WRONG Essay Deck

Question 1

Tenants in Common - Rent

Answer 1

If there is no agreement to the contrary, each cotenant has the right to possess the whole property and is not required to pay rent to the other co-tenants for the value of her own use of the property, even when the other co-tenants do not make use of the property.

However, a cotenant must account to other co-tenants for rent received from third parties. Third-party rents are divided up based on the ownership interest of each tenant.

Question 2

Tenants in Common - Rent and Business on Property

Answer 2

a cotenant is generally not required to share profits earned from the use of the property, such as from a business conducted on the property.

Question 3

Tenant in Common - Repairs

Answer 3

A cotenant does not have a right to be reimbursed by other co-tenants for repairs made to the property, even when those repairs are necessary. That being said, the majority view is that contribution for necessary repairs can be compelled through an action for accounting or partition. In some jurisdictions, a cotenant may maintain a separate action for contribution as long as the other co-tenants have been notified of the need for the repairs.

When a third party is occupying the property, a cotenant who collects rent from the third party can subtract expenses for necessary repairs from the rent received before sharing the rent with other cotenants.

Question 4

Personal Jurisdiction

Answer 4

Is the exercise of PJ authorized by statute? What is the basis?
= Presence, domicile, consent or through a long-arm statute

Is the exercise constitutional, meeting the standards of the Due Process Clause?
= The constitutional analysis is the same whether in federal or state court because the federal court will use the long arm statute of the state in which it sits.

The test: If PJ is based on presence, domicile, or consent, then due process is satisfied. If PJ is
based on long-arm statute, due process requires sufficient minimum contacts between a party and the forum state so as not to offend traditional notions of fair play and substantial justice.

Minimum contacts? Briefly identify and describe the contacts:

Purposeful availment? (purposeful and substantial contact)

Foreseeability? (reasonably anticipate being sued in the forum state)

Relatedness? (specific vs. general; if general, domicile or continuous and systematic contacts?)

Fair play and substantial justice? Consider factors:
= Interest of forum state
= Burden on D to appear
= Interest in judicial efficiency
= Shared interest of the states in promoting common policy

Question 5

Venue

Answer 5

1. General rule—venue proper in judicial district
   - where any D resides in state where all Ds
   reside;
   - or where substantial part of the events/omissions occurred;
   - or where property that
   is subject of the action is located (otherwise where any D is subject to PJ)
2. Residence—judicial district where D is domiciled for individual; where D subject to PJ for
   an entity; or, when entity is P, where principal place of business is located

Question 6

Referral Fees

Answer 6

The Model Rules (MR) prohibit payment to anyone for recommending a lawyer’s services, except for permissible lawyer referral services, reciprocal referral agreements, and nominal gifts of appreciation. A referral fee given in return for merely recommending another attorney violates this rule.

Under the California Rules of Professional Conduct (CA RPC), although a referral fee is generally impermissible, an attorney may give a “thank you” gift for a referral that results in employment of the attorney so long as it was not offered or given in consideration of any promise, agreement, or understanding that the gift or gratuity would be forthcoming or additional referrals would be made or encouraged in the future. Permitted lawyer referral services and plans and reciprocal fee agreements are also exempt from the rule

Question 7

Fee Splitting

Answer 7

Under the MR and the CA RPC, legal fees may not be shared between lawyers and non-lawyers unless an exception applies. The exceptions to this rule are:
(i) a non-lawyer paid over a reasonable period after the death of the lawyer according to the lawyer’s law firm operating agreement;
(ii) a lawyer who purchases the practice of a deceased, disabled, or missing lawyer and pays the estate or the representative of that lawyer;
(iii) fees shared with law-firm personnel though a compensation or retirement plan; and
(iv) a lawyer who shares court-awarded legal fees with a nonprofit organization that employed, retrained, or recommended employment of the lawyer in the underlying matter.

Question 8

Solicitation

Answer 8

Under the CA RPC, a lawyer must not solicit professional employment in person, by telephone, or by real-time electronic contact when a significant motive is the lawyer’s pecuniary gain, unless the person contacted is (i) a lawyer or (ii) a person with whom the lawyer has a familial, close personal, or prior professional relationship. The MR prohibits the same activities except solicitation by real-time electronic contact.

