July 2021 CBX Essay Questions and Selected Answers

California

Bar

Examination

Essay Questions

and

Selected Answers

July 2021

ESSAY QUESTIONS AND SELECTED ANSWERS

JULY 2021

CALIFORNIA BAR EXAMINATION

This publication contains the five essay questions from the July 2021 California Bar

Examination and two selected answers for each question.

The selected answers are not to be considered “model” or perfect answers. The answers

were assigned high grades and were written by applicants who passed the examination

after the First Read. They are reproduced as submitted by the applicant, except that minor

corrections in spelling and punctuation were made for ease in reading. These answers

were written by actual applicants under time constraints without access to outside

resources. As such, they do not always correctly identify or respond to all issues raised

by the question, and they may contain some extraneous or incorrect information. The

answers are published here with the consent of the authors.

Question Number Subject

1. Civil Procedure

2. Professional Responsibility

3. Torts

4. Criminal Law and Procedure

5. Wills and Succession / Community Property

OFFICE OF ADMISSIONS

San Francisco Office

180 Howard Street

San Francisco, CA 94105

www.calbar.ca.gov

Los Angeles Office

845 S. Figueroa Street

Los Angeles, CA 90017

ESSAY EXAMINATION INSTRUCTIONS

Your answer should demonstrate your ability to analyze the facts in the question, to tell

the difference between material facts and immaterial facts, and to discern the points of

law and fact upon which the case turns. Your answer should show that you know and

understand the pertinent principles and theories of law, their qualifications and

limitations, and their relationships to each other.

Your answer should evidence your ability to apply the law to the given facts and to

reason in a logical, lawyer-like manner from the premises you adopt to a sound

conclusion. Do not merely show that you remember legal principles. Instead, try to

demonstrate your proficiency in using and applying them.

If your answer contains only a statement of your conclusions, you will receive little or no

credit. State fully the reasons that support your conclusions and discuss all points

thoroughly.

Your answer should be complete, but you should not volunteer information or discuss

legal doctrines that are not pertinent to the solution of the problem.

Unless a question expressly asks you to use California law, you should answer

according to legal theories and principles of general application.

QUESTION 1

Jiff, a California citizen who resides in Truckee, California, just west of Reno, Nevada,

provides cleaning services. At Jiff’s request, customers submit written evaluations of his

services so he can monitor their satisfaction.

Jiff entered into a contract with Shearer, a Nevada citizen who operates a beauty salon

in Reno, Nevada. The contract, signed in Reno, obligated Jiff to use due care in cleaning.

One night while cleaning, Jiff accidentally broke an antique vase, which Shearer claimed

was worth $100,000.

Shearer sued Jiff for negligence in the United States District Court for the Eastern District

of California, which includes Truckee. The complaint alleged that Jiff’s lack of due care

caused breakage of the vase. Shearer moved to compel production of evaluations

completed by Jiff’s customers in the past year. The court denied the motion.

Following a trial, the jury returned a general verdict in favor of Jiff and the court entered

judgment on the verdict. Shearer did not appeal.

Six months later, Shearer sued Jiff again in the same court for breach of contract. The

complaint alleged that Jiff’s lack of due care caused breakage of the vase.

1. Was venue properly laid in the Eastern District of California? Discuss.

2. Did the court err in denying Shearer’s motion to compel? Discuss.

3. May Jiff take advantage of the judgment in the first suit in defending against the

second suit? Discuss.

QUESTION 1: SELECTED ANSWER A

Applicable Law

The United States District Court for the Eastern District of California is a federal court.

Because the cause of action at issue here is a negligence claim, the district court must

have subject matter jurisdiction through diversity. Here, the requirements of diversity

are satisfied because Jiff and Shearer are citizens of different states with no indication

that they intend to reside elsewhere (California, and Nevada, respectively) and because

the amount in controversy—the value of the broken vase—is $100,000. However, when

a federal court is sitting in diversity, it is necessary to determine which law applies: state

law or federal law.

To determine the applicable law, the Erie Doctrine applies. Generally, federal courts

apply state substantive law and federal procedural law. Here, state "substantive" law

includes the negligence cause of actions, a statute of limitations, and other necessary

substantive elements. Rules of venue and discovery are governed by the Federal Rules

of Civil Procedure. However, rules of preclusion (discussed below) are governed by the

substantive law of the state in which the court sits. Therefore, the federal court will

apply California law in determining whether preclusion applies.

1. Venue

Venue is proper (1) in any district in which a defendant resides, if all defendants reside

in the same district, or (2) in the district where the events giving rise to the cause of

action occurred, or where the subject matter of the action is located. If neither of these

is proper, then venue may be proper in any district in which a defendant is subject to

personal jurisdiction.

Defendant's Residence

Here, the defendant, Jiff, is a California citizen. Additionally, Jiff is the only defendant

here. Further, the facts indicate that Jiff resides in the Eastern District of California,

which includes Truckee. Therefore, because Jiff is the only defendant in this action, all

of the defendants live in the same state, so venue will be proper in any district in which

a defendant resides. Therefore, venue will be proper over Jiff in the Eastern District of

California, because it is the district where Jiff lives.

Events Giving Rise to Cause of Action

Though venue is proper on the above ground, this ground would not be a satisfactory

ground for venue: though a contract would generally give rise to venue in a district in

which it was signed, the contract that governed Jiff's cleaning services was also signed

in Reno. Second, Jiff was cleaning in Reno, Nevada, when he broke the vase.

Accordingly, the events giving rise to the cause of action, or the area where the

property is located, do not give rise to proper venue in the Eastern District of California.

However, venue will be proper on the first ground, as discussed above.

Conclusion

Venue is proper, therefore, in the United States District Court for the Eastern District of

California.

2. Motion to Compel

Discovery

Discovery enables parties to obtain information from one another relevant to their

claims and defenses. As discussed above, the Federal Rules of Civil Procedure apply

to the discovery here. Before parties may properly begin discovery, they must make

initial disclosures of certain information, including names of those who have information,

and other necessary information to disclose. Further, parties must also confer to create

a discovery schedule. Here, there is no indication that such initial disclosures were

made, nor that such a process was followed. Accordingly, discovery may have been

improper on the grounds of improper procedure.

Grounds for Motion to Compel

A motion to compel may be filed only upon a good faith certification by the person

seeking discovery that they have either conferred or made a good-faith effort to confer

with the opposing party in seeking the discovery, and the party opposing the discovery

refuses to turn over the discovery regardless. Here, there is no indication that Shearer

and Jiff have conferred, or that Shearer made a good faith effort to confer with Jiff.

Accordingly, because the motion may not have been filed properly by Shearer, the court

may have properly denied the motion to compel.

However, if this conferral and requisite procedure were properly made, then it is

necessary for a court to determine if the information sought is within the scope of

discovery.

Scope of Discovery

Discovery is proper for any non-privileged matter that may lead to the discovery of any

relevant evidence. Relevant evidence is evidence which tends to make any fact more or

less likely. However, discovery does not have to be admissible in court in order to be

discoverable; so long as it is relevant, the evidence may be properly discoverable.

Here, Shearer moved to compel production of evaluations completed by Jiff's

customers in the past year, and the court denied the motion. Therefore, it is necessary

to determine whether these evaluations are relevant to Shearer's cause of action. The

evaluations likely contain information about Jiff's cleaning services, and the extent to

which the customers are satisfied with the services. They may contain good reviews,

bad reviews, and history of different incidents, including breakage of items. Shearer will

argue, therefore, that because his cause of action is based on Jiff using due care in

cleaning, then a history of different incidents and evaluations will demonstrate whether

Jiff tends to use due care, or whether he does not. Though this information would not

necessarily be admissible in evidence, this is certainly relevant to Shearer's cause of

action, as it would likely tend to show Jiff's pattern of behavior while cleaning, as well as

any unique incidents that occurred while Jiff cleaned.

On the other hand, Jiff may argue that the evaluations are not relevant because

Shearer requested all evaluations from the last year. However, Shearer will argue that a

year is likely a narrow enough time period that will enable Shearer to obtain information

relevant to his cause of action.

Further, Jiff may point to the fact that he requests that customers submit written

evaluations. When a person operating a service business requests evaluations, it is

likely that they are only requesting evaluations that will treat them favorably, meaning

that such evaluations would not likely contain information about any negligence that Jiff

was engaged in. Regardless, because Jiff cannot prove that the evaluations do not

contain relevant information that can assist Shearer in preparing his claim or defense,

the evaluations are properly within the scope of discovery.

Request for Production of Documents

A party may properly request that another party produce documents. Though it may be

possible to obtain such information from non-parties through a subpoena duces tecum,

a subpoena would not be necessary here because Jiff is a party to the action.

Accordingly, this is a proper discovery request, because the evaluations are documents

that are within the control of the other party. Though Jiff could argue that turning over

the evaluations would impose too extensive a burden on him, the documents are within

his control and do not appear to invade on too extensive a privacy interest, unlike the

disclosure of emails between family members, for example. Accordingly, this is a valid

request for the production of documents.

Conclusion

If Shearer properly filed the motion to compel after an attempt to confer with Jiff, then

the motion to compel is proper here because the information requested is within the

scope of discovery, and the court erred in denying the motion. However, if Shearer

failed to do so, which appears to be the case given that the facts do not mention any

such conferral, then the court properly denied the motion to compel.

3. Judgment in First Suit

In order for Jiff to "take advantage" of the judgment in the first suit in defending against

the second suit, he must either rely on principles of claim or issue preclusion.

Preclusion may either be used offensively or defensively—though certain states have

different rules on the use of offensive preclusion. Here, Jiff would be using preclusion

defensively in order to prevent a same claim or issue from being raised against him a

second time.

Claim Preclusion (Res Judicata)

Claim preclusion prevents the same claim from being litigated multiple times, so long as

it is (1) the same claim (2) between the same parties (3) that is a result of a final, valid

judgment (4) on the merits.

Same Claim

To determine whether a second claim is in fact the same claim as the first, federal

courts apply a "transactional" test, which requires determining whether the incident was

a part of the same transaction or occurrence, or series of transactions or occurrences.

However, because federal courts apply the law of the state court in which they sit when

in diversity, California law would apply, as discussed above. Under California law, the

test is whether the claim arises out of the same "injury," which is broader than the

federal test.

Here, Shearer's initial claim was against Jiff for negligence, and alleged that Jiff's lack

of due care caused breakage of the vase. Six months later, Shearer sued Jiff again in

the same court for breach of contract, and alleged that Jiff's lack of due care caused

breakage of the vase. Shearer will argue that a breach of contract claim is different than

a negligence claim, which arises out of tort, and that the underlying claims are not the

same. However, under either the transaction or the injury test, the underlying claim is

the same because it arises out of the same transaction and injury: the breakage of the

vase and Jiff's alleged lack of due care as a result. Despite the different causes of

action, the underlying claim in Shearer's second case is the same.

Therefore, this element is satisfied.

Same Parties

A claim is between the same "parties" if the actual same parties are involved, or if it

involves the parties' successors in interest. Here, the claim is between the same

parties, meaning because the first suit was between Shearer and Jiff, and the second

suit is between Shearer and Jiff.

Therefore, this element is satisfied.

Valid, Final Judgment

In federal court, a valid final judgment is one that is the result of either a motion for

summary judgment or a verdict. The judgment is final after the verdict has been

rendered and there is nothing additional to perform other than entry of judgment.

However, under California law, a judgment is generally not treated as final until the

subsequent appeals have been exhausted. Because federal courts generally apply the

preclusion law of the states in which they sit, the finality of the judgment will likely be

determined by California law.

Here, however, Shearer failed to appeal the verdict. Because an appeal is generally

required to be filed within 30 days after entry of judgment, Shearer's appeal will be time

barred, meaning that he has exhausted the appeals process. Accordingly, Shearer's

failure to appeal the verdict means that the judgment is final. Further, the judgment was

rendered by a jury after a general verdict, in Jiff's favor, and the court entered judgment

on the verdict.

Therefore, this element of claim preclusion is satisfied.

On the Merits

A judgment is on the merits if the court or a jury ruled on the case's substantive

grounds, as opposed to dismissing the case on a procedural issue (though some

procedural issues, too, may be treated as substantive, depending on the issue).

Here, the case was disposed of on substantive grounds because it occurred after a

judgment by a jury through a general verdict in favor of Jiff. A general verdict means

that the jury found that Jiff was not guilty. Accordingly, the case was properly decided

on the merits, and the court later entered judgment.

Conclusion

Accordingly, the elements of claim preclusion are satisfied, meaning that Jiff may take

advantage of the judgment in the first suit in defending against the second suit. To do

so, Jiff may file a motion to dismiss on grounds of claim preclusion, or a motion for

summary judgment, so long as the motion is made within 30 days after the close of

discovery (though discovery would not likely occur here).

Issue Preclusion (Collateral Estoppel)

Jiff may also argue that the judgment is precluded on grounds of collateral estoppel.

Valid Final Judgment

See rule and analysis above. Because the jury returned a general verdict in favor of Jiff,

and the court entered judgment on the verdict, this is a valid final judgment.

Same Issue

The same "issue" refers to the same factual or legal dispute as to a certain occurrence

or transaction. Here, in the first case, Shearer's suit against Jiff alleged that Jiff did not

exercise due care, which caused breakage of the vase. In the second suit, Shearer's

suit was based on breach of contract, but still was based on litigating the same issue:

that Jiff's lack of due care caused breakage of the vase. Therefore, because both suits

deal with this same issue—whether Jiff failed to exercise due care such that there was

breakage of the vase—then this element is satisfied.

Actually Litigated

To determine if the same issue was actually litigated, it is necessary to determine if the

parties were able to present evidence on the issue, call witnesses, and litigate the

matter. Here, the matter appears to have been actually litigated because it was the sole

issue in the initial case: whether Jiff's lack of due care caused breakage of the vase.

The parties would have presented evidence on the matter, called witnesses, cross-

examined them, and litigated the issue.

Accordingly, the same matter was actually litigated, and this element is satisfied.

Necessarily Decided

An issue must have been necessarily decided, which means that the jury (or judge, in a

bench trial) could not have ruled on some other grounds in its verdict for a party.

Though this may generally be difficult to decide in the case of a jury trial with multiple

issues, this is a jury trial with only one issue: whether Jiff's lack of due care caused

breakage of the vase.

