2000
[Community Property]
H and W were married in 1985 in Franklin, a non-community property state. H worked as an engineer for Texco beginning in 1975. W worked as a bookkeeper.
During his employment with Texco, H received annual bonuses in the form of Texco stock. By 1990, H owned 1,000 shares of Texco.
In 1990, H accepted a job offer from Calco, a California-based engineering firm, and H and W moved to California. In 1991, H and W purchased a condominium for $200,000, taking title as "H and W, husband and wife, as joint tenants with right of survivorship." W paid the $50,000 down payment with money she had recently inherited, and Hand W obtained a $150,000 loan secured by a deed of trust for the balance of the purchase price. H made the monthly principal and interest payments on the loan out of his Calco earnings.
In 1999, W, who had found a bookkeeping job shortly after moving to California, was charged with embezzling $50,000 from that employer. W admitted spending the $50,000 on cocaine. W retained Lawyer, who negotiated a plea bargain pursuant to which W pled guilty, was placed on three years probation, and was ordered to make full restitution. W also underwent treatment at DrugStop, a drug treatment facility, at a cost of $10,000. Lawyer charged W $5,000 to handle her case.
H had no knowledge of either W's embezzlement or cocaine habit until her arrest. H has filed for dissolution of the marriage. The condominium is currently valued at $300,000 with a $50,000 balance on the mortgage.
What are H and W's respective rights and liabilities with regard to:
1. The 1,000 shares of Texco stock? Discuss.
2. The condominium? Discuss.
3. The attorney's fees, restitution, and expenses for the DrugS top treatment?
Discuss.
Answer according to California law.
[Remedies]
Chemco built a chemical processing plant in a rural area. As part of its operations, Chemco discharges waste into a local river at levels that are low, but constant. Chemco carefully monitors discharge levels on a regular basis.
About six rnonths after Chemco began operations, Pat, a rancher, purchased a tract of grazing land traversed by the same river approximately one-half mile downstream of Chemco's location and stocked the tract with several thousand head of cattle. Within several months, some of Pat's cattle began to get sick and several died. Pat initially attributed the loss of his cattle to a variety of causes, including a recent change he had made in their feed. After another year following the onset of sickness among his cattle, with continuing loss of animals, Pat decided to test the water in the river. He discovered that the level of toxic substances in the local river is sufficient to cause sickness and death to his animals. During the preceding year, Pat's cattle loss totaled about $100,000, and he projects that his losses will increase every successive year unless Chemco stops discharging waste into the river.
Chemco employs more than 1,000 persons in the rural community, by far the largest employer in the county. As a result of Pat's complaints, Chemco hired an engineering firm to investigate the wastes being emitted at its plant and learned that installation of a new filtration system could substantially reduce, if not eliminate, the emission. The filtration system would cost almost $1,000,000, a sum that Chemco could pay only if it were financed over a ten-year term. Relocation of the plant would cost many millions of dollars and would cause Chemco to cease operations. Hauling, storing and distributing water for Pat's cattle from alternative sources would cost approximately $100,000 per year.
Pat sued Chemco requesting an injunction either to enjoin all operations of Chemco or to require that Chemco cease or remedy the discharge or to require Chemco to furnish Pat with clean water from alternative sources. Pat also claimed that he should be awarded substantial damages to compensate him for his past and prospective losses. Chemco opposed the prayer for an injunction on the ground that its operations in the area preceded Pat's activities, and asserted that either an injunction requiring any of the remedies sought by Pat or an award of damages of the magnitude sought by Pat would put Chemco out of business.
1. What arguments might be made for and against an injunction incorporating each of the forms of injunctive relief being sought by Pat, and what would be the likely result of each? Discuss.
2. How should the court rule on Pat's claims for past and prospective damages? Discuss.
Do not discuss state or federal environmental laws.
Sample Answer
[Torts] [Professional Responsibility]
Lee who had been a party in a bench trial before Judge Bright, was dissatisfied with the outcome of the case. After the trial was concluded, Lee held a press conference and told Reporter:
Judge Bright is a very unfair judge. In a recent trial in which I was involved in his court, he clearly didn't understand what was going on. I've heard he's often drunk on the bench.