Solicitation is defined as a communication initiated by or on behalf of a lawyer that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.

Question 9

Runners and Cappers

Answer 9

Lawyers who employ agents to monitor accidents and other events likely to produce legal work and to solicit business for the lawyer are subject to discipline. In CA, use of runners or cappers is a criminal violation, and any such contract is specifically void as illegal in CA. However, use of a state bar–authorized lawyer-referral service, legal insurance, prepaid legal service plan, or pro bono network is not subject to this prohibition.

Question 10

Sex with Client

Answer 10

The MR and CA RPC prohibit a lawyer from engaging in sexual relations with a client, unless a consensual sexual relationship existed between the lawyer and client before the lawyer-client relationship commenced. In CA, there is an exception for sexual relations with a client who is the lawyer’s spouse or registered domestic partner. The rule does not permit the client to waive the conflict through informed consent.

Question 11

Duty of Loyalty: Potential Conflict of Interest

Answer 11

A conflict of interest (COI) arises when there is a significant risk that the representation of a client will be materially limited by the lawyer’s own personal interests. However, under both the MR and CA RPC, if there is a COI, a lawyer may undertake representation if (i) the lawyer reasonably believes that she will be able to provide competent and diligent representation, (ii) the representation is not prohibited by law, (iii) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same proceeding, and (iv) the affected client gives informed consent, confirmed in writing (MR) or informed written consent (CA RPC)

Question 12

Duty of Diligence

Answer 12

Under the MR, a lawyer must act with reasonable diligence and promptness in representing a client. Under the CA RPC, a lawyer must not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing a client. Under both the MR and CA RPC, a lawyer is generally required to be dedicated and committed to the interests of the client despite obstruction or inconvenience to the lawyer and must not neglect, disregard, or unduly delay a legal matter entrusted to the lawyer.

Question 13

Duty of Competence

Answer 13

Under the MR, a lawyer is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Under the CA RPC, a lawyer must not intentionally, recklessly, or repeatedly fail to perform legal services with competence, which requires (i) the learning and skill and (ii) mental, emotional, and physical ability reasonably necessary for the representation. An attorney who lacks the requisite level of competence may accept the representation if she can achieve competency by reasonable preparation or by associating with a more competent attorney in the field.

Question 14

Contingency Fee Agreement

Answer 14

Attorneys may charge a fee contingent on the outcome of the case. However, such fees are prohibited in criminal cases and most domestic-relations cases. Under the MR, to be valid, a CFA must be in writing, signed by the client, state the methodology for determining the fee, and provide details on deductions for expenses, including whether such expenses are to be deducted before or after the contingency fee is calculated.

Additionally, the CA RPC require the client to be given a duplicate copy of the agreement that is signed by both the lawyer and client.

Question 15

Duty to Report

Answer 15

Under the MR, a lawyer is required to report misconduct by another lawyer to the appropriate professional authority when the lawyer has actual knowledge of the misconduct, and it concerns material matters of clear and weighty importance that raise a substantial question as to the lawyer’s honesty or professional fitness.

The CA RPC require a lawyer, without undue delay, to inform the State Bar or an appropriate tribunal when the lawyer knows of credible evidence that another lawyer has engaged in misconduct.

Question 16

Threat to Gain Advantage

Answer 16

In CA, a lawyer must not threaten to bring criminal, administrative, or disciplinary charges in an effort to obtain an advantage in a civil dispute and will be subject to discipline for doing so. There is no specific counterDpart under the MR.

Question 17

Duty of Fairness

Answer 17

Under both the MR and CA RPC, a lawyer must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.

This rule prohibits a lawyer from “unlawfully” destroying evidence, meaning a lawyer may not do so for the purpose of impairing its availability in a proceeding.

Question 18

Duty to Communicate

Answer 18

Under the MR, a lawyer has a duty to keep the client reasonably informed of the status of their case. Under the CA RPC, a lawyer has a duty to keep the client reasonably informed about significant developments related to the representation.