Therefore, in the first case, the jury would have necessarily decided whether Jiff's lack

of due care caused this breakage. However, Shearer may argue that the actual

underlying "issue" that they might have decided could be different, based on a narrow

interpretation of "issue." Specifically, maybe the first jury ruled the way it did because of

the evidence to do with causation, or maybe it did because of the evidence of Jiff's

breach. Shearer would argue that because it is impossible to identify the specific

ground that the jury ruled on, especially in the absence of a special verdict, it is not

possible to determine that Jiff's lack of due care was "necessarily" decided.

However, Shearer's argument would be too broad: in deciding the elements of due

care, the jury would have properly considered the elements of negligence, and then

decided that exact issue. Accordingly, Jiff's negligence was decided in the first case,

despite the different cause of action in the second case.

Therefore, this element of issue preclusion is satisfied.

Conclusion

Jiff will properly be able to take advantage of the judgment in the first suit in defending

against the second suit based on grounds of claim preclusion and issue preclusion.

QUESTION 1: SELECTED ANSWER B

Was Venue Properly Laid in the Eastern District of California?

As the below analysis will show, venue was properly laid in the Eastern District of

California.

Preliminary Issues

As a preliminary matter, a venue analysis is only proper after it has been determined

that there is personal jurisdiction and subject matter jurisdiction to hear the claim.

In personam personal jurisdiction is the court's ability to have jurisdiction over the

people involved in the claim. Subject matter jurisdiction is the ability to render a

decision on the subject matter of the dispute, in line with the delimitations on subject

matter jurisdiction of federal courts covered in Article III of the Constitution.

In personam jurisdiction has three traditional bases: presence, domicile, and

consent. Here, Jiff is domiciled in Truckee, where the suit was brought and therefore

the court has PJ over him through domicile and PJ over Shearer through consent

(plaintiff who brought the suit consents). Therefore, no analysis needs to be made

under a constitutional analysis using a long arm statute (which would be contacts

(minimum contacts - purposeful availment and foreseeability), relatedness (specific or

general PJ), and fairness (an analysis under specific jurisdiction).

Article III federal courts have subject matter jurisdiction over federal question cases

and diversity cases. Here, there is no federal question raised in the complaint of

Shearer.

Federal diversity jurisdiction occurs when: the parties are citizens of different states

and the cause of action is greater than $75,000. Diversity jurisdiction is the mechanism

through which federal courts can hear state law claims. Diversity is present here as

the claim is for $100,000 (it is a plausible amount based on the facts and a case will

only fail this aspect if it is "beyond a legal certainty" that the amount in controversy is

less than $75,000). Also, the plaintiff is diverse from the defendant and there is

complete diversity (no plaintiff can be of the same state as any other defendant). Jiff is

a California citizen. Shearer is a Nevada citizen. Finally, the Eastern District of CA

can hear the state law claim for negligence.

Thus, there is both personal jurisdiction and subject matter jurisdiction and a venue

analysis can proceed.

Venue Analysis

Under the Federal Rules of Civil Procedure, venue is proper: (1) any district where any

defendant resides, if all defendants are residents of the state where the district court is

located; (2) where the events relating to the cause of action (contract formation or tort

occurrence) took place; and (3), if (1) or (2) does not apply, in any district where

personal jurisdiction can be had over a defendant.

Analysis Under Defendant Resides - Prong 1

In this case, Jiff is a California citizen who resides in Truckee, California. As the facts

provide, Truckee California is located in the Eastern District of California. Shearer, a

Reno Nevada resident, sued Jiff for negligence in the United States District Court for

the Eastern District of California. Since Jiff resides in the Eastern District of California

(for residency purposes under a venue analysis for individuals), residency is determined

by domicile which is where an individual resides and intends to stay [no facts indicate

that Jiff planned on shifting his domicile so he does reside in Truckee, California as

provided for by the facts].

Analysis Under Substantial Events - Prong 2

Since we have found that venue is proper under Prong 1, the venue analysis concludes

here. However, for hypothetical analysis, venue would also have been proper if

Shearer had brought suit in the federal district court that encompasses Reno,

Nevada. Venue would have been proper in the district court that embraces Reno

because that is where the contract was signed and that is where Jiff performed the

services under the contract (cleaning Shearer's beauty salon) and where the alleged

tort of negligence occurred (the breaking of the vase due to an alleged lack of due

care).

While it is unlikely under these facts, since Jiff is domiciled in the Eastern District of

California and it is convenient to defend the case there (and Shearer elected to bring

the case there), if the parties did make a motion to transfer venue, the judge may allow

the transfer of the case to a venue within the same judicial system (here the federal

court system) where venue would have been proper. If such a motion for transfer was

made from either party from the Eastern District of California to the federal district that

embraces Reno, such a motion should be granted as venue is proper there and there

are interests in favor of such a transfer (that is where the contract was made and where

the alleged tort occurred). The transferee court would apply the law of the original

transferor court since venue was proper.

Analysis Under Prong 3

Since Venue is proper under prong 1, no analysis is needed under prong 3. This prong

usually applies when there are multiple defendants and no determination is able to be

made under prong 1 or 2. This option is the fallback option in the venue analysis.

Conclusion for Venue - Venue is Proper

Venue was properly laid in the Eastern District of California. Here, there is only one

defendant, Jiff. He is a California citizen who resides in Truckee, California. Shearer

brought suit in the Eastern District of California, which encompasses Truckee, and

therefore venue is proper under prong 1 of the three- prong venue test under the FRCP

(it is a district where a defendant resides when all defendants reside in the same state

[which has happened here since there are no other defendants]).

2. Did the court err in denying Shearer's motion to compel?

The court did not err in denying Shearer's motion to compel because the evaluation

records are both relevant and proportional to the discovery issues in this case relating

to a claim of negligence, specifically a lack of due care.

Under the Federal Rules of Civil Procedure, discovery is the part of the case where the

parties make requests (through interrogatories, depositions, and other mechanisms) for

evidence which the other party has in order to put forth their case (and, indeed, based

on discovery certain motions can be made such as a motion of summary judgment

where one side alleges that based on the discovery available and the pleadings, there

exists no genuine issue of material fact). Therefore, discovery is a critical part of

federal civil procedure.

Parties initially meet for a Rule 26f conference to meet and confer over the plan for

discovery. There are certain mandatory disclosures that must take place including the

identities of expert witnesses, presence of insurance, items that they will use to support

their claims and other matters. From there, discovery begins and the court only gets

involved when one party refuses to comply with the discovery request of another party.

It is unclear from the facts whether Shearer initially asked Jiff for the evaluations and Jiff

refused. If this was the case, then Shearer is justified in bringing a motion to compel

and involving the court, since the motion is asking the court to use its coercive power

(the threat of sanctions as well as, in extreme cases, contempt of court or dismissal with

prejudice) to compel the discovery of certain items.

Standard in Discovery - Relevant and Proportional

The key standard that a court must use when analyzing whether to grant a motion to

compel (or to determine whether anything is discoverable) is whether the item in

question is relevant to the case at hand and whether the request is proportional given

the circumstances of the case. It is important to note that an item might be

discoverable because it is relevant even though it might not be admissible later on

under the rules of evidence (due to issues such as hearsay which might come into play

here since it involves double hearsay statements of customers submitting their written

evaluations of Jiff's services).

Evaluations are Relevant

The evaluations are relevant to this case. At Jiff's request, customers have submitted

written evaluations of his services in the past so that he can monitor their

satisfaction. Shearer will argue that these evaluations are critical to understand Jiff's

track record in the cleaning industry. These evaluations could provide other examples

in which Jiff has acted negligently and not adhered to a proper standard of due care. It

also would be helpful to understand whether other contracts with Jiff's other customers

specifically contained obligations requiring Jiff to adhere to a standard of due care in

cleaning. This is relevant to show that Jiff was aware of his duties. While legal

relevance under FRE 403 is beyond the scope of this question, it is likely that these

evaluations would also be admissible at trial (assuming hearsay can be overcome)

since the probative value is not outweighed by unfair prejudice.

Jiff might argue against their ultimate admissibility as grounds for not allowing them to

be discoverable but admissibility, as stated above, is not a key touchstone in discovery

analysis.

Request is Proportional

The request is proportional.

This case is for negligence and for damages of $100,000. The cost on Jiff is small to

produce these records in light of the circumstances, potential liability, and hardship that

Shearer would have to undergo to subpoena and identify the past customers.

No Privilege Applies

Jiff might argue that these evaluations were made in preparation for trial in an attempt

to shield them under the attorney work product doctrine. This would fail as these are

preexisting evaluations that predate the litigation. Even if it were determined to be work

product (not likely), that would be overcome by the substantial hardship Shearer would

undergo to obtain similar information (and that there are no attorney mental impressions

which are absolutely privileged).

Conclusion

The court erred on denying the motion to compel since the evaluations are relevant and

proportional to discovery and no defense applies.

3. May Jiff take advantage of the judgment in the first suit in defending against

the second suit?

Yes, Jiff may take advantage of the judgement in the first suit in defending against the

second suit.

The doctrines of claim preclusion and issue preclusion are both applicable to this fact

pattern.

Claim Preclusion

The doctrine of claim preclusion prevents a party from relitigating an identical

case. Claim preclusion applies when there is: (1) the same parties; (2) the same

cause of action or controversy and (3) a final judgment on the merits. Merger

occurs when a plaintiff wins in one case and attempts to relitigate an issue that he did

not raise in the first case. Such an issue merges into the first judgment and cannot be

brought in a subsequent action. Bar occurs where a plaintiff loses and then tries to

relitigate an issue he did not raise in the first case. Such an issue is barred in a

subsequent action.

Here, Shearer sued Jiff for negligence in the Eastern District of California. Following

Shearer's loss in a final judgement (which was not appealed), Shearer is now bringing

another action 6 months later in the Eastern District (the same court). Therefore, issue

preclusion applies because it is (1) the same parties [Shearer and Jiff]; (2) the same

cause of action (the damages incurred when Jiff cleaned the beauty parlor in Reno);

and (3) a final judgment was issued (the jury verdict against Shearer).

Shearer could have brought the contract claim in the first case but did not and is

thus barred now under issue preclusion from doing so.

Primary Rights Doctrine - Possible Defense to Claim Preclusion

Some states, including California, adhere to the Primary Rights doctrine. This means

that for the same cause of action, a claim is not barred if they involve different primary

rights (an example would be property damage and personal injury). Here, Shearer

would make an argument that different primary rights are involved due to a tort claim

and a contract claim. Shearer would argue that this is a substantive law issue that the

federal court must apply CA law under the Erie doctrine. However, since these are not

separable actions as typically found in primary rights doctrine scenario as described

above (ex. property damage and personal injury), a court would most likely deny this

defense and say that it is barred under issue preclusion.

Issue Preclusion

Issue preclusion occurs when there is (1) a final judgment on the merits; (2) an

issue was actually litigated in the first case; and (3) it was essential to

judgment. Traditionally, only completely mutual issue preclusion was allowed meaning

that it had to be the same parties. Under the modern view, nonmutual issue preclusion

(either defensive where a defendant from a previous action can use a previous action to

defend against a new plaintiff or offensive where a new plaintiff is attacking a defendant

from a prior action). Here, there is mutuality of the parties so a nonmutual analysis

doesn't apply (although it is worth noting that CA allows for offensive nonmutual issue

preclusion).

Here, there was a final judgement on the merits. Shearer might have an argument to

make as to whether the issue was actually litigated. In the first case, which centered

around negligence, it is highly likely that Shearer would have pointed to the contractual

language of due care in order to help establish the duty that Jiff owed to Shearer and to

assist helping the trier of fact (the jury) find a breach of that duty. If Shearer had

pointed this out and it was essential to the judgment, it is likely that issue preclusion

would apply.

However, if Shearer did not point to the contractual language and/or relied primarily on

general negligence principles (thereby relegating the contractual provision to a minor

issue status), issue preclusion would not prevent this claim from going forward.

Conclusion:

Shearer will be prevented under claim preclusion from filing suit again. Depending on

the role contractual language might have played in the first case, issue preclusion could

also prevent the claim.

QUESTION 2

Laura is a lawyer. She practices family law in a suite she shares with Alex, a tax attorney.

Laura and Alex share a conference room, a printer, and a receptionist. Their receptionist

is Laura’s son, Sam. Laura and Alex each use separate letterhead, business cards, and

telephone numbers.

Laura represented Wendy, who was divorcing her husband Henry. Laura filed a request

for child support from Henry. In his financial statement, Henry claimed that he had no

significant assets and that he lived alone. Wendy told Laura that she suspected Henry

was not being truthful, that he had more income and assets than he claimed, and that he

lived with and shared expenses with his girlfriend, Ginny.

One morning, while picking up papers from the office printer, Laura saw and read a

document addressed to Alex left on the printer by Sam. The document was a property

deed in the names of Henry and Ginny, and listed Ginny’s address as the same as

Henry’s. Henry had not disclosed the property on his financial statement. Alex had

received the document from Ginny, whom Alex represented on a matter unrelated to

Henry’s divorce.

Because Laura did not want to get her son into trouble, she never mentioned the property

deed to Alex, Wendy, or the court. Wendy received a lower award of child support from

the court than she should have, based on Henry’s incorrect financial statement.

1. What ethical violations, if any, has Laura committed? Discuss.

2. What ethical violations, if any, has Alex committed? Discuss.

Answer according to California and ABA authorities.

QUESTION 2: SELECTED ANSWER A

Laura and Alex Office Arrangement

Laura and Alex are carrying on their respective practices in a shared family law suite.

They must be sufficiently separate or else they risk being considered a partnership, and

thus would be facing potential conflicts of interests with clients. While they share the

same suite and the same receptionist, which could raise concerns about the adequacy

of their separateness, they have been using separate telephone numbers, letter head

and business cards. They are also each in different distinct specialties of family law and

tax law, which could indicate to potential clients that they are separate practices.

With this arrangement they run the risk of not being sufficiently separate such that they

could be considered a partnership. The facts do not indicate that they are clearly

separated by demarcated offices, or how their respective individual practices are

presented on the door of the suite. If they were deemed to be one firm, or a partnership,

then they would face conflicts of interest.

A conflict of interest would exist between Laura representing Wendy, while another

lawyer in the firm represents an opposing party in the same issue. If they were deemed

to be one firm or partnership, then Sally would have to withdraw from representation of

Wendy, or Alex would have to withdraw from representation of Henry and they would

have to shield the other partner from the case. Or they would be required to receive

consent from both conflicted parties to representation, with informed written consent

(CA) or informed consent in writing (ABA).

