fill a vacant board position.  Alternative: court may order\n                 buy-out of the complaining SH\n   6) securities and related topics\n        a. Common Law Liabilities\n              i. Sale of Controlling SHs interest: Generally, a SH may act\n                 in their own personal interest and have no fiduciary duty\n                 to the corp. or other SHs.  But, a SH who has a controlling\n                 interest must not act in a way that unfairly prejudices\n                 minority SHs.  Thus, a controlling SH may sell for more\n                 than its value, but\xe2\x80\xa6\n                    1. No sale to looters \xe2\x80\x93 must make reasonable efforts to\n                       investigate the buyer\n                    2. No sale of corporate assets\n                    3. No sale of board positions\n             ii. Special Facts Doctrine: Many courts impose an affirmative\n                 duty on officers and directors to disclose special facts\n                 during securities transactions with a SH.\n                    1. Special facts = those a reasonable investor would\n                       consider important in making an investment decision.\n                    2. SH may recover difference between price paid and\n                       value of the stock after public disclosure.\n            iii. Misrepresentation\n                    1. Misrepresentation of a material fact\n                    2. Which D knew/believed to be false or w/ reckless\n                       disregard to its truth\n                    3. Intent to induce reliance on the misrepresentation\n                    4. Actual reliance\n             iv. Misappropriation: some courts have adopted a rule imposing\n                 a duty to disclose on anyone who has misappropriated\n                 nonpublic information.  Thus, anyone who has breached a\n                 fiduciary duty owed to anyone else is liable on this theory\n                 when brought by the government.\n        b. Federal Rule 10b-5: makes it illegal to use any fraudulent\n           scheme in connection with the purchase or sale of any security.\n\n\n              i. Elements:\n                    1. Instrument of interstate commerce.\n                    2. Fraudulent conduct: (misrepresentation, omission,\n                       tipping)\n                    3. In connection with either purchase or sale\n                    4. Material fact\n                    5. Scienter \xe2\x80\x93 intent to defraud\n                    6. Reliance\n             ii. Insider trading \xe2\x80\x93 abstain from trading or disclose the\n                 insider information.\n                    1. Fiduciary relationship required\n                    2. Tipper/Tipee: where an insider gives a tip of inside\n                       info:\n                         a. The tipper can be liable if the tip was made\n                            for any improper purpose\n                         b. The tipee can be liable if the tipper breached\n                            a duty and the tippee knew that the tipper was\n                            breaching the duty.\n            iii. Damages: the difference between the price paid and the\n                 price a reasonable time after public disclosure.\n        c. Federal Rule 16(b) \xe2\x80\x93 provides that any profit realized by a\n           director, officer, or ten percent SH from any purchase and sale,\n           or sale and purchase, of any equity security of his corporation\n           within a six-month period must be returned to the corporation.\n              i. A person is ten percent SH is she directly or indirectly\n                 owns 10% of any class of equity security at the time\n                 immediately before both the purchase and the sale.\n             ii. Result: all profits go to the corporation.\n                    1. Profits occur where within 6 months before or after\n                       any sale, there was a purchase at a lower price.\n                    2. To calculate: match the highest sales price against\n                       the lowest purchase price during any 6-month period.\n'


b'\nReal Property \xe2\x80\x93 Opening Paragraphs\n\n   1) Landlord-Tenant Relationships\n\n\n        a. Tenancy for Years\n\nA tenancy for years is a tenancy that continues for a fixed period of time.\n A tenancy for a period greater than one year comes under the statute of\nfrauds, and thus must be in writing, signed by the party to be charged, to\nbe enforceable.  It terminates upon the specified date.\n\n        b. Periodic Tenancy\n\nA period tenancy is one that continues for successive or continuous\nintervals.  It may be created expressly or by implication.  The party who\nwishes to terminate the lease must provide written notice, and the notice\nmust be at least equal to the length of the period itself.  Also, the\ntenancy must end the conclusion of a natural lease period.\n\n        c. Assignment\n\nAn assignment occurs when the assignor assigns his entire interest under\nthe lease to another.  The assignee stands in the shoes of the original\ntenant in a direct relationship with the landlord.  The landlord and\nassignee are in privity of estate, and each is liable to the other on all\nlease covenants that run with the land.  