2013
Winter 2013
Max imports paintings. For years, he has knowingly bought and resold paintings stolen from small museums in Europe. He operates a gallery in State X in partnership with his three sons, Allen, Burt, and Carl, but he has never told them about his criminal activities. Each of his sons, however, has suspected that many of the paintings were stolen.
One day, Max and his sons picked up a painting sent from London. Max had arranged to buy a painting recently stolen by Ted, one of his criminal sources, from a small British museum.
Max believed the painting that they picked up was the stolen one, but he did not share his belief with the others.
Having read an article about the theft, Allen also believed the painting was the stolen one but also did not share his belief.
Burt knew about the theft of the painting. Without Max’s knowledge, however, he had arranged for Ted to send Max a copy of the stolen painting and to retain the stolen painting itself for sale later.
Carl regularly sold information about Max’s transactions to law enforcement agencies and continued to participate in the business for the sole purpose of continuing to deal with them.
Are Max, Allen, Burt, and/or Carl guilty of:
(a) conspiracy to receive stolen property,
(b) receipt of stolen property with respect to the copy of the stolen painting, and/or,
(c) attempt to receive stolen property with respect to the copy of the stolen painting?
Discuss.
Carol, a woman with young children, applied to rent an apartment owned and managed by Landlords, Inc. Landlords, Inc. rejected her application.
Believing that Landlords, Inc. had rejected her application because she had young children, Carol retained Abel to represent her to sue Landlords, Inc. for violation of state anti-discrimination laws, which prohibit refusal to rent to individuals with children.
Landlords, Inc. retained Barbara to represent it in the lawsuit. Barbara notified Abel that she represented Landlords, Inc.
Abel invited Ford, the former manager of rental properties for Landlords, Inc., to lunch. Ford had participated in the decision on Carol’s application, but left his employment shortly afterwards. Abel questioned Ford about Landlords, Inc.’s rental practices and about certain conversations Ford had had with Barbara regarding the rental practices and Carol’s application.
During a deposition by Barbara, Carol testified falsely about her sources of income. Abel, who attended the deposition, suspected that Carol was not being truthful, but did nothing.
After the deposition ended and Carol had left, Barbara told Abel that Landlords, Inc. would settle the dispute for $5,000. Abel accepted the offer, signed the settlement papers that day, and told Carol about the settlement that night. Carol was unhappy with the amount of the settlement.
What, if any, ethical violations has Abel committed? Discuss.
Answer according to California and ABA authorities.
[Remedies]
In 2004, Mary and Frank orally agreed to jointly purchase a small storefront space in City for $80,000. Mary contributed $40,000 of her own money. Frank contributed $40,000 he had embezzled from his employer, Tanner. Mary and Frank agreed to put the property in Frank's name alone because Mary had creditors seeking to enforce debts against her. They further agreed that Frank would occupy the property, which he planned to use as an art studio and gallery. They also agreed that, if and when he vacated the property, he would sell it and give her one half of the net proceeds. He then occupied the property.
In 2005, Tanner discovered Frank’s embezzlement and fired him.
In 2012, Frank sold the property, obtaining $300,000 in net proceeds. Frank offered to repay Mary her $40,000 contribution, but Mary demanded $150,000. Mary and Tanner each sued Frank for conversion.
At trial, the court found Frank liable to both Mary and Tanner for conversion.
1. What remedy or remedies can Mary reasonably obtain against Frank for conversion, what defenses (if any) can Frank reasonably raise, and who is likely to prevail? Discuss.
2. What remedy or remedies can Tanner reasonably obtain against Frank for conversion, what defenses (if any) can Frank reasonably raise, and who is likely to prevail? Discuss.
[Torts]
Darla is in the pest control business. She develops and produces fumigation gas for her own use. She also sells the gas to consumers. Some of her competitors do not sell gas to consumers because consumers sometimes do not follow safety instructions.
Darla sold a container of fumigation gas to Albert for use in ridding his apartment of insects. Although she had intended to produce gas of standard toxicity, she had unknowingly produced gas of unduly high toxicity. Albert used the gas and succeeded in killing all the insects in his apartment. Because he used the gas carelessly, some made its way into the apartment of his neighbor, Paul. The gas caused Paul to suffer serious lung damage and to fear that he would contract cancer as a result.
1. Is Darla liable to Paul? Discuss.
2. If so, may Paul obtain damages from Darla for fear of contracting cancer? Discuss.
In March 2008, Pat, a citizen of State A, learned that Devon Corp. (“Devon”), a citizen of State B, may have been illegally releasing toxic chemicals into the air near her home.
In February 2011, Pat sued Devon in federal court, alleging a cause of action for negligence and seeking damages for a persistent cough. The court had subject matter jurisdiction over Pat’s lawsuit.