However, it is likely that Laura and Alex would be considered to be separate entities

and must continue to keep their work separate and maintain clear boundaries between

the two individual firms. They would need to create a new process for printing materials

and keeping their practice clients’ information confidential.

Document Addressed to Alex: Inadvertent Disclosure

When an attorney inadvertently receives confidential information or work product from

an opposing party under ABA Rules. they are required to notify the sending party of the

error and must not continue to read or use the document and return the offending

document. In CA. the rule is that they must also refrain from reading the material and

inform the sending attorney. but are not required to return the document.

Here, Laura should have stopped reading when she saw that the document was

addressed to Alex. She should have also informed Alex of the inadvertent disclosure.

Duty of Competence

Laura owes a duty of competence to her client Wendy that she will competently

represent Wendy in her case-meaning without negligence or recklessness. Here, Laura

breached this duty because she had information about Henry's property and assets that

were essential to her competently representing Wendy in Wendy's divorce. The

property deed of Henry was essential to the determining of child support. And in

declining to inform Wendy and apply it to the request, Laura was not acting competently

nor in the best interests of her client. The result was that Wendy received lower child

support than she should have.

Communication

Additionally, Laura has a duty to communicate with her client and keep her client

informed of key issues and steps in representation. Discovering that Henry had a

property that he had not listed as a significant asset was important information for

Wendy, as the client, to know. In failing to inform Wendy of this critical fact in her case,

she violated professional ethics.

Duty of Loyalty

Laura has a duty of loyalty to her client. As discussed above, she must act competently

and diligently in their representation; she must also be in communication with her client

and keep them informed of the case. Here, she was concerned about her Son getting

into trouble, and as a result, breached her duty of loyalty to her client by not informing

Wendy of the property deed.

Duty of Candor

Laura owes a duty of candor to the tribunal. She is aware that Hugh said he lived alone,

and that he had no significant assets; however now Laura is aware that there is a

property deed in Hugh's name, and that Ginny resides at the same property, meaning

that Hugh does not actually live alone.

Laura has a duty to inform the court of this discrepancy.

Duty to Supervise

Attorneys have a duty to ensure that their staff are behaving ethically. Here, Sam is a

staff member of Laura as well as Alex. Laura has a duty to ensure that Sam is

complying with ethical standards, which means keeping client information confidential.

She has failed to supervise Sam, and additionally has failed to take steps to inform Sam

of his duties after finding the property deed.

Duty of Competence

Alex has a duty to act competently in the representation of his clients. He must not act

with recklessness or negligence. Here, in leaving a property deed, a client’s information,

in a shared and potentially public space in the printer, is a breach of duty of

competence.

Duty of Diligence

Along with competence, Alex has a duty of due diligence. This means he must timely

manage and handle cases and documents. Here, Alex was not diligent in handling the

property deed for Hugh and Ginny because he left it out on the office printer in a shared

space.

Duty of Confidentiality

Alex has a duty of confidentiality to his client Hugh, and to possibly Ginny who is also

his client, he cannot share information about representation of a client without consent

of the client or under various exceptions, such as he may reveal confidential information

to prevent serious bodily harm or death. For a client to consent to attorney sharing

revealing information about representation or privileged attorney client communication,

the client must give informed written consent in CA or informed consent in writing

(ABA). Here, the disclosure of the property deed was inadvertent, so it does not meet

any exceptions like those that allow a client to reveal confidential information to prevent

serious bodily harm or death (CA and ABA) or to prevent or rectify substantial financial

harm where the client is using the lawyer’s services in furtherance (ABA only).

Here, Alex negligently revealed confidential client information when the deed was left in

the printer. He breached his duty of confidentiality to his client.

It is not clear if Alex was aware that the property deed was not disclosed in Henry's

divorce case against Wendy. If Alex was aware, he could attempt to argue that this

breach of confidentiality fell under the exception of revealing confidential information to

rectify or prevent serious financial harm where the client is using the lawyer’s services

in furtherance (ABA only). However, the facts are not clear on the seriousness of the

financial harm as a result of the lower child support payment, or that Henry was using

Alex's services in furtherance. The information seems to have been inadvertently

disclosed by Alex and Sam.

Duty to Supervise

Alex has a duty to supervise his staff, including Sam, who acts as a receptionist for

Laura and Alex. Alex has a duty to supervise staff to ensure that they conform to ethical

standards. Sam leaving out information on a printer in a shared office suite is behavior

that risks the confidentiality of clients.

Alex has failed to supervise staff diligently.

QUESTION 2: SELECTED ANSWER B

Laura's Ethical Violations:

Duty of Loyalty: Self Interest

Laura (L) represented Wendy (W) and therefore, owed Wendy a duty of loyalty under

both CA and ABA rules. The duty of loyalty requires a lawyer to act in the client's best

interests. Under both rules, if a lawyer knows or has reason to know that there is a

substantial risk of materially limiting their ability to represent their client competently or

diligently because of a personal conflict, they must withdraw from representation unless

(1) they reasonably believe they can provide competent and diligent representation, (2)

representation would not be against the law, (3) they are not representing two clients on

opposing ends of the same litigation, and (4) they obtain informed consent, confirmed in

writing under the MR, or informed written consent under CA. CA differed in consent

requirements because it requires that both the consent AND the disclosure be in

writing, whereas the MR only require the former to be in writing.

Here, L had a personal conflict of interest because her receptionist, Laura's son, Sam

(S), accidentally left a property deed on the printer. L will argue that at the start of

representation, there was no conflict of interest and thus she did not have a duty to

inform nor withdraw. However, after L found out that her son made a mistake, she acted

on her own interests because she did not want to get her son in trouble. Since L was in

a position to pick her son over her client, there was a conflict of interest here and thus,

L breached it by not getting informed written consent or informed consent confirmed in

writing from W. Even if L did get the consent, it is unlikely that she could have believed

that she would be able to provide competent nor diligent representation because she

would have to pick her own client and put her son at risk of getting in trouble. Thus, this

was a breach of her duty of loyalty under both ABA and CA rules.

Duty of Diligence

Under both CA and ABA rules, a lawyer must act with hard work and dedication, to

diligently act in the best interest of their client. Under CA rules, a lawyer must not

intentionally, recklessly, with gross negligence or repeatedly fail to provide diligent

representation. This rule does not require an attorney to breach ethical rules in order to

zealously represent their client; however, they must do their best to advance their

client's non-frivolous interests.

Here, Laura had a duty to use all the information that she got to W's best interest.

However, she did not use the information about the deed because she did not want to

get her son in trouble. L will argue that she did not use this information because she did

not want to breach confidentiality between Alex and his client, Ginny. However, by

prioritizing Ginny and her son's interests above her own client, L failed to do all that she

could to advance the best interests of her client. Therefore, L breached her duty of

diligent representation to W.

Duty to Withdraw

Under MR, a lawyer must withdraw from representation if representing the client would

lead to a violation of the ethical rules, or any other law. Under CA rules, the lawyer must

withdraw if continued representation would lead to a violation of the ethical rules. Here,

continuing to represent W led L to breach the ethical rules of diligence, conflict of

interest, and more as discussed below. Therefore, by failing to withdraw, L was also in

breach of this rule under both CA and ABA rules as well.

Duty of Candor

An attorney owes a duty of candor to opposing parties and the tribunal. Under both ABA

and CA rules, a lawyer must not knowingly make a false statement to the court or fail to

correct a false statement previously made.

Tribunal

Here, L breached the duty of candor to the tribunal because she knew that the financial

statement that Henry submitted claiming he had no significant assets and lived alone

was false. She knew that the court would rely on this statement when awarding

Wendy's lower award of child support. However, instead of being truthful with the court

and informing the falsity of this statement that she KNEW was false, she never

mentioned it. Therefore, not only was this a CLEAR breach of diligence to her client as

explained above, it was also a breach of candor to the court under both ABA and CA

rules.

Alex

L also arguably breached the duty of candor to Alex because she failed to tell him about

getting this information about his client. L will argue that she does not owe A any duties

because he isn't even opposing counsel. However, as discussed below, she did owe

him a duty to inform him of the inadvertent disclosure; by failing to do so she probably

breached her duty of candor to him as well. (See below, duty of fairness).

Duty not to assist in perjured testimony

L may have also breached her duty not to assist in perjured testimony or false

evidence. Here, H gave false evidence to the court that said he did not have significant

assets and lived alone. However, L will likely be successful in arguing that H was not

her client. She therefore did not have a duty to prevent him or try to dissuade him from

offering false evidence like she would have if L were trying to offer that false document.

Therefore, it is unlikely that L assisted H in providing false testimony. However, her

failure to inform the court that she knew that this information was false due to her own

self-interest will still likely be a breach of candor to the tribunal.

Duty of Communication

Under both ABA and CA rules, a lawyer has a duty to reasonably communicate with

their clients. In CA, this includes updates of any significant developments in the case,

which includes all written settlement offers or plea deals. Under ABA, this includes

keeping the client reasonably performed of the status of the matter. Under both rules,

the lawyer must keep the client reasonably informed of details necessary to make an

informed decision.

Here, W told L that she believed H was not being truthful about having no significant

assets and living alone. However, L found out that there was a deed in the names of

both Henry and Ginny. This is likely something that is necessary to communicate to a

client because it is about the status of the matter for child support, and it is a significant

development under CA rules because it makes W's chance of receiving a higher award

of child support more likely. However, L did not inform W of the fact that she discovered

evidence that will help W's claim. Instead, she hid it and never mentioned it to Alex,

Wendy, not the court. Therefore, she breached her duty of communication to W.

Duty to Supervise

Under both CA and ABA rules, lawyers have a duty to adequately supervise the staff

that they manage or exercise control over. Here, L practiced family law in a suit shared

with Alex (A), a tax attorney. L and A both shared a conference room, a printer, and a

receptionist, who was L's son, Sam. L will argue that since S was L and A's shared

receptionist, she could not exercise control over him. However, a receptionist usually

follows directions given by a lawyer that they are employed by, even if that means S

was under the direction of both L and A. Moreover, S was L's son, which makes a

stronger case that S was within L's control. Therefore, L breached a duty of supervising

S and making sure that he did not leave confidential communications on the printer. L

should have provided adequate training to ensure that things like this do not happen. By

failing to provide such training and corrections, and denying that this whole incident

didn't happen, L breached her duty to supervise under both MR and ABA rules.

Duty of Fairness: Inadvertent Disclosure

Lawyers owe a duty of fairness to opposing counsel. Under both ABA and CA rules,

when a lawyer receives information that that they know or reasonably should know was

sent by mistake, they must take certain steps to mitigate the harm to opposing counsel.

Under the ABA rules, the lawyer must notify opposing counsel as soon as possible that

they received this information. Under CA, the lawyer must notify opposing counsel and

also only read as much as necessary to determine that the information was

inadvertently sent.

Here, L saw that deed in the names of Henry and Ginny and knew that H did not

disclose the property on the financial statement. Under both ABA and CA rules, L was

in breach because she timely failed to notify A who was in the other office next to her.

She clearly did not notify him because she didn't want to get her son into trouble;

however, her failure to do so was a breach of fairness to opposing counsel. Additionally,

it is unclear whether L read more than necessary before she would have been required

to disclose receipt of the information, but since she failed to disclose at all, she would

be in breach of both rules regardless of how much of the deed she examined.

Contingency Fees

It is unclear what L and W's fee agreement was. In CA, the fee agreement may not be

unconscionable and under ABA, the fees charged may not be unreasonable.

Contingency fee agreements must be in writing under both authorities, and they are not

allowed for criminal cases where payment is based upon a favorable judgment, or for

family law cases where payment is based upon an award of spousal or child support.

We would need more facts about the fee agreement between L and W to determine

whether this would have been a breach. Since L is representing W on a divorce matter

and L is seeking child support, a contingency fee agreement would not be appropriate,

and if L did execute one, this would be an ethical violation under both ABA and CA

rules.

Duty of Competence

Under ABA and CA rules lawyers owe their clients a duty of competence. Under ABA, a

lawyer must use the legal knowledge, skills, thoroughness, and preparation necessary

to provide competent representation. Under CA rules, a lawyer must not intentionally,

recklessly, gross negligently, or repeatedly, fail to provide competent representation.

Here, it is unclear whether L acted competently because it seems she did not know of

the property deed until after seeing it from the printer. Assuming that the deed was

recorded, it is likely that a quick title search or further research would have revealed

that H and G were living together to refute any claim that H did not own any property.

Assuming a reasonable investigation would have revealed these facts, L breached her

duty of competence by failing to find this out. Additionally, if she was able to find this out

by a title search, she breached her duty because this makes a case even stronger that

she breached her duty of diligence because this information could have been lawfully

obtained even despite S's mistake. A lawyer would use this preparation necessary for

competent representation; by failing to be thorough and adequately prepare, L

breached her duty. Additionally, L breached her duty repeatedly by failing to search,

failing to disclose, and failing to advocate for her client, therefore she also breached the

duty of competence under the CA rules as well.

Alex's Ethical Violations:

Duty of Confidentiality

Lawyers owe a duty of confidentiality to their clients under both ABA and CA rules.

Under ABA rules, the lawyer must not disclose information acquired through

representation of the client, unless the client consents or it is impliedly authorized in the

course of representation. Under CA rules, a lawyer must "maintain inviolate the

confidence and at every peril to himself to preserve the client's secrets." The duty of

confidentiality lasts forever under the ABA rules, and ends when the client's estate is

settled under the CA rules. Encompassed in both ABA and CA rules, a lawyer must

take reasonable steps to avoid inadvertent disclosure of confidential communication.

Here, Alex (A) owed his client, Ginny (G), a duty of confidentiality. A received the

property deed from G during his representation of her through a matter unrelated to

Henry (H)'s divorce. He had a duty to exercise reasonable care to prevent inadvertent

disclosure of documents received by her. A will argue that he did use reasonable care,

and that it wasn't him who was careless, but L's son, S. However, assuming that S was

subject to A's control, like he was subject to L's control discussed above, it is likely that

A failed to use reasonable care to provide training to ensure that such careless

mistakes would not happen. A should have also checked the printer from time to time to

make sure that such communications would not inadvertently be shared with L. By

failing to take any reasonable steps, it is likely that A breached confidentiality.

