[Real Property]
Builder sold a shopping mall to Owner. The recorded deed from Builder to Owner conveyed the mall and parking lot where the parking spaces were numbered 1 to 100. The deed reserved to Builder the exclusive right to use parking spaces 15 through 20 as a place to set up a stand to sell sports memorabilia and sandwiches on Sundays. The shopping mall was located adjacent to an existing residential neighborhood.
Owner entered into a written 30-year lease with Lois leasing to her a store in the mall and parking spaces 1 through 20. Under the lease, Lois agreed to pay rent monthly and not to assign the lease without Owner’s prior written approval. After occupying the leased premises for five years, Lois subleased the store and parking spaces to Fast Food for a term of ten years without first having obtained Owner’s written approval.
Fast Food occupied the premises and paid rent to Owner. Fast Food, which operated a take-out restaurant on the premises seven days a week, used state-of-the-art equipment and operated in compliance with all local health ordinances. Notwithstanding this, on warm days when Fast Food was particularly busy, unpleasant cooking odors were emitted from Fast Food’s kitchen. The unpleasant odors caused discomfort to many of the homeowners living in the adjacent neighborhood.
On the first Sunday after Fast Food opened its take-out restaurant, Builder set up his memorabilia and sandwich stand in parking spaces 15 through 20. Fast Food, not aware of the provision in the deed, complained to Builder about the competition of Builder’s sandwich sales and the occupancy of parking spaces allocated to Fast Food. Builder ignored Fast Food’s complaints. Fast Food then informed Owner that it would cease paying rent until Owner took steps to prevent Builder from using the parking spaces. Owner explained to Fast Food that there was nothing he could do about it, but Fast Food insisted that it would not pay further rent until Owner stopped Builder from setting up his stand. Thereupon, Owner hired a locksmith, who changed the locks on the space occupied by Fast Food, thus denying Fast Food access to the premises.
1. Did Lois violate the “no-assignment” provision in her lease with Owner? Discuss.
2. If Fast Food brings an action in trespass against Builder for his use of parking spaces 15 through 20, is Fast Food likely to prevail? Discuss.
3. Did Owner have the right to change the locks on Fast Food’s premises? Discuss.
4. Can the homeowners establish a claim for nuisance against Fast Food? Discuss.
[business Associations] [Professional Responsibility]
Rita and Fred wanted to form a corporation to be named “Rita’s Kitchen, Inc.” (RKI) for the purpose of opening a restaurant. They contacted 75 friends who agreed individually to become investors in RKI. Five of these investors also agreed to serve on the RKI Board of Directors with Rita and Fred.
Rita and Fred entered into a five-year lease with Landlord for restaurant space, naming “Rita’s Kitchen, Inc., a corporation in formation” as the tenant. They signed the lease as “President” and “Secretary,” respectively.
Rita and Fred retained Art as their attorney to form the corporation. They told Art that 75 of their friends had committed to invest and become shareholders of RKI. Irv was a duly appointed representative of the 75 investors. Rita, Fred and Irv met with Art, and they agreed that Art would represent Rita, Fred, and all the investors. After extensive discussions with Rita, Fred, and Irv about the operation of the proposed business, Art agreed to prepare the necessary documentation to incorporate RKI.
Later, outside of Irv’s presence, Rita and Fred asked Art to draft a shareholder agreement that would specifically designate Rita and Fred as permanent directors and officers of RKI and set Rita and Fred’s annual salaries at 12.5% of the corporate earnings. Without further discussion, Art properly formed the corporation. He then prepared the shareholder agreement, including the terms that Rita and Fred had requested.
The 75 investors each purchased their shares of stock and signed the shareholder agreement. RKI operated for one year but failed to make a profit. RKI ceased operations and currently owes three months of back rent under the lease.
