Winter 2019
[Wills] [Trusts] [Community Property]
In 2006, while Hank and Wendy were married and living in State X, a non-community property state, they purchased a house in State X and a condominium in California with money from Hank’s salary. Hank took title to both the house and the condominium in his name alone.
In 2008, Hank executed a will leaving whatever he might own at death to Wendy. As allowed by State X law, only one witness signed the will.
In 2016, Hank and Wendy retired and moved to California. Hank conveyed the condominium to himself and to Sid, his son from a prior marriage, as joint tenants with right of survivorship, doing so as a gift to Sid. Hank then put $100,000 he obtained from an inheritance into a valid revocable trust, the income to be paid to him for life, then to Wendy for life, remainder to Sid.
In 2017, as a result of a skiing injury, Hank lost all mental capacity and was on the verge of death. In accordance with Hank’s prior wishes, Sid was appointed as Hank’s conservator. Sid prepared a codicil to Hank’s will, giving a one-half interest in the State X house to Hank’s best friend, Bill. Sid signed the codicil as conservator, and had it properly witnessed.
In 2018, Hank died. Sid found that Hank owed various creditors more than the value of the State X house and California condominium combined.
1. What rights, if any, do Wendy and Sid have in the California condominium? Discuss. Answer according to California law.
2. What rights, if any, do Wendy and Bill have in the State X house? Discuss. Answer according to California law.
3. Will Hank’s creditors be able to reach the assets in the trust? Discuss.
[Torts]
Dan, a dog breeder, had some eight-week-old puppies to sell. Bob and Carol went to his house to look at them. Dan invited them into the living room where the puppies were located and said, “Whatever you do, don’t go into the room at the end of the hall.” As they were examining the puppies, the largest puppy, without warning, gave Carol a nasty bite on her hand. Dan told Bob to go to the bathroom near the end of the hall to retrieve some bandages.
Forgetting Dan’s earlier admonition, Bob opened the door at the end of the hall, thinking it was the bathroom, and entered a darkened room where Dan kept an enormous pet chimpanzee. The chimpanzee jumped between Bob and the door, beat its chest and made menacing hoots. Frightened, Bob stood still.
In attending to Carol’s bite, Dan mistakenly grabbed a bottle of heavy-duty solvent, thinking it was a bottle of antiseptic. When Dan rubbed its contents into Carol’s wound, she began to scream and shout in pain. Hearing Carol’s cries, Bob barged past the chimpanzee, which gave him a deep gash to his head as he passed. Shaken and sore from their injuries, Bob and Carol fled Dan’s house.
Bob and Carol filed a lawsuit against Dan to recover for their injuries.
1. What claims may Carol reasonably raise against Dan, what arguments may Dan reasonably make, and what is the likely outcome? Discuss.
2. What claims may Bob reasonably raise against Dan, what arguments may Dan reasonably make, and what is the likely outcome? Discuss.
Lois rented a furnished apartment in her building to Tammy, a medical student, for nine months, beginning June 1. Tammy prepaid the first month’s rent. When Tammy arrived at the apartment on June 1, Ralph, the prior tenant, was still there despite the fact Ralph’s rental term had ended on May 15. Tammy complained to Lois and Lois was able to evict Ralph by June 15. Tammy took possession of the apartment on June 16.
The apartment above Tammy’s was occupied by Coco, a member of an up-and-coming band, The Gyrations. The band’s daily rehearsals interfered with Tammy’s studies so much that she complained repeatedly to Lois about the continuing noise. On July 15, The Gyrations were arrested at Coco’s apartment for disturbing the peace. After that Tammy was spared the noise from rehearsals.
Beginning July 16, the shower in Tammy’s apartment delivered only cold water. Tammy complained, and Lois promptly hired a plumber to fix the problem. The repair only worked for a week. Tammy was too busy with her studies to tell Lois.
On August 30, Tammy’s stove in her apartment stopped working. On August 31, Tammy, disgusted with all these events, knocked on Lois’s door, gave the key to Lois, and said, “This place is a zoo; I wouldn’t live here if you paid me!” Lois took the key and said, “Sure, okay, if that’s how you feel.” Tammy stopped paying rent and never returned to the apartment.