Not confidential?

A may also argue that the deed was confidential because it was readily available.

Although the ABA rules make information that is readily discoverable not confidential,

the CA rules differ in this regard. Therefore, the fact that the deed could have been

discoverable by a quick title search (as discussed above), may make this not a breach

of confidentiality under the ABA rules. However, under the CA rules, even if the deed

was discoverable through some other means, this would not affect the analysis above.

Duty of Competence

Under ABA and CA rules lawyers owe their clients a duty of competence. Under ABA, a

lawyer must use the legal knowledge, skills, thoroughness, and preparation necessary

to provide competent representation. Under CA rules, a lawyer must not intentionally,

recklessly, gross negligently, or repeatedly fail to provide competent representation.

Here, A did not use the thoroughness necessary to provide competent representation

because a receptionist, subject to his control, left a document that was found by L who

represented a client whose interests were related to G's interest (since they were in a

relationship). A will claim he did not breach the CA rules because he did not do this

repeatedly and did not know that L even had the document. It is unclear whether A was

aware of this risk which make it reckless, but it is likely that if no reasonable measures

were taken to make sure that Sam wasn't doing this all the time, this would be gross

negligence at least. Therefore, it is likely A breached his duty of competence.

Duty of Loyalty, Conflict of Interest: Laura and Alex

Certain measures must be taken under both ABA and CA rules when two lawyers are

working in the same firm. It is unclear here whether A and L were working in the same

firm. Although they shared a conference room, printer, and a receptionist, which

suggest that they were sharing spaces, they also used separate letterheads, business

cards, and telephone numbers, which suggests that they were just sharing an office

space and not a practice. Moreover, since L practiced in family law and A was a tax

attorney, they also practice in different areas, which still could make this analysis go

either way.

Duty of Loyalty: Potential Conflict of Interest

Since L and A were sharing common areas, even if they aren't working in the same

firms, the policy reasons for both MR and CA rules would likely apply to their situation.

Lawyers may not represent a client if there is a substantial risk that representation will

be materially limited by the lawyer's duties owed to a different client, whether that client

is represented by the firm or by the lawyer individually. There will be a substantial risk

when the lawyer receives harmful material information adverse to one of the clients.

Under CA rules, the information need not harmful, but it must be material which means

it is important to the subject matter of the case. The lawyer may only represent the

client if they reasonably believe they can provide competent and diligent representation

and they get informed written consent (CA) or consent confirmed in writing (MR).

Here, L and A were working in a common area and thus there was a substantial risk

that their duties owed may be limited because harmful material information may have

been shared among them with the use of a shared (arguably irresponsible?)

receptionist. Therefore, they had a duty to inform both of their clients of the situation

and get required consent under both rules. By failing to do so, both A and L breached

their duties of loyalty. A will argue that there was no conflict of interest because he was

representing W on a matter unrelated to H and W's divorce. A has a strong claim here

because it is unclear whether there was a substantial risk of materially limiting

representation with such different claims that are a bit removed. However, the fact that

they shared so many common areas, and the fact that L's belief about H living with his

girlfriend G was in direct dispute, this really could go either way.

Screening

Lawyers working in a same firm, assuming that a court does apply these rules because

of the shared space between L and A, are allowed to participate in a matter if the lawyer

entering a firm is "screened." Screening procedures require that the lawyer is not

apportioned any part of the fee from a case and the prior client is given notice and

details of the procedures taken to ensure compliance with the ethical rules. CA rules

also require that the former client receive a certification by a partner in the firm and from

the attorney that procedures followed were in compliance with the ethical rules. Here,

no such notice was given to either W, on behalf of L, or G, on behalf of A. Even though

it is likely that L and A were not operating in the same firm anyway, we can confirm that

no screening measures were taken absent any additional facts.

QUESTION 3

State Hospital, a public hospital funded and managed by State, entered into a contract

with Cook’s Catering, a business owned and operated by Kimberly Cook, to provide on-

site meal service to patients, staff, and visitors.

Recently, Denise Davis, the Chief Executive Officer of State Hospital, received a series

of anonymous email messages threatening to carry out “a massive attack” at the hospital.

In response to these threats, Davis decided to reassign a security guard from patrolling

the kitchen area to patrolling the hospital lobby and entrance area. Davis did not share

the information concerning these threats with anyone else at the hospital.

Several days later, Frank, a former patient, entered the hospital kitchen shortly before

lunchtime and mixed peanut powder into a serving tray full of mashed potatoes. Neither

Kimberly Cook nor any of her employees were present in the kitchen at the time because

they had all left to use the restroom. A state health code provides that food served in a

hospital must never be left unattended before, during, or after meal service in order to

prevent contamination or tampering. At lunchtime, Patrick, a patient, consumed the

mashed potatoes. Patrick, who had a serious allergy to peanuts, suffered severe injuries.

Patrick sued Cook, Davis, and State Hospital. Cook was found negligent for failing to

comply with the state health code.

1. Is State Hospital liable for Cook’s negligence? Discuss.

2. Does State Hospital owe Patrick a duty to protect him from Frank? Discuss.

3. What defense(s), if any, may Davis reasonably assert against the claim that she was

negligent for her decision to reassign the security guard from the hospital kitchen?

Discuss.

QUESTION 3: SELECTED ANSWER A

PATRICK V. COOK, DAVIS, AND STATE HOSPITAL

(1) State Hospital Liability for Cook's Negligence

If State has waived sovereign immunity for negligence actions, then State Hospital may

be liable for Cook's negligence under the doctrine of respondeat superior.

Sovereign Immunity

At common law, a State sovereign could not be held liable for the torts of its agents or

of itself. However, most jurisdictions have passed statutes that waive sovereign

immunity for negligence actions. Thus, a State can be held liable for its torts in most

jurisdictions, subject to damage caps in some jurisdictions.

Here, State Hospital is a public hospital funded and managed by State. Thus, Hospital

will be considered an agent of the State. Therefore, the traditional rule of sovereign

immunity would prevent Patrick from holding State liable for both its own torts and the

torts of Hospital's agents. However, since most jurisdictions have waived sovereign

immunity for negligence actions, the suit against State can likely proceed.

Respondeat Superior

The doctrine of respondeat superior allows a plaintiff to hold a principal responsible for

the torts of its agents so long as the tort was committed within the scope of the agent's

employment. Principals are not liable for torts committed by independent contractors

unless the principal owed a duty that cannot be contracted out.

Independent Contractor

State will argue that it cannot be held liable for Cook's negligence because Cook is an

independent contractor. A principal is not liable for the torts of independent contractors.

To determine if an agent is an employee (servant) or an independent contractor, the

Court will look to a variety of factors including (i) the business relationship and contract

between State and Cook's catering; (ii) whether State had control over the manners

and means in which Cook performed; (iii) whether the job performance provided by

Cook was the kind of performance typically provided by an independent contractor; (iv)

whether the parties had thought they were in an employee-employer relationship; and

(v) whether the job performed included a duty that could not be delegated.

State will argue that Cook is not an employee, but rather an independent contractor.

Cook's Catering is an independent company that State has contracted with in order to

provide on-site meals. State will also point to the fact that it did not control the manner

and means of Cook's work -- Cook was free to provide meals however it saw fit. But

Patrick will argue that this was more akin to an employee (servant) -- employer

relationship because Cook was not just providing a finished product. Rather, Cook was

required to be at the hospital daily and worked on-site in preparing meals.

Patrick's strongest argument to hold State liable as master of the servant is to argue

that the duty to provide safe meals could not be delegated. Patrick will argue that the

safety of patients, staff, and visitors required that State provide safe food. A duty for

safety of others cannot normally be delegated.

Therefore, the Court will likely conclude that Patrick can hold State liable for the torts of

Cook's Catering Service because the duty to ensure Cook's compliance with the safety

code that applies to hospitals could not be delegated.

(2) DOES STATE HOSPITAL OWE PATRICK A DUTY TO PROTECT FROM

FRANK?

DUTY

The question of whether a duty exists is one for the Court to decide. In most

jurisdictions, a defendant owes a duty to act in a reasonable manner and this duty

extends to everybody. However, a minority of jurisdictions have adopted the duty rule

from Palsgraf, which limits the reasonable duty to only foreseeable plaintiffs.

Generally, there is no duty to protect from third-party tortfeasors / criminals. However,

Patrick is a patient of the hospital and it is foreseeable that Patrick is a person that

could be hurt if the Hospital is negligent. At common law, this would be a close call, but

the court would likely find Patrick to be a foreseeable plaintiff.

The fact that the harm occurred due to a third-party tortfeasor will not be conclusive in

determining duty

Premises Liability

Under the traditional approach, a person on premises is categorized as a trespasser,

licensee, or invitee. The duty owed depends on the person's categorization. Here,

Patrick will be categorized as an invitee and thus Hospital owed him a duty to ensure

the premises were safe.

However, many jurisdictions, including California, have abolished categorizations and

just hold that a landowner / possessor of real property owes a duty of reasonable care

to everybody except flagrant trespassers. Here, Patrick would be owed a duty of care.

Inn Keeper

At common law, certain businesses that catered to providing transport and lodging

services owed a heightened duty of care. This included businesses like common-carrier

and inns. These businesses owed a duty to provide the utmost care.

Here, State is a hospital, which is similar to an inn because people stay at a hospital

with the intent to leave. Thus, they are relying on the owner of the premises for basic

protection. However, the Court will likely hold that the common law duty of utmost care

does not extend to a hospital because there is a statutory basis to find duty.

Statutory Duty

In addition to duties provided by common law, the legislator can create duties via

statute. Here, a state health code provides that food served in a hospital must never be

left unattended before, during, or after meal service in order to prevent contamination or

tampering. The legislation is clearly designed to protect those eating in hospitals.

Therefore, Patrick has a strong argument that the legislator created a duty for a hospital

to provide safe food to all of those that would eat the food.

(3) WHAT DEFENSES MAY DAVIS ASSERT?

DUTY

See rule above. Here, Davis owes a duty to use reasonable care in managing the

Hospital.

NEGLIGENCE / BREACH

Negligence occurs when a party fails to use reasonable care, and as a result, the party

breaches the duty it owes to the plaintiff. Negligence is found when the benefits of

acting reasonably outweigh the potential harm.

Here, Davis can defend her actions by claiming they were not negligent.

BPL Analysis

The BPL analysis from Judge Learned Hand provides a formula for determining if a

party has acted negligently. Under the analysis, a party has acted negligently if the

benefits from acting outweigh the potential costs.

Here, Davis will argue that she acted in a reasonable manner by reassigning a security

guard. Davis reassigned the security guard after receiving emails about a "massive

attack" at the hospital. Thus, Davis will say the reassignment was the prudent action to

take given the threat. However, Patrick can argue against this by pointing to the fact

that a reasonable CEO would still have security in the cafeteria even if a reassignment

was required.

Under a traditional analysis, a jury could come out either way on determining if Davis

was negligent.

Emergency Situation

In the event of an emergency, a party will be judged by the reasonable standard a

prudent person would exercise in an emergency situation. If the Court finds that Davis

failed to use reasonable care, Davis will attempt to get an emergency instruction to the

jury which would require the jury to judge Davis' actions based on the fact he was

acting in an emergency situation.

This argument will likely fail because there was no present emergency. Patrick will

argue Davis received a series of emails over the course of a period of time. So, there is

no reason to suspect that the attack is imminent because the emails keep on coming.

Also, Davis did not tell anybody about these emails. If this were a true emergency, then

Davis would have called in for backup by telling other hospital staff about the threat and

potentially bringing in extra security. But Davis did none of that; all he did was reassign

a security guard.

Therefore, Davis will likely be unable to get an emergency instruction to the jury.

CAUSE IN FACT

The breach must be a factual cause of the injury. This is usually easily satisfied with the

but-for test. Here, Patrick will argue that but-for the reassignment of security, the food

would not have been tampered with. Davis can try to argue that the true but-for cause is

that but-for Cook's staff going on a bathroom break, the food would not have been

tampered with.

PROXIMATE CAUSE

Proximate cause requires the harm that flows from the breach of duty be foreseeable.

Like with the factual argument above, Davis can further argue that the proximate cause

to the incident is the lack of kitchen staff. Davis will argue that the security in the kitchen

is not designed to secure the food -- that is Cook's job.

Superseding intervening cause

A superseding, intervening cause is an outside event that cuts one’s liability off from the

breach. Here, Davis will argue that the reassignment was not a proximate cause for the

harm experienced by Patrick. Instead, Frank's criminal actions are a superseding,

intervening cause.

DAMAGES

Patrick can show damages because of his allergic reaction.

QUESTION 3: SELECTED ANSWER B

1. Is State Hospital liable for Cook's negligence?

Employers are generally liable for the torts of their employees conducted within the

scope of their employed duties. On the other hand, a party is not generally liable for the

torts of independent contractors, unless it concerns a non-delegable duty.

Employee vs. Independent Contractor

First, a court will need to determine whether Cook's is more similar to an employee of

State Hospital or an independent contractor. The principal factor a court considers in

determining whether a party is an independent contractor or an employee is whether,

and the degree to which, that party was subject to the control of the employer. The

more control, the more likely that party is to be an employee. Courts also consider

whether the party conducts business regularly in the area in which it was contracted to

perform, whether the employer supplied the tools and equipment, and other factors.

The facts do not indicate with sufficient detail the level of control that State Hospital had

over Cook's. If State Hospital dictated the menu, for example, that would indicate an

employer-employee relationship. But the facts only indicate that Cook's was to provide

on-site meal service. Presumably, Cook's could decide which meals to prepare. On the

other hand, if the hospital dictated meal- times, when staff had to arrive or leave, etc,

that would indicate greater control.

The fact that Cook's Catering is in the business of catering (as evidenced by its name)

and providing meals, indicates that it might be more of an independent contractor. On

the other hand, State Hospital seemed to have provided the kitchen that Cook's

Catering used, since Cook's Catering was operating in the hospital kitchen. Moreover,

the staff used the hospital restrooms. This seems to indicate more of an employer-

employee relationship.

The question as to whether Cook's Catering is an employee or an independent

contractor is a close one. But on balance, Cook's Catering is likely to be an

independent contractor.

