1F. In 1980, Herb married Wanda, and the couple took up residence in a California home, which Herb had purchased in 1979.
Herb had bought the home for $50,000 by making a $5,000 down payment and signing a promissory note for the balance. At the time of the marriage, the outstanding balance on this note was $44,000. During the next 20 years, the couple paid off the note by making payments from their combined salaries. The home now has a fair market value of $200,000.
In 1985, Wanda sold for $10,000 a watercolor she had painted that year. She and Herb orally agreed that the $10,000 would be her sole and separate property. Wanda invested the $10,000 in a mutual fund in her name alone. The current value of the mutual fund is now $45,000.
In 1985, Herb and Wanda bought a vacatin cabin on the the California Coast for $75,000. They made a down payment of $25,000 with community property funds, and both signed a note secured by a deed of trust on the cabin for the balance. Title to the cabin was taken in the names of both Herb and Wanda "as joint tenants."
Shortly afterward, Herb inherited a large sum of money from his mother and used $50,000 of his inheritance to pay off the note on the cabin. In 2000, Herb and Wanda added a room to the cabin at a cost of $20,000, which Herb paid out of the funds he had inherited. The current fair market value of the cabin is $150,000.
In 2001, Wanda instituted a dissolution proceeding.
What are Herb's and Wanda's respective rights to:
1. The home? Discuss.
2. The mutual fund? Discuss.
3. The cabin? Discuss.
Answer according to California law.
2F. Adam owns 100% of the stock of Sellco, a corporation that sells houses. Sellco's board of directors consists of Adam and his wife Betty.
Sellco owns 90% of the stock of Buildco, another corporation. Pat owns the remaining 10% of Buildco's stock. Buildco's business is home construction. Buildco's board of directors consists of Adam, Betty and Evan. Betty is the president of Buildco and as such, is a salaried employee. Neither Adam nor Evan is an officer or employee of Buildco.
Adam urged Buildco's other directors (Betty and Evan) to approve an arrangement whereby Buildco would build houses and sell them to Sellco at cost. Sellco, in turn, would sell the homes for a profit. Based solely upon Adam's representation that the arrangement "made sense," Buildco's board unanimously approved this arrangement. Buildco thereafter commenced constructing homes exclusively for the purpose of selling them to Sellco. Buildco sold the houses at cost to Sellco, and Sellco sold the houses for a considerable profit.
Pat objects to this arrangement because it deprives Buildco of the only source of money with which to pay dividends.
What personal and/or derivative claims can Pat reasonably assert against Sellco, Adam, Betty and/or Evan and is he likely to succeed on each claim? Discuss.
3F. Duce and Cody were arrested for an armed robbery. Duce was taken to the police station, where she was interrogated without Miranda warnings. After three hours of questioning, a police officer asked Duce if she would consent to a search of her automobile. Duce consented, and a search of her car revealed a handgun and items stolen in the robbery, which were seized by the officers. When told what the officers found, Duce confessed to driving the getaway car in the robbery.
Cody, who did not know that Duce had confessed, then confessed and named Duce as the driver of the getaway car.
At their joint trial on a charge of robbery, Duce moved to exclude her confession from evidence based solely on the failure of the police to give her Miranda warnings. Based only on that violation, the court granted the motion to exclude her confession.
Duce also moved to exclude from evidence the handgun and the stolen items seized from her automobile, claiming that she was not aware that she had a right to refuse consent to search. The prosecutor conceded that the police had no authority to search the car absent consent, but asserted that Duce's consent was obtained without coercion. The court denied the motion, finding that the consent was voluntary.
The handgun and the stolen items seized from Duce's car were admitted into evidence at the joint trial of Duce and Cody over objections by each defendant. Cody's confession, redacted to eliminate any reference to Duce, was admitted into evidence against Cody.
At trial Duce testified, denying that she drove the getaway car and that she knew the handgun or the stolen items were in her car. She testified that she had loaned her car to Cody on the day of the robbery. In rebuttal the prosecutor called a police officer who testified, over objection by Duce, to the contents of Duce's confession and to the contents of Cody's complete unredacted confession implicating Duce as the driver of the getaway car.
Assume that in each instance all appropriate constitutional and evidentiary objections were made.
1. Did the court err in admitting the handgun and the stolen items seized from Duce's car against Duce and Cody? Discuss.
