2019
http://www.calbar.ca.gov/Portals/0/documents/admissions/fyx/FYLSX_Oct2019_SelectedAnswers.pdf
June 2019 Question 1 [Torts]
Ann owns a chain of day care centers in City and needed to hire a new director of operations. John Smith, who had recently moved from a small town (“Town”) to City, applied for the position. He appeared to be well qualified for the job. Ann sent an email to her friend Bob, who lived in Town, to see if Bob knew John Smith and whether he had any information about him.
Bob emailed back stating that he did not know John Smith, but that he believed that John Smith was a convicted drug dealer who had sold drugs to minors. Although he did not explain the source of his belief to Ann, it was based on an article in Town’s newspaper that he had read about the conviction of a major drug dealer named John Smith who had been selling drugs to students at the local high school. Ann decided not to offer the job to John Smith. When Smith inquired as to why he had not received the job, Ann truthfully told him that Bob had informed her that he was a convicted drug dealer who had sold drugs to minors.
In fact, the John Smith that Bob had read about in the article was a different John Smith, and the newspaper article had included the actual drug dealer John Smith’s address and photograph. They were in no way similar to job-applicant John Smith, who was the fine, upstanding citizen that he appeared to be.
Upset and distracted after talking with Ann, applicant John Smith got into his car and carelessly merged into traffic, cutting off Deb, who barely avoided running into him. Deb became enraged and, after he pulled into a driveway to turn around, managed to use her car to block him in his car in the driveway for 10 minutes. John Smith screamed at her and called her insulting names. Deb took her foot off the brake and drove her car into John Smith’s car, significantly damaging the bumper. It took the mechanic two weeks to repair John Smith’s car and he charged $2,000 for the repair.
Applicant John Smith sued Bob in tort for harm to his reputation. He sued Deb in a separate case in tort.
Is applicant John Smith likely to prevail in his lawsuit against Bob? Discuss.
What intentional torts, if any, can applicant John Smith likely prove in his lawsuit against Deb? Discuss.
June 2019 Question 2 [Contracts]
Ed is elderly and is often forgetful. He owns a home on a large lot in a subdivision governed by extensive homeowners’ association (“HOA”) regulations. Nate lives next door and has a lawn care business. Nate drafted a contract stating that Nate will provide lawn care services to Ed for five years, with the full amount to be paid in advance, at the time the contract is signed. Nate intended the amount to be for $100 per month, for a total of $6,000 due in advance. Unbeknownst to Nate, he had made a mistake when typing the contract and it stated that the amount Ed was to pay was $1,000 per month, with $60,000 due in advance. The contract contained a merger clause stating that the written contract was intended as a complete and final expression of the parties.
Nate knew that Ed drinks alcohol heavily every evening and waited until 10:00 p.m. to bring the contract over to Ed. Ed was on the porch drinking a cocktail. When Ed asked for time to review the contract, Nate said that Ed had already orally agreed to hire Nate for lawn care services at $100 per month and that the written contract simply memorialized their deal. In fact, that conversation never occurred. Ed was afraid that he may have entered into the oral contract with Nate, but had forgotten about it due to a “blackout,” which he occasionally experienced. Nate also told Ed that if someone reported the poor condition of Ed’s lawn to the homeowners’ association, Ed could be liable for a large fine for violation of association regulations. Frightened, Ed quickly signed the contract without reading it, but subsequently refused to pay Nate.
Nate sued Ed for breach of contract, seeking $60,000. What arguments would Nate make, what defenses could Ed reasonably raise, and what would be the likely outcome? Discuss.
June 2019 Question 3 [Criminal Law]
Ava used to work as a daytime housecleaner for Claire, who had terminated Ava’s employment. Ava decided to go to Claire’s house the following Saturday when she thought Claire would be at her weekly book club meeting, and to take two large paintings worth several thousand dollars and to sell them. Ava told Ben of her plan and offered to pay him one-third of the proceeds from the sale of the paintings if Ben gave her a ride and helped her load the paintings into his van. Ben said he needed to think it over.
Shortly after sunset on Saturday night, Ben picked Ava up and they drove in his van to Claire’s house. Ava used a copy she had made of a key that Claire had given her to open the locked front door. Claire was sick with the flu and had decided not to go to her book club meeting. Claire walked into her living room just as Ava and Ben were taking down the first painting. Claire suffered from a serious heart condition. Claire screamed when she saw Ava and Ben, had a heart attack, collapsed, and died.