These remarks were published verbatim in the local newspaper. Judge Bright lost his bid for reelection. Judge Bright sued Lee and Reporter for defamation, alleging that he lost the election as the result of the publication of Lee's remarks. Both defendants moved to dismiss on the ground that the complaint failed to state a cause of action for defamation. The court denied the motion.
Attorney offered to act as a consultant to Lee and Reporter. He agreed to advise them on law and strategy and to help them prepare their case and obtain expert witnesses. He also offered to be an expert witness, but said he would not be their lawyer in the actual trial. Lee and Reporter agreed to hire Attorney and to pay him for his services, both as a consultant and as an expert witness, a contingent fee based on the outcome of the case.
At the trial the court ruled (a) that Lee's statements about Judge Bright were not defamatory; (b) that, in any event, both Lee's statements and Reporter's publication of the statements were privileged; and (c) that, as a matter of law, Judge Bright did not suffer any damage.
1. Were each of the trial court's rulings correct? Discuss.
2. What if if any, ethical issues arise as a result of the terms under which Attorney undertook to assist Lee and Reporter? Discuss.
[Wills]
Tom, a lifelong childless bachelor, validly executed a typed will in 1994, providing: 1. $10,000 to my servant, Sam. 2. My house in Oakdale to my friend, Fiona. 3. The residue of my estate to Church. In 1996 Tom validly executed a second typed will, providing: 1. I hereby revoke all prior wills. 2. $10,000 to my servant, Sam. 3. My house in Oakdale to my friend , Fiona. 4. The residue of my estate to Museum. In 1998, angered by a modem art exhibit at Museum, Tom decided he preferred the provisions of the 1994 will to those of the 1996 will. Tom wrote by hand, signed and mailed the following letter to Lois, his lawyer, who had possession of the executed originals of both wills: I hereby revoke my 1996 will. Please destroy it. I wish my 1994 will to be in effect. /s/Tom
Lois received the letter via U.S. mail at her office. After reading the letter, she tore the 1996 will in half, but preserved the pieces for future reference. In 1999, Tom sold the house that he had owned in Oakdale at the time he wrote the earlier wills and then purchased another house in Oakdale. Also in 1999, Sam died intestate, survived only by two children. Tom died in 2000, survived by Fiona, Sam’s two children, and a nephew, Ned, who would be Tom’s sole heir if Tom died intestate. Tom’s net estate consisted of his house, stocks and bonds, and a $150,000 savings account. How should Tom’s estate be distributed? Discuss. Answer according to California law.
Answer
[Contracts]
In January, in response to an inquiry, Seller sent Buyer a letter offering to sell 10,000 tires, assorted sizes to be selected by Seller and delivered at the rate of 1,000 each month for ten months. This letter stated the price for each size and specified that payment was due on delivery of each shipment. Buyer sent a letter agreeing to purchase 10,000 tires, assortment to be specified by Buyer. Buyer's letter contained its standard provision that any disputes arising under the agreement were to be resolved by commercial arbitration. The letter also contained Buyer's specification of the size assortment for the first month's shipment of tires.
On February 1, Seller's driver arrived with the first installment, which consisted of the assortment specified in Buyer's letter. The driver left the tires without asking for payment. Four days later Buyer sent Seller a check for the first installment and a letter specifying the assortment for the second installment. On March 1, Seller's driver arrived with the second installment, again containing the assortment specified in Buyer's letter. Again the driver left the tires without getting payment.
Three days later Buyer sent a check for the second installment and specifications for the third installment. On April1, Seller's driver arrived, but the assortment was not exactly what Buyer had specified. Buyer accepted the tires anyway and seven days later sent a check for the third installment, along with specifications for the fourth installment.
On May 1, Seller's driver arrived, again with an assortment that was not exactly what Buyer had specified. Buyer agreed to take delivery, but Seller's driver insisted on payment. When Buyer was unable to pay, Seller's driver refused to leave the tires and took them back to Seller's warehouse.
Buyer called Seller to complain about the driver's refusal to leave the tires and insisted upon immediate redelivery. Buyer said he would pay "as usual, a few days after delivery." Seller refused and told Buyer, "If you don't like it, why don't you take me to arbitration?" Buyer replied, "Look, I have no intention of arbitrating this dispute. But I'm not accepting that last shipment unless it meets my specifications precisely and unless you allow me the same leeway for payment as with past shipments."