2. Did the court err in admitting the police officer's testimony about Duce's confession? Discuss.
3. Did the court err in admitting the police officer's testimony about Cody's complete unredacted confession? Discuss.
[Remedies]
4F. In 1998, Diane built an office building on her land adjacent to land owned by Peter. Neither she nor Peter realized that the building encroached about ten inches on Peter's adjacent property. Because of the narrowness of Diane's lot, Diane did not have much latitude in the design of her office building. In December 2000, a town survey made for other purposes revealed the mistake. In constructing her office building, Diane inadvertently destroyed two dozen ornamental trees that had been on Peter's land for years.
Peter, who was a restaurateur, maintained a garden where he grew specialty vegetables for his restaurant. The vegetables have been unable to flourish without the filtered sunlight provided by the trees that Diane destroyed. As a result, Peter's costs have risen as he has been forced to buy more produce from suppliers. In addition, his reputation as a restaurateur has suffered because his customers had come to look forward to his fresh garden vegetables. Many of his customers have begun to frequent other restaurants, and the long-term effect on his business is incalculable.
Diane has had tenants in her building since it opened in 1998, and most of them have leases covering several years. To remove the encroaching wall would be costly to Diane, would reduce the office space, and would disrupt the tenants on the encroaching side of the building sufficiently that they could claim a constructive or even an actual eviction.
Diane's tenants have been parking on a lot in back of Diane's building. Diane paid for the paving of the lot under the mistaken belief that the lot was on her land. In reality, the lot is almost entirely on Peter's land. Diane has been charging her tenants $50 a month to lease parking space in the lot. Peter has never voiced any objection to this practice because, until the town survey, he did not realize that the lot was on his land.
What remedies are available to Peter against Diane, and on what theories of liability are they based? Discuss.
5F. Jones & Smith is a law firm concentrating on plaintiffs' personal injury litigation.
The firm has decided to take several steps to increase its business volume.
First, the firm plans to run television advertisements stating that the firm offers to handle cases for discount contingency fees. The advertisements will state that, while most firms normally charge a 33% contingency fee for handling a personal injury case, Jones & Smith will undertake representation for a fee of 25%. In addition, the advertisements will state that the firm offers interest-free advances against prospective judgments in cases of clear liability of up to 50% of the firm's estimated value of the case.
Second, the firm plans to acquire from the police department lists of individuals who have been involved in automobile accidents, and to mail letters to those persons informing them that the firm is available for consultation about their legal rights arising out of the accident. Individuals who have been hospitalized as a result of an accident will receive a flower arrangement, delivered "compliments of Jones & Smith, Attorneys at Law."
Finally, the firm plans to make use of nonlawyers in order to reduce costs. The firm will employ several paralegals and investigators who will be responsible for working up personal injury cases. Their activities will include fact investigation, witness interviews, negotiation with insurance adjusters, meetings with clients to discuss proposed settlements, and settlement conferences with clients to explain releases and to execute other documents necessary to conclude a case.
Do the proposed actions violate any rules of professional conduct? Discuss.
6F. Owens, a homeowner, approached Carter, a licensed contractor, to discuss construction of a new garage attached to Owens' home. After several meetings, Owens and Carter signed the following contract.
Carter will build a two-car garage, with overall dimensions of 30' (width) by 25' (depth). Included within the overall dimensions will be a storage area at the rear. Storage area to be 30' by 4', and divided from the remainder of the garage by a wall containing a door. Wooden siding, paint, and roof will be matched to Owens' home. Carter will commence work on March 15 and will complete job no later than April 30. Owens agrees to pay $8,500 upon completion. The time for performance of these obligations shall be of the essence.
The contract was signed on January 15, and Carter arrived on the job site on March 15 to begin work. Several weeks later, Carter learned that roofing shingles of the exact type and color used on Owen' home were difficult to obtain. Therefore, he used shingles made of other material which were of even higher quality than those originally planned but which, although very close, did not precisely match those on the roof of Owens' home.
Carter completed the garage on May10 and presented Owens with a bill in the amount of $8,500. Later on the same evening, Owens placed his car in the garage only to learn that the length of his car did not permit the garage door to close. Upon closer inspection he discovered that the storeroom in the back of the garage was 30' by 6', two feet deeper than planned. As a result, the garage parking area was only 19' in depth. While this would be sufficient for most automobiles, it was several inches too short to accommodate Owens' large car.
The cost of removing and relocating the dividing wall would be $800. The cost of removing and replacing the shingles with others matching Owen's home would be $2,200. Owens has refused to pay any part of Carter's bill, citing as reasons Carter's failure to (1) complete the job by April 30; (2) use matching shingles; and (3) build a garage and storeroom of the dimensions called for by the contract.
