Winter 2018
[Professional Responsibility] [Contracts]
Austin recently sold a warehouse to Beverly. The warehouse roof is made of a synthetic material called “Top-Tile.” During negotiations, Beverly asked if the roof was in good condition, and Austin replied, “I’ve never had a problem with it.” In fact, the manufacturer of Top-Tile notified Austin last year that the warehouse roof would soon develop leaks. The valid written contract to sell the warehouse specified that the property was being sold “as is, with no warranties as to the condition of the structure.”
After Beverly bought the warehouse, the roof immediately started leaking. Beverly hired Lou, an experienced trial lawyer, and executed a valid retainer agreement. Beverly then sued Austin for rescission of the warehouse sale contract, on the bases of misrepresentation and non-disclosure.
At trial, Lou offered the expert testimony of Dr. Crest, a chemical engineer who had testified in other litigation concerning Top-Tile roofs. Lou knew that Dr. Crest had previously testified that, “Top-Tile roofs always last at least five years.” Lou also knew from the manufacturer’s specifications that Top-Tile roofs seem to last indefinitely, but not in some climates. On crossexamination, Dr. Crest testified that, “Top-Tile roofs never last five years,” and that, “Climate is not a factor; Top-Tile roofs fail within five years everywhere in the world.” During closing argument, Lou repeated Dr. Crest’s statements and also said that Lou’s own inspection of the roof confirmed Dr. Crest’s testimony.
1. Will Beverly be able to rescind the contract with Austin on the basis of misrepresentation and/or non-disclosure? Discuss.
2. What, if any, ethical violations has Lou committed? Discuss. Answer according to California and ABA authorities.
County Jail has prominently posted in the inmate dining hall quotations from three of the Ten Commandments as follow: “You shall not kill.” “You shall not steal.” “You shall not give false testimony against your neighbor.” County officials thought these were “good moral principles” that would assist prisoners when they were released.
The Jail makes available to inmates copies of the Bible and the Quran (Koran), but no other religious books. Inmate Ivan requested a copy of a religious book central to his recognized, but relatively small, sect. This book urges the religious use of a hallucinogenic sacramental tea. Ivan has requested permission to have the hallucinogenic sacramental tea on a weekly basis as part of his religious observances.
Ivan’s request for the book was denied on the basis that it encourages illegal drug usage. His request for permission to have the hallucinogenic sacramental tea was denied for the same reason.
1. What challenges under the United States Constitution, if any, could Ivan reasonably raise to the dining hall quotations, and what is the likely outcome? Discuss.
2. What challenges under the United States Constitution, if any, could Ivan reasonably raise to the denial of his requests for the book and the tea, and what is the likely outcome? Discuss.
Len, an excellent chef, installed a smokehouse in his backyard three years ago to supply smoked meats to his friends. Len’s neighbor, Michelle, enjoyed the mild climate and spent most of her time outdoors. She found the smoke and smells from Len’s property very annoying and stopped having parties outdoors after receiving complaints from some of her guests. She asked Len multiple times to stop using the smokehouse, but he rebuffed her requests.
Len has frequently invaded Michelle’s patio to retrieve his dog when it wandered from home. Michelle put up a “no trespassing” sign and a wire fence between their parcels. After the dog dug a hole under the fence, Len cut some of the wires and entered Michelle’s property anyway, telling her that he had been fetching his wandering dog from her patio for at least ten years and wouldn’t stop now.
Last week, the Town filed suit to condemn Michelle’s land for a public park. It tendered to the court as compensation a sum substantially exceeding the prices of comparable parcels recently sold in the neighborhood. Michelle argues that the amount is insufficient because it is substantially less than a sum she turned down for her parcel a few years ago and it does not include compensation for relocation costs.
1. If Michelle sues Len regarding his continued use of the smokehouse, what claims, if any, may she reasonably raise, what defenses, if any, may he reasonably assert, and what is the likely outcome? Discuss.
2. If Michelle sues Len regarding fetching his dog, what claims, if any, may she reasonably raise, what defenses, if any, may he reasonably assert, and what is the likely outcome? Discuss.
3. Is Michelle likely to prevail in her argument for additional compensation from Town? Discuss.
[Criminal Law] [Criminal Procedure]
Claire, a four-year-old girl, went missing. Ike, who regularly provided reliable information to Officer Ava, told her that he had recently overheard Don planning to kidnap a child to raise as his own daughter. Officer Ava’s partner, Officer Bert, hurried to the courthouse to apply for a search warrant for Don’s house. Meanwhile, Officer Ava rushed to Don’s house and knocked on the door. Don answered. Officer Ava told him, “I heard that a missing child might be here,” and asked, “Can I come in and look for her?” Don replied, “No.” Officer Ava said, “A life is at stake. I am searching your home, whether you want me to or not.” Don stepped aside and allowed Officer Ava to enter.