1. Can Landlord recover the unpaid rent from Rita and Fred individually? Discuss.
2. Is the shareholder agreement valid? Discuss.
3. What ethical violations, if any, has Art committed? Discuss, including distinctions, if any, between the ABA Model Rules and California authorities.
Do not discuss federal and state securities laws.
[Criminal Law]
Dan has been in and out of mental institutions most of his life. While working in a grocery store stocking shelves, he got into an argument with Vic, a customer who complained that Dan was blocking the aisle. When Dan swore at Vic and threatened to kick him out of the store, Vic told Dan that he was crazy and should be locked up. Dan exploded in anger, shouted he would kill Vic, and struck Vic with his fist, knocking Vic down. As Vic fell, he hit his head on the tile floor, suffered a skull fracture, and died.
Dan was charged with murder. He pleaded not guilty and not guilty by reason of insanity. At the ensuing jury trial, Dan took the stand and testified that he had been provoked to violence by Vic’s crude remarks and could not stop himself from striking Vic. Several witnesses, including a psychiatrist, testified about Dan’s history of mental illness and his continued erratic behavior despite treatment.
1. Can the jury properly find Dan guilty of first degree murder? Discuss.
2. Can the jury properly find Dan guilty of second degree murder? Discuss.
3. Can the jury properly find Dan guilty of voluntary manslaughter? Discuss.
4. Can the jury properly find Dan not guilty by reason of insanity? Discuss.
[Wills] [Community Property]
In 2001 Tom, a resident of California, executed a valid typewritten and witnessed will. At that time, Tom was married to Wynn. Tom also had two nephews, Norm, and Matt, who were the children of his deceased sister, Sue.
Tom’s will made the following dispositions:
Article 1: I leave $10,000 to my friend Frank.
Article 2: I leave my shares in Beta Corp stock to my friend Frank.
Article 3: I leave $80,000 to my sister Sue’s issue.
Article 4: I leave the residue of my estate to my wife.
The $10,000 figure in Article 1 was crossed out and $12,000 was handwritten in Tom’s hand above the $10,000 figure. Next to the $12,000 Tom had handwritten, “Okay. 2/15/02.”
In 2003 Tom and Wynn had a child, Cole.
In 2004, Matt died in a car accident. Matt was survived by his children, Lynn and Kim.
Tom died in 2005. Tom was survived by Wynn, Cole, Norm, Frank, and his grandnieces, Lynn and Kim. At the time of his death, Tom owned, as separate property, $500,000 in cash. He also had 100 shares of Beta Corp stock, titled in Tom’s name, which he had purchased with his earnings while married to Wynn. The Beta stock was valued at $1.00 per share at the time of Tom’s death.
What rights, if any, do Wynn, Cole, Norm, Frank, and his grandnieces Lynn and Kim have in Tom’s estate? Discuss.
Answer according to California law.
[Constitutional Law]
City has adopted an ordinance banning tobacco advertising on billboards, store windows, any site within 1,000 feet of a school, and “any other location where minors under the age of 18 years traditionally gather.”
The purpose of the ordinance is to discourage school-age children from smoking. The likely result of the ordinance will be to cause the removal of tobacco advertising from the vicinity of schools, day care centers, playgrounds, and amusement arcades.
The Association of Retailers (AOR) was formed to protect the economic interests of its member retailers. AOR had unsuccessfully opposed the adoption of the ordinance, arguing that it would cause hardship to store owners by depriving them of needed advertising revenue. AOR believes that the best way to discourage young people from smoking is by directly restricting access to tobacco rather than by banning all tobacco advertising.
AOR is considering filing a complaint for injunctive relief against City in federal district court claiming that the ordinance deprives its members of rights under the Free Speech Clause of the First Amendment.
What arguments could AOR reasonably make to show that it has standing, and that its First Amendment free speech claim has merit, and would it be likely to succeed? Discuss.
