Study guide
Invasion of Privacy, Misrepresentation, and Economic Torts
California Bar Exam Exam
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1 Exam Format and Core Skills
California Bar Exam Blueprint: Subjects, Components, and Recent Changes Exam Format, Scoring, and the 1390 Passing Score Essay Strategy: Issue Spotting and IRAC Core Written Skills and Timing Strategy
2 Civil Procedure
Subject Matter Jurisdiction: Federal Question, Diversity, Supplemental, Removal Personal Jurisdiction, Long-Arm, Minimum Contacts, and Service of Process Venue, Transfer, and Forum Non Conveniens The Erie Doctrine and Choice of Law Pleadings, Rule 11, Amendments, and California Demurrers / Anti-SLAPP Joinder of Claims and Parties, Impleader, Intervention, Interpleader Class Actions (Rule 23 and California) Discovery: Scope, Devices, Privilege, and Sanctions Pretrial Adjudication: Dismissals, Default, and Summary Judgment Trial, Jury, Judgment as a Matter of Law, and Post-Trial Motions Appeals, the Final Judgment Rule, and Claim/Issue Preclusion
3 Constitutional Law
Judicial Review, Justiciability, Standing, Ripeness, Mootness, and Political Questions Federal Legislative Power: Commerce, Taxing & Spending, and the Tenth and Eleventh Amendments Separation of Powers: Executive, Legislative, and Judicial Authority Federalism, Supremacy, Preemption, the Dormant Commerce Clause, and Privileges & Immunities State Action and Congressional Enforcement of the Reconstruction Amendments Procedural Due Process Substantive Due Process and Fundamental Rights Equal Protection and Levels of Scrutiny First Amendment: Speech, Press, Forums, and Association First Amendment Religion Clauses and the Takings Clause
4 Contracts
Applicable Law: Common Law vs. UCC Article 2 and Mixed Contracts Mutual Assent: Offer, Acceptance, Mailbox Rule, and UCC 2-207 Consideration, Bargained-for Exchange, and Promissory Estoppel Defenses to Formation: Capacity, Mistake, Misrepresentation, Duress, Unconscionability The Statute of Frauds Parol Evidence Rule and Contract Interpretation Conditions and Performance: Express, Constructive, and Substantial Performance Breach, Anticipatory Repudiation, and the Perfect Tender Rule Excuse of Performance: Impossibility, Impracticability, and Frustration UCC Warranties and Risk of Loss Third-Party Beneficiaries, Assignment, and Delegation Contract Remedies and UCC Buyer/Seller Remedies
5 Criminal Law and Procedure
Actus Reus, Mens Rea, Concurrence, and Causation Accomplice Liability and Parties to Crime Inchoate Crimes: Attempt, Conspiracy, and Solicitation Homicide: Murder, Manslaughter, Felony Murder, and California Degrees Other Crimes Against the Person: Assault, Battery, Kidnapping, and Sex Offenses Property and Theft Crimes: Larceny, Embezzlement, Robbery, Burglary, Arson Criminal Defenses: Insanity, Intoxication, Self-Defense, Duress, Necessity, Mistake Fourth Amendment: Searches, Seizures, Warrants, and Exceptions The Exclusionary Rule, Standing, and Fruit of the Poisonous Tree Fifth Amendment: Miranda, Self-Incrimination, and Double Jeopardy Sixth Amendment: Right to Counsel, Confrontation, Speedy Trial, and Jury Pretrial Identifications, the Eighth Amendment, and Trial Rights
6 Evidence
Relevance: Logical and Legal, Rule 403, and California Proposition 8 Policy-Based Exclusions: Subsequent Remedial Measures, Settlements, Insurance, Pleas Authentication and the Best Evidence Rule Witness Competency, Personal Knowledge, and Examination Impeachment of Witnesses Lay and Expert Opinion Testimony (Daubert and California Kelly/Sargon) Character Evidence and Other Acts (MIMIC) Habit and Methods of Proving Character Hearsay: Definition, Non-Hearsay, and Exemptions Hearsay Exceptions: Availability Immaterial (FRE 803) Hearsay Exceptions Requiring Unavailability (FRE 804) and the Confrontation Clause Privileges, Judicial Notice, and Presumptions (Federal and California)
7 Real Property
1.1 Estates in Land 1.2 Future Interests 1.3 Rule Against Perpetuities 1.4 Concurrent Ownership 1.5 Landlord-Tenant Law 1.6 Easements and Servitudes 1.7 Covenants Running with Land 1.8 Recording Acts and Title 1.9 Mortgages 1.10 Land Use Regulation Adverse Possession and Rights Incident to Ownership Land Sale Contracts, Marketable Title, and Risk of Loss Deeds, Delivery, Warranties of Title, and Fixtures
8 Torts
Intentional Torts Against the Person: Battery, Assault, False Imprisonment, IIED Intentional Torts to Property and Defenses/Privileges Negligence: Duty and the Standard of Care Negligence: Breach, Res Ipsa Loquitur, and Negligence Per Se Causation: Actual and Proximate Cause Negligence Damages and Defenses: Comparative Fault and Assumption of Risk Strict Liability: Animals and Abnormally Dangerous Activities Products Liability Private and Public Nuisance Defamation Invasion of Privacy, Misrepresentation, and Economic Torts Vicarious Liability, Joint Tortfeasors, and Immunities