But, the landlord and assignor\nremain in privity of contract, thus the assignor remains liable for all\nunpaid rent.\n\nAn assignee and landlord are liable to each other for all covenants that\nrun with the land.  A covenant runs with the land if (1) the original\nparties to the lease intended that the covenants run with the land, and (2)\nthe covenant \xe2\x80\x9ctouches and concerns\xe2\x80\x9d the land.  A covenant touches and\nconcerns the land when the agreement burdens one party while benefiting the\nother, respecting their interests in the property.\n\n        d. Sublease\n\nA sublease occurs when the subleasor moves out of the premises, and allows\nthe subleasee to move into the premises as the subleasor\xe2\x80\x99s tenant.  A\nsubleasee is only in privity with the subleasor, and is not personally\nliable to the landlord for rent or for the performance of any of the\ncovenants in the main lease unless the subleasee expressly assumes the\ncovenants.\n\nThus, a subleasee cannot enforce any covenants made by the landlord in the\noriginal lease.  However, a residential subleasee may be able to enforce\nthe implied warranty of habitability against the landlord.\n\n        e. Implied Covenant of Quiet Enjoyment\n\nA landlord has an implied duty not to interfere with a tenant\xe2\x80\x99s quiet\nenjoyment and possession of the premises.  The covenant may be breached by\ntotal, partial or constructive eviction.\n\nA partial eviction requires physical exclusion from some part of the\nproperty.  The tenant may stay on the portion that is not affected, but is\nnot obligated to pay rent.  But, if the eviction is done by someone\nclaiming paramount title, the tenant must pay the landlord for the portion\nretained.\n\nA constructive conviction occurs when the landlord, by failing to provide a\nservices that he has a duty to provide, makes the property uninhabitable.\nThe tenant must move out within a reasonable amount of time, and make seek\ndamages.  Unlike an actual eviction, the tenant must continue to pay rent.\n\n        f. Implied Covenant of Habitability\n\nA landlord has a duty to ensure that a residence is reasonably suited for\nhuman habitation.  The standard is usually set by the local housing code.\nOnly applies to residential property.  Where breached, tenant has three\noptions: (1) abandon the premises and terminate the lease, (2) repair and\nabate rent, or (3) remain and sue for damages.\n\n\n\n\n   2) Concurrent Estates\n\n\n        a. Joint Tenancy\n\nA joint tenancy occurs where two or more tenants possess the entire parcel\nwith rights of survivorship.  When a joint tenant dies his interest\ndissolves, and the surviving tenants retain an undivided right to the\nproperty, which is no longer subject to the deceased-tenant\xe2\x80\x99s interest.  At\ncommon law, four unities are required to create a joint tenancy: (1) unity\nof time, (2) unity of title, (3) unity of interest and (4) unity of\npossession (T-TIP).\n\nVoluntary or involuntary intervivos conveyance severs the joint tenancy as\nto the transferred/encumbered interest, and creates a tenancy in common.\nThe other joint tenancy remains in tact.  Under the lien theory,\nencumbrance does not sever.  Under the title theory, the encumbrance will\nnot sever immediately, but it will sever upon foreclosure.\n\n        b. Tenancy in Common\n\nA tenancy in common exists where two or more people hold title to a\nproperty with no right of survivorship.  The common law presumes a tenancy\nin common is created where there is no mention of a right to survivorship.\n\n\nEach co-tenant has a right to possess the entire parcel, subject to the\nequal rights of her co-tenant.  Generally, a co-tenant in possession does\nnot have to reimburse the other tenants for the rental value of her use of\nthe premises.  However, where one tenant wrongfully excludes another from\npossession of the parcel, there is an ouster, and the ousted tenant may\nbring a possessory action to recover the fair rental value of the property\nfor the time she was ousted.\n\nA co-tenant must share rent gained from a third party from exploitation of\nthe land.\n\nAll co-tenants must contribute to taxes and mortgage.\n\nAll co-tenants must contribute to necessary repairs in proportion to their\nownership interest.  But, a co-tenant is not entitled to reimbursement for\nimprovements to the property unless and until there is partition.\n\n   3) Adverse Possession\n\nPossession for a statutorily prescribed period of time may, if certain\nelements are met, ripen into title.  The adverse possession claimant must\ndemonstrate: (1) continuous possession for the statutory period (at common\nlaw 20 years), (2) possession which is open and notorious \xe2\x80\x93 the way a\nrecord title owner would use the property, (3) The possession must be\nactual, not hypothetical or symbolic, and (3) the possession must be\nhostile \xe2\x80\x93 that is without the true owner\xe2\x80\x99s consent.\n\nPossession by successive adverse possesers may be tacked together to make\nup the full statutory period provided that there is privity between them.\n\nIf the true owner is suffering from a disability at the time the statute of\nlimitations begins to run, the period is tolled until the owner is free\nfrom the disability.  