However, just because Cook's Catering is an independent contractor does not mean

that State Hospital is not liable for the negligence of Cook's. Some duties are non-

delegable. In such situations, a party will be liable for the breach of its non-delegable

duties because it cannot delegate those duties away to an independent contractor to

insulate itself from liability. For example, when a property owner invites the public onto

its property, it is responsible for the safety of the public on its property, and for the

negligence of independent contractors that create unsafe conditions on the property.

Non-Delegable Duty

Here, it is likely that State Hospital's provision of food to its patients is a non-delegable

duty. Although the patients do not constitute the "public," by accepting the patients, the

hospital has accepted them into its care, including providing them food. It is therefore

likely that the hospital cannot delegate this duty to a catering company in order to avoid

its duty of care to its patients.

Moreover, a statute may establish a duty, and here, the state health code likely

established a non-delegable duty (see analysis below).

Eleventh Amendment

The Eleventh Amendment prohibits suits by citizens against the states without the

states' consent. It embodies the concept of sovereign immunity. Thus, if the State

Hospital can be properly characterized as an arm of the state, it likely cannot be liable

in tort to Patrick unless the State has consented to such suits (e.g. with something

similar to the Federal Tort Claims Act).

Here, the State Hospital likely can be characterized as an arm of the state. It is a public

hospital, and it is funded and managed by the State. The funding and management are

prime indicators that it is not separate from the State (e.g. compare with a municipality,

which may be sued if its funding does not come from the state).

Therefore, unless the state has consented, State Hospital is not to be liable on a

negligence claim. It is unlikely that the state health code, which imposes a duty on

hospitals (see below) constitutes an acquiescence to liability. The Supreme Court has

held that any consent to be sued under the Eleventh Amendment must be clear and

unequivocal. The statute is not such an unequivocal statement of consent. It can easily

be interpreted to allow liability only for private hospitals.

2. Does State Hospital owe Patrick a duty to protect him from Frank?

General Duty

By taking in Patrick as a patient, State Hospital assumed certain duties with respect to

Patrick. In general, hospitals owe patients a reasonable standard of care in medical

treatment. More generally, they owe patients a duty to act reasonably to protect them

from foreseeable harms.

Here, whether State Hospital owed Patrick a duty to protect him from Frank likely turns

on whether Frank's actions were foreseeable. Frank was a former patient. If Frank had

a propensity to try to harm other patients and the hospital knew about it, or if Frank had

come to the hospital in the past to harm other patients, then the hospital would owe its

patients a duty to protect them from Frank. Even if the hospital was not aware that

Frank, in particular, would likely attempt to harm its patients, but was aware that former

patients or others in general have in the past tried to tamper with the hospital food, the

hospital would have such a duty.

A minority of jurisdictions will find that the hospital had a duty to act reasonably to

prevent harm that occurred, regardless of whether the harm was ultimately foreseeable

(although the foreseeability of the harm affects proximate cause analysis in a

negligence action).

Statutory Duty

But independent of the above analysis, a statute or other law can give rise to a duty. A

statute may give rise to a duty to protect a certain class of plaintiffs against a certain

class of harms. If the statute is silent as to tort liability, then most jurisdictions will allow

a finding of negligence per se based on the violation of the duty laid out in the statute if:

a plaintiff in the class of plaintiffs the statute was designed to protect is harmed, and the

harm is in the class of harms that the statute was designed to prevent.

Here, the state health code provides that food served in a hospital must never be left

unattended before, during, or after meal service, in order to prevent contamination or

tampering. The statute was likely designed to protect consumers of the food, e.g. the

patients. Here, Patrick was such a patient who ordinarily consumed the hospital's food.

So, Patrick was in the class of plaintiffs the statute was designed to protect. Second,

the statute was likely designed to protect against poisoning or other effects caused by

"contamination or tampering." Here, Patrick suffered an allergic reaction, and this is

likely in the class of harms that the statute was designed to protect against. So, the

Hospital likely owed Patrick a duty to protect him from food contamination, whether from

Frank, or someone else. This duty is also likely non-delegable (see above for analysis).

3. What defenses may Davis reasonably assert against the claim that she was

negligent for her decision to reassign the security guard?

Eleventh Amendment

The Eleventh Amendment prohibits suits by citizens against a state without a state's

consent. However, state officials performing official duties may be sued under the

stripping doctrine. But this doctrine only allows suits for an injunction, applying

prospectively, and not for retrospective damages.

Davis will argue that since she is the CEO of State Hospital, she is an employee of the

state. Her decision to reassign the security guard was made as part of her official

duties. She will therefore argue that a negligence suit against her is really a negligence

suit against the state, that any damages would be paid out of state coffers since she

was acting in her capacity as an employee of State Hospital (State Hospital is funded

by the State), and that the Eleventh Amendment immunizes her against a suit for

damages.

Public Necessity

Davis may further argue that her actions in reassigning the security guard was in

response to a public necessity. Where a party has a reasonable belief that actions need

to be taken to protect the public interest, and reasonable actions are taken in response

to such a belief, the doctrine of public necessity is a complete defense against

negligence (as opposed to private necessity, which only provides a partial defense).

Here, Davis received email messages threatening to carry out "a massive attack" at the

hospital. Davis will argue that there was a public need to re-assign the security officer to

prevent or mitigate the consequences of such an attack. The harm arising from "a

massive attack" could far exceed food contamination or tampering. And the re-

assigning of a security officer was a reasonable response to such a threat.

However, Patrick will counter that the threats were all anonymous and therefore Davis'

belief of a massive attack was not reasonable. Moreover, Patrick will argue that it is

much more likely for food contamination or tampering to occur, since such occurrences

are more frequent than "massive attacks."

It is unclear how a court would rule on this defense, but the court will likely side with

Davis.

No Breach of Duty

A breach of duty requires that the benefits of an action are outweighed by the risk and

magnitude of the harm caused by the action. Using similar reasoning to the public

necessity argument above, Davis can argue that she did not breach any duties at all.

The benefits of preventing a "massive attack" likely outweighs the risk of re-assigning a

security officer, because presumably the people from Cook's Caterer would still be in

the hospital kitchen. Moreover, any harm from food tampering is likely to be small. So,

Davis did not believe she was leaving the hospital unattended and was justified in

acting reasonably in doing so.

Comparative Fault

Davis can also further argue Cook's Caterer was contributorily negligent. Most

jurisdictions allow a reduction of damages for the comparative fault of another party,

e.g. if that party's negligence contributed to the damages. Davis' re-assigning of the

security guard was not the sole contributor to Patrick's injury, Cook's Caterer also

contributed by leaving the hospital kitchen unattended. In fact, Cook's Caterer was

found negligent. Davis may therefore be able to seek contribution against Cook's

Caterer against any award against her.

Davis can further argue that Frank's intentional tort constitutes an intervening action

that was not foreseeable. If anything, Frank was the most culpable, having committed

an intentional tort, while David and Cook's were only negligent. Most jurisdictions will

allow a reduction for an intervening intentional tort, and some jurisdictions will eliminate

negligence liability altogether for another's intervening intentional tort if it was not

foreseeable. Because Frank intentionally contaminated and tampered with the food,

leading to Patrick's injury, Frank is at least partially, and possibly fully liable.

QUESTION 4

Detective Anna was about to subject David, who was lawfully in custody, to interrogation

because she had received a tip from an anonymous informant that David was involved in

transporting heroin. Detective Anna advised David of his Miranda rights and asked him if

he knew anything about heroin shipments. David replied, “I am not sure if I need a lawyer

or not.” Detective Anna next asked David how he was transporting the heroin. David

responded, “If I had anything to do with it, I would use my car.” Detective Anna released

David from custody when he refused to answer any more questions. Detective Anna then

sent a message to all police officers, describing David’s car, stating that it was believed

to be involved in transporting heroin.

Later that day, Officer Baker, who had heard Detective Anna’s message, saw the car

described in the message. Officer Baker decided to follow the car to see if the driver would

do anything that could justify stopping the car. When the car ran a red light, Officer Baker

stopped the car and ordered the driver, who was in fact David, out of the car. Officer

Baker then did a pat-down search of David and found a cell phone in his pocket. Officer

Baker turned on the cell phone, saw a text message icon, clicked on the icon, and found

a message to David stating, “The heroin is in the trunk; deliver it to the warehouse.” Officer

Baker then searched the trunk of the car, where he found 30 pounds of heroin. He

arrested David and arranged for the car to be taken to the police impound lot for

processing.

David is charged with transportation of heroin. David moves to suppress:

1. His statement, “If I had anything to do with it, I would use my car”;

2. The text message that stated, “The heroin is in the trunk; deliver it to the warehouse”;

and

3. The heroin found in the trunk of the car.

How should the court rule on each of the motions to suppress? Discuss.

QUESTION 4: SELECTED ANSWER A

The defendant in a criminal case may bring a motion to suppress evidence asserting a

violation of his Fourth, Fifth or Sixth Amendment rights. These amendments are

incorporated against the states through the Due Process Clause of the Fourteenth

Amendment. The exclusionary rule provides that evidence obtained in violation of these

constitutional rights in inadmissible in the state's case-in-chief against the defendant,

unless an exception to the exclusionary rule applies. The purpose of the exclusionary

rule is to deter illegal police conduct and the Supreme Court has decided there are

certain exceptions to the exclusionary rule where the social costs to society outweigh

the deterrence value in prohibiting illegal police conduct. The exclusionary rule prohibits

the admissibility of all evidence directly obtained in violation of a defendant's

constitutional rights and evidence later derived from such evidence as "fruit of the

poisonous tree."

1. Statement, "If I had anything to do with it, I would use my car"

Fifth Amendment

At issue is whether David had a viable argument for suppression of his statement under

the Fifth Amendment. The Fifth Amendment protects the right of defendants to be free

from compelled self-incrimination. The Supreme Court has decided

that Miranda warnings are necessary to protect this right so that a defendant is made

aware of his right to invoke his privilege against self-incrimination and his right to

counsel. Waivers of a defendant's Miranda rights must be knowing and

voluntary. Miranda attaches at "custody." A defendant is in custody based on the

"freedom of movement" test, or when a reasonable person would not feel that he is free

to leave police custody. Here, the facts state that David was "lawfully in custody," so we

must accept that David was in custody for Miranda purposes, and we will not analyze

whether that custody was lawful.

Miranda only applies to interrogations. Interrogations include express questioning by

police officers as well as any statements or conduct by the police that may reasonably

lead to inculpatory statements by a defendant. However, statements that are

spontaneous or voluntary by the defendant are not obtained in violation of Miranda.

In analyzing whether a defendant has properly invoked his Miranda rights, the critical

question is whether he did so unequivocally. To assert his right to maintain silent, the

defendant must unequivocally state that he wishes to maintain silent; even sitting there

in silence for long periods is insufficient to expressly invoke. To assert his right to

counsel, a defendant must unequivocally assert his right to speak to a lawyer.

Here, it appears that David was lawfully in custody and was about to subject David to

interrogation, so both prongs of Miranda apply. Detective Anna properly advised David

of his Miranda rights so there was no problem with the advisement. Once she did that,

she did not need to wait for David to invoke his rights; she could ask him a question and

then in response, David could waive or assert his right to silence or counsel. Therefore,

asking David if he knew anything about heroin shipments was valid. David then replied,

"I am not sure if I need a lawyer or not." While it is possible to suggest that David was

uneasy about engaging in interrogation, that was almost certainly insufficient to invoke

his right to counsel, because it was an equivocal statement. He would have needed to

say something like, "I would like to speak to a lawyer" or even "I'm not sure it's a good

idea to speak to you so let me talk to a lawyer first." Detective Anna then properly asked

him another question because she was allowed to do so since David had not yet

asserted his right to counsel or silence and thus waiver was still in effect. David then

made the inculpatory statement at issue here. Therefore, because David had waived

his Miranda rights and not asserted his right to counsel or silence unequivocally, the

statement is inadmissible both in the prosecution's case in chief and for impeachment

purposes. (Evidence obtained in violation of Miranda is still admissible for impeachment

purposes but that's not at issue here since it's admissible in the prosecution's case in

chief, too).

The fact that David then said he did not want to answer any more questions does not

retroactively make his earlier inculpatory statement involuntary or inadmissible and so it

is still properly admissible in court. The court should deny the motion to suppress the

statement.

Sixth Amendment

A defendant has the right to counsel at all critical stages of the criminal case. The Sixth

Amendment right to counsel attaches when a defendant is formally charged with a

crime. Here, the facts state that David was only in custody and do not suggest that he

had been charged with a crime at the time that he was interrogated. Therefore, even

though interrogations are a critical stage, the right to counsel only applies to

interrogations conducted after formal charges have been filed against the defendant,

and so no Sixth Amendment rights were violated here.

2. Text message, "The heroin is in the trunk, deliver it to the warehouse"

At issue is whether the text message that Office Baker saw on the cell phone was

admissible against David.

At the outset, we will note that any possible fruit of the poisonous tree argument that the

stop was actually made as a product of the knowledge Detective Anna earlier obtained

illegally should be denied because a) the police did not violate David's rights earlier in

the interrogation and so it was totally proper for Detective Anna to tell her fellow police

officers about the car and the information concerning it and b) the Supreme Court has

actually said that information obtained in violation of Miranda, unless the police do so

intentionally, is not subject to the fruit of the poisonous tree doctrine.

Stop of car

The first issue is whether the stop of the car was valid. A stop of a car is a "seizure"

under the Fourth Amendment, because a reasonable person under the circumstances

would not feel free to leave when he is pulled over by the police, generally until the

police tell him he is free to go. The Fourth Amendment protects the right to be free from

unreasonable searches and seizures. The warrant requirement is the heart of the

Fourth Amendment and the Supreme Court has held that warrantless searches and

seizures are presumed to be unreasonable unless an exception to the warrant

requirement applies.

To begin, we must note that a defendant only has standing to assert violations of his

own constitutional rights in a suppression motion. When a car is stopped by the police,

the driver (and actually the passengers, too) will have standing to challenge the validity

of the stop. Here, David is the driver of the car, so he has standing to challenge the

stop.

One of the canonical exceptions to the warrant requirement is that the police may pull

over a car without a warrant provided they have at least reasonable, articulable

suspicion that an offense has been committed or is being committed. This can include

any traffic violation. The point of this exception is that cars freely move throughout the

world and so it would be wholly impractical for the police to obtain warrants to stop and

search cars of automobiles. That is the rationale behind the basis for stops of cars as

well as searches for cars that we will get to shortly.