Question 19

Permissive Withdrawal

Answer 19

Under the MR, a lawyer may seek to withdraw if he can do so without materially harming the client. Even when harm to the client may result, a lawyer may seek to withdraw under a variety of grounds, such as when the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent or the lawyer has a fundamental disagreement with, or when the client has made representation unreasonably difficult for the lawyer.

In California, a lawyer may not request to withdraw merely because the withdrawal would not materially harm the client, but may request to withdraw if the client insists on presenting a claim or defense not warranted under existing law and which cannot be supported by a good-faith argument, when the client has made representation unreasonably difficult for the lawyer, or when continuing the representation is likely to result in a violation of the CA RPC or the State Bar Act, among other reasons.

Question 20

Procedures for Withdrawal

Answer 20

The proper procedure for terminating representation is to first provide the client with reasonable notice before withdrawing in order to give the client a reasonable opportunity to obtain new representation. Further, if permission for termination of a representation is required by the rules of a tribunal, a lawyer must not terminate a representation before that tribunal without its permission. Upon termination of the representation, the lawyer must return all papers and property to which the client is entitled.

Question 21

Scope of Discovery

Answer 21

Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action. Admissibility of the evidence at trial is not considered in determining relevance for purposes of discovery, and information may be discoverable if it appears reasonably calculated to lead to the discovery of admissible evidence.

Question 22

Physical Examination

Answer 22

A party may seek to have the other party submit to an independent physical examination when that alleged injured party’s physical condition is in controversy. An order for a physical exam may be made only upon motion, for good cause shown, and the person to be examined and all parties must be given prior notice specifying the time, place, conditions, scope of the examination, and the identity of the examiner.

Question 23

Physician-Patient Privilege

Answer 23

The FRCP does not recognize a physician-patient privilege, and there is no common-law privilege covering statements made by a patient to a doctor. But many states protect such communications by statute so long as the communications were made for the purpose of obtaining medical treatment. However, the privilege is waived if (1) the patient’s physical condition is at issue or (2) the case was brought in federal court and state law does not apply. In civil cases filed in federal court based on diversity of citizenship, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. In California, statements made to a licensed physician are privileged, and the privilege applies whether the patient is seeking treatment or diagnosis.

Question 24

Demand for Jury Trial

Answer 24

Right to Jury Trial

The Seventh Amendment of the U.S. Constitution provides for the right to a jury trial in federal court in all “suits of common law” where the amount in controversy exceeds $20. The right extends to legal issues but not equitable issues. If the same case involves both legal and equitable issues, then the legal claims are normally tried first before the jury, and then the equitable claims are later determined by the court.

Timing for a Demand for a Jury Trial

Under Rule 38(b), any party may make a demand for a trial by jury. The demand must be in writing and served within 14 days after service of the last pleading directed to the issue that is sought to be tried by the jury. If not, a party waives the right to a jury trial.

Question 25

Prior Inconsistent Statement

Answer 25

A witness may be impeached with a prior inconsistent statement, which is a statement that was made prior to trial that is inconsistent with the witness’s in-court testimony.

Question 26

Duty of Confidentiality

Answer 26

Under the Model Rules (MR) and CA Rules of Professional Conduct (CA RPC), a lawyer is prohibited from disclosing information relating to the representation of a client, whatever its source, unless the disclosure is authorized by the informed consent of the client, impliedly authorized in order to carry out the representation, or an exception applies.

Exception: Compelled by Law

Under the MR, a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to comply with other law or a court order.

Exception: Consent

Under both the MR and the CA RPC, a lawyer may disclose confidential information if the client consents.

Exception: Substantial Bodily Injury or Death of a Person

Under the MR, disclosure is allowed if it would prevent reasonably certain death or serious bodily harm. The CA RPC allow, but do not require, disclosure when it is reasonably believed necessary to prevent a criminal act that the lawyer reasonably believes will result in substantial bodily harm or death.

Exception: To Prevent or Rectify Serious Financial Harm

The MR allows for disclosure if to do so would (i) prevent or rectify substantial injury to the financial interests or property of another and (ii) in furtherance of which the client has used or is using the lawyer’s services. However, California has no such exception.

Question 27

Quitclaim Deed

Answer 27

Unlike a warranty deed, a quitclaim deed promises no covenants of title. This means that the grantee receives no better title than what the grantor possessed at the time of the conveyance.