If the true owner acquires a disability after the\nstatutory period began to run \xe2\x80\x93 there is no tolling.\n\n   4) Easements\n\n        a. Affirmative Easement\n\nAn affirmative easement is a non-possessory right that entitles its holder\nto go onto and do something on another\xe2\x80\x99s land.  It may be appurtenant,\nwhere the easement directly benefits the use and enjoyment of a specific\nproperty, or in gross where the easement only burdens land.\n\nAn affirmative easement can be created by express grant, implication (prior\nuse or necessity), or prescription (adverse possession).\n\n\n\n        b. Negative Easement\n\nA negative easement is a grant of a non-possessory interest in land that\nentitles its holder to prevent the servient landowner from doing something\nthat would otherwise be permissible.  Only applies to light, air, support,\nor stream of water from an artificial source.  A minority of states,\nincluding CA, also allow negative easements for scenic views.\n\nCan only be created expressly in a writing signed by the grantor.\n\n        c. Transfer of Easements\n\nWhere the easement is appurtenant, the benefit of the easement passes\nautomatically with transfer of the land.  Where an easement is in gross,\nthe benefit of the easement passes with the land only if it is for\ncommercial purposes.\n\nThe burden of a benefit \xe2\x80\x93 whether appurtenant or in gross \xe2\x80\x93 is binding on\nsubsequent holders of the servient estate only if (1) the original parties\nto the easement agreed that the burden would be binding on subsequent\nholders, and (2) the party to be bound had actual, record or inquiry notice\nof the easement.  Where a BFP takes burdened land without notice of the\neasement \xe2\x80\x93 it will not be binding on him.\n\n        d. Scope of an Easement\n\nThe terms of the agreement are controlling as to the scope of an easement.\nIf an easement agreement is silent on duration, it is presumed to be a\nperpetual easement.  The scope of the easement is limited to reasonable use\nof the development of the land which would have been contemplated at the\ntime the easement was granted.  If there is an excessive use, the easement\ndoes not automatically terminate, but rather, the use that goes beyond the\nscope is enjoined.\n\nThe benefited landowner has duty to make reasonably necessary repairs, and\nhas implied consent to enter the burdened land to make repairs.  The\nburdened landowner has no obligation to repair the easement.\n\n        e. Termination of an Easement\n\nAn easement is terminated where the dominant and servient estate are merged\nbecause a single owner holds title to both estates.\n\nWritten release given by the easement holder to the servient owner will\nterminate the easement.\n\nAn easement may terminate by estoppel where the easement holder represents\nthat his is relinquishing his rights under the easement, and the servient\nlandowner materially changes position in reliance on the representation.\n\nAn easement does not terminate by non-use, but an easement may terminate\nwhere there is (1) intent to terminate, accompanied with (2) a physical\nmanifestation of abandonment of the easement.\n\n\n   5) License\n\nA license is a privilege to enter another\xe2\x80\x99s land for some delineated\npurpose.  It need not be in writing. And it is freely revocable at the will\nof the licensor, unless estoppel applies to bar revocation.  Estoppel will\napply only if the licensee has invested substantial money or labor in\nreasonable reliance on the continuation of the license.\n\n   6) Profit\n\nA profit entitles its holder to enter the servient estate to extract\nresources.  Misuse that overly burdens the land will result in termination\nof the profit by \xe2\x80\x9csurcharge.\xe2\x80\x9d  Otherwise, it shares the same rules as\neasements.\n\n\n\n\n\n\n   7) Covenants\n\nA promise to do (affirmative) or not do (restrictive) something related to\nthe land.\n\nThe benefit of a covenant will run with the land if (1) it is in writing,\n(2) the original parties intended the covenant to run with the land, (3)\nthe covenant touches and concerns the land, and (4) there is vertical\nprivity \xe2\x80\x93 nexus between the seller and the purchaser.\n\nThe burden of a covenant will run with the land if (1) it is in writing,\n(2) the original parties intended the covenant to run with the land, (3)\nthe covenant touches and concerns the land, (4) there is horizontal privity\n\xe2\x80\x93 nexus between the original promising parties, (4) there is vertical\nprivity \xe2\x80\x93 nexus between the seller and the purchaser, and (5) the purchaser\nhas actual, record, or inquiry notice that the parcel is burdened.\n\n   8) Equitable Servitude\n\nA promise to do or not do something related to the land that is accompanied\nby a request for injunctive relief.\n\nIt will bind successors if (1) in writing, (2) intent, (3) touch and\nconcern, and (4) successor on notice.\n\n        a. Implied Reciprocal Servitude\n\nAn implied equitable servitude will hold an unrestricted lot holder to a\nrestrictive covenant if (1) the sub-divider had a general scheme of\nresidential development which included the purchaser\xe2\x80\x99s lot and (2) the\npurchaser had actual, inquiry or record notice of the promise contained in\nthe prior deeds.