Lois commenced a lawsuit against Tammy for breach of her lease and special damages for past due and prospective rent.
What arguments may Lois reasonably raise in support of her lawsuit, what counterclaims and defenses may Tammy reasonably assert, and what is the likely outcome? Discuss.
Dave is domiciled and owns a house in California on the state line adjacent to Petra’s house in Nevada. Petra is domiciled in Nevada.
Dave installed a large rainwater tank near the property line, which leaked. One day, the water tank fell over onto Petra’s property, landing on her retaining wall, which buckled. Petra sued Dave for negligence in federal court seeking $100,000 to replace the retaining wall, claiming it failed because the water tank, weakened by leaks, landed on it.
At the jury trial, Petra testified that she had complained to Dave several times over the prior decade that the water tank leaked and that he had done nothing. She also testified that the retaining wall was only a couple of years old.
Petra then called Walt, a water tank repairman, who testified that when he repaired Dave’s water tank after it fell over, Dave instructed him to caulk all the joints so that it wouldn’t leak. Petra rested her case.
Dave called Gwen, Petra’s gardener, who testified that she had met with Petra the day before the water tank fell and, while they inspected the retaining wall at issue, she saw it was old and had structural cracks that could cause it to fail, pointed this out to Petra, and told her that it would cost at least $100,000 to replace it. Gwen testified that Petra had replied, “You’re right. It’s at least 30 years old.”
The jury returned a verdict in favor of Petra and awarded her $20,000 in damages. Dave filed a motion to dismiss based on lack of subject matter jurisdiction, which was denied. Dave properly appealed the verdict.
Assume all appropriate objections and motions were timely made.
1. Should the court have admitted:
A. Petra’s testimony about her complaints to Dave about the leaks? Discuss.
B. Walt’s testimony that Dave instructed him to caulk all the joints so that the water tank wouldn’t leak? Discuss.
C. Gwen’s testimony
i) That the retaining wall was old? Discuss.
ii) That the retaining wall had structural cracks that could cause it to fail and that it would cost $100,000 to replace it? Discuss.
D. Gwen’s testimony about Petra’s reply, “You’re right. It’s at least 30 years old.”
2. Did the court properly deny Dave’s motion to dismiss based on lack of subject matter jurisdiction? Discuss.
Answer all questions according to federal law.
Attorney Anne shared a law practice with Kelly representing professional athletes. In the past Kelly represented professional athlete Player, but Kelly was disbarred several months ago. Kelly immediately resigned from the firm, and was re-hired by Anne as a litigation support clerk. Anne now represents Player.
Player is currently involved in a dispute with the professional team that employs him. Despite a valid and enforceable contract, Player refused to play because he wanted to re-negotiate his salary. The team obtained a preliminary injunction requiring Player to play under the terms of his current contract. Player sent Kelly an email asking for advice as to his next move.
Kelly referred Player to Anne who told Player to ignore the court order and to continue to refuse to play. To put pressure on the team to re-negotiate Player’s contract, Anne also called the team owner, and implied that she could file a discrimination complaint against the team with a federal administrative agency that handles civil rights matters. Anne and Kelly agreed that there wasn’t really a basis to file this complaint.
After the team refused to re-negotiate Player’s contract, Anne filed a counterclaim drafted primarily by Kelly so as to “get the team owner’s attention” for “tortious interference with contractual relations.”
As part of the civil lawsuit, the team owner (Owner) was deposed. Before the deposition, Kelly drafted questions for Anne to ask Owner. During the deposition, Kelly sat next to Anne and passed her notes with further suggested questions for Owner.
What ethical violations, if any, has Anne committed? Discuss. Answer according to California and ABA authorities.
Summer 2019
https://www.calbar.ca.gov/Portals/0/documents/admissions/July-2019-Essay-Questions-and-Answers.pdf
In 2015, Priscilla was shopping at Grocery when a very large display of bottled soda products fell on her, bruising her head and entire body. She filed suit in federal district court against Grocery for negligently maintaining the display, and sought damages for medical expenses, pain and suffering, and lost wages. Grocery recognized that jurisdiction was proper and filed an answer denying liability.