[Evidence]
Officer Will, a police officer, stopped Calvin, who was driving a rental car at five miles an hour over the speed limit. Calvin gave legally valid consent to search the car. Officer Will discovered a substantial quantity of cocaine in the console between the two front seats and arrested Calvin. After being given and waiving his Miranda rights, Calvin explained that he was driving the car for his friend, Donna. He said that Donna was going to meet him at a particular destination to collect her cocaine, which belonged to her. Hoping to obtain a favorable plea bargain, Calvin offered to cooperate with the police. The police then arranged for Calvin to deliver the cocaine. When Donna met Calvin at the destination, she got into the car with Calvin. She was then arrested. Each was charged with and tried separately for distribution of cocaine and conspiracy to distribute cocaine.
Donna’s trial began while Calvin’s case was still pending.
At Donna’s trial, the following occurred:
(1) The prosecutor called Officer Will, who testified to Calvin’s statements after his arrest concerning Donna’s role in the transaction.
(2) The prosecutor then called Ned, an experienced detective assigned to the Narcotics Bureau, who testified that high level drug dealers customarily use others to transport their drugs for them.
In the defense case, Donna testified that she was not a drug dealer and that she knew nothing about the cocaine. She stated that she was merely meeting Calvin because he was an old friend who had called to say he was coming to town and would like to see her.
(3) Donna further testified that when she was in the car with Calvin, she found a receipt for the rental car, which showed that Calvin had rented it six months prior to his arrest. She offered a copy of the receipt into evidence. The court admitted the document in evidence.
(4) On cross-examination, the prosecutor asked Donna whether she had lied on her income tax returns.
The prosecutor had no evidence that Donna had lied on her income tax returns, but believed that it was likely on the basis that drug dealers do not generally report their income. Donna denied lying on her income tax returns.
Assuming that, in each instance, all the appropriate objections were made, should the evidence in numbers 1, 2, and 3 have been admitted, and should the cross-examination in 4 have been allowed? Discuss.
[Real Property]
Larry leased in writing to Tanya a four-room office suite at a rent of $500 payable monthly in advance. The lease commenced on July 1, 2006. The lease required Larry toprovide essential services to Tanya’s suite. The suite was located on the 12th floor of anew 20-story office building.
In November Larry failed to provide essential services to Tanya’s suite on several occasions. Elevator service and running water were interrupted once; heating wasinterrupted twice; and electrical service was interrupted on three occasions. These services were interrupted for periods of time lasting from one day to one week. On December 5, the heat, electrical and running water services were interrupted and not restored until December 12. In each instance Tanya immediately complained to Larry,who told Tanya that he was aware of the problems and was doing all he could to repair them.
On December 12, Tanya orally told Larry that she was terminating her lease on February28, 2007 because the constant interruptions of services made it impossible for her to conduct her business. She picked the February 28 termination date to give herself ample opportunity to locate alternative office space.
Tanya vacated the suite on February 28 even though between December 12 and February28 there were no longer any problems with the leased premises.
Larry did not attempt to relet Tanya’s vacant suite until April 15. He found a tenant to lease the suite commencing on May 1 at a rent of $500 payable monthly in advance. OnMay 1, Larry brought suit against Tanya to recover rent for the months of March and April.