\n\n        b. Defense: Changed Conditions\n\nWhere a party seeking release from the terms of the equitable servitude can\ndemonstrate that changed conditions are so pervasive that the entire area\nhas changed \xe2\x80\x93 he will not be bound by the servitude.\n\n\n   9) Land Conveyances\n\n\n        a. Contracts for the sale of land\n\nGenerally, a land contract must satisfy the statute of frauds \xe2\x80\x93 it must be\nin writing, signed by the party to be bound.  It must contain all the\nessential terms: parties, price, and a description of the land, which\nprovides a good lead.\n\nHowever, a court may enforce an oral land sale contract under the doctrine\nof part performance.   The party seeking enforcement must show (1) payment\nof all or part of the purchase price, and either (2) delivery of possession\nor (3) improvements by the purchaser.\n\n        b. Marketable Title\n\nThe seller promises to provide marketable title at closing.  That is, title\nmust be free from reasonable doubt.  Title will be unmarketable if (1) any\nportion of the title rests on adverse possession, (2) there are any\nservitudes or outstanding mortgages on the on the land, or (3) the property\nis in violation of  a zoning ordinance.\n\n        c. Deeds\n\nThe deed must be in writing, singed by the grantor, and delivered to the\ngrantee.  Delivery is satisfied where there the grantor has a present\nintent to be immediately transfer the interest in the property.  Physical\ndelivery is not required.  But, where the recipient expressly rejects the\ndeed, there is no delivery.  Under the doctrine of merger, the K terms of\nthe land sale agreement are merged into the deed \xe2\x80\x93 including the price,\nparties and description.\n\nWhere the grantor delivers the deed directly to the grantee, oral\nconditions on the deed are not binding.\n\nHowever, where the grantor delivers the deed to a third party, oral\nconditions are binding, and title will transfer automatically upon the\noccurrence of the condition.  Absent the condition, the grantor will retain\ntitle.\n\n              i. The quitclaim deed\n\nContains no covenants.  The grantor promises only to convey marketable\ntitle at the time of closing, the grantor is not responsible for any\nproblems that arise after closing.\n\n             ii. The general warrant deed\n\nContains six covenants, which the grantor makes on behalf of himself and\nall predecessors in interest.\n\nCovenant of seisin: grantor warrants that he owns the estate he now seeks\nto convey.\n\n*Covenant of right to convey*: grantor promises that he has the power to\nmake this conveyance.  Meaning there are no temporary restraints on\ngrantor\xe2\x80\x99s power to sell.\n\nCovenant against encumbrances: grantor promises that there are no\nservitudes or mortgages on the land.\n\nCovenant for quiet enjoyment: grantor promises that grantee will not be\ndisturbed in possession by a 3rd party\xe2\x80\x99s lawful claim of title.\n\nCovenant of warranty: grantor promises to defend grantee should there be\nany lawful claims of title asserted by others.\n\nCovenant of further assurances: grantor promises to do whatever future acts\nare reasonably necessary to perfect the title if it later turns out to be\nimperfect.\n\nNote: a future covenants is not breach, if ever, until grantee is disturbed\nin possession.  Thus, thus statute of limitations will not begin to run\nuntil that future date.\n\n            iii. The statutory special warranty deed\n\nContains two covenants, which the grantor makes on behalf of himself only.\n\nGrantor promises that he has not conveyed the estate to anyone other than\ngrantee.\n\nGrantor promises that the estate is free from any encumbrances made by the\ngrantor.\n\n\n        d. The Recording System\n\nIn a pure race jurisdiction, whoever records first wins, and actual notice\nis irrelevant.\n\nIn a notice jurisdiction, a subsequent BFP is protected if she records the\nconveyance.\n\nIn a race-notice jurisdiction, a subsequent BFP is protected if she records\nher conveyance before the prior grantee.\n\n              i. The Shelter Rule\n\nOne who takes from a BFP, will prevail against any entity that the\ntransferor BFP would have prevailed against.  In other words, the\ntransferee \xe2\x80\x9ctakes shelter\xe2\x80\x9d in the status of his transferor, and thereby\n\xe2\x80\x9csteps into the shoes\xe2\x80\x9d of the transferor.\n\n             ii. Wild Deed\n\nIf a deed, entered on the record, has a grantor unconnected to the chain of\ntitle, the deed is a wild deed, and it is incapable of giving record notice\nof its existence.\n\n\n\n\n\n        e. Mortgages\n\nWhere a mortgagee transfers his interest in the mortgage by endorsing the\nnote and delivering it to the transferee, the transferee is eligible to\nbecome a holder in due course, and thus takes the note free of any personal\ndefenses that could have been raised against the original mortgagee.\nHowever, the holder in due course is still subject to \xe2\x80\x9creal\xe2\x80\x9d defenses such\nas MAD FIFI4.\n\nThe debtor-mortgagee may transfer his interest, but the lien remains on the\nland.  The subsequent buyer takes subject to a properly recorded lien, but\nassumes no personal liability unless she assumes the mortgage.\nForeclosure destroys all interests junior to the mortgage being foreclosed,\nincluding easements.  