2012
Winter 2012
[Trusts]
F1. Sam, a widower, set up a valid, revocable inter vivos trust, naming himself as trustee, and providing that upon his death or incapacity his cousin, Tara, should be successor trustee. He did not name any additional trustee. He directed the trustee to distribute the income from the trust annually, in equal shares, to each of his three children, Ann, Beth, and Carol. He specified that, at the death of the last of the three named children, the trust was to terminate, and the remaining assets were to be distributed to his then living descendants, by representation.
When he established the trust, he also executed a valid will pouring over all his additional assets into the trust.
Two years later, Sam died. He was survived by Ann, Beth, and Carol. Within two months, Dave, age 25, began litigation to prove that he was also a child of Sam’s, although Sam had never known of his existence.
For three years after Sam’s death, Tara administered the trust as trustee. Because Ann had very serious medical problems and could not work, and because Beth and Carol had sufficient assets of their own, Tara distributed nearly all of the trust income to Ann and little to Beth and Carol.
After the court determined that Dave was in fact Sam’s child, Dave claimed a share of the trust. Beth and Carol have filed suit against Tara, claiming breach of fiduciary duties. Tara has submitted her resignation, and Beth and Carol have sought termination of the trust so that all assets may now be distributed outright to the beneficiaries now living.
1) What interests, if any, does Dave have in the trust assets? Discuss. Answer according to California law.
2) Are Beth and Carol likely to be successful in terminating the trust? Discuss.
3) Are Beth and Carol likely to be successful in suing Tara? Discuss.
[Constitutional Law]
City recently opened a new central bus station.
Within the central bus station, City has provided a large bulletin board that is available for free posting of documents. City requires that all free-posted documents be in both English and Spanish because City’s population is about equally divided between English- and Spanish-speaking people.
City refused to allow the America for Americans Organization (AAO) to use the bulletin board because AAO sought to post a flyer describing itself in English only. The flyer stated that AAO’s primary goal is the restriction of immigration. The flyer also advised of the time and place of meetings and solicited memberships at $10 each.
Does City’s refusal to allow AAO to use the bulletin board violate the rights of AAO’s members under the First Amendment to the U.S. Constitution? Discuss.
[Evidence]
Paul sued David in federal court for damages for injuries arising from an automobile accident.
At trial, in his case-in-chief, Paul testified that he was driving westbound, under the speed limit, in the right-hand lane of a highway having two westbound lanes. He further testified that his passenger, Vera, calmly told him she saw a black SUV behind them weaving recklessly through the traffic. He also testified that, about 30 seconds later, he saw David driving a black SUV, which appeared in the left lane and swerved in front of him. He testified that David’s black SUV hit the front of his car, seriously injuring him and killing Vera. He rested his case.
In his case-in-chief, David testified that Paul was speeding, lost control of his car, and ran into him. David called Molly, who testified that, on the day of the accident, she had been driving on the highway, saw the aftermath of the accident, stopped to help, and spoke with Paul about the accident. She testified further that, as soon as Paul was taken away in an ambulance, she carefully wrote down notes of what Paul had said to her. She testified that she had no recollection of the conversation. David showed her a photocopy of her notes and she identified them as the ones she wrote down immediately after the accident. The photocopy of the notes was admitted into evidence. The photocopy of the notes stated that Paul told Molly that he was at fault because he was driving too fast and that he offered to pay medical expenses for anyone injured. David rested his case.
Assuming that all appropriate objections and motions were timely made, should the court have admitted:
1. Vera’s statement? Discuss.
2. The photocopy of Molly’s notes? Discuss.
Answer according to the Federal Rules of Evidence.
[Business Associations]
Testco, Inc. conducts market surveys, and is solely owned by Amy, Ben, and Carl. Each paid $50 for one-third of Testco’s no-par shares. Amy and Ben, respectively, are Testco’s president and secretary and its only two directors. Carl holds no office and is not involved in any aspect of Testco’s business. Amy and Ben are scrupulous about holding directors’ meetings to conduct corporate business and to make monthly distributions to the shareholders of almost all cash on hand. As a result of the latter practice, Testco has little cash on hand and frequently finds itself in the position of negotiating extensions for payment of its debt.
While Ben was on vacation, Examco called Amy, asking to enter into a one-year contract with Testco. Amy said that if Examco would agree to a ten-year contract, Testco would grant its standard fifty-percent discount. Examco agreed, and Amy signed the contract in the following manner: “Testco, by Amy, President.” When Ben returned, he said that he had thought for some time that Testco’s standard fifty-percent discount was unwise, and convinced Amy to revoke the contract with Examco.
