Northern District of California Blog

Question 5 - The Angry Decedent Strikes Again Wills

2012-10-07T16:50:00.000-07:00

This question I would rate as a fastball. There are a lot of issues to fly through, but they are the same issues tested in virtually every Wills question since 1980. If you studied the California Probate Code (CPC) you probably did fine. This is a very similar question to February 2011 Question 1.

Note that the call of the question asks about Dot and Sam, if you thought Church got anything you hard derailed.

From the California State Bar:

In 2004, Mae, a widow, executed a valid will, intentionally leaving out her daughter, Dot, and giving 50 per cent of her estate to her son, Sam, and 50 per cent to Church.

In 2008, after a serious disagreement with Sam, Mae announced that she was revoking her will, and then tore it in half in the presence of both Sam and Dot.

In 2010, after repeated requests by Sam, Mae handwrote and signed a document declaring that she was thereby reviving her will. She attached all of the torn pages of the will to the document. At the time she signed the document, she was entirely dependent on Sam for food and shelter and companionship, and had not been allowed by Sam to see or speak to anyone for months. By this time, Church had gone out of existence.

In 2011, Mae died. Her sole survivors are Dot and Sam. What rights, if any, do Dot and Sam have in Mae’s estate? Discuss.

I'll do that after the jump.

I. Assuming that the first will is utilized, Dot and Sam share the estate.

The issue is how property is distributed if the first will governs. Under the common law rule of lapse, if a beneficiary of a testator's will predeceased the testator, any bequests to the beneficiary would lapse (i.e., fail), and would fall into the residuary of the will (the block of remaining property after all specific, general, and demonstrative devises). Here, Church "had gone out of existence" by 2010, well before Mae died causing the gift to Church to fail.

The successors of Church may argue that the gift may be saved under California's antilapse statute. Under the statute, a bequest will not lapse if (1) if is to the testator's kindred, or kindred of a former spouse; and (2) the beneficiary leaves issue. Here, Church is not Mae's kindred or kindred of a former spouse because Mae's "sole survivors are Dot and Sam" even assuming Church was related to one of them, the gift would go to the nearest survivor and not the relative.

The gift to Church lapses and is placed in the residuary of the estate. The residuary would be distributed through the laws of intestacy and half of Church's gift would go to Dot while half of Church's gift would go to Sam. Thus, Sam receives 75% of the estate and Dot receives 25% of the estate. While Sam may argue that Mae's removal of Dot reflects her present intent not to give anything to Dot, that does not affect the disposition of the residuary clause under the laws of intestacy, absent a provision to the contrary.

II. Mae revoked her first will by destruction.

The issue is whether Mae revoked her first will by tearing it to pieces. A will or any part thereof is revoked by any of the following: (a) A subsequent will which revokes the prior will or part expressly or by inconsistency. (b) Being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator's presence and by the testator's direction. Since Mae tore the will she revoked it and the will is no longer valid.

Therefore, Mae effectively revoked the will.

III. Mae's writing is not a holographic will because the material terms are not in her handwriting, however it may revive the revoked will under dependent relative revocation.

The issue is whether Mae's subsequent writing revives her prior will. Dot can argue that Mae's writing does not contain material terms in Mae's own writing because those terms are included in typed yet torn pages of the previous will. Sam can respond that, notwithstanding the holographic will difficulties, under the doctrine of dependent relative revocation, a will which the testator revokes by physical act in anticipation that a subsequent will would be valid may nonetheless be admitted to probate if the subsequent will turns out to be invalid. Even though there is a failing on the part of the holographic will to comply with formalities it nonetheless is adequate to revive the prior will.

Next, after Jan. 1, 2009, a will which complies with the signature and writing requirements, but fails to comply with the witnessing requirements, may nonetheless be admitted to probate if the proponent of the will is able to produce clear and convincing evidence that the testator intended the document to be her will. Here, Dot can explain that Mae, "was entirely dependent on Sam for food and shelter and companionship, and had not been allowed by Sam to see or speak to anyone for months." This indicates that Mae is dependent on Sam and would do anything for him, and Sam will fail to produce clear and convincing evidence to the contrary.