All parties with subordinate interest must be given\nnotice of the foreclosure as necessary parties.  Failure to include\nnecessary parties will result in the preservation of that party\xe2\x80\x99s interest\ndespite foreclosure and sale.\n\n  10)   Remedies\n\nWhere a party breaches a land-sale contract, the non-breaching party may\nrecover\n\nCompensatory damages for any foreseeable harm.  Must show causation,\ncertainty, foreseeability, and unavoidable damages.\n\nSpecific Performance.  Must show (1) inadequate legal remedy, (2) definite\nand certain contract terms, (3) feasibility of enforcement, (4) mutuality\nof enforcement, and (5) lack of defenses.\n\nInjunction where there is interference with one\xe2\x80\x99s property rights.  Must\nshow: (1) inadequate legal remedy, (2) property right, (3) feasibility of\nenforcement, (4) balance of hardships, (5) lack of defenses.\n\nDefenses include: unclean hands, laches, freedom of speech, freedom of\nassociation.\n'


b'\nCONTRACTS\n\n     I. Which law governs?  UCC if sale of goods \xe2\x80\x9csubstantial part.\xe2\x80\x9d\n        Merchant or non-merchant?\n    II. Formation of Contract\n        a. Offer \xe2\x80\x93 requires (1) an expression of a promise, undertaking or\n           commitment to enter a contract, (2) certainty and definiteness\n           of terms, and (3) communication to an identified offeree.\n              i. Output Ks are valid (where seller commits to sell all the\n                 goods it produces to the buyer)\n             ii. Is the offer still alive?\n                    1. Lapse of time\n                    2. Rejection by offeree\n                    3. Revocation by offeror (unless firm offer \xe2\x80\x93 signed,\n                       written promise)\n        b. Acceptance \xe2\x80\x93 manifestation of assent to the terms of an offer in\n           a manner prescribed or authorized in the offer.\n              i. Mailbox rule: acceptance effective upon dispatch\n             ii. 2-207: Response that adds new terms = a seasonable\n                 expression of acceptance\n                    1. At least 1 non-merchant \xe2\x86\x92 new term = proposal\n                    2. 2 merchants \xe2\x86\x92 new terms becomes part of the contract\n                       unless (1) material change or (2) offeror objects\n            iii. Acceptance may be revoked if (1) non-conformity\n                 substantially impairs value; (2) excusable ignorance as to\n                 non-conformity; (3) reasonable time\n        c. Consideration \xe2\x80\x93 bargained for legal detriment\n        d. No defenses\n              i. Statute of frauds \xe2\x80\x93 by statute, certain agreements must be\n                 evidenced by a writing and signed by the party to be\n                 charged.  Satisfied by:\n                    1. Delivery of ordinary goods\n                    2. Substantial beginning if custom made goods\n                    3. In writing (quantity + signature of party to be\n                       bound, or lack of response)\n             ii. Mistake / Ambiguity\n            iii. Illegality / Incapacity\n             iv. Unconscionability / Fraud / Duress\n   III. Contract Terms\n        a. Parol Evidence Rule\n        b. Modification \xe2\x80\x93 need only good faith (no consideration)\n        c. Risk of loss: agreement of the parties controls OR breaching\n           party is liable OR if common carrier, shipment or destination OR\n           if merchant seller, shifts upon receipt OR if non-merchant\n           seller, shifts upon tender.\n    IV. Third Parties\n        a. Third party beneficiaries\n        b. Assignment / Delegation\n     V. Performance\n        a. Conditions: (1) Type; (2) Excused; (3) satisfaction\n        b. Discharge of Duty\n              i. Impossibility / Impracticability / Frustration of purpose\n             ii. Anticipatory repudiation / Mutual rescission\n            iii. Modification / Novation / Accord & satisfaction\n    VI. Breach = less than perfect tender\n        a. Buyer may reject or accept all or part and sue for damages.\n        b. Seller may cure imperfect tender if (1) prior deals suggest it\n           would be okay, or (2) time for performance has not yet expired.\n   VII. Remedies\n        a. Compensatory damages \xe2\x80\x93 remember duty to mitigate\n              i. S breach; B has goods \xe2\x86\x92 fair mkt price if perfect \xe2\x80\x93 fair\n                 mkt price as is\n             ii. S breach; S has goods \xe2\x86\x92 mkt price at breach/replacement\n                 price \xe2\x80\x93 K price\n            iii. B breach; B has goods \xe2\x86\x92 K price\n             iv. B breach; S has goods \xe2\x86\x92 K price \xe2\x80\x93 mkt price /resale price +\n                 lost profits\n        b. Quasi K: where K fails, the non-breaching P may recover in Q-K\n           to prevent unjust enrichment\n        c. Reclamation\n        d. Consequential damages \xe2\x80\x93 special damages\n        e. Specific performance\n'


