2008
[Torts]
Peter, a twelve-year old, was playing with his pet pigeon in a field near his home, which is adjacent to a high voltage electricity power substation. The substation is surrounded by a six-foot tall chain link fence topped with barbed wire. Attached to the fence are twelve 10 inch by 14 inch warning signs, which read “Danger High Voltage.”
Peter’s pigeon flew into the substation and landed on a piece of equipment. In an attempt to retrieve his pet, Peter climbed the surrounding fence, then scaled a steel support to a height of approximately ten feet from where the bird was stranded. When Peter grasped the bird, it fluttered from his hand, struck Peter in the face, causing Peter to come into contact with a high voltage wire, which caused him severe burns.
Peter’s father is contemplating filing a lawsuit on Peter’s behalf against the owner and operator of the substation, Power and Light Company (PLC), to recover damages arising from the accident.
What causes of action might Peter’s father reasonably assert against PLC, what defenses can PLC reasonably raise, and what is the likely outcome on each? Discuss.
[Professional Responsibility]
Acme Paint Company (Acme) was sued when one of Acme’s trucks was involved in an accident with a car. June, an attorney, was retained to represent Acme. She has done substantial work on the case, which is about to go to trial.
Recently, June’s three-year-old niece suffered lead poisoning after being in contact with lead-based paint. June became so upset that she joined a local consumer advocacy group, No Lead, which lobbies government agencies to adopt strict regulations restricting the use of lead-based paint. June also undertook to perform legal research and advise No Lead concerning its tax-exempt status.
In the course of reviewing Acme’s records in preparation for trial, June found a memorandum from Acme’s President to the company’s drivers. The memorandum states:
We know our paint contains lead and that it is a misdemeanor to transport it over roads abutting public reservoirs. The road our trucks have been using for many years runs alongside the City water reservoir, but it’s the shortest route to the interstate, so you should, for the time being, continue to use that road.
June became outraged by the content of the memorandum. She believed that if an Acme truck were to have a mishap and paint spilled into the reservoir, lead could enter the public drinking water and injure the local population.
Because of her strong feelings, June anonymously disclosed the memorandum to No Lead and to the media. She also sent Acme a letter stating that she wished to withdraw from the representation of Acme. Acme objected to June’s withdrawal. June filed with the court a petition for withdrawal.
1. What ethical violations, if any, did June commit by disclosing Acme’s memorandum? Discuss.
2. What arguments for withdrawal from representation could June assert in support of her petition to the court, and how would the court be likely to rule? Discuss.
Answer according to California and ABA authorities.
[Criminal Procedure] [Criminal Law]
Dan’s neighborhood was overrun by two gangs: the Reds and the Blues. Vic, one of the Reds, tried to recruit Dan to join his gang. When Dan refused, Vic said he couldn’t be responsible for Dan’s safety.
After threatening Dan for several weeks, Vic backed Dan into an alley, showed him a knife, and said: “Think carefully about your decision. Your deadline is coming fast.” Dan was terrified. He began carrying a gun for protection. A week later, Dan saw Vic walking with his hand under his jacket. Afraid that Vic might be about to stab him, Dan shot and killed Vic.
Dan was arrested and put in jail. After his arraignment on a charge of murder, an attorney was appointed for him by the court. Dan then received a visitor who identified himself as Sid, a member of the Blues. Sid said the Blues wanted to help Dan and had hired him a better lawyer. Sid said the lawyer wanted Dan to tell Sid exactly how the killing had occurred so the lawyer could help Dan. Dan told Sid that he had shot Vic to end the harassment. Dan later learned that Sid was actually a police informant, who had been instructed beforehand by the police to try to get information from Dan.
1. May Dan successfully move to exclude his statement to Sid under the Fifth and/or Sixth Amendments to the United States Constitution? Discuss.
2. Can Dan be convicted of murder or of any lesser-included offense? Discuss.
[Trusts] [Wills]
In 2001, Wilma, an elderly widow with full mental capacity, put $1,000,000 into a trust (Trust). The Trust instrument named Wilma’s church (Church) as the beneficiary. Although the Trust instrument did not name a trustee, its terms recited that the trustee has broad powers of administration for the benefit of the beneficiary.