Under Whren, a police offender's subjective intent for conducting a search or seizure is

irrelevant; as long as the officer had an objectively reasonable basis for the search or

seizure, whatever subjective motivation he had in addition, would not make it

unreasonable. Additionally, people do not have a reasonable expectation of privacy

when they drive around the world in their cars, so David can't claim that Officer Baker

tailing him for some time already violated his right to privacy.

Here, Officer Baker heard Detective Anna's message and then saw the car described in

the message. He therefore decided to follow the car for as long as it took for the driver

to commit some kind of violation that would justify it. This is a pretext stop and as

mentioned is completely valid provided that the officer had an objectively reasonably

basis for the stop. Here, the car ran a red light, which is obviously an objectively

reasonable basis for stopping the car, giving rise to far more than reasonable suspicion

that an offense had been committed (in fact, probable cause). Therefore, the stop was

reasonable.

Search of David

The next question is whether the pat-down search of David was reasonable. Again,

David has standing to assert a violation of his rights here because he personally was

searched. Officer Baker had a right to order David out of the car, so that is okay. The

facts suggest that Officer Baker then did a "pat-down search of David." Under

the Terry doctrine, a Terry stop is valid if the officer had reasonable suspicion that the

person has committed a crime or is committing a crime or is about to commit a crime.

The pat-down search is only valid if the officer had reasonable suspicion based on

specific, articulable facts that the defendant was armed and dangerous. Here, the facts

that are known to Officer Baker are that 1) there is an anonymous informant who said

that David was involving in transporting heroin. Tips of anonymous informants alone do

not give rise to reasonable suspicion unless they are corroborated by other evidence

indicating their reliability. 2) That corroboration was likely sufficient because of the

inculpatory statement David made about the transportation of heroin which indicated

that he probably had something to do with transporting heroin and that if he did, he

would use his car. So, there was reasonable suspicion that David was transporting

heroin at the time and it was possible that that heroin or some other illegal material may

have been contained in his pockets. The bigger problem is that the officer may not have

had reasonable suspicion that David was armed and dangerous. There are no specific

facts about guns here. The best the officer can likely say is that heroin traffickers are

very likely to carry guns in their pockets because drug trafficking is a violent industry.

That may be sufficient for some courts and maybe not for others.

The even bigger problem for the officer is that a Terry frisk only allows the officer to

seize material that he "immediately" recognizes as contraband or evidence of a crime.

The officer here simply felt a cell phone, which would clearly not be immediately

recognizable as contraband. Therefore, it was likely illegal to take the phone at all at

this point.

An alternate theory for which this search could be justified is a search incident to an

arrest. An officer may search the person's body and the area within one lunge of his

body, but the search incident to arrest exception only applies when the officer has

actually made an arrest. Here, the officer actually could have arrested David at this

point under Atwater because he's got probable cause that David just ran a red light. But

he clearly did not arrest David at this point so that is not a valid basis for justifying the

search. Therefore, the pat-down exceeded the scope of Terry, which means the

evidence obtained thereafter would be illegally obtained, too.

No other exception to the warrant requirement applies so far.

Search of phone

Even if the officer's conduct so far had been reasonable, what he did next violated

David's rights. David has a reasonable expectation of privacy in his phone because he

is the owner of the phone and it was on his person at the time of the search.

Under Riley, officers need to get a warrant to search the electronic contents of a cell

phone because people have an astonishing amount of private information stored on

their cell phones and thus have a reasonable expectation of privacy in them. Warrants

must be based upon probable cause, or sufficient facts to convince a reasonably

prudent person that a crime has been committed by the defendant and that evidence or

instruments of the crime will be obtained in the place to be searched. However, officers

do not need to get a warrant to simply physically handle the phone or to analyze the

physical properties of the phone; e.g. an officer could pull off a phone case and see if

there was any cocaine hiding in between the phone and the case. But here, Officer

Baker did far more than that: he turned on the cell phone, saw the text message icon,

clicked on the icon, and then found the message at issue here. That went far beyond

physical examination of the phone because he began to scrutinize the electronic

contents of the phone.

David did not consent to this, so that would not be a basis for searching the phone.

Therefore, the statement obtained on the phone was obtained illegally and should be

suppressed under the exclusionary rule.

3. Heroin found in the trunk of the car

At issue is whether the officer could validly search the car after finding the text

message. David has standing to challenge the search of the car because it's his car -

he owns it.

Automobile exception

If the search of the phone had been legal, there is no doubt that the search of the car

would then be legal. Under Carroll, a core exception to the warrant requirement is that

cars may be searched based upon probable cause, or sufficient facts to convince a

reasonably prudent person that evidence of a crime or contraband will be found within

the car to be searched. The parts of the car that can be searched depend on what the

probable cause is for, analogous to the "particularity" requirement of the warrant

requirement: PC to search for machine guns will not justify opening up a tiny container

in the car because machine guns can't fit in tiny containers. There is no doubt that once

the officer has seen the text message he has probable cause to search the trunk; the

text message says that heroin is in the trunk. It's hard to get much more probable than

that.

However, under the fruit of the poisonous tree doctrine, evidence obtained from an

illegal search cannot then be used to find other evidence of a crime, subject to certain

exceptions. Various exceptions to this rule under Wong Sun include attenuation (where

the illegal police conduct that led to discovery of the originally illegally obtained

evidence is very far removed in the causal chain from the subsequent search or seizure

at question) or independent source, where the police could have independently

obtained the evidence from a different source. Those do not apply here because the

search of the phone was immediately followed by the search of the trunk. Additionally,

there is no independent source for the information that would give rise to searching the

trunk.

Search incident to arrest

Another possible exception here would be search incident to arrest. Under Gant, when

a police officer searches a car after arresting a defendant, the police officer may also

search the passenger compartment of the car if 1) the defendant is unsecured and

capable of reaching into the car or 2) the officer believes that evidence of the offense of

arrest may be found in the car. Here, though, the exception does not apply because

David again was not arrested; he was only arrested after the heroin was found.

Additionally, the search incident to arrest exception only applies to the passenger

compartment of the car, not the truck, which is where the heroin was found. So that

exception is not valid either.

Inevitable discovery / impound search

Because the search of the car was likely illegal based on the above arguments, the

prosecution could argue that the heroin found in the car would have been inevitably

discovered by the police. The police arrested David after finding the heroin and then the

car would have been taken to a police impound lot for processing. When cars are taken

to police impound lots, the police conduct an "inventory search" which is meant to

protect the police from allegations that any material that has gone missing was done by

the police. The police look through the car and write down the items found in the car on

an inventory search. Inventory searches are valid as long as they are conducted

according to routine, they are based on valid authority to actual impound the car in the

first place, and they are not actually abused by the police in a "pretext" to search for

evidence.

Here, the car would have inevitably been subjected to an inventory search, where the

police would have almost certainly found 30 pounds of heroin in the truck. Therefore,

the prosecution could argue that evidence would have been inevitably discovered. The

problem for the prosecution is that there likely was not probable cause to search the car

until the illegal search of the phone, and so it was not inevitable that the evidence would

have been discovered. However, if a court found that there was probable cause to

search the car for heroin even before the text message was discovered, that would be a

basis for not suppressing the evidence under the inevitable discovery rule.

If a court did not reject the suppression motion on that basis, the heroin found in the

trunk of the car should be suppressed as it was obtained in violation of David's Fourth

Amendment rights.

QUESTION 4: SELECTED ANSWER B

1. David's Statement "If I had anything to do with it, I would use my car."

Fifth Amendment Privilege Against Self-Incrimination

The Fifth Amendment of the US Constitution guarantees people the right against self-

incrimination. Miranda is a judicially-made doctrine that requires certain warnings when

a defendant is in a situation of custodial interrogation. The Sixth Amendment

guarantees criminal defendants the right to assistance of counsel and attaches at the

time a defendant is formally indicted or charged. Here, David (D) can challenge the

introduction of his statement on Fifth Amendment grounds, but the facts do not indicate

that he has been formally charged with transportation of heroin. A only has an

anonymous tip that he was involved in transporting heroin, which does not suffice for

probable cause. Moreover, the facts do not indicate that he has been formally arrested,

but rather that he is simply in lawful custody of the detective agents. Therefore, D must

look to the Fifth Amendment when seeking exclusion of the elicited statement.

Miranda Rights

Miranda warnings must be given when a defendant is (1) in custody and (2) being

interrogated by police or government agents. Custody is given a functionalist definition:

a court will ask whether a reasonable person under the circumstances would have felt

his freedom of movement restricted to the degree we associate with a formal arrest.

Interrogation is the deliberate elicitation by the government of incriminating information.

Here, D was "lawfully in custody" at the time that Detective Anna (A) was about to

subject him to interrogation. These facts are sufficient to trigger Miranda. A discharged

her Miranda duties when she advised D of his Miranda rights, and then proceeded to

ask him if he knew anything about heroin shipments.

Invocation of Miranda Rights

After a defendant is Mirandized, he must either invoke his Fifth Amendment right to

silence or his Fifth Amendment right to an attorney. Invocation must be clear and

unambiguous, as the Supreme Court held in Davis, and must clearly indicate that the

defendant intends to either (a) remain silent, or (b) seek counsel.

Invocation of Edwards Right

If the defendant clearly and unambiguously invokes his right to counsel, this right must

be scrupulously honored under Edwards: the interrogation must cease until defendant

has an attorney present. If the interrogators fail to scrupulously observe invocation of

this right, the interrogation will be the fruit of an Edwards violation, and inadmissible

under the exclusionary rule. Here, after D was Mirandized and interrogated, he replied,

"I am not sure if I need a lawyer or not." This is an ambiguous statement and is not a

clear invocation of the right to counsel. A court will likely find that D did not invoke his

Fifth Amendment right to counsel. A's persistence in interrogating D, given the

ambiguity of D's statement, was not an Edwards violation. D's response that "If I had

anything to do with it, I would use my car, was therefore not the fruit of an Edwards

violation. It is admissible against him.

Invocation of Moseley Right

If the defendant clearly and unambiguously invokes his right to silence, this right also

must be scrupulously honored. The interrogation must cease unless either the

defendant voluntarily re-initiates contact, or a reasonable break in Miranda custody has

occurred such that the coerciveness of the interaction has dissipated due to lapse of

time and custody. Here, D refused to answer any more questions only after his

statement, "If I had anything to do with it...". Detective A ceased the interrogation at this

point. A has therefore not violated D's Moseley rights, and the statement is not the fruit

of a Moseley violation, because D said it voluntarily before invoking his right to remain

silent.

Waiver of Miranda Rights

A defendant's waiver of Miranda rights must be knowing and voluntary, meaning it

must be the product of his free will rather than the coerciveness of the interrogation

setting. It is not necessary here to inquire as to whether D waived his Miranda rights,

because he failed to clearly invoke his right to counsel or silence at any point prior to

giving his statement that he now seeks to exclude. In the "grey space" in between

invocation and waiver, interrogation is not prohibited.

In conclusion, A did not violate Miranda, Moseley, or Edwards, and so D's statement is

not subject to the exclusionary rule.

2. Text Message Stating, "The heroin is in the trunk; deliver it to the warehouse."

The Fourth Amendment

The Fourth Amendment grants people the right to be secure from unreasonable search

and seizure of their person, homes, papers, and effects; and provides that no warrant

shall issue except on probable cause, supported by oath and affidavit, and describing

with reasonable particularity the place to be searched and the people or things to be

seized. When challenging the admission of evidence on Fourth Amendment grounds, a

defendant must show (1) state action; (2) that he has standing to challenge the search;

(3) that a Fourth Amendment search or seizure occurred; and (4) that the search was

conducted without a warrant and probable cause, and no exception to the warrant

requirement applies.

State Action Requirement

The Fourth Amendment requires state action, which is official conduct by the

government or governmental agents. Here, the detectives are agents of law

enforcement, so the state action requirement is met.

Standing

A defendant has standing to challenge a search when he has a reasonable

expectation of privacy in the place searched. Here, the text message was found by

means of a pat-down search of David's person. The Constitution confers the greatest

protection upon an individual's person (their body), and so D has challenging to

challenge this search.

Search or Seizure

Supreme Court caselaw provides two methods of defining a Fourth Amendment

search or seizure. The first involves a two-pronged inquiry, set forth in Harlan's opinion

in Katz. First, the court asks whether the individual had a subjective expectation of

privacy in the place searched. Second, the court asks whether this expectation of

privacy is one which society is prepared to accept as reasonable. The second method

is a property-based approach, whereby the court asks whether there was an intrusion

into a constitutionally-protected area. Here, there are two searches: Officer Baker's

pretextual stop and pat-down of D, and his search of D's cell phone. Each will be

analyzed in turn.

(1) Pretextual Stop and Pat-Down

Under the Fourth Amendment, pretextual traffic stops are permissible. A court will not

inquire into the officer's subjective motivations when conducting traffic stops and

policing traffic violations. Here, Officer Baker (B) saw the car described in A's message,

decided to follow the car and conducted a pretextual arrest of D. He had probable

cause to stop the car, because he witnessed the car running a red light. This was

sufficient evidence of wrongdoing to allow B to pull D over and order D out of the car. D

can therefore not challenge the introduction of the cell phone evidence on the grounds

that it was the fruit of a pretextual stop.

A pat-down of a person, however, requires reasonable suspicion that the individual

has weapons on his person. Reasonable suspicion is articulable facts that would lead a

reasonable officer to believe that the person possessed a dangerous weapon, but is a

standard short of probable cause. Here, B based his pat down on a message he

received from A, describing D's car and stating that it was believed to be involved in

transporting heroin. This message in turn was based on an anonymous tip, and D's

statement he made in interrogation. These facts likely fall short of probable cause,

because they do not suffice to create a reasonable probability that D has been or is

guilty of possessing or transporting heroin. However, they do suffice to create

reasonable suspicion for the pat-down. Heroin dealers are often armed due to the

nature of the trade. B could point to his personal experience that those who possess

and deal drugs often are armed, and justify his pat-down of D on this basis.

Given that B's pat-down of D's person was permissible under the Fourth Amendment,

the issue at this point was whether B could seize the cell phone. An officer conducting a

reasonable pat-down can seize items that are evidently contraband under the "plain

feel" doctrine. Here, however, B felt a cell phone in D's pocket. A cell phone is not

contraband, and it feels markedly different from a gun or packet of drugs. The plain feel

doctrine therefore does not operate to justify B's seizure of the cell phone. This was a

Fourth Amendment violation.