b'\nWills \xe2\x80\x93 Opening Paragraphs\n\n   1) Choice of Law\n\nUnder California law, where a domicillary dies in California, but executed\na will in another state, that will can be admitted into probate in\nCalifornia only if (1) the will complies with California\xe2\x80\x99s formalities of\nexecution or (2) the will complies with the formalities of the place where\nthe will was executed, or (3) the will complies with the formalities of the\nplace where the Testator was domiciled at the time of execution.\n\n   2) Execution of Wills\n\n\n        a. Formal Wills\n\nUnder California law, a formal will must be (1) in writing, (2) signed by\nthe Testator, and (3) witnessed by two persons who are present when the\nTestator signs the will or the Testator must acknowledge his signature to\nthe two witnesses.\n\nAt common law, a witness who was also an interested beneficiary in the will\nwas deemed incompetent, and the will held invalid.  Under California law,\nif one of two witnesses is an interested beneficiary, the will is valid,\nbut the devise to the witness creates a rebuttable presumption that the\nwitness procured the devise by improper means.  If the interested witness\nrebuts the presumption he takes the gift.  If unable to rebut the\npresumption, he takes the amount he would have received via intestacy.\n\n        b. Holographic Wills\n\nUnder California law, a holographic, or handwritten, will must be (1)\nsigned by the Testator, and (2) the material provisions of the will must be\nin the testator\xe2\x80\x99s own handwriting.  Material provisions include the gifts\nto be made and the beneficiaries\xe2\x80\x99 names.\n\nExtrinsic evidence is admissible to determine the Testator\xe2\x80\x99s intent.\n\nA holographic will need not be in writing to be valid.  However, where an\nundated holograph is inconsistent with the provisions of another will, the\nundated holograph is invalid to the extent of the inconsistency unless it\ncan be established that the undated will came after the other will.\n\nIf a holographic will is undated and it is established that the Testator\nlacked capacity during any point when the undated will could have been\nexecuted, the undated holograph is invalid unless it can be established\nthat the Testator had capacity when she executed the will.\n\n   3) Defenses to Enforcement of Wills\n\n\n        a. Lack of Capacity\n\n\nAt the time of execution the testator must (1) be at least 18 years old,\n(2) understand the extent of her property, (3) know the natural objects of\nher bounty, and (4) know the nature of her act.  Where she does not meet\nany of these requirements, the entire will is deemed invalid for lack of\ncapacity.  Property will pass by intestate succession.\n\n        b. Insane Delusion\n\nIf at the time the Testator executed the will, (1) she had a false belief,\n(2) the false belief was the product of a sick mind, (2) there is no\nevidence to support the false belief, (3) the false delusion affect the\nTestator\xe2\x80\x99s will, only the portion of the will that is affected by the\ndelusion is invalid.  As to that part, it will go to the residuary devisee,\nor if none, or if the residue itself was affected by the delusion, by\nintestate succession.\n\n        c. Fraud\n\nWhere someone forges the Testator\xe2\x80\x99s signature to a will, or the Testator\nsigns a will based on the misrepresentation that it is something other than\na will, there is fraud in the execution, and the entire will is invalid.\n\nWhere a wrongdoer makes misrepresentations of material fact, known to be\nfalse, for the purpose of inducing action, which does in fact affect the\ncontent\xe2\x80\x99s of the Testator\xe2\x80\x99s will, there is fraud in the inducement, and the\nportion of the will which is affected by the fraud is invalid.  That\nportion passes to the residuary devises, if any or by intestate succession.\n\nWhere a wrongdoer uses fraud to prevent the testator from revoking a will,\nthe will is invalid.  The property will pass by instate succession.  In the\nalternative, where the intended beneficiary is known, the court will\ndeclare the heirs constructive trustees who must convey the property to the\nintended beneficiary.\n\n        d. Undue Influence\n\nThere are three ways of establishing undue influence.\n\nAt common law, to make a prima facie case for undue influence, the claimant\nmust show (1) the testator has a weakness that made him susceptible, (2)\nthe wrongdoer had access to the testator, (3) it is the wrongful act that\ngot the gift, and (4) an unnatural result.  Where the plaintiff prevails,\nonly that portion of the will affected by undue influence is invalid.  That\npart goes to the residuary, the heirs by intestate succession, or by\nconstructive trust.\n\nIn the alternative, a claimant may establish undue influence by the use of\na presumption.  Under California law, a presumption of undue influence\narises when (1) a confidential relationship exists between the testator and\nthe wrongdoer, (2) the wrongful act got the give, and (3) an unnatural\nresult.  The consequences here are the same as the common law test.\n\nFinally, a claimant may rely on statutory undue influence.  California\ngenerally invalidates a donative transfer from the testator to (1) a person\nwho drafted the instrument, (2) a person in a close relationship with the\ndrafter, or (3) a person who is in a fiduciary relationship with the\ntestator.  However, these rules do not apply if the testator is related to,\nmarried to, or co-habitats with the drafter or if the instrument is\nreviewed by an independent attorney who counsels the testator.  