In 2002, Wilma’s sister, Sis, began paying a great deal of attention to Wilma, preventing any other friends or relatives from visiting Wilma. In 2003, Wilma reluctantly executed a properly witnessed will leaving her entire estate to Sis. Following the execution of the will, Wilma and Sis began to develop a genuine fondness for each other, engaging in social events frequently and becoming close friends. In 2005 Wilma wrote a note to herself: “Am glad Sis will benefit from my estate.”
In 2007, Wilma named Sis as trustee of the Trust, which was when Sis found out for the first time about the $1,000,000 in the Trust. Without telling Wilma, Sis wrote across the Trust instrument, “This Trust is revoked,” signing her name as trustee.
Shortly thereafter, Wilma died, survived by her daughter, Dora, who had not spoken to Wilma for twenty years, and by Sis. Church claims that the Trust is valid and remains in effect. Sis and Dora each claim that each is entitled to Wilma’s entire estate.
1. What arguments should Church make in support of its claim, and what is the likely result? Discuss.
2. What arguments should Sis and Dora make in support of their respective claims, and what is the likely result? Discuss.
Answer question number 2 according to California law.
[Community Property]
Harvey and Fiona, both residents of State X, married in 1995. Harvey abandoned Fiona after two months. Harvey then met Wendy, who was also a State X resident. He told her that he was single, and they married in State X in 1997. They orally agreed that they would live on Harvey’s salary and that Wendy’s salary would be saved for emergencies. They opened a checking account in both their names, into which Harvey’s salary checks were deposited.
Wendy opened a savings account in her name alone, into which she deposited her salary.
Harvey and Wendy moved to California in 1998. Other than closing out their State X checking account and opening a new checking account in both their names in a California bank, they maintained their original financial arrangement.
In February 1999, Harvey inherited $25,000 and deposited the money into a California savings account in his name alone.
In 2004, Wendy was struck and injured by an automobile driven by Dan. Harvey and Wendy had no medical insurance. Wendy’s medical bills totaled $15,000, which Harvey paid from the savings account containing his inheritance. In 2005, Wendy settled with Dan’s insurance carrier for $50,000, which she deposited into the savings account that she still maintained in State X.
Very recently, Harvey learned that Fiona had died in 2006. He then told Wendy that he and Fiona had never been divorced. Wendy immediately left Harvey and moved back to State X. The savings account in State X currently contains
$100,000. Under the laws of both State X and California, the marriage of Harvey and Wendy was and remained void.
1. What are Harvey’s and Wendy’s respective rights in:
a) The State X savings account? Discuss.
b) The California checking account? Discuss.
c) The California savings account? Discuss.
2. Is Harvey entitled to reimbursement for the $15,000 that he paid for Wendy’s medical expenses? Discuss.
Answer according to California law.
Sample Answer
[Business Associations] [Professional Responsibility]
Albert, an attorney, and Barry, a librarian, decided to incorporate a business to provide legal services for lawyers. Barry planned to perform legal research and draft legal memoranda. Albert intended to utilize Barry’s work after reviewing it to make court appearances and argue motions on behalf of other attorneys. Albert and Barry employed Carla, an attorney, to prepare and file all of the documentation necessary to incorporate the business, Lawco, Inc. (“Lawco”).
Carla properly drafted all required documentation to incorporate Lawco under the state’s general corporation law. The documentation provided that: Lawco shares are divided equally between Albert and Barry; Lawco profits will be distributed equally to Albert and Barry as annual corporate dividends; Barry is president and Albert is secretary.
Albert and Barry opened their business in January, believing that Lawco was properly incorporated. In February, they purchased computer equipment in Lawco’s name from ComputerWorks. The computer equipment was delivered to Lawco’s office and used by Barry.
Carla, however, neglected to file the articles of incorporation until late April. In May, Albert, without consulting anyone, contracted in Lawco’s name to purchase office furniture for Lawco from Furniture Mart. On the same day, also without consulting anyone, Barry contracted in Lawco’s name to purchase telephones for Lawco from Telco.
1. Is Lawco bound by the contracts with:
a. ComputerWorks? Discuss.
b. Furniture Mart? Discuss.
c. Telco? Discuss.
2. Has Albert committed any ethical violation? Discuss.
Answer question number 2 according to California and ABA authorities.
[Professional Responsibility]
Alex is a recently-licensed attorney with a solo law practice. Alex was contacted by Booker, a friend during college, who is now a successful publisher of educational books and software. Booker asked Alex to perform the legal work to form a partnership between Booker and Clare, a creative writer of books for children. In a brief meeting with Booker and Clare, Alex agreed to represent both of them and set up the partnership for a fee of $5,000.