Accompanying the complaint was a set of 26 interrogatories, which read in part:
25. Please provide the names and addresses of every Grocery employee who worked on construction of the soda display and every soda company employee who did so.
26. Please provide copies of every training manual Grocery has used in training its employees.
Grocery responded: “Objection. These interrogatories are flawed.” Upon receiving the reply, Priscilla filed a motion to compel further responses.
Grocery made two discovery requests asking for:
a. An order requiring Priscilla to submit to mental and physical examinations.
b. All of Priscilla’s tax returns since 1995.
Priscilla opposed both discovery requests and Grocery filed motions to compel.
Before Priscilla filed her lawsuit, Grocery hired Xavier, an expert on grocery store displays, to investigate the accident. His findings were unfavorable, and Grocery has not identified Xavier as a witness. Xavier is an independent contractor, but he works exclusively for Grocery.
Included in Priscilla’s original set of interrogatories was a question seeking the names and opinions of all experts Grocery had hired for the litigation. In response to that interrogatory, Grocery replied: “Objection. Privileged.” No information about Xavier was disclosed by Grocery.
1. How should the court rule on Priscilla’s motion to compel further responses to her interrogatories to Grocery? Discuss.
2. How should the court rule on each of Grocery’s motions to compel? Discuss.
3. Was Grocery’s response to Priscilla’s interrogatory about its experts proper? Discuss.
4. Should the court sustain Grocery’s assertion of privilege with regard to Xavier? Discuss.
[Remedies] [Constitutional Law]
Clear City is home to 50 churches, one of which burned down earlier this year. Fire investigators suspected that the cause was a burning candle.
Clear City has enacted an ordinance that prohibits burning candles in any church and authorizes the fire marshal to close down any church in which candle burning occurs. The Mayor told the press that Clear City would vigorously enforce the ordinance and that the fire marshal would randomly visit churches during their Sunday services to close down violators.
The fire marshal visited six churches last Sunday, but did not visit the Clear City Spiritual Church (“SC”). Two of the six churches visited were burning candles, but were only issued warnings, not shut down. Immediately after visiting the last of the six churches, the fire marshal publicly announced that it was likely no further warnings would be issued to churches caught violating the ordinance. The fire marshal also announced that, due to a lack of personnel, these random visits would not resume for “at least eight weeks.”
The members of SC burn candles during Sunday services to signify spiritual light in the world. The day after the fire marshal’s announcements, SC gave notice to Clear City’s attorney that it would immediately sue Clear City in federal court seeking: (1) a temporary restraining order and a preliminary injunction to enjoin Clear City from enforcing the ordinance during the pendency of the lawsuit; and (2) a declaration that the ordinance violates the First Amendment.
Clear City’s defense is that it has not taken any action and there is no controversy.
1. What is the likelihood of SC’s success in obtaining a temporary restraining order? Discuss.
2. What is the likelihood of SC’s success in obtaining a preliminary injunction? Discuss.
3. What is the likelihood of SC’s success in obtaining declaratory relief in its favor?
[Criminal Law] [Criminal Procedure]
Delia entered a coin shop, pulled out a toy gun that appeared to be a real gun, and pointed it at the owner, Oscar. Oscar handed her a set of valuable Roman coins and she fled. Neither said a word.
Subsequently, the police received an anonymous email that stated, “Your coin robber is Delia, and she is trying to sell the stolen coins.” Detective Fong followed Delia and saw her using a payphone in a public alley. The payphone was not in a phone booth. As he walked past her, he heard her say softly, “I have a set of ‘hot’ Roman coins for sale that need to go to a discreet collector. I will call you back at 9:00 p.m. tonight.”
Detective Fong then bought a “Bird Song Microphone” from a pet store, a parabolic microphone that promised to enable a listener to hear the chirping of birds from a distance of 150 feet. He went to Nell’s house, which had a deck that overlooked the alley, and lied to Nell saying that he needed to go on the deck because he was investigating a terrorist plot and “lives are at stake.” Nell let him onto the deck at 9:00 p.m. that night. He aimed the microphone at Delia, who was using the same payphone in the alley, and heard her say softly, “Fine, call your buyer and let me know if we have a deal for the hot coins.”