During discovery, Pat requested Devon to produce all documents relating to reports by local residents about foul odors coming from its plant. Devon objected to Pat’s discovery request, contending that the plant’s odors came from legally produced and harmless chemicals, and that therefore the request sought irrelevant information. In further response, Devon provided a privilege log that listed a document described as a summary of all communications with local residents concerning odors that emanated from the plant. As a basis for refusing to disclose the document, Devon claimed the summary was protected from disclosure under the work product doctrine because it had been created by its counsel, who therein described the underlying facts of the residents’ comments as well as counsel’s thoughts about them. Pat filed a motion to compel Devon’s production of the documents she requested. The court denied Pat’s motion.
In October 2012, while the lawsuit was still pending, Pat learned from a scientific report in a newspaper that the chemicals Devon released cause lung cancer.
In November 2012, Pat amended her complaint to add a cause of action for strict liability and sought to require Devon to pay for preventive medical monitoring of her lungs.
Devon moved to dismiss Pat’s strict liability cause of action on the basis that the applicable three-year statute of limitations had run.
1. Did the court correctly deny Pat’s motion to compel? Discuss.
2. How should the court rule on Devon’s motion to dismiss? Discuss.
In 2011, Molly and Lenny started a computer software business. Molly prepared marketing materials and Lenny made sales calls. During the first year, Lenny sold 10 copies of certain software programs for $50,000 each. The business had a net profit of $480,000 and Molly and Lenny each received $240,000.
In January 2012, Molly and Lenny hired an attorney to incorporate their business under the name “Software Inc.” The attorney properly prepared all necessary documents to incorporate the business but carelessly failed to file them with the Secretary of State.
Lenny continued to make sales calls to sell the software. He also sold a five-year service contract developed by Molly. Due to brisk sales, Software Inc. projected income of about $300,000 per year for the next five years from the service contracts alone. Software Inc. obtained a $100,000 business loan from National Bank secured by the accounts receivable for the service contracts.
In May 2012, Lenny had an automobile accident, caused solely by his own negligence, on the way to visit a prospective buyer. The accident injured a pedestrian. As a result of the accident, Lenny stopped working and sales collapsed.
In July 2012, Software Inc. went out of business, leaving negligible assets and the unpaid loan to National Bank.
1. Is Software Inc., Molly, and/or Lenny liable to the pedestrian for the injury? Discuss.
2. Is Software Inc., Molly, and/or Lenny liable to National Bank for the loan? Discuss.
Summer 2013
Patty was hit by a car, whose driver did not notice her because he was texting. Joe, a journalist, wrote a story about Patty’s “texting” accident. Patty contacted Tom, a real estate attorney, and asked him to represent her in a claim against the driver. Tom agreed, and entered into a valid and proper contingency fee agreement. Tom later told Patty that he had referred her case to Alan, an experienced personal injury attorney, and she did not object. Unknown to Patty, Alan agreed to give one-third of his contingency fee to Tom.
Thereafter, Alan sent a $200 gift certificate to Joe with a note stating: “In your future coverage of the ‘texting’ case, you might mention that I represent Patty.”
Patty met with Alan and told him that Walter, a homeless man, had seen the driver texting just before the accident. Alan then met with Walter, who was living in a homeless shelter, and said to him: “Look, if you will testify truthfully about what you saw, I’ll put you up in a hotel until you can get back on your feet.”
1. What ethical violation(s), if any, has Tom committed? Discuss.
2. What ethical violation(s), if any, has Alan committed? Discuss.
Answer according to both California and ABA authorities.
The Legislature of State X recently completed a study on the behavior of teenagers residing in the state that revealed a connection between an increase in the school dropout rate and an increase in the level of criminal activity. The study indicated that the connection was most pronounced among boys ages 15 to 18 years old.
Troubled by what it perceived as a breakdown in personal responsibility and social order among its teenagers, State X’s Legislature has enacted a statute creating the State Forestry Corps (“Corps”). The Corps drafts boys ages 15 to 18 who have dropped out of school. It sends them to camps located on public lands administered by the State Forest Service. It also provides them with a comprehensive education leading to a high school diploma. To defray a portion of the costs, the Corps requires the boys to work on reforestation projects for a few hours each day.
Pete, age 15, has dropped out of school and, consequently, has been drafted into the Corps. Pete and his parents have filed a declaratory relief action attacking the validity of the statute under three provisions of the United States Constitution: (1) the Thirteenth Amendment’s Involuntary Servitude Clause; (2) the Fourteenth Amendment’s Due Process Clause; and (3) the Fourteenth Amendment’s Equal Protection Clause.
What arguments could Pete or his parents reasonably make in support of their action, and how should the court rule on each? Discuss.
In 2007, while married to Hank and residing in California, Wendy inherited $150,000. Wendy used the money to purchase $50,000 worth of Chex Oil stock and a restaurant that cost $100,000. Hank managed the restaurant and, solely through his own efforts, it prospered and is now worth $300,000.
