http://www.calbar.ca.gov/Portals/0/documents/admissions/fyx/FYLSX_Oct2016_SelectedAnswers_R.pdf
June 2016 Question 1 [Torts]
Tenant rents space in a Cityville office building from Landlord. Six months ago, a fire broke out at night in the office building and Tenant, who was working late, was overcome by smoke in the building. A responding firefighter found Tenant unconscious and, while carrying Tenant out of the building, dropped him, breaking Tenant’s leg. The building and all its contents were destroyed. Cityville fire marshal’s investigative report stated: “Fire apparently originated in basement. Apparent cause: faulty wiring. Accumulation of old newspapers in basement was a principal source of fuel, and probably resulted in rapid spread of fire to remainder of building.” The old newspapers mentioned in the fire marshal’s report had been left by a previous tenant three years ago. Some of the basement hallways were nearly impassable. Landlord was aware of this, but hadn’t gotten around to cleaning them up. One of Cityville’s fire safety ordinances provides: “Any person who permits any article to remain in a stairway or hallway so as to impede entering or leaving the building, or any area within it, shall be punished by a fine of not more than five hundred dollars.”
1. On what theory or theories might Tenant reasonably sue Landlord? Discuss.
2. What types of damages, if any, might Tenant recover from Landlord? Discuss.
June 2016 Question 2 [Contracts]
Sara is a doctor who collects, buys, sells, and trades baseball cards for profit, averaging 15 transactions a week. She is a recognized expert in the 1939-50 era. Bill operates a store that regularly sells baseball cards. Bill claims he phoned Sara and offered to buy a 1939 Denny Wilson card for $550, and that Sara accepted. Immediately after their phone conversation, Bill sent Sara an unsigned, typed letter confirming the contract, and identifying the parties, the Denny Wilson card and the price. Bill’s letter had a letterhead identifying the name of his business, Beyer’s Baseball Cards and Collectibles. The letter included the following term: “Seller shall provide a certificate of authenticity from the Baseball Trading Cards Association.” Certificates of authenticity cost $100 and significantly increase a card’s value. Sara’s card was not certified, and the parties had not discussed this before. Sara received and read the letter but did not respond to it. When Bill called later, Sara said she had sold the card to another party for $575. Bill sued Sara for breach of contract, seeking $250 in damages (based on $800 as the fair market value of a certified card). Sara denies the existence of a contract, alleging that Bill only asked, “Would you consider taking $550” for the card, and that she replied, “Okay, send me something in writing.” Alternatively, she claims that the phone agreement was unenforceable and that the so-called letter of confirmation had no legal effect. She also contests Bill’s calculation of damages.
1. Can Bill prevail in his lawsuit? Discuss.
2. If so, what damages, if any, is Bill entitled to recover? Discuss.
June 2016 Question 3 [Criminal Procedure]
Narcotics officers, Alice and Ben, were assigned to conduct routine surveillance at a bus station. They were assisted by Hound, a trained narcotics-detection dog. One evening, after all the passengers on a bus had exited the vehicle for a scheduled rest stop, Alice lawfully boarded the bus, while Ben and Hound waited outside. Alice walked down the center aisle of the bus, looking at the luggage that passengers had placed in the overhead storage space. When she came to David’s seat, she caught sight of his soft-sided suitcase above his seat. Standing on his seat, she leaned forward and sniffed the suitcase, but could not detect any odor. She then pressed the outside of the suitcase lightly with her hands, forcing air from the interior. She sniffed the escaping air and, based upon her training and experience, recognized the odor of marijuana. Shortly thereafter, the passengers began reboarding the bus. As they did so, Ben had Hound sniff each one without touching the individual. When Hound sniffed David, Hound responded, indicating the presence of narcotics on David’s person.
Did Alice or Ben conduct a “search” within the meaning of the Fourth Amendment to the United States Constitution? Discuss.
June 2016 Question 4 [Torts]
Cindy and Shelly Smith, 35-year-old identical twins, look exactly alike. Cindy was a straight-A student in high school, went to college, and then to law school. She is presently campaigning for election to the State Senate. Shelly got into the wrong crowd in high school, became addicted to cocaine, and moved to Europe without graduating from high school. Cindy and Shelly have not spoken for years, and very few people know that Cindy has a twin. Debbie, a high school classmate of Cindy and Shelly, dislikes Cindy and does not want Cindy to win her election. Debbie obtained an old photograph of Shelly snorting a line of cocaine and sent it to Newspaper the day before the election, with an anonymous note that read, “Ms. Smith is a cokehead.” The photograph was very clear and looked exactly like Cindy. Newspaper, unaware that Cindy had an identical twin sister, published the photograph of Shelly the same day, with a caption that read, “Cokehead for State Senate?” Newspaper reported that it had received the photograph of “Cindy Smith” anonymously earlier that day. Cindy was very distressed about Newspaper’s publication and subsequently lost the election. Thereafter, Cindy filed defamation claims against both Debbie and Newspaper.