The next day, Detective Fong put all of the above information into an affidavit for a search warrant for Delia’s house, obtained a signed search warrant from a judge, searched Delia’s house, and recovered the coins. Delia was arrested and charged with robbery.
Prior to trial, Delia filed a motion under the Fourth Amendment to the United States Constitution seeking to suppress her statements and the coins.
1. What arguments may Delia reasonably raise in support of her suppression motion, what arguments may the prosecution reasonably raise in response, and how should the court rule with regard to
a) Delia’s statement, “I have a set of ‘hot’ Roman coins for sale that need to go to a discreet collector. I will call you back at 9:00 p.m. tonight.” Discuss.
b) Delia’s statement, “Fine, call your buyer and let me know if we have a deal for the hot coins.” Discuss.
c) The Roman coins. Discuss.
2. Is Delia guilty of robbery? Discuss.
Larry is an associate lawyer at the ABC Firm (ABC). Larry has been defending Jones Manufacturing, Inc. (Jones) in a suit brought by Smith Tools, Inc. (Smith) for failure to properly manufacture tools ordered by Smith. XYZ Firm (XYZ) represents Smith. Larry has prepared Jones’ responses to Smith’s discovery requests.
Peter is the partner supervising Larry at ABC in the Smith v. Jones case. Peter has instructed Larry to file a motion to compel discovery of documents that Smith claimed contains its trade secrets. Larry researched the matter and told Peter that he thought that the motion would be denied and may give rise to sanctions. Peter, who had more experience with trade secrets, told Larry to file the motion.
Larry also told Peter about a damaging document that Larry found in the Jones file that would be very helpful to Smith’s case. Larry knows that the document has not been produced in discovery. The document falls into a class of papers that have been requested by Smith. Larry knows of no basis to refuse the production of the document. Peter told Larry to interpose hearsay, trade secrets, and overbreadth objections and not to produce the document.
Larry recently received an attractive job offer from XYZ.
1. May Larry ethically follow Peter’s instructions to file the motion? Discuss.
2. What are Larry’s obligations in relation to the damaging document? Discuss.
3. What ethical obligations must Larry respect with regard to XYZ’s job offer? Discuss.
Answer according to California and ABA authorities.
Sam owned a classic 1965 Eris automobile. Only 500 such cars were made and they are considered highly valuable.
Sam and Art, a classic car specialist, signed a valid written contract. The contract stated in its entirety:
Art will serve as Sam’s exclusive agent in selling his Eris car. Upon successful sale, Art will earn a commission equal to 10% of the sale price.
A few days later, Sam showed his Eris to Bob, who had learned of the car when he saw a “For Sale” sign Sam had decided to place on it while parked in his driveway. Bob, wanting to add the Eris to his personal collection, mailed Sam a signed letter later that day offering to pay $250,000 for the car. When Sam received the letter, he telephoned Bob and said he accepted the offer. They agreed to meet the following week for payment and exchange of title. Sam then called Art and said he was terminating their agreement.
The next day, Charlie saw an advertisement for Sam’s Eris in a classic car trade publication. Art had placed the ad prior to Sam terminating their agreement. Charlie drove to Sam’s house and offered $300,000 for the car and said he would mail a written contract to Sam that day. Sam said he would “think about it.” He did not inform Charlie of his agreement with Bob. When Charlie’s contract arrived, Sam signed it, placed it in a stamped envelope addressed to Charlie, and dropped it in the mailbox.
Sam died in his sleep that night. His will left all his property to his only relative, a nephew named Ned.
Ned wants to keep the Eris. As a result, Bob and Charlie filed timely claims against Sam’s estate seeking title to the car. Art filed a timely claim seeking a 10% sales commission.
What contract rights and remedies, if any, do each of the following parties have against Sam’s estate:
1. Bob? Discuss.
2. Charlie? Discuss.
3. Art? Discuss.