(2) Cell Phone Search

The issue was B's search of the cell phone after he had seized it wrongfully. The

Supreme Court held in Riley that certain types of information are entitled to greater

protection under the Fourth Amendment. In Riley, the Court held that Cell Site Location

Information, obtained by means of cell phone searches by officers, were a type of

information that was so broad, of such depth, and of such a personal nature that it was

entitled to extra protection under a property-based conception of the Fourth

Amendment. Officers need probable cause and a warrant in order to search a suspect's

cell phone. Here, Officer B took a number of actions that together constitute a search:

he (a) turned on the phone; (2) saw a text message icon, (3) decided to click on the text

message icon; and (4) read the message therein. This is the message D now seeks to

exclude from evidence. These actions are an unreasonable intrusion on D's Fourth

Amendment rights under Riley, because a cell phone contains a great degree of highly

personal information that is entitled to Fourth Amendment protection.

In conclusion, B violated D's Fourth Amendment rights when he wrongfully seized D's

cell phone from his pocket, and when he proceeded to search the contents of his cell

phone. D has standing to challenge the fruit of this search--namely, the statement found

in the text message.

3. Heroin found in trunk of car

D seeks to challenge the evidence of 30 pounds of heroin found in the trunk of his

car. We must first ask again whether has standing, and also whether the heroin was the

fruit of a Fourth Amendment violation.

Standing

See above rule for standing. D has standing to challenge the search, because he had

a reasonable expectation of privacy in the trunk of his car.

Fourth Amendment Violation

When an officer seeks to search an automobile in the course of a lawful traffic stop,

he may search the person and "grabbable area" around the driver and passenger

compartments, provided that (1) the suspect is unsecured and could reach said areas;

and (2) the officer has reasonable suspicion that these areas contain weapons. He may

not search other inaccessible areas of the car unless he has probable cause to believe

that they contain weapons or evidence of criminal wrongdoing. Here, B proceeded from

searching D's person and cell phone to searching the trunk of the car. B will claim that

he had PC at this point to believe that the trunk of the car contained either weapons, or

more likely, evidence of heroin. However, this probable cause was based on an

unlawful search of D's cell phone (see above). Therefore, even if B had probable cause

to search the trunk, which is all that is required for an automobile search (as

automobiles are an exception from the warrant requirement), D can challenge the

heroin as the fruit of an unlawful search.

Fruits Doctrine

The exclusionary rule is a judicially-crafted remedy that seeks to enforce the Fourth

Amendment right against unreasonable search and seizure. Courts have also crafted

the "fruits" doctrine. Under this doctrine, fruits of unlawful searches and seizures are to

be excluded from evidence. Evidence does not qualify as "fruit" of an unlawful search if

(1) it is significantly attenuated from the wrongful search or seizure; (2) there are

independent intervening acts, including voluntary acts by the defendant, that cut off the

chain of causation; (3) law enforcement would have inevitably discovered the evidence;

(4) law enforcement had an independent source to discover the evidence.

Here, D seeks to challenge the heroin found in the trunk as the fruit of the unlawful

search of his cell phone. Indeed, but for the search of his cell phone and discovery of

the incriminating text message, B would not have had probable cause to search the

trunk. However, B may contend that law enforcement would have inevitably discovered

the evidence, because it is common practice to impound a vehicle and conduct an

inventory search of its contents upon arrest of the driver.

Inevitable Discovery and Inventory Searches

An inventory search is a search done to account for the defendant's property; it must

not be conducted pretextually for law enforcement purposes. However, evidence

discovered in a lawful (non-pretextual) inventory search is admissible against the

defendant. Here, B would have arranged for the car to be taken to the police impound

lot for processing, and law enforcement would inevitably have uncovered the thirty

pounds of heroin in the trunk. B therefore has a strong argument for the inevitable

discovery of the heroin. D therefore will be prevented from invoking the fruits doctrine to

exclude evidence of the drugs.

Conclusion

In conclusion, D cannot challenge the first statement because it is not the fruit of a

Miranda or other violation. The second statement will be excluded, because it was the

fruit of an unlawful Fourth Amendment search. Finally, the third piece of evidence (the

drugs) will not be excluded even though they are the fruit of an unlawful search,

because of the inevitable discovery doctrine.

QUESTION 5

In 2016, while single and living in State X, Hank downloaded a form will and filled it out,

stating, “Because I have no children, I leave all my property to Sis.” Hank signed his will

in the presence of only two disinterested witnesses. Hank did not realize that a valid will

in State X requires three witnesses.

In 2017, while still living in State X, Hank married Wendy. After the marriage, Hank kept

land he had inherited from his mother titled in his name alone. Hank started working at a

construction job, and kept all of the wages he received from the job in a bank account

that he opened in his own name. Daughter was born to Hank and Wendy while they lived

in State X.

State X is not a community property state.

In 2021, Hank and Wendy moved to California. Hank suffered a fatal injury on the first

day of his new job in California. Hank never wrote any will after the State X will.

At the time of Hank’s death, there was $100,000 from his wages in his bank account, and

he still owned the land inherited from his mother. In the probate of Hank’s estate in 2021,

claims have been made by Sis, Wendy, Daughter, and Son, a ten-year-old child who has

proved by DNA testing that he is Hank’s son, although Hank never knew of Son’s

existence.

1. Is Hank’s will valid? Discuss.

2. What rights, if any, do Sis, Wendy, Daughter and Son have in Hank’s estate? Discuss.

Answer according to California law.

QUESTION 5: SELECTED ANSWER A

1. Is Hank’s will valid?

California courts will probate a will that was 1) validly executed as per the laws of

California, 2) validly executed as per the laws of the state where the decedent was

present at the time the will was executed, 3) validly executed as per the laws of the

state where the decedent was domiciled at the time of the will’s execution or death.

Here, opponents of this will might argue that the will should not be probated because it

was not validly executed as per the laws of State X, which was the state where Hank

was living at the time the will was executed. Note that nothing in the fact pattern tells us

that Hank was not domiciled in the state where he was living in 2016, when the will was

executed, so we can assume that the state where Hank was living in 2016 was also his

state of domicile.

However, even if the will was not validly executed as per the laws of State X, California

courts will probate it if the will was validly executed as per California law.

Was the will validly executed as per California law

A will is validly executed according to California law if: 1) the testator has testamentary

capacity, 2) the testator has present testamentary intent and 3) the will complies with

applicable formalities.

Testamentary capacity?

The testator has testamentary capacity if (1) the testator was at least 18 years or older,

2) the testator understands the nature and situation of her property, 3) the testator

understands the natural objects of her bounty, and 4) the testator understands the

significance of the testamentary act.

1) The testator was at least 18 years old – here, Hank is likely to be over the age of

18 in 2016 because we are not told otherwise and usually a person does not

leave his property to his sister because he has no children if he himself is a child.

The presumption people under the age 18 have is that they might have children

later on in life. Also, people under the age of 18 rarely ever care about their own

mortality enough to make a testamentary disposition of their wealth, assuming

they have any wealth.

Thus, Hank is likely over 18.

2) The testator understands the nature and situation of her property-here,

Opponents of the will might argue that Hank does not mention any of his

property and so we cannot really be certain that he understood what property he

owned. However, the bar for testamentary capacity is not that high and the fact

that somebody will, who had not children, might want to simply leave all his

property to his sister would suggest that he knows that he has property and

wants to leave it to a sibling.

Thus, this requirement is likely satisfied.

3) The testator understands the natural objects of her bounty – Here, Hank displays

that he understands natural objects of his bounty because generally we think of

our family members, especially our children, as the people who we want to leave

something to after we die. Since Hank states that he has no children at the time

he is executing the will, it is fairly natural that he would leave his property to his

sibling.

Thus, this requirement is likely satisfied.

4) The testator understands the significance of the testamentary act. Here, Hank

downloaded the form and filled it out, assuming it was a will-writing form, rather

than something silly with the fact pattern would likely inform us of, it would be fair

to presume that he understood that he was making a will. Furthermore, Hank

had two disinterested people witness the signing of his will, suggesting that he

knew that he was doing a solemn testamentary act rather than just writing

something out for fun.

Thus, this requirement is also likely satisfied.

Based on the above, I would conclude that Hank had testamentary capacity.

Present testamentary intent.

Present testamentary intent exists if the testator intends to presently make a

disposition of his property that will be effective upon his death.

Here, Hank downloaded a form will and signed it in the presence of two

disinterested witnesses. In that form, he also stated that since he has no

children, he is leaving all his property to Sis. This suggests that he does have the

intention to make a will and leave his property to Sis upon his death.

Thus, Hank had present testamentary intent.

Compliance with applicable will formalities

In California, you can have an attested will or holographic will. California does

not allow you to make an oral will.

Attested will?

An attested will is what we think of as a formal will or witnessed will, and it

requires 1) a writing that is 2) signed by the testator or by someone at the

testator’s direction and presence, 3) in the simultaneous presence of two

disinterested witnesses, 4) who understand the testamentary nature of the act,

and 5) the witnesses sign the document within the testator’s lifetime.

A writing that is signed by the testator.

Here we are told that Hank downloaded a form, filled it out, and signed it. Thus,

we have a writing that was signed by the testator. Note that there is no

subscription requirement in California, which means that the testator can sign

anywhere on the will.

Thus, both of these requirements are satisfied.

In the simultaneous presence of two witnesses.

The rule is that the testator must either sign in the simultaneous presence of two

witnesses or the testator can acknowledge his signature in the simultaneous

presence of two witnesses.

Here, Hank signs in the presence of two disinterested witnesses.

Thus, this requirement is satisfied.

Witnesses who understand the testamentary significance of the act.

The witnesses must understand that what they are witnessing is the execution of

the will. It is not required that the witnesses know exactly what is in the will, as

long as they know that it is a will.

Here, Hank downloaded the form will, filled it out, and signed it in the presence of

two disinterested witnesses, so even though we are not expressly told that the

witnesses knew that they were witnessing the execution of a will, it is likely that

Hank would’ve informed him that is what he was up to. Having two people

standing in front of you watching you sign the document will likely make the two

people ask what exactly are you citing and why are we there to watch it. The

answers to those questions would likely be provided by Hank.

Thus, this requirement is likely satisfied.

The two disinterested witnesses sign the document within the testator’s

lifetime.

The two disinterested witnesses do not have to sign the document right after

they witness the ceremony or in each other’s presence; however, they must sign

it while the testator is still alive.

There is no mention of this happening and none of the facts were actually

leading us to presume that the two disinterested witnesses signed anything. Just

because you’re witnessing something being signed does not mean that you will

naturally want to sign it yourself.

Thus, this requirement is likely not satisfied.

California clear and convincing evidence standard.

For deaths that occur on or after 1/1/2009, California allows a will that was not

perfectly executed to still be probated if the proponent can show by clear and

convincing evidence that the testator intended the document to be his will. For

deaths prior to that date, California had a substantial compliance standard for an

attested will to be probated.

One might argue that the fact that the disinterested witnesses did not sign the

document creates a significant risk that this is not really Hank’s will. However,

here there is fairly strong evidence that Hank intended the document he

executed in 2016 to be his will. He not only took the effort to download the form,

fill it out, state why he was leaving his property to Sis, but also went into the

trouble of getting two disinterested witnesses to be present while he signed it.

The proponent can further strengthen his case and likely satisfy the clear and

convincing evidence standards if he can get the two witnesses who witness the

signing of the will to either testify to that or submit a sworn affidavit to that fact.

Thus, there is likely to be clear and convincing evidence that the document is the

will.

Therefore, it is likely that the will may be produced in California.

Holographic will?

In California, a holographic will is a will that is not witnessed by two witnesses

but it is 1) in writing, 2) with material terms handwritten by the testator (e.g. gifts

and recipients), 3) is signed by the testator, and 4) expressly states the present

testamentary intent of the testator.

If he had failed to establish that the will complied with the formalities of an

attested will, then we might want to have considered whether it would comply

with the formalities for a holographic will.

However, we don’t know whether Hank wrote out the beneficiary’s name and the

fact that she would be receiving all his property by hand or whether he typed it.

Thus, it is unlikely to meet the requirements of a holographic will.

The overall conclusion is that the will is likely to be probated by the court in

California as an attested will.

2. What rights, if any, do Sis, Wendy, and him and his daughter and Sam have

in Hank’s estate?

California is a community property state and so community property law applies.

Community property is all property acquired during marriage, other than separate

property, while domiciled in California. Separate property is all property acquired

either before marriage or after the end of the marital economic community.

Separate property also includes all property acquired during marriage through

gift, devise, bequest or descent. All profits, rents and issues of separate property

also remain as separate property. All wages earned during marriage while

domiciled in California is community property.

Quasi-community property is all property acquired during a valid marriage while

not domiciled in California, that would have been community property had the

acquiring spouse lived in California at the time of acquisition. During the lifetime

of the acquiring spouse, quasi-community property is treated like separate

property. However, upon the death of the acquiring spouse, quasi-community

property is treated like community property.

Hank’s estate

As Hank’s is that we are told that he had $100,000 from his wages in his bank

account and that he also owned the land that he inherited from his mother.

Character of the $100,000

See above for rule regarding community property and separate property.

Here Hank died while on the first day of his new job after moving to California.

This means that all the wages he had earned were earned while he was living in

a non-community property state. As per the rules above, that makes this quasi-

community property because had Hank been domiciled in California all the

wages would be community property. The fact that Hank kept all the wages in a

bank account that was in his name alone does not defeat the community

property character of his wage income.

Thus, the $100,000 is quasi-community property.

Character of the land inherited form his mother

See above for rule regarding community property and separate property.

Here, the land was an inheritance; this means that it is Hank’s separate property

and moving from a non-community property to a community property state does

not change this. Furthermore, the land was always held in Hank’s name so there

is no issue as to whether Hank gifted the property to the community or whether

he took any action that would lead to a transmutation, which is a change in the

nature of the property from community property to separate property or vice

versa.

Thus, the land is Hank’s separate property.

Is Wendy an omitted spouse?