Because Alex had no experience with forming partnerships, he hired Dale, a recently- disbarred attorney, as a ―paralegal‖ at a wage of $250 an hour. Although Dale had no paralegal training or certification, he had decades of experience in law practice, including the formation of partnerships. Alex notified the State Bar about hiring Dale and disclosed Dale‘s involvement and disbarred status to both Booker and Clare.
Dale spent four hours on his own preparing the partnership documents and meeting with Booker and Clare about them. Alex paid Dale $1,000 for his work. Alex spent a total of two hours on the partnership matter, including the initial meeting with Booker and Clare, reading the partnership documents in order to learn about partnerships, and a final meeting to have Booker and Clare sign the documents.
What ethical violations, if any, has Alex committed? Discuss. Answer according to California and ABA authorities.
[Constitutional Law]
To protect the nation against terrorism, the President proposed the enactment of legislation that would authorize the Secretary of Homeland Security (―the Secretary‖) to issue ―National Security Requests,‖ which would require businesses to produce the personal and financial records of their customers to the Federal Bureau of Investigation (―the FBI‖) without a warrant. Congress rejected the proposal.
Thereafter, in response, the President issued Executive Order 999 (―the Order‖). The Order authorizes the Secretary to issue ―National Security Requests,‖ which require businesses to produce the personal and financial records of their customers to the FBI without a warrant. The Order further authorizes the Secretary to require state and local law enforcement agencies to assist the FBI in obtaining the records.
Concerned about acts of terrorism that had recently occurred in State X, the State X Legislature passed the ―Terrorism Prevention Act‖ (―the Act‖), requiring businesses in State X served with National Security Requests pursuant to the Order to produce a copy of the records to the State X Department of Justice.
1. Is the Order within the President‘s authority under the United States Constitution? Discuss.
2. Assuming the Order is within the President‘s authority, does the Order preempt the Act? Discuss.
3. Assuming the Order is within the President‘s authority and does not preempt the Act, do the Order and the Act violate the Fourth Amendment to the United States Constitution on their face? Discuss.
[Contracts]
On May 1, Owner asked Builder to give her an estimate for the cost of building a wooden fence around her back yard. Builder gave Owner signed written estimates of $4,000, consisting of $2,500 for labor and $1,500 for materials for a cedar fence, and of $7,000, consisting of $2,500 for labor and $4,500 for materials for a redwood fence. He said, however, that he would have to verify that the redwood was available.
Owner said she liked the idea of a redwood fence but wanted to think about it before making a decision. In any case, she said she wanted the fence completed by June 1 because she was planning an important event in her back yard for a local charity. Builder said he would check with redwood suppliers and get back to her within two days.
On May 2, Builder telephoned Owner. Owner‘s phone was answered by her voice- message machine, which informed callers that she had been called away until about May 25 but would be checking her messages daily and would return calls as soon as she could. Builder left a message stating, ―I‘ve found the redwood, and I can build the redwood fence for $7,000, as we agreed. Please give me a call, as I will otherwise buy the redwood, which is in short supply, and start the work within a few days.‖ Owner heard the message, but because the charity event she had planned had been cancelled and there was no longer any urgency about getting the fence erected, she decided to wait until she returned to speak to Builder.
By May 14, Builder had still not heard from Owner. He was concerned that the supply of redwood might not hold and that if he did not start work immediately he would not be able to finish by June 1. Thus, he bought the redwood and completed construction of the fence on May 24.
When Owner returned on May 25, she saw the completed fence and sent Builder a letter stating, ―You did a great job, but I never agreed to go ahead with the fence, and I certainly hadn‘t decided on redwood. Besides, the charity event that I had planned got cancelled. You should have waited until I got back. But, to avoid a dispute with you, I‘ll offer to split the difference – I‘ll pay you $5,500.‖
Builder received the letter on May 26. He telephoned Owner and said, ―When I first read your letter, I was going to get a lawyer and sue you, but I decided to let it go and I do accept your offer of $5,500.‖ Owner replied, ―Well, you‘re too late. I‘ve changed my mind. I don‘t think I owe you anything.‖
May Builder recover all or any part of $7,000 from Owner on a contractual or other basis? Discuss.