9 Business Associations
Agency: Formation, Actual and Apparent Authority, and Ratification Agency: Principal/Agent Duties, Respondeat Superior, and Tort Liability General Partnerships: Formation, Rights, and Partnership Property Partnership Liability, Fiduciary Duties, Dissociation, and Dissolution Limited Partnerships, LLPs, and LLCs Corporations: Formation, Promoters, and Piercing the Corporate Veil Corporate Finance: Stock, Securities, Dividends, and Distributions Directors and Officers: Fiduciary Duties, the Business Judgment Rule, and Indemnification Shareholders, Derivative Suits, Fundamental Changes, and Federal Securities (10b-5, 16(b))
10 Community Property
General Principles, the Community Estate, and Marital Economic Community Characterization: Separate vs. Community Property and Presumptions Tracing and Commingling (Exhaustion and Direct Tracing) Transmutation and Premarital/Marital Agreements Special Assets: Businesses (Pereira/Van Camp), Goodwill, Education, Pensions, Disability Management, Control, and Spousal Fiduciary Duties Debts and Creditors' Rights Distribution at Dissolution and Death; Quasi-Community Property
11 Professional Responsibility
Regulation of the Profession, Admission, and Discipline (California Rules vs. ABA Model Rules) Competence, Diligence, Communication, and Scope of Representation Confidentiality and Its Exceptions (California vs. ABA) Conflicts of Interest: Current Clients Conflicts: Former Clients, Imputation, and Business Transactions Fees, Client Trust Accounts (IOLTA), and Safekeeping Property Duties to the Court and Third Parties: Candor, Advocacy, and Fairness Forming, Declining, and Terminating the Attorney-Client Relationship Advertising, Solicitation, and the Unauthorized Practice of Law Judicial Ethics, Reporting Misconduct, and Special Prosecutor Duties
12 Remedies
Compensatory Damages: Causation, Foreseeability, Certainty, and Mitigation Punitive, Nominal, and Liquidated Damages Restitution and Unjust Enrichment Constructive Trust and Equitable Lien Injunctions: Temporary Restraining Orders, Preliminary, and Permanent Specific Performance Reformation, Rescission, and Cancellation Equitable Defenses, Declaratory Relief, and Remedy Selection
13 Trusts
Trust Creation, Required Elements, and Types of Trusts Charitable Trusts, Cy Pres, and the Rule Against Perpetuities in Trusts Trustee Powers and Trust Administration Trustee Duties: Loyalty, Prudent Investor, and Impartiality Beneficiary Rights and Principal/Income Allocation Spendthrift, Discretionary, and Support Trusts; Creditors' Rights Modification and Termination of Trusts Breach of Trust, Remedies, and Will Substitutes (Totten, POD, Revocable Trusts)
14 Wills and Succession
Intestate Succession and California Distribution Will Execution and Formalities (Attested and Holographic; California) Testamentary Capacity, Undue Influence, Fraud, Duress, and Mistake Will Components: Integration, Incorporation, Acts of Independent Significance, and Pour-Over Revocation, Revival, and Dependent Relative Revocation Lapse, Anti-Lapse, Class Gifts, Ademption, Abatement, and Exoneration Protection of the Family: Omitted Spouse and Child, Pretermitted Heirs Will Contests, Standing, and No-Contest Clauses Probate Administration, Powers of Appointment, and Will Substitutes
15 Performance Test
The Performance Test: Task Memo, File, and Library Objective PT Products: Memos, Briefs, and Client Letters Persuasive PT Products and 90-Minute Execution
Invasion of Privacy, Misrepresentation, and Economic Torts
Key Takeaways Explain This Topic AI
The four privacy torts are appropriation of name/likeness, intrusion upon seclusion, public disclosure of private facts, and false light; each protects a distinct interest and most are personal (do not survive death) and require no proof of special damages.
Intentional misrepresentation (fraud/deceit) requires a false material misrepresentation, scienter, intent to induce reliance, justifiable reliance, and damages; negligent misrepresentation typically requires a special relationship and is limited to a narrow class of foreseeable plaintiffs.
Tortious interference with contract requires a valid contract, the defendant's knowledge of it, intentional inducement of breach, and resulting damages; interference with prospective economic advantage requires an independently wrongful act in many states (including California under Della Penna).
Public disclosure and false light require publicity (widespread dissemination), unlike defamation, which requires only publication to one person; truth is a defense to defamation but not to public-disclosure-of-private-facts.
California recognizes a strong statutory and common-law right of publicity (Civ. Code § 3344), protecting the commercial use of a person's name, voice, signature, photograph, or likeness.