An omitted spouse is the spouse who was married after the execution of the last

testamentary instrument by the testator and the spouse is not mentioned or

provided for in those testamentary instruments. An omitted spouse will receive

an intestate share of the decedent’s estate- half of the community property and

an interstate share of the separate property not to exceed 50%. However, an

omitted spouse will not receive an interstate share if 1) if the omission was

intentional and appears on the face of the instrument, 2) the spouse is provided

for outside of the testamentary instruments, or 3) there was no voluntary and

knowing waiver by the spouse.

Here, Hank executed the will in 2016 and married Wendy in 2017. There is no

mention of Wendy anywhere in the will and there is nothing telling us that he

provided for her outside of the testamentary instrument. There is also nothing in

the will that tell us that the omission was intentional. In fact, there is no mention

of Wendy at all in the will. As for whether there was voluntary and knowing

waiver by Wendy, we don’t know anything about that. What it appears from the

facts is that Hank made a will in 2016, and forgot all about it, so he never

updated the will.

Thus, Wendy is an omitted spouse and will receive an intestate share as

described above.

Is Daughter a pretermitted child?

A pretermitted child is one who was born after the execution of the last

testamentary instrument and is not mentioned or provided for in the testamentary

instrument. A pretermitted child receives an interstate share of her parent estate

unless: 1) the omission is intentional and appears on the face of the instrument,

2) the child is provided for outside of the testamentary instrument or 3) the

testator had other children at the time of the execution of the will and transferred

substantially all of the assets to the child’s other parent.

Here, Hank executed the will in 2016 and Daughter was presumably on board

after 2017 since that is the year when Hank and Wendy got married and

Daughter is their child. As with Wendy, there is no mention of Daughter in the

testamentary instrument and omission does not appear intentional but seems to

be due to Hank forgetting to update his will. The fact that Hank died from a fatal

injury that must have happened suddenly probably is the reason why Hank had

not updated his will before dying since a lot of people think that they have more

years to live than they actually do and don’t plan for really bad accidents

happening. There is also no mention of Daughter being provided for outside of

the will and as mentioned above, the will transfers everything to Sis, and not to

Daughter’s other parent.

Thus, Daughter is likely to be a pretermitted child as described above.

Is Son a pretermitted child?

See above for rules regarding pretermitted children. Additionally, note that the

child born before the execution of the last testamentary instrument may still

qualify as a pretermitted child if the testator did not know about the child’s

existence.

Here, some would argue that Son is not a pretermitted child because he was

born in 2011 and Hank executed his will in 2016. However, the rule mentioned

above is likely to result in Son being classified as a permitted child since Hank

never knew about his existence. As well as the court is satisfied that the DNA

evidence establishes son as Hank’s child and declares it so, then son will likely

qualify as a permitted child and take a pretermitted child share.

Thus, Son is likely a pretermitted child.

Share of the following individuals:

Wendy

A spouse’s intestate share includes the half of the community property plus and

intestate share of the separate property, not to exceed 50% of the separate

property. In a situation where the decedent leaves more than one issue, the

spouse takes one third of the separate property.

Here, since quasi-community property is treated as community property at death,

Wendy will end up with the entire $100,000 since she already owns $50,000 as

her share of the community property and will get the remaining half as well. As

for Hank’s separate property, Wendy will end up with one-third of the land.

Daughter and Son

When there are two children and a surviving spouse, intestate share of the child

will be half of the separate property that is left after the spouse takes her one-

third share of the decedent’s separate property.

Thus, here, Daughter will take one-third of the land and Son will take the other

one third of the land.

Sis

Here, unfortunately Sis ends up with nothing because of abatement. The

intestate share of the spouse and both the children will come out of her share

and she ends up with nothing.

QUESTION 5: SELECTED ANSWER B

1. Is Hank's will valid?

The issue is whether Hank's (H) will is valid. California, through the full faith and credit

clause, will recognize a will that is validly executed in the state in which it is executed or

the state in which the testator is domiciled when he makes the will. If the will is not valid

under the state laws in which it was executed or in the state in which the testator was

domiciled, CA will still recognize the will as valid if the testator is domiciled when he

dies and the will conformed to CA requirements.

Here, H executed the will in State X and was domiciled in State X at the time. If the will

is valid under the laws of State X, H's will will be treated as valid in CA probate.

However, the facts clearly tell us that H signed his will in the presence of two

disinterested witnesses, and that State X law requires three witnesses. Thus, the will is

not valid under the laws of State X. However, because H was domiciled and died in CA,

CA will recognize the will as valid if it conformed to CA requirements.

CA requirements for a valid will.

In order for a will to be valid in CA, it must be written and signed by the testator (T). It

also must be witnessed by two disinterested witnesses. Finally, the T must have a valid

testamentary intent when executing the document.

Written and Signed by T

The will must be in writing and signed by the testator, who has capacity. There is no

question that H signed the will as the facts tell us this. It also appears that H had

capacity, which means that he is at least 18 and of sound mind. Although the facts don't

tell us he is definitely 18, the circumstances of him creating a will and the fact he

married the next year means he probably was and, thus, this analysis will assume it.

There are also no facts indicating that he was not of sound mind, suggesting he has

capacity.

The main issue with this requirement is whether the fact H downloaded a form will and

filled it out meets the written requirement. Although handwriting or typing a will counts

as written, form wills are a closer call. However, even if it does not quite meet the

written standard, CA adheres to the substantial compliance doctrine. That means that if

the testator substantially complies with the wills formalities but does not quite adhere to

them, a court will still allow the will to be probated if it was in substantial compliance

with the wills’ formalities. As a result, the court will likely recognize that this at least met

the substantial compliance, if not the written requirement on its own

Two Disinterested Witnesses

CA wills, to be properly attested, require the signature of two disinterested witnesses.

The witnesses do not need to be aware of the actual contents of the will, such as which

people get which devices, but they must be generally aware that the document they are

signing is a testamentary instrument and that the T has signed it. This is known as the

conscious presence test, that the witnesses are generally aware that what they are

signing is a testamentary instrument.

Here, H signed his will in front of the witnesses, so there is no question of whether they

knew he had signed it (if he had signed it previously, he would have had to

acknowledge his signature to the witnesses). Although the facts do not quite indicate

whether the witnesses knew it was a will, the fact they were in H's presence when he

signed and they signed it themselves, is likely satisfactory evidence that they were

consciously present of the fact that the instrument was a will and that they were signing

it.

Testamentary Intent

The final element that a will needs in CA is that it is signed by the T with testamentary

intent. The fact H downloaded a will and filled it out and went to the trouble of getting

two disinterested witnesses to sign it is pretty clear evidence that he knew he was

signing a testamentary instrument. He also wrote that he was giving his property to his

sister, which is further evidence he knew he was signing a testamentary instrument.

Based on the analysis above, the will appears to have met all of the CA requirements.

Even though it would not have been valid in State X, a CA court will recognize it as valid

because it met the CA requirements and he died in CA while domiciled in CA.

Holographic Will

In the unlikely event a CA court finds that the will was not valid (potentially because a

form will may not have met the written requirement) and that substantial compliance

doctrine will not save it, it may be viewed as a holographic will. A holographic will must

have the material provisions in the testator's handwriting and be signed by the testator.

There is no witness or date requirement. There is a requirement that the testator intend

the document constitute a testamentary instrument.

Although H downloaded a form will, it appears he handwrote the material provisions,

such as how to dispose of his property. He also signed the will. As discussed above, his

testamentary intent is also obvious. As a result, even if the court found it was not a valid

will (although as explained above, this is very unlikely), it could still be probated as a

holographic will.

Conclusion

Because the will likely conformed to CA standards and H was domiciled in CA when he

died, the will is valid. In the unlikely instance that it is not considered valid, a court can

still probate it as a holographic will.

2. What rights do Sis (S), Wendy (W), Daughter (D), and Son (S) have in H's

estate?

California is a community property (CP) state. The marital economic community begins

at marriage and ends upon divorce, death of a spouse, or permanent separation

(constituted of one spouse indicating to end the marriage permanently and conduct

consistent with that intent). Earnings, property, and debt acquired during the marriage

are presumed CP. Earnings acquired before the marriage, by gift or inheritance during

the marriage, or after divorce, death, or permanent separation are considered separate

property (SP). Property that would have been classified as community property had the

couple been domiciled in CA at the time they acquired it is considered quasi-community

property (QCP).

Effect of moving to CA on the classification of property

H's Land

Presumption and tracing: Because the facts appear to show that H had already

received the land from his mother via inheritance before his marriage, the presumption

is that the land is H's SP. In addition, there is a special title presumption at death. If the

land is only in one spouse's name, there is a special presumption the property was

intended to be that spouse's SP. W may try to argue that the property should be QCP,

or property that would have been considered CP if they had been domiciled in CA when

H received it. However, because the land was inherited, the land would have been

classified as SP. Absent a transmutation or act of titling the property jointly, the property

will remain H's SP. There is no indication a transmutation occurred, because there is no

writing signed by H, the adversely affected spouse, either converting it to CP or W's SP.

As a result, H's land is SP. As discussed below, it will be devised to W, Son, and

Daughter in equal shares. Because co-tenancy is the default type of co-ownership, they

will each receive a 1/3 share as co-tenants.

H's Wages

Presumption and tracing: Because H did not start the job until after he married W, all of

his wages he earned during this time are presumed to be QCP. H's estate may try to

argue that the wages should be considered SP, because he put it in a bank account in

his name alone. However, the mere fact the bank account was titled in H's name alone

is not enough to change the nature of the property from QCP to SP. There is also no

indication H and W entered into a premarital agreement that would have changed the

nature of their earnings. As a result, all of the wages he earned during are considered

QCP, because they would have been CP had they been living in CA. The fact the

account was titled in his name only is not enough to change the source, and tracing

clearly shows all of this money is wages from during the marriage, and thus is QCP.

Conclusion

H's entire bank account, consisting of $100,000, is QCP.

Assuming will is valid:

Sis

Assuming the will is valid, it clearly leaves all of his property to Sis (S). However, as

discussed below, Sis will end up receiving nothing, because W, Son, and Daughter will

be treated as omitted spouses and children. As a result, they will all receive an intestate

share, which will leave nothing for Sis.

Wendy

Omitted Spouse: A spouse who does not take under a will is considered an omitted

spouse, unless the omission was intentional, or the testator substantially provided for

the spouse outside of the will. Because H never made another testamentary instrument

after the 2016 will, the omission was not intentional, because he was not married at the

time. In addition, H did not provide for W outside of the will. As a result, W will be

treated as an omitted spouse. An omitted spouse is entitled to receive what they would

have had the testator died intestate. When a decedent dies intestate in CA, the spouse

is entitled to the decedent's 1/2 of the CP and QCP (meaning that the spouse will

receive all of the CP/QCP) and 1/2 of the decedent's SP if the decedent has one lineal

descendant and 1/3 of the decedent if the decedent has more than one lineal

descendant. As discussed below, Son and Daughter will each be treated as omitted

children, and thus W will receive 1/3 of H's SP and Son and Daughter will split the

remaining 2/3 of H's SP.

Conclusion

Because the wages are QCP, W already owns half of that as her share of QCP.

Because she receives an intestate share, she will receive the remainder, so she will get

all $100,000. She will also receive 1/3 of H's SP, which means she will get 1/3 of H's

property that he inherited from his mother and take it as co-tenants with Son and

Daughter.

Daughter

Omitted child: A child who is omitted under a will is entitled to an intestate share, unless

the omission was intentional, the decedent had other children when the will was made

and left substantially all of his assets to their surviving parent, or provided for the child

outside of the will, or did not know the child existed. Here, the omission was not

intentional for two reasons: first, in his 2016 will, H prefaced his devise to his sister

based on the fact "because I have no children." Second, he never made another

testamentary instrument after D was born. If he had, and then omitted D, it might be

considered intentional, but because she was not alive at the time, it is pretty clear that

the omission was not intentional. In addition, because H only had one child that he

knew of, the exception that occurs when the decedent had other children at the time the

will was made and left substantially all of his assets to the surviving parent does not

apply. (plus he did not leave anything to W in his will). Finally, he did not provide for D

outside of the will.

Because none of the exceptions apply, D will be treated as an omitted child and will

receive an intestate share. As discussed above, when a decedent in CA dies intestate,

the decedent's 1/2 of CP/QCP goes to the surviving spouse. If there is more than one

lineal descendant of the decedent, the spouse receives 1/3 of the decedent's SP and

the lineal descendants split the remaining 2/3 of SP. As discussed below, Son will also

be treated as an omitted child, and thus H had two lineal descendants at the time of his

death. Therefore, D will split the 2/3 of H's SP with the son, leaving them each with 1/3

of H's SP.

Conclusion

Daughter will receive 1/3 of H's SP, or 1/3 of the property he inherited from his mother.

Daughter will take the land as a co-tenant with a 1/3 interest.

Son

Omitted Child. See rule above. W, D, and Sis may claim that Son should not be

considered an omitted child because it appears he was born before the will was written

in State X, and they will therefore argue he was intentionally excluded. However, the

facts make it clear that H never knew of Son's existence. The facts also make it clear

that Son has established by a paternity test that H is the father, so he will be treated as

his child. Because H never knew of Son's existence, Son will be treated as an omitted

child. There is also no indication that either of the other exceptions apply, because H

did not leave substantial assets to whoever Son's mother is, since his only will left it all

to his Sis. Therefore, Son will be considered an omitted child and entitled to receive an

intestate share. As described above, because the decedent has two lineal descendants

(Son and Daughter), W will get 1/3 of H's SP and Son and Daughter will split the

remaining 2/3 of H's SP, leaving them with 1/3 of H's SP total.

DRR: Dependent Relative Revocation--alternatively, Son could argue that H had a

mistake of fact when he made the will because he wrote "because I have no children,"

when in fact he did, and that if it weren't for this mistake of fact H would have devised

his property differently. However, he won't need to make this argument.

Conclusion

Son will receive 1/3 of H's SP, or 1/3 of the property he inherited from his mother. Son

will take the land as a co-tenant with a 1/3 interest.

If the will were not considered valid:

Even if the will were not considered valid, the disposition of property would remain the

same. Because W, Son, and Daughter are all treated as omitted spouses or children,

they receive intestate shares. In this circumstance, as described above, the spouse is

entitled to all of the QCP/CP plus 1/3 of the H's SP if more than one lineal descendant.

Son and Daughter are then entitled to split the remaining SP. As a result, the

disposition would be the same regardless if the will were valid, and in neither case

would Sis take anything.