In 2008, Hank inherited an unimproved lot in California worth $75,000. Hank and Wendy obtained a construction loan from a bank for the purpose of building a rental house on the lot. In making the loan, the bank relied upon the salaries earned by both Hank and Wendy and, in addition, required that Wendy pledge the Chex Oil stock. A rental house was constructed on the lot. The present market value of the property, as improved, is $500,000.
In 2011, Cathy, a customer at the restaurant, tripped and fell over a box carelessly placed in the entryway by Hank. She obtained a judgment against Hank for injuries suffered in the fall.
Hank and Wendy have now decided to dissolve their marriage.
1. What are Wendy’s and Hank’s respective rights in:
a. The Chex Oil stock? Discuss.
b. The restaurant? Discuss.
c. The rental property? Discuss.
2. To satisfy her judgment, may Cathy reach the community property, Hank’s separate property, and/or Wendy’s separate property? Discuss.
Answer according to California law.
On March 1, Ben, a property owner, and Carl, a licensed contractor, executed a written agreement containing the following provisions:
1. Carl agrees to construct a residence using solar panels and related electrical equipment manufactured by Sun Company (“Sun”) and to complete construction before Thanksgiving.
2. Ben agrees to pay Carl $200,000 upon completion of construction.
3. Ben and Carl agree that this written agreement contains the full statement of their agreement.
4. Ben and Carl agree that this written agreement may not be modified except upon written consent of both of them.
Prior to execution of the written agreement, Ben told Carl that Carl had to use Sun solar panels and related electrical equipment because Sun was owned by Ben’s brother, and that Carl had to complete construction prior to Thanksgiving. Carl assured Ben that he would comply.
In August, Ben began to doubt whether Carl would complete construction prior to Thanksgiving; Ben offered Carl a $25,000 bonus if Carl would assure completion, and Carl accepted and gave his assurance.
To complete construction prior to Thanksgiving, Carl had to use solar panels and related electrical equipment of equal grade manufactured by one of Sun’s competitors because Sun was temporarily out of stock.
Carl completed construction prior to Thanksgiving. Ben, however, has refused to pay Carl anything.
What are Carl’s rights and remedies against Ben? Discuss.
[Wills]
In 2000, Ted was married to Wilma, with whom he had a child, Cindy. Wilma had a young son, Sam, from a prior marriage. Ted typed a document entitled "Will of Ted," then dated and signed it. Ted's will provided as follows: "I give $10,000 to my stepson. I give $10,000 to my friend, Dot. I leave my share of all my community property to my wife. I leave the residue consisting of my separate property to my daughter, Cindy. I hereby appoint Jane as executor of this will."
Ted showed his signature on the document to Jane and Dot, and said, "This is my signature on my will. Would you both be witnesses?" Jane signed her name. Dot was about to sign when her cell phone rang, alerting her to an emergency, and she left immediately. The next day, Ted saw Dot. He had his will with him and asked Dot to sign. She did.
In 2010, Wilma died, leaving her entire estate to Ted.
In 2011, Ted married Bertha.
In 2012, Ted wrote in his own hand, "I am married to Bertha and all references to ‘my wife’ in my will are to Bertha." He dated and signed the document.
Recently, Ted died with an estate of $600,000, consisting of his one-half community property share of $300,000 in the $600,000 home he owned with Bertha plus $300,000 in a separate property bank account.
What rights, if any, do Bertha, Sam, Dot, and Cindy have in Ted’s estate? Discuss.
Answer according to California law.
[Remedies]
Paul owns a 50-acre lot in the country. Doug owns a smaller unimproved lot to the north. A stream runs through Paul's lot near the boundary line with Doug’s lot. Paul has a house at the south end of his lot and uses it for summer vacations. He plans to build a larger house in the future.
Doug began to clear his land to build a house. To do so, he had to fell trees and haul them to a nearby lumber mill. He asked Paul if he could take a short cut across Paul’s lot to the mill, and Paul agreed.
On his first trip, Doug dumped the trees on Paul's lot near the stream, in a wooded area Paul was unlikely to see, much less use. Several of the trees rolled in the stream, blocking its natural flow.
Paul left for the winter. As a result of the winter’s normal rainfall, the stream overflowed, causing water to rush down to Paul’s house at the other end of the lot, flooding his garage and damaging a 3-year-old motorcycle.
Paul returned in the summer and learned what had happened. It will cost $30,000 to remove the trees. The trees’ presence on the lot has depressed its market value from $50,000 to $40,000. It will cost $5,000 to repair the motorcycle, and $4,000 to buy a new one.
What intentional tort claims can Paul reasonably bring against Doug and what remedies can he reasonably seek? Discuss.