Upon a\nfinding of statutory undue influence, the devisee does not take the gift,\nbut only to the extent that the gift exceeds that person\xe2\x80\x99s intestate share.\n\n   4) Revocation of Wills\n\nA valid will or codicil may be revoked in full or in part by (1) the\nexplicit or implicit terms of a later will or codicil (including a\nholographic will), (2) physical act by the testator coupled with the intent\nto revoke, or (3) operation of law (omitted child/spouse or\ndivorce/annulment).\n\nUnder the doctrine of dependent relative revocation, where a testator\nrevokes a will by a subsequent will or codicil in the mistaken belief that\nthe subsequent will effectuates the testator\xe2\x80\x99s intent, the revocation of\nthe first will is cancelled.\n\nRevocation of a codicil does not revoke the will, even if the testator so\nintended.\n\nAt common law, revocation of a codicil revoking a former will, revived that\nwill.  However, under California law, the revival of the devise depends on\nthe testator\xe2\x80\x99s intent.\n\n   5) Components of a Will\n\nA codicil is a testamentary instrument executed subsequent to the execution\nof the will, intended to modify, alter, or expand the will.  To be valid,\nthe codicil must be executed with the same formalities required for the\nexecution of a will.\n\nThe doctrine of integration permits the court to include in a will papers\nwhich were (1) physically present at the execution of the will, and (2) the\ntestator intended to be included in the will.\n\nThe doctrine of acts of independent significance permits the court to fill\nin gaps in a will by reference to acts or documents effectuated during the\ntestator\xe2\x80\x99s lifetime for a primarily non-testamentary motive.\n\nThe doctrine of incorporation by reference allows the court to include non-\ntestamentary documents in a will if (1) they existed at the time the will\nwas executed, (2) the will manifests an intent to incorporate them into the\nwill, and (3) the will sufficiently describes the documents to allow for\nidentification.\n   6) Interpretation of the Will\n\nUnder the common law lapse rule, if a devisee died before the testator, his\ngift was said to have lapsed \xe2\x80\x93 or failed.\n\nCalifornia, like most states, has enacted an anti-lapse statute to avoid\nthe harsh affects of the lapse rule.  Under California\xe2\x80\x99s anti-lapse\nstatute, where the pre-deceased devisee was a blood relative of the\ntestator, the gift does not automatically fail.  Rather, the issue of the\npre-deceased devisee may step into the shoes of the devisee, and thus take\nby representation.\n\nA specific devise is a gift of a particular item of property distinct from\nall other objects in the testator\xe2\x80\x99s estate, while a general devise is a\ngift of a general economic benefit, payable out of the general assets of\nthe estate.\n\nUnder the common law doctrine of ademption, where the testator makes a gift\nof specific property, and that property is not held by the testator at his\ndeath, the gift is deemed revoked, and the devisee will take nothing.\nHowever, California has modified the ademption doctrine, so that ademption\nis dependent on the testator\xe2\x80\x99s intent to adeem at the time that he disposes\nof the specific property.\n\nA residuary gift is a gift of what remains on the testator\xe2\x80\x99s property after\npaying debts, expenses and taxes, and satisfying the specific, general and\ndemonstrative gifts.\n\n   7) Intestate Succession\n\nGenerally, a surviving spouse takes the deceased\xe2\x80\x99s share of the couple\xe2\x80\x99s\ncommunity property, and his share of the couple\xe2\x80\x99s quasi community property.\n In addition, the surviving spouse is entitled to a share of the deceased\xe2\x80\x99s\nseparate property depending on whether he has any other survivors (all, \xc2\xbd,\nor \xe2\x85\x93).\n\nAccording to California probate law, for the share not passing to the\nsurviving spouse, if the issue are all of equal degree in kinship to the\ndecedent, each take equally in their own right.  But, issue of more remote\ndegree take per capita with rights of representation.\n\nNote, if there is a will that calls for distribution per stirpe, or by\nrepresentation, there is a distribution at the first level, even if\neveryone is dead so long as they left issue.  The issue step into the shoes\nof their predecessor ancestor, and take by representation.\n\n   8) Rights of surviving spouse and children.\n\nWhere the deceased executed a will prior to marriage, which does not\nprovide for a surving spouse, the will is invalid as to that spouse, and\nshe is entitled to take her intestate share of the estate unless (1) the\nomission was intentional as evidenced in the will, (2) the deceased\nprovided for the spouse by some other conveyance, or (3) the surviving\nspouse waived her right to her share in the estate.\n\nWhere the deceased executed a will prior to the birth or adoption of a\nchild, and the will does not provide for that the child, the will is\ninvalid as to that child, and she is entitled to take her instate share of\nthe estate unless (1) the omission was intentional as evidenced in the\nwill, (2) the deceased provided for the child by some other conveyance, or\n(3) the deceased evidences a plan whereby the surviving spouse would take\nfinancial care of all the couple\xe2\x80\x99s children.