Seller sued Buyer for breach of contract. Buyer simultaneously filed a counterclaim against Seller and moved the court for an order staying the suit and compelling arbitration. Seller opposed the motion.
1. How should the court rule on the motion for an order staying the suit and compelling arbitration? Discuss.
2. What are the rights and obligations of Seller and Buyer, and who should prevail on the merits of the litigation? Discuss.
[Evidence]
A Picasso sketch was taken from Town museum by a burglar. The sketch was recovered three weeks later when an an dealer in Switzerland read about the theft. The dealer recognized the sketch described in the article as the sketch he had purchased from a young woman with an American accent. Police had been unable to identify the burglar or match fingerprints found at the scene of the theft. Sally is a petty thief with convictions for burglary. Tec, a Town police investigator, believed Sally had knowledge of the theft. He decided to trick Sally into providing information. Tec went to Sally's home, told her he was arresting her for the museum burglary and theft and handcuffed her. After Tec advised Sally of her Miranda rights, Sally immediately replied: "Hey, come on. I didn't do the museum job. Donna did. She told me she broke in and took a drawing. She said she sold it in Switzerland." Based on Sally's information, the grand jury issued a subpoena ordering Donna to appear, submit to fingerprinting, and produce her passport. After the court denied Donna's motion to quash the subpoena and ordered her to comply, she submitted to fingerprinting and turned over her passport. Her fingerprints were found to match those in the museum. Her passport bore a date stamp showing that the holder had entered Switzerland two days after the museum burglary. Sally has left Town and cannot be located. Donna has been charged with burglary and theft. Donna moved to exclude the ollowing evidence: (1) Sally's statement to Tec, which Donna claims: (a) is hearsay, the admission of which would violate her rights under the Sixth Amendment, and (b) was obtained in violation of Sally's rights under the Fourth Amendment. (2) The fingerprints she provided which Donna claims were obtained in violation "Donna claims were obtained in violation of her rights under the Fifth Amendment and are the "fruits" of an unlawful search and seizure, and (3) Donna's passport, which she claims was obtained in violation of her rights under the Fifth Amendment. What should the prosecutor argue in opposition to Donna's motions, and how should the court rule on each? Discuss.
[Evidence]
Dan was arrested and charged with possession of heroin with intent to sell. Dan allegedly sold a small bag of heroin to Peters, an undercover officer at Guy's Bar and Grill. In his opening statement, Dan's lawyer said the evidence would show that Dan was entrapped. The following incidents occurred at trial:
1. The prosecutor called Wolf, a patron at Guy's, who testified over defense objection that Dan told him the night before the alleged sale that Dan intended to "sell some baggies" to Peters the next night.
2. The prosecutor called Peters, who testified that she was working as an undercover officer and received information that Dan was selling heroin at Guy's. She testified she went to Guy's two nights before the date of the arrest. Over defense objections, Peters testified she talked to Bob, another bar patron, who told her he had bought marijuana from Dan at Guy's the night before.
3. Peters testified she found out that Dan used e-mail. Over defense objections, she testified that she had e-mailed Dan a message to meet her at Guy's with a small bag of heroin on the night in question. Peters preserved a paper copy of her e-mail message, which, over defense objections, was introduced into evidence.
4. The defense called Dan as a witness. Dan testified that Peters had begged and pleaded with him to get heroin for her because she was suffering from withdrawal and needed a fix. On cross-examination, the prosecutor asked Dan, over defense objections: "Isn't it true that you were arrested by the police for selling marijuana in 1994?" Dan answered: "Yes, but they didn't have any evidence to make the charge stick." The prosecutor moved to strike Dan's answer.
5. The defense called Cal, Dan's employer, as a character witness. The defense laid a foundation showing that Cal had known Dan for ten years. Over the prosecutor's objection, Dan's lawyer asked Cal if he had an opinion on Dan's good moral character. Cal answered: "Yes, I and everyone else who have known Dan for many years know that he always tells the truth." The prosecutor moved to strike Cal's answer.