What are Carter's rights and liabilities? Discuss.
1J. Pam took an indefinite leave of absence from her job, sublet her apartment in State A, and went to care for her elderly mother in State B. Approximately six months later, while Pam was walking to her car in the parking lot of Don's Market in State B, Rita, a resident of State C, struck Pam with her car. In Rita's car were three friends from State C who were traveling through State B with Rita. The friends told the police officer called to the scene of the accident that Pam was reading a magazine as she walked across the parking lot and was therefore not watching where she was going. Pam told the police officer that she had just walked out from behind a large concrete column in the parking lot when Rita's car struck her.
Pam sued Rita and Don's Market in federal court in State B. Pam's complaint sought $60,000 in damages against each defendant. It also asked the court for an injunction ordering Don's Market to tear down the concrete column in the parking lot.
Don's Market moved to dismiss Pam's complaint on the ground that the court lacked subject matter jurisdiction. The court denied the motion.
Rita then moved for a change of venue of the action to federal court in State C on the grounds that she is a citizen of State C and that it would be a hardship for her and her witnesses to travel to State B for trial. The court denied Rita's motion for change of venue.
Rita then filed a notice of appeal of the court's denial of her venue motion. The appellate court dismissed Rita's appeal.
1. Was the trial court correct in denying the motion of Don's Market to dismiss the complaint on the ground that the court lacked subject matter jurisdiction? Discuss.
2. Was the trial court correct in denying Rita's motion for change of venue? Discuss.
3. Was the appellate court correct in dismissing Rita's appeal? Discuss.
2J. Artist owns a workshop in a condominium building consisting of the workshops and sales counters of sculptors, painters, potters, weavers, and other craftspeople. The covenants, conditions and regulations (CC&Rs) of the building provide for a board of managers (Board), which has authority to make "necessary and appropriate rules." Board long ago established a rule against the sale within the building of items not created within the sellers' workshops.
Artist accepted a three-year fellowship in Europe and leased the workshop to Weaver for that period. The lease prohibited an assignment of Weaver's rights. Weaver used the workshop to produce custom textiles.
A year into the term, Weaver transferred her right of occupancy to Sculptor for one year. Sculptor moved into the workshop with his cot, electric hotplate, and clothes. He also brought several works of art that he had created during a stay in South America and offered them for sale along with his current works. Sculptor mailed his rent checks every month to Artist, who accepted them. Both Weaver and Sculptor knew the terms of the CC&Rs and Board’s rules when they acquired their interests in the workshop.
Three months after Sculptor moved in, Board told Sculptor to stop selling his South American pieces. He refused to do so and thereafter withheld his rent and complained that the regulation was unreasonable and that the building's heating was erratic.
1. What action, if any, may Board take against Artist to enforce the rule against the sale of Sculptor’s South American pieces? Discuss.
2. Can Artist recover from Weaver the rent that Sculptor has refused to pay? Discuss.
3. Can Artist evict Sculptor from his occupancy? Discuss.
[Evidence]
3J. Walker sued Truck Co. for personal injuries. Walker alleged that Dan, Truck Co.'s driver, negligently ran a red light and struck him as he was crossing the street in the crosswalk with the "Walk" signal. Truck Co. claimed that Dan had the green light and that Walker was outside the crosswalk. At trial, Walker called George Clerk and the following questions were asked and answers given:
17. Would you tell the jury your name and spell your last name for the record, please?
A. George Clerk. C-l-e-r-k.
[1] Q: Where were you when you saw the truck hit Walker?
A: I was standing behind the counter in the pharmacy where I work.
[2] Q: What were the weather conditions just before the accident?
[3] A: Well, some people had their umbrellas up, so I’m pretty sure it must have been raining.
[4] Q: Tell me everything that happened.
[5] A: This guy rushed in to my store and shouted, "Call an ambulance! A truck just ran a red light and hit someone."
Q: What happened next?
[6] A: I walked over to the window and looked out. I said, "That truck must have been going way over the speed limit." Then I called an ambulance.
Q: Then what happened?
[7] A: I walked out to where this guy was lying in the street. Dan, the driver for Truck Co., was kneeling over him. A woman was kneeling there too. She spoke calmly to Dan and said, "It's all your fault," and Dan said nothing in response.