On what theory could Larry reasonably assert a claim to recover rent from Tanya for March and April and what defenses could Tanya reasonably assert against Larry’s claim for rent? Discuss
[Torts]
Manufacturer designed and manufactured a “Cold Drink Blender,” which it sold through retail stores throughout the country. The Cold Drink Blender consists of three components: abase that houses the motor, a glass container for liquids with mixing blades inside on the bottom, and a removable cover for the container to prevent liquids from overflowing during mixing. A manufacturer’s brochure that came with the Cold Drink Blender states that it is“perfect for making all of your favorite cold drinks, like mixed fruit drinks and milk shakes,and it even crushes ice to make frozen drinks like daiquiris and piña coladas,” and cautioned,“Do not fill beyond 2 inches of the top.” Retailer sold one of the Cold Drink Blenders to Consumer. One day, Consumer was following a recipe for vegetable soup that called for thickening the soup by liquefying the vegetables. After deciding to use her Cold Drink Blender for this purpose, Consumer filled the glass container to the top with hot soup, placed it on the base, put the cover on top, and turned the blender on the highest speed. The high speed rotation of the mixing blades forced the contents to the top of the container, pushed off the cover, and splashed hot soup all overConsumer, who was severely burned by the hot soup.Consumer filed a lawsuit against Manufacturer and Retailer, pleading claims for strict products liability and negligence. In her complaint, Consumer stated that the Cold DrinkBlender was not equipped with a cover that locked onto the top of the container in such a way as to prevent it from coming off during operation and that the failure to equip the blender with this safety feature was a cause of her injuries. Manufacturer moved to dismiss the complaint against it on the following grounds:(1) Consumer’s injury was caused by her own misuse of the ColdDrink Blender which, as implied by its name, was intended for mixing only cold substances.(2) Consumer’s injury was caused by her own lack of care, as she overfilled the Cold Drink Blender and operated it at high speed.(3) The design of the Cold Drink Blender was not defective since It complied with design standards set forth in federal regulations promulgated by the federal Consumer Products Safety Commission, which do not require any locking mechanism.Retailer moved to dismiss the complaint against it on the following ground:(4) Retailer played no part in the manufacture of the Cold Drink Blender and therefore should not be held responsible for a defect in its design.How should the court rule on each ground of both motions to dismiss? Discuss.
[Evidence]
Dave brought his sports car into the local service station for an oil change. While servicing the car, Mechanic checked the brakes and noticed that they needed repair. The following events occurred: (1) Mechanic commented to Helper, “Dave had better get these brakes fixed. They look bad to me.” (2) Mechanic instructed Helper (who did not himself observe the brakes) to write on the work order: “Inspected brakes — repair?”, which Helper then wrote on the work order. However, Helper currently does not remember what words he wrote on the work order.(3) Many hours later when Dave picked up his car, Helper overheard Mechanic say to Dave, “I think your brakes are bad. You’d better get them fixed.”(4) Dave responded, “I am not surprised. They’ve felt a little funny lately.”(5) Later that day, when Helper was walking down Main Street, he heard the sound of a collision behind him, followed by a bystander shouting: “The sports car ran the red light and ran into the truck.” The sports car involved in the accident was the one that Dave had just picked up fromMechanic. Polly owned the truck. Polly sued Dave for negligence for damages sustained in the accident. Polly’s complaint alleged that the accident was caused by the sports car running the red light because the sports car’s brakes failed. Polly’s theory of liability is that Dave knew or should have known that his brakes were bad and that driving the car under those circumstances was negligent. Polly called Helper as a witness to testify as to the facts recited in items (1) through (5)above, and she also offered into evidence the work order referred to in item number (2). Assume that in each instance, appropriate objections were made. Should the court admit the evidence offered in items numbers (1) through (5), including the work order referred to in item number (2)? Discuss.
[Criminal Procedure/Constitutional Law]
Dan stood on the steps of the state capitol and yelled to a half-dozen people entering the front doors: “Listen citizens. Prayer in the schools means government-endorsed religion. A state church! They can take your constitutional rights away just as fast as I can destroy this copy of the U.S. Constitution.”With that, Dan took a cigarette lighter from his pocket and ignited a parchment document that he held in his left hand. The parchment burst into flame and, when the heat of the fire burned his hand, he involuntarily let it go. A wind blew the burning document into a construction site where it settled in an open drum of flammable material. The drum exploded, killing a nearby pedestrian.A state statute makes it a misdemeanor to burn or mutilate a copy of the U.S.Constitution.It turned out that the document that Dan had burned was actually a copy of theDeclaration of Independence, not of the U.S. Constitution, as he believed. Dan was arrested and charged with the crimes of murder and attempting to burn a copy of the U.S. Constitution. He has moved to dismiss the charge of attempting to burn a copy of the U.S. Constitution, claiming that (i) what he burned was actually a copy of theDeclaration of Independence and (ii) the state statute on which the charge is based violates his rights under the First Amendment to the U.S. Constitution.1. May Dan properly be found guilty of the crime of murder or any lesser-included offense? Discuss.2. How should the court rule on each ground of Dan’s motion to dismiss the charge of attempting to burn a copy of the U.S. Constitution? Discuss.