Last updated: June 2026
The Four Invasion-of-Privacy Torts
Privacy is protected by four distinct torts , each guarding a different interest. They are generally personal (do not extend to corporations and do not survive the plaintiff's death, except the right of publicity in many states), and most are actionable without proof of special damages.
Tort Protected interest Key elements
Appropriation of name or likeness Commercial value of identity Unauthorized use of plaintiff's name/likeness for the defendant's commercial advantage (advertising/promotion). Newsworthiness/incidental use is privileged.
Intrusion upon seclusion Right to be let alone Intentional intrusion into the plaintiff's private affairs/solitude that would be highly offensive to a reasonable person ; no publication needed. The plaintiff must have a reasonable expectation of privacy.
Public disclosure of private facts Secrecy of private life Public disclosure (publicity) of private, non-newsworthy facts that would be highly offensive to a reasonable person. Truth is NOT a defense.
False light Freedom from false public image Publicity placing the plaintiff in a false light highly offensive to a reasonable person; if a matter of public concern, actual malice is required ( Time, Inc. v. Hill ).
Key distinctions: Intrusion needs no publication — the wrong is the prying itself (wiretapping, peeping, hacking). Public disclosure and false light require publicity (communication to the public at large), unlike defamation, which needs publication to only one person. Appropriation for newsworthy or editorial purposes is privileged; only commercial exploitation is actionable.
California's right of publicity (Civ. Code § 3344) is a robust statutory appropriation tort: it prohibits the knowing use of another's name, voice, signature, photograph, or likeness for advertising or selling without consent, with statutory minimum damages, profits, and attorney's fees. California also recognizes a post-mortem right of publicity (Civ. Code § 3344.1) protecting deceased celebrities. Defenses across privacy torts: consent , and the privileges that apply to defamation (absolute and qualified).
Misrepresentation: Fraud and Negligent Misrepresentation
Intentional misrepresentation (fraud / deceit) requires:
A false representation of a material fact (or, in some cases, active concealment or non-disclosure where a duty to disclose exists);
- Scienter — the defendant knew the statement was false or acted with reckless disregard for its truth;
- Intent to induce the plaintiff's reliance;
- Justifiable (actual and reasonable) reliance by the plaintiff; AND
Damages (pecuniary loss).
Several nuances are heavily tested. A statement of opinion generally is not actionable, except when made by someone with superior knowledge (an expert) or in a fiduciary relationship. Predictions and 'puffery' ('this is a great deal') are not actionable facts. Non-disclosure becomes actionable where the parties stand in a fiduciary relationship, where the defendant made a partial/misleading statement, or where she actively concealed a defect. Justifiable reliance fails if the falsity was obvious or the plaintiff knew the truth.
Negligent misrepresentation requires (1) a careless misrepresentation of a material fact (2) in a business or professional capacity , (3) breach of a duty owed to a particular plaintiff, (4) justifiable reliance, and (5) damages. The duty typically arises only in a special relationship (e.g., an accountant or appraiser supplying information), and liability is limited to a narrow, foreseeable class of persons the defendant intended to reach — not the world at large. This 'foreseeable class' limitation (the Bily v. Arthur Young approach in California, restricting auditor liability) is a frequent distinction.
Innocent (no-fault) misrepresentation may also support rescission and, in products cases under § 402B, tort recovery.
Economic Torts: Interference with Contract and Prospective Advantage
Tortious interference with an existing contract requires:
- A valid contract between the plaintiff and a third party;
- The defendant's knowledge of the contract;
- Intentional inducement of the third party to breach (or interference making performance more difficult); AND
Damages to the plaintiff.
Tortious interference with prospective economic advantage protects relationships not yet reduced to contract (a likely future business relationship). California (and a growing number of states) imposes a higher bar: the plaintiff must prove the defendant's conduct was independently wrongful — i.e., unlawful by some legal measure other than the interference itself (fraud, defamation, threats, statutory violation). This is the rule of Della Penna v. Toyota Motor Sales (Cal. 1995): mere competitive interference, standing alone, is not enough; the plaintiff must show a 'wrongful act' apart from the interference.
Privileges/justification: Both interference torts yield to a privilege . Courts weigh factors including the nature of the defendant's conduct, the interests advanced, the social interests in protecting freedom of action and contract, and the relationship of the parties. Fair competition is privileged for prospective relationships (you may lawfully lure a competitor's would-be customers), and a defendant may protect her own existing economic or contractual interest or give honest advice when asked.
A defendant who interferes to advance a legitimate competitive interest by lawful means is generally not liable for interfering with a prospective (non-contractual) relationship — but a defendant who induces breach of an existing contract enjoys a narrower privilege.
MBE/essay traps:
Distinguish existing contract (lower bar — competitive motive is not a defense to inducing breach) from prospective advantage (higher bar — needs an independently wrongful act in California).
Privacy 'publicity' ≠ defamation 'publication.' Public disclosure of private facts and false light require communication to the public at large; defamation requires only one third person.
Truth defeats defamation but NOT public disclosure of private facts — true private facts can still be tortious if highly offensive and not newsworthy.