Assume all appropriate objections were made. Was the objected-to evidence in items 1 through 4 properly admitted, and should the motion to strike in items 4 and 5 have been granted?
Discuss.
[Real Property] [Contracts] [Wills]
Sam and Paul entered into a written contract on September 1, 1999, for the sale by Sam to Paul of a mountain lakefront lot improved with a residence (hereinafter, "the parcel") for $100,000. The contract was silent as to the quality of title Sam would convey, but provided that a quitclaim deed would be used. Paul failed to tender the agreed-on price on the performance date. Sam sued Paul for specific performance on July 5, 2000. Paul defended the suit on the ground that Sam's title is not marketable.
Sam's claim of title goes back to Owen, who owned an unencumbered fee simple absolute in the parcel. The parcel, which was accessible only during the summer months, has been occupied by Owen and Owen's family as a summer vacation home since 1980. In 1984, Owen conveyed the parcel by recorded deed to "to my daughter, Doris, and my son, George, so long as they both shall live, and then to the survivor of them."
Owen died testate in 1987. Owen's will made no specific reference to the parcel, but the residuary clause left to Doris "all my other property not specifically disposed of by the will." Doris and George and their families continued to use the vacation home each summer. Doris died testate in April 1988, her will "devising and bequeathing all my estate to my son, Ed."
George executed a deed in May 1988, purporting to convey a fee simple absolute in the parcel to Cain. Cain and his family occupied the parcel during the summers of 1988 through 1996. In May 1997, Cain conveyed the parcel to Sam. Sam's family occupied it during the summers of 1997 through 1999.
The statute of limitations on actions to recover land in this jurisdiction is 10 years. There is no statute or decision by an appellate court either repudiating or affirming the common law doctrine of destructibility of contingent remainders.
Who should prevail in Sam's suit against Paul? Discuss.
Answer
[Trusts] [Wills]
In 1996, Hal, married to Wanda, created a trust that he funded with $200,000 of his separate property. Trustee, Inc., named as trustee, was directed to pay the income to Hal for life and the remainder to Wanda. At the same time, Hal executed a valid will that provided as follows:
Article 1: $20,000 to my friend Frank.
Article 2: $35,000 to the person named on a sheet of pink paper dated December 31, 1989 and located in my top desk drawer.
Article 3: The residue of my estate to my son, Stan.
In 1998, Wanda executed a valid will solely in favor of her son, Stan. Shortly thereafter, Wanda died while giving birth to the couple's second child, Dawn.
Later in 1998, while grieving Wanda's death, Hal regularly consulted a fortune teller, Florence. In 1999, based on Florence's predictions that Stan would become a criminal, Hal executed a codicil to his 1996 will, changing the residuary beneficiary from Stan to Florence.
In 2000, Hal and Frank, passengers on a commercial plane were simultaneously killed when the plane exploded on takeoff. The pink sheet of paper referred to in Article 2 of the 1996 will provided: "To my next-born child, if any."
1. To whom should the trust property be distributed? Discss.
2. To whom should Hal's estate be distributed? Discuss. Answer according to California law.
[Criminal Procedure] [Constitutional Law]
State law makes it a felony to either promote a dogfight or knowingly attend a dogfight whereadmission is charged. Ruth, a reporter for the Dispatch, City's only newspaper, observed a stageddogfight by posing as a patron and paying the admission fee. She took over 30 photographs of theevent with a concealed camera. Later, she wrote an article about the event in the Dispatch that didnot identify anyone else present, but which was accompanied by one of her photographs showing twodogs in bloody mortal combat.
The City police then asked Ruth if she knew the names of any persons at the illegal dogfight andrequested all of her unpublished photographs in order to try to identify the fight promoters andattendees. With the backing of the Dispatch, Ruth flatly refused the police requests. When Ruth'srefusal came to the attention of the city council, several council members stated publicly that theDispatch was guilty of "bad citizenship." The council then unanimously enacted an ordinance banning all coin-operated news racks from City's public sidewalks and any other public property inorder to "improve public safety." The ordinance left unaffected those other news racks on publicproperty, far fewer in number, that dispensed several kinds of free publications (commercial, political, religious, etc.)