Officer Ava searched the home thoroughly. In a closet in the bedroom, she found a bomb, measuring about 2 feet by 2 feet. In a medicine cabinet in the bathroom, she found several vials of cocaine. While looking under the bed, she found a plain sealed envelope, which she opened, that contained a map with a highlighted route from Don’s house to Claire’s house. She did not find Claire. Immediately after she completed the search, Officer Bert arrived with a warrant authorizing the “search of Don’s home for Claire.” Not long afterward, Claire turned up elsewhere unharmed.
Don was charged with: (1) possession of a bomb; (2) possession of cocaine; and (3) attempted kidnapping. Don filed a motion, under the Fourth Amendment to the United States Constitution, to suppress evidence of the bomb, the cocaine and the map.
1. How should the court rule on the motion to suppress regarding:
a. the bomb? Discuss.
b. the cocaine? Discuss.
c. the map? Discuss.
2. Can Don be found guilty of attempted kidnapping? Discuss.
In 2001, Ted, who was married to Wendy, signed a valid will bequeathing all of his property as follows: “$10,000 of my separate property to my daughter Ann; then $2,000 of my separate property to each person who is an employee of my company, START, at the time of my death; and all the rest of my separate property, plus all of my share of our community property to my beloved wife of 20 years, if she survives me.” No other gifts were specified in the will.
In 2003, Wendy died.
In 2005, Ted adopted a child, Bob.
In 2006, Ted signed a valid codicil to his 2001 will stating that, “I hereby bequeath $10,000 of my separate property to my beloved son, Bob. All the rest of my 2001 will remains the same.”
In 2011, Ted married Nell. In 2012, Ted and Nell had a child, Carol.
In 2016, Ted died, leaving his 2001 will and his 2006 codicil as his only testamentary instruments. After all debts, taxes, and expenses had been paid, Ted’s separate property was worth $90,000, and his share of the community property was worth $100,000. At death, Ted still owned START, which by then had ten employees, none of whom had been an employee of START in 2001.
What rights, if any, do Nell, Ann, Bob, Carol and the START employees have in Ted’s estate? Discuss. Answer according to California law.
Summer 2018
SOURCE: https://www.calbar.ca.gov/Portals/0/documents/admissions/Examinations/July2018_CBX.pdf
In January, Stan, a farmer, agreed in a valid written contract to sell to Best Sauce-Maker Company (Best), 5,000 bushels of tomatoes on July 1, at $100 per bushel, payable upon delivery. On May 15, Stan sent Best the following e-mail:
“Heavy rains in March-May slowed tomato ripening. Delivery will be two weeks late.”
Best replied:
“Okay.”
On May 22, an employee of Delta Bank (Delta), where Best and Stan banked, told Best that rains had damaged Stan’s tomato crops and that Stan would be unable to fulfill all his contracts. Best called Stan and asked about the banker’s comment. Stan said:
“Won’t know until June 10 whether I’ll have enough tomatoes for all my contracts.”
Best replied:
“We need a firm commitment by May 27, or we’ll buy the tomatoes elsewhere.”
Stan did not contact Best by May 27. On June 3, Best contracted to buy the 5,000 bushels it needed from Agro-Farm for $110 per bushel.
On June 6, Stan told Best:
“Worry was for nothing. I’ll be able to deliver all 5,000 bushels.”
Best replied:
“Too late. We made other arrangements. You owe us $50,000.”
Concerned about quickly finding another buyer, Stan sold the 5,000 bushels to a vegetable wholesaler for $95 per bushel.
Stan sued Best for breach of contract. Best countersued Stan for breach of contract.
Has Stan and/or Best breached the contract? If so, what damages might be recovered, if any, by each of them? Discuss.
[Evidence]
Deb was charged in a California state court with battery of a spouse or live-in companion. Vic, Deb’s live-in boyfriend, was beaten when he stepped out of his car in their driveway. Vic called 911 about two minutes after the beating and reported that Deb, his girlfriend, had beaten him.
At trial, the prosecution called Vic as a witness. He reluctantly took the stand. He refused to identify Deb in open court as the perpetrator. He admitted making the 911 call in which he reported that Deb had beaten him. The parties stipulated that the 911 recording was a business record of the police department, but that Vic’s statements on it were specifically not covered by the stipulation.
The prosecution properly authenticated the 911 tape, moved the tape into evidence, and played it for the jury. The prosecution also called Sam, a man who had been Deb’s live-in boyfriend eight years earlier. All evidence pertaining to Sam’s testimony had been properly disclosed to the defense before trial. Sam testified that Deb had threatened to choke him to death if he left her, and that she had beaten him several times during the time they lived together.