[Contracts] [Remedies]
Paula, a recent art-school graduate, was trying to establish a reputation as an art acquisition agent, i.e., one who finds works of art for collectors interested in buying particular works. It is a business where reliability and confidentiality are critical.
Paula’s first commission was to find for City Museum (“Museum”) any one of the three originals in a series of paintings by Monay, titled “The Pond.” Museum agreed to pay as much as $300,000 for it and to pay Paula $15,000 upon acquisition. The works of Monay are rare and held by private collectors, and none had been on the market in recent years.
Paula eventually tracked down Sally, a private collector who owned the three originals of Monay’s “The Pond.” After some negotiations, in which Sally expressed offhandedly how proud she was that she only sold to private collectors, Sally orally agreed to sell toPaula for $200,000 whichever of the three paintings she selected. Paula agreed that, as soon as she could make the selection, she would transfer the purchase money into Sally’s bank account. Paula immediately called the curator at Museum, who told her to select the first of the three in the series, and the curator immediately caused Museum’s bank to wire-transfer $200,000 into Sally’s account to cover the purchase.
The next day, when Paula went to tell Sally which painting she had selected and to pick it up, Sally declined to go through with the sale. Sally accused Paula of deceit, saying it was only when she learned that the money for the purchase had come from Museum, that she realized the painting would no longer be held privately. Sally tendered to Paula a certified check, which she had signed and drawn from her bank account, refunding the $200,000. In the notation line of the check, Sally had written, “Refund on 1st of Monay Pond series.”
Paula refused to accept the check and insisted on getting the painting. She explained that she had not disclosed her principal’s identity because she was bout by confidentiality and that, unless she could deliver the painting to Museum, her budding career as an art acquisition agent was over. Sally told Paula, “That’s too bad. Our contract wasn’t in writing, so you can’t force me to sell the painting. Besides, you deceived me about why you wanted to buy it.”
Can Paula obtain specific performance of Sally’s agreement to sell Paula the painting? Discuss.
[Community Property]
Husband and Wife married in 1997 in California. Neither of them brought any significant assets to the marriage, and they were both employed. Husband and Wife agreed that Husband should go to law school after they had saved up some money. Husband put his earnings in a savings account in his name alone. Wife deposited her earnings into a joint checking account in both of their names, which was used for their living expenses. Husband had a child support obligation from a previous marriage. Every month, Husband paid his child support by check from the joint checking account.Husband began law school in 1998. Wife continued to work to support the couple. Husband took out a student loan to pay his tuition. Husband graduated in 2001 and obtained his law degree. He passed the bar exam and got a position with a large law firm.In 2004 Husband became a partner in the firm. Husband’s partnership earnings were substantial. He paid off his student loan using these earnings. Although the actual value of Husband’s share of the firm’s goodwill was substantially greater, the partnership agreement provided that its value was $3,000 for purposes of valuation as marital property in the event of a dissolution of a partner’s marriage. In 2006, Husband and Wife filed for dissolution of marriage. 1. Is the community entitled to reimbursement for (a) The child support? Discuss.(b) The payments on the student loan? Discuss.2. Does the community have an interest in(c) Husband’s law degree? Discuss.(d) The goodwill in Husband’s law firm and, if so, is the community bound by the firm’s valuation? Discuss.Answer according to California law.