Examco wants to sue Testco, Amy, Ben, and Carl for damages. If found liable, Testco will not be able to pay.
On what theory or theories may Examco bring an action for recovery of damages against:
1. Testco? Discuss.
2. Amy, Ben, and Carl as individuals? Discuss.
[Professional Responsibility]
Attorney mailed a professional announcement to several local physicians, listing his name and address and his area of law practice as personal injury. Doctor received Attorney’s announcement and recommended that her patient, Peter, call Attorney.
Peter had become very ill; he thought the cause was breathing fumes from a chemical company near his home.
Attorney agreed to represent Peter in a lawsuit against the chemical company. At Attorney’s request, Doctor agreed to testify as an expert witness on Peter’s behalf at the trial. Attorney advanced Doctor expert witness fees of $200 an hour for her time attending depositions, preparing for trial, and testifying.
Attorney learned in discovery that numerous scientific studies had failed to find any medical risks from the chemical company’s fumes. Doctor was nevertheless willing to testify, on the basis of her clinical experience, that the fumes had harmed Peter.
Attorney did not know whether Doctor’s testimony was true or false. He offered Doctor’s testimony at trial, and Peter won a judgment.
After the trial, Attorney sent a $500 gift certificate to Doctor, with a note thanking her for recommending that Peter call him.
What, if any, ethical violations has Attorney committed? Discuss.
Answer according to California and ABA authorities.
[Real Property]
Donna was looking for a place to live. Perry owned a two-story home, with the second story available to lease.
Donna and Perry signed a two-year lease that provided, in part: “Lessee may assign the leased premises only with the prior written consent of Lessor.”
Upon moving in, Donna discovered that the water in her shower became very hot if Perry ran water downstairs. When Donna complained to Perry about the shower and asked him to make repairs, Perry refused, saying, “I’ll just make sure not to run the water when you are in the shower.”
Perry soon adopted a new diet featuring strong-smelling cheese. Donna told Perry that the smell of the cheese annoyed and nauseated her. Perry replied: “Too bad; that’s my diet now.”
After constantly smelling the cheese for three weeks, Donna decided to move out and to assign the lease to a friend who was a wealthy historian.
Donna sought Perry’s consent to assign the lease to her friend. Perry refused to consent, saying, “I’ve had bad experiences with historians, especially wealthy ones.”
Thereafter, every time Donna took a shower, Perry deliberately ran the water downstairs.
After two weeks of worrying about taking a shower for fear of being scalded and with the odor of cheese still pervasive, Donna stopped paying rent, returned the key, and moved out. At that time, there were twenty-two months remaining on the lease.
Perry has sued Donna for breach of the lease, seeking damages for past due rent and for prospective rent through the end of the lease term.
What defenses may Donna reasonably raise and how are they likely to fare? Discuss.
Summer 2012
Pam and Patrick are residents of State A. While visiting State B, they were hit by a truck owned and operated by Corporation, a freight business.
Corporation is incorporated under the laws of Canada and has its headquarters there, where its President and Secretary are located. State B is the only state in which Corporation conducts its business. Corporation’s drivers and other employees work out of its warehouse in State B.
Pam and Patrick jointly filed a lawsuit against Corporation in federal district court in State A. In their complaint, Pam demanded damages for personal injury in the amount of $70,000 and for property damage in the amount of $10,000; Patrick demanded damages in the amount of $6,000.
Corporation filed a motion to dismiss the complaint for lack of personal jurisdiction. The federal district court denied the motion. After trial, it entered judgment for Pam in the amount of $60,000 and for Patrick in the amount of $4,000.
Corporation has appealed on the grounds of lack of subject matter jurisdiction and lack of personal jurisdiction.
How should the court of appeals rule on each ground? Discuss.
[Community Property] [Professional Responsibility]
Wendy and Hal are married and live in California.
A year ago, Wendy told Hal that she would not tolerate his drinking any longer. She insisted that he move out of the family home and not return until he completed an alcohol treatment program. He moved out but did not obtain treatment.
Last month, Hal went on a drinking spree, started driving, and struck a pedestrian. When Wendy learned of the accident, she told Hal that she wanted a divorce. Hal has consulted Lawyer about defending him in a civil action filed by the pedestrian.
He is currently unemployed. His only asset is his interest in the family home, which he and Wendy purchased during their marriage. Lawyer offered to represent Hal if Hal were to give him a promissory note, secured by a lien on the family home, for his fees.
Hal immediately accepted.
1. Is Wendy’s interest in the family home subject to damages recovered for injuries to the pedestrian? Discuss. Answer according to California law.
2. Is Wendy’s interest in the family home subject to payment of Hal’s legal fees? Discuss. Answer according to California Law.