Deb took the stand in her own defense. She testified that she was working at her desktop computer in her office at the time of the assault, 20 miles away. She offered a print-out of a list of file names, which contained the dates and times they were created, indicating they were created on her computer at the time of the beating. She testified that her computer clock was set to the correct time and keeping time accurately on the day of the beating.
Assuming all appropriate objections were timely made, should the court have admitted:
1. The 911 tape? Discuss.
2. Sam’s testimony? Discuss.
3. The computer print-out? Discuss. Answer according to California law.
Betty and Sheila, who have been friends for a long time, were charged with armed robbery, allegedly committed in a convenience store. They decided to hire Betty’s uncle, Lou, as their lawyer. Lou is an estate planning attorney and has never represented defendants in criminal cases before.
Both Betty and Sheila met with Lou together. In that meeting, both of them emphatically denied that they robbed anyone. Lou agreed to represent them in their criminal cases and gave them a retainer agreement, which states:
Scope of representation. Lawyer agrees to represent Clients through any settlement or trial.
No conflicts of interest. From time to time, Lawyer may represent someone whose interests may not align with that of Clients. Lawyer will make every effort to inform Clients of any potentially conflicting representations.
Fees and expenses. Lawyer will advance the costs of prosecuting or defending a claim or action or otherwise protecting or promoting Clients’ interests, but Clients are ultimately responsible for repaying Lawyer for all costs that Lawyer advances. If Clients are unsuccessful at trial, Clients will owe only costs advanced by Lawyer and zero fees. If Clients are successful either before or at trial, Lawyer will be paid $10,000 plus any costs incurred.
Betty and Sheila each signed the retainer agreement.
Two days later, Lou represented both defendants at the joint arraignment. He angered the court during the arraignment because of his unfamiliarity with criminal procedure, and the court relieved Lou and appointed new counsel for Betty and Sheila. Betty and Sheila agreed to new counsel.
Although Lou had not incurred any costs by that point, Lou asked Betty and Sheila to pay him a total of $2,000, divided up however they wanted, to reimburse him for his time spent on the case.
What, if any, ethical violations has Lou committed? Discuss.
Answer according to California and ABA authorities.
Wilma, a California resident, was employed as an accountant for many years. She retired in 2010 and received a pension. Wilma received part of the pension as a lump sum and the rest in monthly installments deposited into an account in her name at Main Street Bank. She used the lump sum as a down payment on a townhouse. The title to the townhouse and the mortgage are in Wilma’s name.
In 2011, Wilma met Harry, also a California resident, who worked in a local store. Wilma and Harry married in 2012. Harry opened an account at Valley Bank in his name and deposited his salary from the store into the account. Wilma did freelance accounting work and deposited the pay from that work into her Main Street Bank account.
During their marriage, Wilma and Harry used funds from Harry’s account to pay the mortgage on the townhouse in which they both lived. They paid all their household expenses from Wilma’s account. Wilma’s pay from her accounting work did not cover all their expenses and her monthly pension installments paid the rest of their expenses.
In 2013, Wilma and Harry bought a motorboat using funds from Wilma’s account. Although they would both use the boat, title was taken in Wilma’s name.
In 2014, Harry was injured when a driver, Dana, negligently struck him with her car.
In 2016, Wilma and Harry permanently separated, and Harry moved out of the townhouse and stopped making mortgage payments.
In 2017, Harry settled his claim against Dana for $30,000.
In 2018, Harry instituted dissolution proceedings. What are Wilma’s and Harry’s rights and liabilities, if any, with regard to:
1. The townhouse? Discuss.
2. The motorboat? Discuss.
3. The personal injury settlement funds? Discuss.
Answer according to California law.
Five years ago, State X bought Railroad (RR), which was in bankruptcy and about to be liquidated. RR has always been the largest rail carrier in State X, presently carrying 70% of its rail freight. RR’s transport rates are generally lower than other rail carriers. In signing the Act authorizing the purchase of RR, the governor stated that it would ensure continued freight rail service for State X industry.
The Act authorizing the purchase of RR provides that manufacturers with factories in State X shall have first choice of space on RR.
Peter, a citizen of State Y, which borders State X, grows melons in State Y for sale to grocers there and in State X. Before its purchase by State X, Peter exclusively used RR for shipping melons to his many State X customers. Peter has lost nearly all of his State X customers over the last 5 years because he cannot guarantee timely delivery of ripe melons because shipping space on RR is so uncertain.
Corporation manufactures refrigerators in State Y and sells them there and in other states, including State X. Corporation has lost retail customers in State X because it can no longer guarantee dates of delivery when using RR.
Peter and Corporation have repeatedly been forced to give up reserved space on RR because it is being used by State X manufacturers. They have now filed suit in Federal Court in State X.
1. What claims can Peter make under the United States Constitution and how should the court rule? Discuss.
2. What claims can Corporation make under the United States Constitution and how should the court rule? Discuss.