Ben, not realizing that Claire had died, told Ava that he was through doing jobs with her and used his cell phone to call an ambulance. After Ben hung up the phone, Ava ran out without the paintings, but saw Claire’s diamond watch on a table, grabbed it, and took it with her as she fled.
Ben was arrested.
With what crime or crimes can Ben reasonably be charged, what defenses, if any, may he reasonably raise, and what is the likely result? Discuss.
June 2019 Question 4 [Contracts]
Pete, a retired professional football player, signed a one-year contract effective January 1st with Grills to promote its cooking grills. Grills also signed and promised to pay Pete $50,000 per month. Pete promised to act in six commercials for Grills, filming at times mutually agreed upon by the parties. Pete also promised to make two promotional appearances (“appearances”) every month. The contract contained the following provision:
PARAGRAPH (6): If Pete engages in disreputable conduct that reflects adversely on Grills or its association with Pete, Grills at its option may terminate this agreement.
Pete acted in two commercials from January to May and attended all appearances. In June, Pete did not show up for the filming for the third commercial because he had overslept. Pete offered to pay the cost of the film crew and said he’d be available any time Grills wished to reschedule. Pete was on time for the next two appearances and received his June check.
In July, Pete was the subject of stories in magazines and sports programs, which included photos of him at the roulette table at Casino with a drink in his hand, looking quite intoxicated, and hanging onto people to keep from falling down. The news stories were more humorous than critical. Two days later, Grills emailed Pete, stating that his contract had been terminated “due to the breach of your obligations with respect to television commercials and because Grills is invoking Paragraph 6 based on your conduct at Casino, documented in news stories in July.” Pete believes the real reason Grills terminated his deal was because grill sales were down. Pete’s advertising expert was surprised by the termination because news stories like the one Grills complained of are common and have little negative effect on companies that hire athletes to promote their products.
From August through December, Pete promoted products for other companies, earning $100,000. He turned down a similar offer of $250,000 from Casino because of his concerns it would reinforce a negative public image. Pete’s agent told him that being dropped by Grills will reduce Pete’s future promotional opportunities.
Pete sued Grills for breach of contract.
What arguments will Pete make in support of his claim, what defenses will Grills assert, and what is the likely outcome of the case, including the amount of damages, if any, Pete can expect if his claim succeeds? Discuss.
October 2019 Question 1 [Criminal Law]
Julie Smith hired Debra Daniels to take care of her grandmother, Nan. Smith informed Daniels that during her daily visits to Nan, she was to prepare Nan’s prescription medications by placing the correct number of pills in a dispenser. With the pills placed in the dispenser, Nan could take the correct dosage of evening medications after Daniels left for the day. Smith told Daniels that this task was very important because Nan had previously gotten confused, taken the wrong number of pills, and almost died.
After several months, Nan told Daniels that she enjoyed her company and was relieved that everything was working out because she feared that if it didn’t, her granddaughter would place her in a nursing home.
Neither Smith nor Nan knew that Daniels was a drug addict who regularly needed money to buy drugs. One day, Daniels went to work at Nan’s after ingesting a large quantity of narcotics. Nan did not notice that Daniels was under the influence of drugs and, during the day, Daniels secretly removed jewelry from the home and sold it for drugs.
On another day, Daniels told Nan that she had to quit and find another job because she had to make money quickly to pay past due bills for a previous lifesaving medical treatment. Unaware that the story was not true, Nan gave Daniels $1,000.
Daniels used the $1,000 and went on a three-day drug binge. During those three days, she did not go to work, nor did she inform Nan or Smith that she would not be at work. When Daniels failed to go to work and place the correct dosage of Nan’s medications into the dispenser, Nan took too many pills, overdosed on her medication and died.
With what crimes, if any, may Daniels be charged; what defenses, if any, could she raise; and what is the likely result? Discuss.
October 2019 Question 2 [Contracts]
Ella has owned and operated Ella’s Garden, a successful landscaping service and nursery, for several years. One day Louis called Ella’s Garden, wanting to buy some exotic ferns and unusual ornamental trees for his backyard. Ella took the call, checked her price list, and informed Louis that she would sell him the ferns and trees for $5,000. Louis excitedly agreed and said he would drive right over in his truck.