[Contracts] [Remedies]
Barry is the publisher of Auto Designer’s Digest, a magazine that appeals to classic car enthusiasts. For years, Barry has been trying to win a first place award in the annual Columbia Concours d‘Elegance (―Concours‖), one of the most prestigious auto shows in the country. He was sure that winning such an award would vastly increase the circulation of his magazine and attract lucrative advertising revenues. This year‘s Concours was scheduled to begin on June 1, with applications for entry to be submitted by May 1.
Sally owned a 1932 Phaeton, one of only two surviving cars of that make and model. The car was in such pristine condition that it stood a very good chance of winning the first place prize.
On April 1, Barry and Sally entered into a valid written contract by which Barry agreed to buy, and Sally agreed to sell, the Phaeton for $200,000 for delivery on May 25. In anticipation of acquiring the Phaeton, Barry completed the application and paid the nonrefundable $5,000 entry fee for the Concours.
On May 10, Sally told Barry that she had just accepted $300,000 in cash for the Phaeton from a wealthy Italian car collector, stating ―That‘s what it‘s really worth,‖ and added that she would deliver the car to a shipping company for transport to Italy within a week.
1. Can Barry sue Sally before May 25? Discuss.
2. What provisional remedies might Barry seek to prevent Sally from delivering the Phaeton to the shipping company pending resolution of his dispute with Sally, and would the court be likely to grant them? Discuss.
3. Can Barry obtain the Phaeton by specific performance or replevin? Discuss.
4. If Barry decides instead to seek damages for breach of contract, can he recover damages for: (a) the nondelivery of the Phaeton; (b) the loss of the expected increase in circulation and advertising revenues; and (c) the loss of the $5,000 nonrefundable entry fee? Discuss.
[Real Property]
Ann, Betty, and Celia purchased a 3-bedroom condominium unit in which they resided. Each paid one-third of the purchase price. They took title as ―joint tenants, with right of survivorship.‖
After a dispute, Betty moved out. Ann and Celia then each executed a separate deed by which each conveyed her respective interest in the condominium unit to Ed. Each deed recited that the conveyance was ―in fee, reserving a life estate to the grantor.‖ Ann recorded her deed and delivered the original deed to Ed. Celia also recorded her deed and left the original deed with Ann in a sealed envelope with written instructions: ―This envelope contains papers that are to be delivered to me on demand or in the event of my death then to be delivered to Ed.‖ Celia recorded the deed solely to protect her life estate interest. Ann, without Celia‘s knowledge or authorization, mailed a copy of Celia‘s deed to Ed.
Subsequently, Ann and Celia were killed in a car accident. Betty then moved back into the condominium unit. She rented out one bedroom to a tenant and used the other bedroom to run a computer business. Betty paid all costs of necessary repairs to maintain the unit.
Ed commenced an action against Betty, demanding a share of the rent she has collected. He also demanded that she pay rent for her use of the premises.
Betty cross-complained against Ed, demanding that he contribute for his share of the costs of necessary repairs to maintain the unit.
1. What are the property interests of Betty and Ed, if any, in the condominium unit? Discuss.
2. What relief, if any, may Ed obtain on his claims against Betty for past due rent for her use of the condominium unit and for a share of the rent paid by the tenant? Discuss.
3. What relief, if any, may Betty obtain on her claim against Ed for contribution for the costs of maintaining the condominium unit? Discuss.
[Community Property]
In 2000, Hal and Wilma, husband and wife, lived in New York, a non-community property state. While living there, Wilma inherited a condominium in New York City and also invested part of her wages in XYZ stock. Wilma held the condominium and the stock in her name alone.
In 2001, Hal and Wilma retired and moved to California.
In 2002, Wilma executed a valid will leaving the XYZ stock to her cousin, Carl, the condominium to her sister, Sis, and the residue of her estate to Museum.
In 2003, Wilma transferred the XYZ stock as a valid gift to herself and to her cousin, Carl, as joint tenants with the right of survivorship. Wilma sold the condominium and placed the proceeds in a bank account in her name alone.
In 2004, Wilma, entirely in her own handwriting, wrote, dated, and signed a document entitled, ―Change to My will,‖ which stated, ―I give my XYZ stock to Museum.‖ The document was not signed by any witness.
In 2007, Wilma died, survived by Hal, Carl, and Sis.
What rights, if any, do Hal, Carl, Sis, and Museum have to the XYZ stock and proceeds from the sale of the condominium? Discuss.
Answer according to California law.