Question 28

Prior Restraint

Answer 28

A prior restraint is a regulation of speech that occurs in advance of its expression (e.g., publication or utterance). Prior restraints are generally presumed to be unconstitutional, with limited exceptions. These rare exceptions require at a minimum that: (i) there is a particular harm to be avoided (like publication of troop movements); and (ii) Certain procedural safeguards are provided to the speaker. Examples of such safeguards include: (a) The standards must be narrowly drawn, reasonable, and definite; (b) The censoring body must promptly seek an injunction; and (c) There must be a prompt and final judicial determination of the validity of the restraint. The burden is on the government to prove that the material to be censored is not protected speech.

Question 29

Unfettered Discretion

Answer 29

A law or regulation that permits a governmental official to restrict speech must provide definite standards as to how to apply the law in order to prevent governmental officials from having unfettered discretion over its application. Such a law or regulation must be related to an important governmental interest and contain procedural safeguards. A statute that gives officials unfettered discretion is void on its face.

Question 30

Obscenity

Answer 30

Obscene speech is not protected by the First Amendment Free Speech Clause. To be considered obscene, the average person, applying contemporary community standards, must find that the material, taken as a whole: (i) appeals to the “prurient interest”; (ii) depicts sexual conduct in a patently offensive way; and (iii) lacks serious literary, artistic, political, or scientific value.

Question 31

Warrantless Arrest Exceptions

Answer 31

Exception: Independent Source

An arrest made pursuant to a warrant that failed to satisfy the probable cause requirement is not illegal when the officer independently had probable cause for making the arrest.

Exception: Good Faith

If a police officer acts in good faith on a facially valid warrant that is later determined to be invalid, then the evidence seized will not be suppressed. However, the exception does not apply if the warrant was obtained by fraud.

Exception: Attenuation

If the chain of causation between the primary taint and the evidence has been so attenuated as to purge the taint, the evidence will not be suppressed. Both the passage of time and/or intervening events may attenuate the taint.

Exception: Search Incident to Lawful Arrest

Upon a lawful arrest based on probable cause, the police may contemporaneously search a person and areas within his wingspan. The police may also make a protective sweep of the area if they believe accomplices may be present.

Inevitable Discovery

Evidence would have been discovered through other untainted means

Question 32

Entrapment

Answer 32

Entrapment is the conception and planning of an offense by a law-enforcement officer, and his procurement of its commission by a defendant who would not have committed that offense except for the officer’s trickery, persuasion, or fraud. It requires a showing that (i) the crime was induced by a government official or agent, and (ii) the defendant was not predisposed to commit the crime. If a defendant is predisposed to committing the crime, then the entrapment defense is not available, even if the government agent has engaged in misconduct, such as by supplying contraband.

Question 33

Agency

Answer 33

Formation of Agency Relationship

Under contract law, an agent may negotiate and make contracts with third persons on behalf of a principal (such as a corporation). A contract made by an agent on behalf of a principal with a third person may be binding on the principal if the agent was authorized to enter into the contract. An agency relationship is created when: (i) a principal manifests assent to an agent; (ii) the agent acts on the principal’s behalf; (iii) the agent’s actions are subject to the principal’s control; and (iv) the agent manifests assent or otherwise consents.

Contractual Liability of the Principal

A principal is subject to liability on a contract that the agent enters into on the principal’s behalf if the agent has the power (or authority) to bind the principal to the contract. An agent has the power to bind the principal to a contract when: (i) the agent has actual authority (express or implied); (ii) the agent has apparent authority; or (iii) the principal is estopped from denying the agent’s authority. In addition, even if an agent acts with no power to bind the principal, the principal can become subject to liability on the contract if the principal ratifies the contract.

Express Actual Authority

Express actual authority can be created via: (i) oral or written words; (ii) clear, direct, and definite language; or (iii) specific detailed terms and instructions. For express (actual) authority to exist, the principal’s manifestation must cause the agent to believe that the agent is doing what the principal wants (subjective standard), and the agent’s belief must be reasonable (objective standard).