An hour later, Louis pulled up to Ella’s Garden in his truck. He identified himself to Ella, gave her $1,000 in cash, and told her that he would give her a check for the rest. As Louis loaded his truck, Ella realized that she had inadvertently referred to an outdated price list when she quoted the $5,000 price to Louis; the actual price should have been $6,000. Ella told Louis that she could not sell him the ferns and trees for anything less than $6,000.
At that moment, Sarah, another customer, approached Ella. A week earlier, Sarah had hired Ella’s Garden to redo Sarah’s landscaping specifically in preparation for the wedding of Sarah’s daughter. The comprehensive written contract, which does not mention the wedding, specified a $7,700 price for extensive work including weeding and trimming, walkway placement, and the purchase and installation of numerous plantings. Subsequently, Sarah’s daughter cancelled the wedding, and Sarah no longer wants Ella’s Garden to do the work. Sarah told Ella that she would go forward with the contract, though, if Ella would do the work for significantly less money, that is $5,500, and Ella very reluctantly agreed.
1. What contract rights and defenses, if any, do Louis and Ella have against one another, and who is likely to prevail? Discuss.
2. What contract rights and defenses, if any, do Ella and Sarah have against one another regarding the $7,700 and $5,500 prices, and who is likely to prevail? Discuss.
October 2019 Question 3 [Torts]
Ken was determined to establish the best dog breeding facility in the country. He searched for an appropriate spot to locate such a major facility, and found a large tract of land far beyond the reaches of the city. He hired the best veterinarians to staff the facility, and it soon became known for producing the most desirable puppies in the country. The dogs do make a lot of noise and create a certain amount of stench, particularly due to their excrement that litters the land. Ken’s business now employs 100 people full time, although no one is assigned to remove the dog waste.
Marilyn owns ten Norwegian Forest cats. Since the city restricts the number of pets that residents can own, she decided to build a home outside city limits. In the time since Ken built his facility, the suburbs expanded out towards his property. Marilyn found a perfect lot next to Ken’s property, large enough for her cats to roam, and built her house there. The house contains special features for cats, such as cat walks near the ceilings.
Shortly after moving in, Marilyn began having problems. Her cats developed nervous disorders due to the constant barking of Ken’s dogs. In addition, Marilyn found the noxious smell from the accumulated dog droppings, and associated swarms of flies, hard to tolerate. When Marilyn’s complaints to Ken failed to resolve matters, she independently tried several measures to create a buffer zone at the edge of Ken’s property that abuts her land. Whenever one of Ken’s dogs gets close to Ken’s wire fence, Marilyn sprays it with water from her hose to get it to back up and be quiet. She also uses the water stream to move the piles of excrement away from the fence. One time, she also sprayed air freshener on the dogs through the fence and unfortunately, two of the dogs died as a result.
1. What tort claims, if any, can Marilyn reasonably assert against Ken; what defenses, if any, can Ken reasonably assert; and what is the likely result? Discuss.
2. What tort claims, if any, can Ken reasonably assert against Marilyn; what defenses, if any, can Marilyn reasonably assert; and what is the likely result? Discuss.
October 2020 Question 4 [Criminal Law]
Ned learned from news reports that several homes in his neighborhood had recently been broken into at night. The reports said that the break-ins had occurred when the homeowners were not present, and that no one had been injured; however, thousands of dollars’ worth of electronics had been taken. The break-ins were being perpetrated by Dara and Don. Dara would wait in the getaway car while Don broke in and stole electronics. Neither was armed during the break-ins.
Ned became obsessed with preventing his home from being broken into. He installed exterior cameras with night vision that would set off alarms inside his home if anyone approached. He also placed loaded guns that he lawfully possessed in every room. In fact, Ned began looking forward to the prospect of shooting an intruder.
One night Dara and Don chose to break into Ned’s home. Dara parked outside and Don crept toward the house. Inside, Ned’s alarm activated. On the video feeds, Ned saw that Don was right outside his dining room window. Ned entered the dining room, picked up a shotgun, and shot Don through the window, killing him. Don had not yet touched Ned’s house when Ned shot him.
1. With what crimes, if any, can Dara reasonably be charged for the events that took place at Ned’s home; what defenses, if any, can she reasonably raise; and what is the likely result? Discuss.
2. With what crimes, if any, can Ned reasonably be charged; what defenses, if any, can he reasonably raise; and what is the likely result? Discuss.