\n\n\nTrusts \xe2\x80\x93 Opening Paragraphs\n\n   1) Requirements for a Private Express Trust\n\nA trust is a fiduciary relationship with respect to property whereby one\nperson, the trustee, holds legal title to the trust property subject to the\nenforceable equitable rights of another, the beneficiary.\n\nFor valid trust creation, five requirements must be met.\n\nFirst, the settlor must manifest an intent to create a trust.  There must\nbe more than mere prectatory words.\n\nSecond, a trustee must be appointed.\n\nThird, there must be trust res, or property.\n\nFourth, there must be a beneficiary to enforce the trust.\n\nAnd finally, the trust must have a legal purpose, and cannot be contrary to\npublic policy.\n\n   2) Secret Trust\n\nA secret trust results when a gift is made in reliance upon the\nbeneficiary\xe2\x80\x99s promise to hold the gift property in trust for another.  To\nprevent unjust enrichment of the named beneficiary, courts will allow the\nintended trust beneficiary to offer extrinsic evidence of the agreement.\nIf the agreement can be proven by clear and convincing evidence, a\nconstructive trust will be imposed on the named beneficiary.\n\n   3) Constructive Trust\n\nA constructive trust is an equitable remedy imposed by the courts when the\nretention of property by the defendant-wrongdoer would result in unjust\nenrichment.  The wrongdoer serves a \xe2\x80\x9ctrustee\xe2\x80\x9d and must return the property\nto the intended beneficiary.\n\n\n   4) Pour Over Trusts\n\nA pour-over trust occurs where a testator devises all or part of his estate\nto a trustee of an inter-vivos trust.  Courts have admitted such a trust\ninstrument into probate \xe2\x80\x93 and thus effectuated its terms \xe2\x80\x93 under three\ntheories: (1) acts of independent significance, (2) incorporation by\nreference, and (3) the Uniform Testamentary Additions to Trust Act (UTATA).\n\nUnder the UTATA, a pour-over trust may be entered into probate by statute\nif (1) the trust is valid, and (2) the trust was executed before or\ncontemporaneously with the trust instrument.\n\n   5) Duties of the Trustee\n\nA trustee owes a fiduciary duty to administer the trust solely for the\nbenefit of the trust beneficiaries.\n\nThe trustee owes a duty of loyalty to the beneficiaries not to engage in\nself-dealing.  If the trustee engages in self dealing, the court will apply\nthe no further inquiry rule.  Meaning that the conduct is a per se breach\nof the trustee\xe2\x80\x99s fiduciary duty, and the trustee will be personally liable\nfor any losses.  The trustee\xe2\x80\x99s good faith and reasonableness of the\ntransaction are irrelevant.\n\nThe trustee owes a duty of loyalty to the beneficiaries to not engage in\nconflicts of interest.\n\nThe trustee owes a duty of care to the beneficiaries to act as a reasonably\nprudent person in dealing with his own affairs.\n\n\n\n\nThe trustee owes a duty to make prudent investment decisions.  There is a\nsplit in authority on how the trustee must abide by his investment duty.\n    \xe2\x80\xa2 Under the state lists approach, in the absence of specific directions\n      in the trust, the trustee must follow a list of good investments.\n    \xe2\x80\xa2 Under the common law prudent person test, each individual investment\n      is scrutinized to determine whether the trustee acted as a reasonably\n      prudent person investing his own property, and trying to maximize\n      income while preserving trust res.\n    \xe2\x80\xa2 Finally, under the Uniform Prudent Investor Act, each individual\n      investment is not scrutinized.  Rather, the trustee must invest as a\n      prudent investor measured in the context of the entire trust\n      portfolio.\n\nThe trustee owes a duty to the beneficiary to diversify trust investments.\n\nThe trustee owes a duty to the beneficiary not to speculate in high risk\ninvestments.\n\nThe trustee has a duty not to commingle trust funds with the trustee\xe2\x80\x99s\npersonal property.  This protects against the trustee\xe2\x80\x99s person creditors\nattaching trust property.  Where there is commingling, the court will\npresume that personal funds are expended before the trust funds.\n\nThe trustee has a duty to earmark assets by keeping them physically\nseparate from the trustee\xe2\x80\x99s personal assets and from other trusts.\n\nThe trustee has a duty to properly allocate trust property between\nprincipal and income.  Generally, trust income is paid to the life tenant,\nwhich trust principal is reserved for the remaindermen.  Traditionally,\ncash dividends on corporate stock is treated as income and paid to the life\ntenant.  While stocks dividends and capital gains are allocable to the\ntrust principal.  However, under the Uniform Principal & Income Act, the\ntrustee has adjustment power to reallocate investment portfolio return to\ncarry out the trust purposes and the allocation is fair and reasonable to\nall beneficiaries.\n\nWhere the trustee breaches her trust duty, the beneficiaries\xe2\x80\x99 remedies\ninclude: (1) damages, (2) constructive trust, (3) tracing and equitable\nlien on property, (4) ratify the transaction if good to the beneficiary, or\n(5) remove the trustee.\n'