At each of the seven indicated points, what objection or objections, if any, should have been made, and how should the court have ruled on each objection? Discuss.
4J. To prepare herself for a spiritual calling to serve as a pastor at City's jail, Ada enrolled in a nondenominational bible school. After graduating, Ada advised the pastor of her own church that she was ready to commence a ministry and asked that her church ordain her. While sympathetic to her ambition, Ada's pastor accurately advised her that their church did not ordain women.
Ada began going to City's jail during visiting hours and developed an effective ministry with prisoners, particularly women inmates who increasingly sought her counsel. Ada noticed that ordained ministers who visited the jail received special privileges denied to her.
Dan, the jail supervisor, told Ada that ministers who were ordained and endorsed by a recognized religious group were designated "jail chaplains" and, as such, were permitted access to the jail during non visiting hours. He told Ada that she too could be designated a jail chaplain if she obtained a letter from a recognized religious group stating that it had ordained her as a minister and had endorsed her for such work.
Ada replied that her church was not part of any recognized religious group and would not ordain her any way because she was a woman. She asked Dan nonetheless to designate her a jail chaplain because of the effectiveness of her work.
Dan refused to designate Ada a jail chaplain or to allow her the access enjoyed by jail chaplains. He acted pursuant to jail regulations adopted to avoid security risks and staff involvement in making determinations as to who was really a "minister.”
Ada has brought suit in federal court to obtain an injunction requiring that she be designated a jail chaplain or be granted access to City's jail equivalent to those who have been designated jail chaplains. Ada’s complaint is based on the grounds that the refusal to designate her a jail chaplain violates rights guaranteed to her and the prisoners by the First Amendment to the U.S. Constitution and also violates rights guaranteed to her by the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.
How should Ada's suit be decided? Discuss.
[Torts] [Professional Responsibility]
5J. Ann, an attorney, represented Harry in his dissolution of marriage proceedings, which involved an acrimonious dispute over custody of Harry and Wilma's minor children.
Ann advised Harry that a favorable custody ruling would be more likely if he could show that Wilma had engaged in improper behavior. Two days after receiving this advice Harry came to Ann's office with his wrist heavily bandaged. Harry told Ann that, when he went by the family home the prior evening to get some of his things, Wilma had tried to run over him with her car, actually hitting him. This was the first suggestion of any violence between Harry and Wilma. After listening to Harry's story, Ann urged Harry to sue Wilma for assault and battery. Ann said: "Filing this suit will improve our bargaining position on custody." Ann did nothing to investigate the truth of Harry’s story.
Just before the hearing on custody, Ann filed a tort action on Harry’s behalf alleging Wilma had committed an assault and battery on Harry. Ann referred to the tort action at the custody hearing, and Wilma denied that the incident ever occurred. The judge, however, believed Harry’s version and awarded sole custody to Harry.
Three months later, Ann learned that Harry had fabricated the story about how he injured his wrist. Ann did not report Harry’s lie to anyone and merely failed to prosecute the tort action, which, as a result, was dismissed with prejudice. Wilma then sued Ann for malicious prosecution, abuse of process, and defamation. Wilma also filed a complaint against Ann with the State’s office of lawyer discipline.
A: What is the likelihood that Wilma can succeed on each of the claims she has asserted in her civil suit against Ann? Discuss.
B: Did Ann’s conduct violate any rules of professional ethics? Discuss.
6J. Ted, a widower, had a child, Deb. He had three brothers, Abe, Bob, and Carl.
In 1998, Abe died, survived by a child, Ann. Ted then received a letter from a woman with whom he had once had a relationship. The letter stated that Sam, a child she had borne in 1997, was Ted’s son. Ted, until then unaware of Sam’s existence, wrote back in 1998 stating he doubted he was Sam’s father.
In 1999, Ted executed a will. With the exception of the signature of a witness at the bottom, the will was entirely in Ted’s own handwriting and signed by Ted. The will provided that half of Ted’s estate was to be held in trust by Trustee, Inc. for ten years with the income to be paid annually “to my brothers,” with the principal at the end of ten years to go “to my child, Deb.” The other half of the estate was to go to Deb outright. One month after Ted signed the will, Ted’s second brother, Bob, died, survived by a child, Beth.
In 2000, Ted died. After Ted’s death, DNA testing confirmed Ted was Sam’s father.
What interests, if any, do Deb, Sam, Ann, Beth, and Carl have in Ted’s estate and/or the trust? Discuss. Answer according to California law.