Implied Actual Authority

Implied actual authority allows an agent to take whatever actions (designated or implied in the principal’s manifestations) are properly necessary to achieve the principal’s objectives, based on the agent’s reasonable understanding of the manifestations and objectives of the principal. A principal may manifest assent to the actions of his agent by placing the agent in a position that customarily has certain authority, such as vice president or treasurer.

Apparent Authority

Apparent authority derives from the reasonable reliance of a third party on that party’s perception of the level of authority granted to the agent by the principal. The perception is based on the principal’s behavior over a period of time.

Ratification

A principal can ratify an act performed by another person, whether or not the person is an actual agent of the principal. Ratification occurs when a principal affirms a prior act that was done or purported to be done on the principal’s behalf. The principal’s affirmation may be either express or implied (such as through conduct), and consideration is not required. If the principal ratifies the agent’s action, then the principal is bound just as if the action had been authorized at the time it occurred.

Question 34

Trespass to Land

Answer 34

Trespass to land occurs when the defendant’s intentional act causes a physical invasion of the land of another. A defendant need only have the intent to enter the land, not the intent to commit a wrongful trespass.

Defense: Consent

A plaintiff’s consent operates as a defense to a defendant’s trespass. However, the consent is strictly construed, and if the defendant exceeds the scope of consent and does something substantially different, he may be liable even if given consent to enter the land.

Question 35

Continuing Trespass

Answer 35

A continuing trespass occurs when the offending person or object remains on the property of the person entitled to possession.

Defense - consentT

Question 36

Tort Damages

Answer 36

Causation

For a plaintiff to be entitled to damages, the defendant must have caused the plaintiff’s injury. Actual causation is met if the plaintiff would not have suffered the injury but for the defendant’s behavior.

Proximate cause is not normally required for damages resulting from the intentional tort of trespass to land since proximate cause is typically limited to negligence, but if the jurisdiction requires it, it is met if the injury is a foreseeable result and there is no intervening, superseding cause that would break the chain of causation.

Nominal Damages

The plaintiff is entitled to nominal damages when the defendant commits a trespass to land. Actual harm to the land is not required.

General Damages

When there is harm to real property caused by the defendant’s trespass, the plaintiff is entitled to damages. The damages may be measured by either (i) the cost to repair the injury or to replace the destroyed property plus any recovery for the loss of the use of the property, or (ii) the diminution in the fair market value of the property.

Question 37

Trespass to Chattels

Answer 37

A defendant is liable for trespass to chattels if he intentionally interferes with the plaintiff’s right of possession by either (i) dispossessing the plaintiff of the chattel; or (ii) using or intermeddling with the plaintiff’s chattel. Only the intent to do the interfering act is necessary; the defendant need not have intended to interfere with another’s possession of tangible property. The doctrine of transferred intent applies to trespass to chattels.

Question 38

Conversion

Answer 38

A defendant is liable for conversion if he intentionally commits an act depriving the plaintiff of possession of his chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel. The defendant must only intend to commit the act that interferes; intent to cause damage is not necessary. Transferred intent does not apply to conversion – the defendant must have intended to exercise control over the particular personal property.

Question 39

Kidnapping

Answer 39

• the intentional and unlawful confinement of another
• against that persons will
• coupled with either moving or hiding that person

A perp need only move the victim a short distance - even a few feet - to satisfy the movement element. However, for a kidnapping to occur incident to the commission of another offense, the movement of the victim must be more than is necessary to complete the other offense. Otherwise, the perp cannot be convicted of kidnapping

Question 40

Checkpoints

Answer 40

Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. A roadblock to perform sobriety checks has been upheld, while a similar roadblock to perform drug checks has not.

Question 41

Automobile Exception

Answer 41

The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of a criminal activity. The police may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers, so long as they have probable cause to do so. The search may also extend to passengers’ belongings, and any other evidence observed in plain view may also be seized.

Question 42

Consent (Crim)

Answer 42

Consent can serve to eliminate the need for police to have probable cause as well as to first obtain a warrant in order to conduct a search. For permission to constitute consent, the permission must be given voluntarily. In determining whether a person’s response constitutes consent, courts evaluate the totality of the circumstances in which the response is made. The failure by police to inform the person from whom consent is sought that she has the right to withhold consent does not invalidate the consent.

