2021
http://www.calbar.ca.gov/Portals/0/documents/admissions/Examinations/February2021CBX_Questions.pdf
[Evidence]
On January 15, Paul fell down the stairwell of Dell’s Department Store (“Dell”). Paul sued Dell for personal injuries, alleging he fell because one of the steps was broken. The following occurred at a jury trial in the California Superior Court while Dell’s manager, Mark, was being examined by Dell’s attorney:
QUESTION: Where were you when Paul fell down the stairs?
ANSWER: I was standing nearby with my back to the stairs talking to Carol, a store customer, when I heard the noise of the fall.
(1) QUESTION: Has Paul sued Dell before?
ANSWER: Yes, five times that I personally know about.
(2) QUESTION: No one saw the accident. Right?
ANSWER: That’s right. A thorough investigation was unable to find anyone who saw Paul fall on the stairs.
Mark was then cross-examined by Paul’s attorney as follows:
(3) QUESTION: Isn’t it true that you used to be employed by Paul as a cashier in his grocery store and that he fired you for stealing money from the cash register?
ANSWER: That is what he claimed.
(4) QUESTION: The stairs were repaired the day after Paul fell. Weren’t they?
ANSWER: Yes.
(5) QUESTION: Didn’t Carol, the store customer, exclaim at the time of the accident: “Oh no! A man just fell on that broken step”?
ANSWER: So, what?
QUESTION: Is this the report that Dell’s insurance company prepared following an investigation of the accident?
ANSWER: Yes. That is the report the insurance company gave me. They always prepare a report in case we get sued.
Paul’s attorney then moved to enter into evidence the insurance company’s report. The report states: “Steps on the stairs at the store are in very poor condition.”
A. What objections could Paul’s attorney and Dell’s attorney reasonably make to the questions or answers to Mark’s testimony numbered (1) to (5) above, and how should the court rule on each objection? Discuss.
B. What objections could Dell’s attorney reasonably make to the motion to enter the insurance company’s report into evidence and how should the court rule? Discuss.
Answer according to California law.
Bright Earth Solutions (“Bright”), an agricultural services business that employed 10 people and had over 100 clients, purchased a new commercial tractor mower (not suitable for personal, family or household purposes) from Stercutus Mowers (“SM”) for $15,000. In concluding the sale, SM presented a one-page contract that contained the following language:
SM undertakes, affirms and agrees that this mower is free of defects in material and workmanship at the time of its delivery to the buyer. If the mower or one of its component parts fails within one year of delivery to the buyer because the mower or its component part was defective when installed, SM shall repair or replace at its sole option any such mower or component part at its own cost or expense. Other remedies are excluded.
The contract also stated in bold, 12-point font:
THERE ARE NO WARRANTIES EXPRESSED OR IMPLIED AND PARTICULARLY, THERE ARE NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE MADE BY SM IN CONNECTION WITH THE SALE OF THIS MOWER.
Authorized representatives of Bright and SM signed the contract and Bright took delivery of the mower.
Over the next six months, Bright experienced numerous problems with the mower. The bolt holding the mower blade in place broke five times under normal usage. The steering system was faulty, causing unsightly and uneven lines in mowing jobs. The gas tank installation was defective, causing intermittent gas leaks. Several times the mower would not start due to various electrical faults and Bright had to cancel planned jobs. As a result, Bright lost clients and $5,000 in profits.
Bright took the mower to SM each time it malfunctioned. SM effected repairs and the mower would work for a while and then malfunction again. Sometimes the replacement part would fail, other times a different part would fail. The mower was returned to SM for repairs 12 times in the first six months after purchase.
At the beginning of the seventh month after purchase, the mower’s steering wheel came off during a job. At that point, Bright communicated to SM that it wished to return the mower and be refunded the purchase price. SM refused, pointing to the clauses above in the original contract. Bright then sued SM for breach of contract and warranty.