1. What is the likely outcome of Cindy’s defamation claim against Debbie? Discuss.
2. What is the likely outcome of Cindy’s defamation claim against Newspaper? Discuss.
October 2016 QUESTION 1 [Criminal Law]
Al and Beth were sitting in Al’s apartment, playing video games and drinking beer. After finishing the last beer, Al said to Beth, “I need another beer. Can you lend me some money and drive me to the store?” Beth responded, “I can drive you to the store, but I don’t have any money.” Al laughed and said, “I have an idea for how to get some beer without paying for it. Drive me to the store and park behind it near the emergency exit.” Beth drove Al to the Friendly Market and waited in the car near the emergency exit. Al entered the store, picked up a six-pack of beer, and began walking toward the emergency exit. Carla, a security guard, was watching Al. As Al approached the exit, Carla shouted, “Stop, thief!” Al put the beer on the floor and ran out through the emergency exit. For a few seconds, Carla considered what to do. Then she ran after Al. In the alley behind the store, she shouted, “Stop or I’ll shoot!” When Al did not stop, Carla fired a warning shot. When Al kept running, Carla took careful aim, shot, and missed. As Al was about to run around a corner, Carla paused, took careful aim, shot again, and killed him.
1. Can it be reasonably argued that Beth is guilty of
a. Theft? Discuss.
b. Robbery? Discuss.
c. Murder? Discuss.
2. Can it be reasonably argued that Carla is guilty of murder and, if so, what defense(s) can she raise? Discuss.
October 2016 QUESTION 2 [Contracts]
Dealer operates an antique shop. While traveling, she buys a Union cavalry officer’s handgun for $1,500 from Seller. Dealer takes several photos of the handgun and Seller agrees to ship it to Dealer’s shop. When Dealer arrives home, she immediately shows the photos of the handgun to Buyer. The parties shake hands on a deal to sell the handgun to Buyer for $2,000, payment upon delivery. The next day, Buyer regrets agreeing to the deal without first having an opportunity to actually examine the handgun. Buyer tells Dealer that he will not pay the $2,000 unless she first allows him to have the handgun examined by an expert appraiser. Dealer becomes angry and tells Buyer, “A deal’s a deal. I’ll expect my money when the handgun is delivered to you.” When the handgun arrives at Dealer’s shop, she does some internet research and discovers that the handgun was issued to a general who played a prominent role at the Battle of Gettysburg, which increases the value of the handgun by a factor of ten. The next day, Dealer receives a letter from Buyer stating, “Sorry. You’re right. A deal’s a deal.” The envelope contains a check for $2,000. Dealer sends the check back to Buyer with a note stating, “Buyer: Because you backed out of our deal, I will not sell you the handgun. //Signed// Dealer.” A few weeks later, Buyer learns that Dealer is offering the handgun for sale at her shop for $20,000 because of its connection to the Civil War general. Buyer brings suit against Dealer for breach of contract, requesting specific performance.
1. Is Buyer likely to prevail against Dealer in his suit for breach of contract? Discuss.
2. If so, is the court likely to grant Buyer’s request for specific performance? Discuss.
October 2016 QUESTION 3 [Torts]
Barry is a licensed barber. Recently, he has considered changing from the straight razor that he has always used to a new type of electric razor. The primary advantage of the new razor is that it totally eliminates the possibility of the customer being cut in the process of getting a shave. In general, barbers prefer the tradition of using the straight razor to the electric razor because it allows them to better show off their skills as a barber. Although not all agree, some believe that the straight razor gives a closer shave. The new razors have, however, been scientifically established to provide just as close a shave as the straight razor. Barry continues to shave men as he always has because he enjoys the use of the blade, and because the electric razor is expensive. He is also concerned about the reliability of these new devices under the heavy use they would receive in a barbershop. Moe comes into Barry’s shop to get a shave. Halfway through the shave, Moe suddenly jumps up from the chair, cheering because he checked his smartphone and saw his favorite baseball team score a run. In the process, Barry’s razor creates a fairly deep gash on Moe’s throat. Moe punches Barry, giving him a black eye.
1. Is Moe likely to prevail on a negligence claim against Barry? Discuss.
2. Is Barry likely to prevail on an intentional tort claim against Moe? Discuss.
October 2016 QUESTION 4 [Contracts]
Owner wants to turn her warehouse into a restaurant. She decides to install an innovative solar heating system, which Contractor agrees to install at a cost of $50,000. Contractor’s son (“Son”) wants to use two parking spaces in the warehouse parking lot for his (Son’s) business. If Owner agrees to designate two parking spaces for Son’s use for five years, Contractor will drop the price to $35,000. On November 13th, the parties agree to the latter arrangement in a valid written contract in which Contractor promises to start the job on November 17th and to complete it by January 1st . The contract includes a recital stating, “Timely performance by Contractor is important to avoid any delay in the opening of Owner’s restaurant.” State law requires that all installations of the new solar systems be done by a certified solar technician. On November 15th , the only certified technician who works for Contractor, Tech, is injured in a car accident. Contractor immediately notifies Owner and advises her that the start of the work will be delayed because of Tech’s accident. Owner replies, “You know that on-time performance is crucial. Yesterday, the city announced special tax breaks for businesses that open by the end of the year. Can you still finish by then?” Contractor says, “I don’t know when we can start. It depends on how quickly Tech recovers.” Owner tells Contractor that she is terminating the contract. Owner finds an alternative supplier of a similar system at a cost of $60,000, but he can’t start work immediately and the restaurant opens in February of the following year. Owner misses the deadline for the city tax break. Owner sues Contractor for breach of contract. Son sues Owner for breach of contract, seeking damages for Owner’s failure to provide the two parking spaces.
1. Can Owner prevail in her lawsuit against Contractor? Discuss.
2. If so, can Owner recover
a. The $10,000 in increased costs for the heating system? Discuss.
b. The lost profits for the delay in opening the restaurant? Discuss.
c. The value of the tax reduction? Discuss.
3. Can Son prevail in his lawsuit against Owner? Discuss.