Question 43

Administrative Searches

Answer 43

The government may not use administrative searches to investigate criminal activity. However, discovery of evidence during the search does not invalidate the search. Valid vehicle checkpoints and roadblocks are administrative-type searches that may be made without a warrant.

Question 44

Larceny

Answer 44

Larceny is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive that person of the property.

Trespassory

The property must be taken without the owner’s consent.

Taking

The taking requirement is satisfied by any trespassory removal of the property from the owner’s possession into another’s control.

And Carrying Away

The carrying away requirement is satisfied by even a slight movement of the property.

Personal Property of Another

The property taken must be personal, not real, property and be in the possession of someone other than the defendant.

With Intent to Permanently Deprive

Larceny is a specific intent crime. Thus, the intent to permanently deprive the owner of the property must be present at the time of the taking.

Question 45

Embezzlement

Answer 45

Embezzlement is the fraudulent conversion of the property of another by a person who is in lawful possession of the property

Fraudulent

The defendant must intend to defraud the owner of the property.

Conversion

Conversion is the inappropriate use of property, held pursuant to a trust agreement, which causes a serious interference with the owner’s rights to the property. Interference with the owner’s rights to the property can be caused by selling the property, damaging it, or unreasonably withholding possession. The defendant need not personally benefit from the conversion. No movement or carrying away of the property is required.
- Generally, an owner is not required to make a demand for the return his property to establish conversion. However, if it is unclear whether property has been converted or the defendant is not obligated to return the property until a demand has been made, then, to establish conversion, the owner may have to prove both a demand for return of the property and the defendant’s failure to comply.

Of the Property

Property that is subject to larceny is also subject to embezzlement. Here, the gun is a piece of property and therefore is subject to embezzlement.

Of Another

The property embezzled must belong to another.

Lawful Possession of the Property

The embezzler must be in lawful possession of the property at the time that the intent to defraud occurs, although some states limit embezzlement to property entrusted to the embezzler.

Question 46

Negligence Per Se

Answer 46

Standard of Care

Alternatively, a statute could establish the applicable standard of care. For an individual to be held to the standard of care set forth in a statute instead of the general duty owed, the plaintiff must prove that she is in the class of people the statute is designed to protect and that she suffered the type of injury the statute protects against.

Question 47

CA Undue Influence in Trusts

Answer 47

California statutes define undue influence as excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and that results in inequity. The court must consider four factors in determining whether undue influence has been exercised: (i) the vulnerability of the victim, (ii) the influencer’s apparent authority, (iii) the actions or tactics used by the influencer, and (iv) the equity of the result. Once a will is determined to have been the product of undue influence, it may be invalidated in whole or in part, as long as the overall testamentary scheme is not altered thereby.

Vulnerability of the Victim

Evidence of vulnerability may include, but is not limited to, incapacity, illness, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency where the influencer knew of, or should have known of, the alleged victim’s vulnerability.

Influencer’s Authority

Evidence of apparent authority may include but is not limited to, status as a fiduciary, family member, care provider, health care or legal professional, spiritual adviser, expert, or other qualification.

Influencer’s Conduct

Evidence of conduct may include, but is not limited to the following: (i) controls necessaries of life, medication, the victim’s interactions with others, access to information, or sleep; (ii) use of affection, intimidation, or coercion; (iii) initiation of changes in personal or property rights and use of haste or secrecy in effecting those changes.’’’’’

Evaluating the Equity

Lastly, in evaluating the equity of the result, the court may look at the economic consequences to the victim, any divergence from the victim’s prior intent, or the appropriateness of the change in light of the length and nature of the relationship, among other considerations.

Question 48

Traditional Undue Influence in Trusts

Answer 48

Under the majority view, the undue influence doctrine requires the following elements, all four of which must be shown: (i) susceptibility (the testator was susceptible to being influenced); (ii) motive or predispoOsition (the influencer had reason to benefit); (iii) opportunity (the influencer had the opportunity to influence); and (iv) causation (the influencer caused an unnatural result).

Question 49

Omitted Child

Answer 49

If a decedent fails to provide for a child born or adopted after the execution of the will, the omitted child receives a share equal to that which the child would have received if the decedent had died intestate.