3. What, if any, ethical violations has Lawyer committed? Discuss. Answer according to California and ABA authorities.
[Evidence]
Vicky was killed on a rainy night. The prosecution charged Dean, a business rival, with her murder. It alleged that, on the night in question, he hid in the bushes outside her home and shot her when she returned from work.
At Dean’s trial in a California court, the prosecution called Whitney, Dean’s wife, to testify. One week after the murder, Whitney had found out that Dean had been dating another woman and had moved out, stating the marriage was over. Still angry, Whitney was willing to testify against Dean. After Whitney was called to the stand, the court took a recess. During the recess, Dean and Whitney reconciled. Whitney decided not to testify against Dean. The trial recommenced and the prosecutor asked Whitney if she saw anything on Dean’s shoes the night of the murder. When Whitney refused to answer, the court threatened to hold her in contempt. Reluctantly, Whitney testified that she saw mud on Dean’s shoes.
The prosecution then called Ella, Dean’s next-door neighbor. Ella testified that, on the night Vicky was killed, she was standing by an open window in her kitchen, which was about 20 feet from an open window in Dean’s kitchen. She also testified that she saw Dean and Whitney and she heard Dean tell Whitney, “I just killed the gal who stole my biggest account.” Dean and Whitney did not know that Ella overheard their conversation.
Dean called Fred, a friend, to testify. Fred testified that, on the day after Vicky was killed, he was having lunch in a coffee shop when he saw Hit, a well-known gangster, conversing at the next table with another gangster, Gus. Fred testified that he heard Gus ask Hit if he had “taken care of the assignment concerning Vicky,” and that Hit then drew his index finger across his own throat.
Assuming all appropriate objections and motions were timely made, did the court properly:
1. Allow the prosecution to call Whitney? Discuss.
2. Admit the testimony of:
(a) Whitney? Discuss.
(b) Ella? Discuss.
(c) Fred? Discuss.
Answer according to California law.
[Remedies]
Peter responded to an advertisement placed by Della, a dentist, seeking a dental hygienist. After an interview, Della offered Peter the job and said she would either: (1) pay him $50,000 per year; or (2) pay him $40,000 per year and agree to convey to him a parcel of land, worth about $50,000, if he would agree to work for her for three consecutive years. Peter accepted the offer and said, “I’d like to go with the second option, but I would like a commitment for an additional three years after the first three.”
Della said, “Good, I’d like you to start next week.”
After Peter started work, Della handed him a letter she had signed which stated only that he had agreed to work as a dental hygienist at a salary of $40,000 per year. After Peter had worked for two years and nine months, Della decided that she would sell the parcel of land and not convey it to him. Even though she had always been satisfied with his work, she fired him.
What rights does Peter have and what remedies might he obtain as to employment and the parcel of land? Discuss.
[Wills]
In 2004, Mae, a widow, executed a valid will, intentionally leaving out her daughter, Dot, and giving 50 per cent of her estate to her son, Sam, and 50 per cent to Church.
In 2008, after a serious disagreement with Sam, Mae announced that she was revoking her will, and then tore it in half in the presence of both Sam and Dot.
In 2010, after repeated requests by Sam, Mae handwrote and signed a document declaring that she was thereby reviving her will. She attached all of the torn pages of the will to the document. At the time she signed the document, she was entirely dependent on Sam for food and shelter and companionship, and had not been allowed by Sam to see or speak to anyone for months. By this time, Church had gone out of existence.
In 2011, Mae died. Her sole survivors are Dot and Sam.
What rights, if any, do Dot and Sam have in Mae’s estate? Discuss. Answer according to California law.
[Criminal Procedure] [Criminal Law]
Dan worked at a church. One day a woman came to the church, told Dan she wanted to donate some property to the church, and handed him an old book and a handgun.
Dan had originally intended to deliver both the book and the gun to the church’s administrators, but he changed his mind and delivered only the book. He put the gun on the front seat of his car.
The next day, as he was driving, Dan was stopped by a police officer at a sobriety checkpoint at which officers stopped all cars and asked their drivers to exit briefly before going on their way. The police officer explained the procedure and asked, “Would you please exit the vehicle?”
Believing he had no choice, Dan said, “Okay.”
After Dan got out of his car, the police officer observed the gun on the front seat and asked Dan if he was the owner. Dan answered, “No. I stole the gun. But I was planning to give it back.”
Dan is charged with theft and moves to suppress the gun and his statement to the police officer under the Fourth Amendment to the United States Constitution and Miranda v. Arizona.
1. Is Dan likely to prevail on his motion? Discuss.
2. If Dan does not prevail on his motion, is he likely to be convicted at trial? Discuss.