The state prosecutor in City commenced a grand jury investigation of illegal dogfighting in City. Thegrand jury subpoenaed Ruth to testify and answer questions about the dogfight she had attended andto produce all her unpublished photos of the event. Ruth brought an appropriate action in state courtseeking an order quashing the grand jury subpoena.
The Dispatch sells about half of its daily editions from coin-operated news racks located on City's sidewalks. The Dispatch commenced an action against the city council in the local federal districtcourt seeking a declaration that the ordinance banning coin-operated news racks violates rightsguaranteed under the U.S. Constitution.
1.What arguments based on rights guaranteed by the U.S. Constitution could Ruth reasonably make in support of her action for an order quashing the grand jury subpoena, and how should the court rule on each? Discuss.
2.What arguments could the Dispatch reasonably make in support of its claim that the city ordinance violates rights guaranteed under the U.S. Constitution, and how should the courtrule on each? Discuss.
[Civil Procedure]
Bigcorp is incorporated and headquartered in State B. While in State B, Paul, a citizen of State A, was severely injured by a defective power saw at a store owned by Bigcorp in State B. Paul brought a products liability action for $100,000 against Bigcorp in a federal district court in State B, based on diversity of citizenship. As discovery proceeded, Bigcorp disclosed that, although it manufactures its own power saws, the particular power saw that allegedly injured Paul had been manufactured in State A by Amcorp, which is incorporated and headquartered in State A. Amcorp and Bigcorp generally conduct business solely in their respective states, but sell surplus goods to each other twice a year.
Paul sought leave to amend his federal court complaint to name Amcorp as a defendant. Bigcorp opposed the motion, claiming that such a joinder would defeat diversity, and moved for the dismissal of the action because of the impossibility of proper joinder of Amcorp. The federal court dismissed Paul's complaint. Paul then filed suit against Bigcorp and Amcorp in state court in State B. Amcorp filed a motion to quash service of summons, contesting personal jurisdiction over it. The State B court determined that it lacked personal jurisdiction over Amcorp and dismissed it from the action.
Paul voluntarily dismissed his action against Bigcorp without prejudice. Paul then brought his products liability action in state court in State A, naming Amcorp and Bigcorp as defendants. Bigcorp moved for dismissal of Bigcorp from the action on the ground of res judicata, and the State A court granted the motion.
1. Was the federal court correct in dismissing the action on the ground of the impossibility of proper joinder of Amcorp? Discuss.
2. Was the state court in State B correct in dismissing Amcorp from the action on the ground that it lacked personal jurisdiction over Amcorp? Discuss.
3. Was the state court in State A correct in dismissing Bigcorp from the State A action on the ground of res judicata? Discuss.
[Torts] [Remedies]
Dan operates a plant where he makes pottery. To provide a special high-capacity power source to his pottery kilns, Dan recently installed on the electric company's power pole outside of his building an electrical transformer that would increase the electrical current entering his plant from the main power line. He did this without the knowledge or consent of the electric company.
Dan did not know that the power line on which he installed the transformer also feeds power to the adjacent office buildings. Peter occupies one of those adjacent office buildings. In the building, he has an extensive computer network that he uses in his business of providing advanced computer services to local commercial enterprises. Peter has been in this business for ten years. He employs several highly paid computer operators and technicians.
Dan's installation of the transformer caused power surges each time his kilns were turned on and off. Soon after Dan had installed the transformer, Peter's computers began to malfunction and eventually were severely damaged by the repeated power surges. As a result, Peter lost a large amount of data stored in his computers. He laid off some employees without pay and shut down his business for two weeks while the computers were repaired and while the remaining employees restored the lost data.
During the shutdown, Peter lost considerable income because he was unable to furnish computer services to his customers. Peter and the laid-off employees have filed suit against Dan.
1. In an action against Dan, what theories, if any, might Peter assert and what defenses might Dan raise if Peter seeks to recover:
a. The cost of repairing his computers? Discuss.
b. The cost of restoring the lost data? Discuss.
c. His lost income? Discuss.
d. Loss of goodwill and other incidental effects of the disruption of his business? Discuss.
2. May Peter recover punitive damages? Discuss.
3. May the laid-off employees recover lost wages and benefits from Dan under any theory? Discuss.