Question 50

CA Statutory Presumptions

Answer 50

California has created additional categories of people subject to a statutory presumption of undue influence. One such category applies to care custodians of a testator who is a dependent adult, if the will was executed when services were provided or within 90 days thereafter. The presumption may be rebutted by clear and convincing evidence that the gift was not the product of fraud or undue influence. However, this statutory presumption does not apply to persons who were related to or living with the testator.

Question 50

Integration and Incorporation

Answer 50

Integration

Under the doctrine of integration, a will consists of all pages that are present at the time of execution and intended to form part of the will. This intent can be shown by the physical connection of the pages or the ongoing nature of the will’s language.

Incorporation by Reference

At common law, a will may incorporate by reference another writing not executed with testamentary formalities if that writing (1) existed at the time the will was executed, (2) is intended to be incorporated, and (3) is described in the will with sufficient certainty as to permit its identification.

Question 51

Defamation

Answer 51

Libel (written) or slander (spoken)

• The D knowingly made a false statement aobut the P OR negligently failed to determine its falsity
• the statement was defamatory, meaning that the type of statement would tend to harm the Ps reputation
• the D intentionally or negligently communicated the statement to a third party
• the statement caused the P to suffer special damages or amounted to slander per se

a statement is harmful to the Ps reputation if it either diminshes, respect, esteem or goodwill toward the P, or deters others from associating with theP

Question 52

Transmutation

Answer 52

A transmutation is the spousal transformation of the character of property from CP to SP, from SP to CP, or from the SP of one spouse to the SP of the other spouse. Prior to January 1, 1985, oral agreements to transmute property, as well as donative acts inferred from one or both parties’ behavior to transmute property, were allowed. As of January 1, 1985, transmutations must be evidenced by an express declaration in writing that is signed or accepted by the spouse whose interest is adversely affected.

Exception: Gift

An exception to the transmutation writing requirement occurs when the property being transmuted is a personal gift. In order for this exception to apply the gift must (i) be between spouses; (ii) be personal in nature (such as clothing, apparel, or jewelry) used solely or principally by the spouse to whom the gift is made; and (iii) be of insubstantial value under the circumstances of the marriage.

Question 53

Stock Option Profits

Answer 53

The characterization of stock options depends upon the type of compensation they are designed to replace. To the extent stock options were earned during the MEC, the community is entitled to a share in the value. In calculating the share to which the community is entitled for stock options that are granted during the marriage but are not exercisable until after the MEC has ended, courts have applied one of two formulas based upon the intent of the employer - whether they were given as a reward for past efforts (or to attract a new employee) or as a retention incentive.

Intent: Past Efforts

If the stock options are given to compensate an employee for past services or used to attract a new employee, courts will apply the Hug formula to calculate the MEC’s fractional share of the stock options. The CP interest is calculated by taking the difference time between the date of hire (“DOH”) and the date of the separation (“DOS”) and dividing it by the difference between the DOH and the date the options vest and become exercisable (“DOV”).

(DOH – DOS) / (DOH – DOV) x # of shares = CP

Intent: Retention Incentive

If the stock options are given to incentivize continued employment, the court will apply the Nelson formula. The CP interest is calculated by taking the difference between the date of grant (“DOG”) and the DOS and dividing it by the difference between the DOG and the DOV.

(DOG – DOS) / (DOG – DOV) x # of shares = CP

Question 54

Anti-Commandeering

Answer 54

Congress may generally regulate the states so long as it is exercising one of its enumerated powers, including its very broad power to spend for the general welfare—i.e., for any public purpose. This is true even when Congress uses its spending power to encourage state action that it cannot directly compel. However, the anti-commandeering doctrine of the Tenth Amendment places five limitations on this type of Congressional encouragement:

1. The exercise of spending power must be for the general welfare (i.e., any public purpose) with great deference given to Congress in its judgment.
2. The condition must be unambiguous.
3. The condition must relate to the federal interest in particular national projects or programs.
4. The condition must not induce the states to act in an unconstitutional manner.
5. The condition may not exceed the point at which “pressure turns into compulsion.”

Question 55

Public Nuisance

Answer 55

Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community. Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large.