1. Is Bright likely to prevail in its suit against SM? Discuss.
2. If Bright prevails, what remedies, if any, would likely be available? Discuss.
Prior to her 1990 marriage to Hal in California, Wendy helped operate an antiques and rare book business owned by her father.
During the marriage, Wendy continued to work with her father in operating the business. Over the years, Wendy and her father jointly operated the business and in 1995, they signed an agreement whereby Wendy became the owner of a ½ interest in the business. Wendy had developed an exceptional talent for buying antiques and took over that part of the business in 1995. The business doubled in value from 1995 to 2000. In late 1999, Wendy’s father died and by his will left his interest in the business to Wendy, including all of the business’s real property and inventory.
Wendy and Hal separated early in 2014. They have lived separate and apart since then and are now involved in divorce proceedings.
How should the court allocate the value of the business between Hal and Wendy? Discuss.
Answer according to California law.
Linda Lawyer is just starting out in practice. She arranges with Chiro, a chiropractor, to give Linda’s name to his patients who have been in car accidents or falls. When Linda recovers money in contingent-fee lawsuits for Chiro’s patients, she gives Chiro a gift, which they have agreed will be 5% of Linda’s fee. If Linda recovers nothing, Chiro receives no gift. They also form a partnership, in which Chiro’s services are described as “marketing.”
Pete is one of Chiro’s chiropractic partners. Chiro sends Pete to Linda because Pete is seeking a divorce from his wife Alice.
Pete tells Linda he can never forgive Alice because she was unfaithful. Pete tells Linda that he’s having money problems and asks that she take the case on a contingency basis. Linda tells him she’ll consider it if he’ll have drinks with her. Pete feels he has little choice, and goes out with her. Linda initiates a sexual relationship with Pete, and agrees to take the case. Linda is increasingly distracted from Pete’s case by her desire to spend time with him, sometimes filing papers hurriedly and narrowly avoiding deadlines.
Tom, Alice’s divorce lawyer, calls Linda one day and says, “I know you’re having sex with Pete. Either you settle this case cheaply, or I’ll report you to the Bar.” Linda decides to beat Tom at his own game and, without telling him, calls the Bar herself and reports his threat.
1. What ethical violations, if any, has Linda committed with respect to her:
a. Financial arrangement with Chiro? Discuss.
b. Partnership with Chiro? Discuss.
c. Relationship with Pete? Discuss.
d. Accepting Pete’s case on a contingency basis? Discuss.
2. What ethical violations, if any, has Tom committed? Discuss.
Answer according to California and ABA authorities.
Ed owned a parcel of land on the north side of a rural highway. A lane connected the highway to the small country inn Ed operated on the land. Ten years ago, Ed entered into a signed written agreement conveying a right-of-way easement over the lane to Fran, his neighbor north of his parcel. Fran operated a commercial farm with a small bunkhouse for farm workers on her land. She often used Ed’s lane to access the farm and bunkhouse from the highway.
Recently, Fran announced that she was converting her farm into a 50-lot residential subdivision and the bunkhouse to a computer server center. She informed Ed that she wanted to run new electric lines and a fiber optic cable along the lane.
Fifteen years ago, Ed and Gloria, his then-neighbor on the south side of the highway, had entered into a signed written agreement in which Gloria covenanted that she and her successors in interest would use her property only as a commercial organic garden and, in exchange, Ed would purchase produce from Gloria for use in his country inn. Soon thereafter, Gloria sold her land to Henry. Ed continued to buy produce from Henry.
Recently, Henry informed Ed that the more intense development Fran had planned for her parcel and the increased traffic along the highway justified the conversion of Henry’s garden into a combination truck stop and diner.
Ed objected to Fran’s and Henry’s intended changes and decided to sue both of them to enforce his rights.
1. What rights and interests do Ed and Fran each have in the lane, and may Fran, over Ed’s objection, carry out her plans for the lane? Discuss.
2. What rights and interests do Ed and Henry each have in the garden property, and may Henry, over Ed’s objection, carry out his plans for that property? Discuss.