Finally, Dot's best argument for invalidating the will is that Mae lacked the testamentary capacity and intent to create the will because of undue influence. Dot will point to extrinsic evidence that Mae was reliant on Sam for her daily life functioning and that Sam was in a guardian/ward relationship with his mother. This position of trust raises a presumption of undue influence to which Sam faces a clear and convincing evidence burden to rebut. As noted above, he cannot do this.

Therefore all wills are invalid, and all property passes through the intestacy. Sam will get half and Dot will get half.

Question Four: Who wants to be a Dental Hygienist (Contracts, Remedies)

2012-10-07T00:16:00.001-07:00

Question Four is a pretty standard contracts and remedies question. I score this one as a curveball because you have to untangle the contract mess in order to get to the remedies question. I provided a pair of pretty good strategies for handling these kinds of questions a little over a year ago:

With general inquiries in contract questions there are two basic ways to approach the question. Dan Shemer, who taught my first bar review in Maryland liked the pneumonic: Until Fall Test Pressure Exhaustion Both Threaten Romance (UCC, Formation, Terms, Performance, Breach, Third Parties, Remedies). Another strategy is to consider the elements for a breach of contract in California: 1) A valid contract 2) plaintiff’s performance 3) defendant’s breach and 4) damages. I think you could use either here successfully.

From the California State Bar:

Peter responded to an advertisement placed by Della, a dentist, seeking a dental hygienist. After an interview, Della offered Peter the job and said she would either: (1) pay him $50,000 per year; or (2) pay him $40,000 per year and agree to convey to him a parcel of land, worth about $50,000, if he would agree to work for her for three consecutive years. Peter accepted the offer and said, “I’d like to go with the second option, but I would like a commitment for an additional three years after the first three.” Della said, “Good, I’d like you to start next week.”

After Peter started work, Della handed him a letter she had signed which stated only that he had agreed to work as a dental hygienist at a salary of $40,000 per year.

After Peter had worked for two years and nine months, Della decided that she would sell the parcel of land and not convey it to him. Even though she had always been satisfied with his work, she fired him.

What rights does Peter have and what remedies might he obtain as to employment and the parcel of land? Discuss.

Of course, we will do that after the jump.

I. The Common Law governs the relationship between Peter and Della since this is a common law contract.

The issue is whether this interaction is governed by the Uniform Commercial Code (UCC) or the common law. Contracts for the sale of goods are governed by the UCC. Employment contracts and land sale contracts are governed by the common law. This is either an employment contract, a contract for the sale of land or both. Therefore, the common law applies.

II. Peter and Della formed a bilateral contract.

The issue is whether Peter and Della formed a contract. A contract requires an offer, acceptance and consideration. An offer is a promise to do something or to refrain from doing something conditioned on the offeree’s acceptance. An oral offer lasts until the end of the conversation. Acceptance is a voluntary act of the offeree where the offeree exercises the power conferred by the offer. Consideration is a legally sufficient detriment to make a contract a binding obligation instead of a gift.

Here, Della promised to either (1) pay Peter $50,000 per year; or (2) pay Peter $40,000 per year and agree to convey to him a parcel of land, worth about $50,000 in exchange for his labor as a Dental Hygienist for three consecutive years. Della may argue that this is not a valid offer since terms were proposed in the alternative and were not sufficiently definite and that this was merely an agreement to seek further agreement. Peter can respond that these terms were sufficiently specific as to the services to perform and that the only vague point was compensation which Peter clarified within the same conversation. Peter's argument will prevail because the term did not render the contract so indefinite as to indicate that the parties had not agreed.

Next, Della can argue that Peter's response to her offer constituted a counteroffer and rejected her offer in its entirety. Peter can respond that even if that was true, Della accepted the counteroffer and a contract was created anyway. Again, Peter prevails because the parties agreed that Peter should work for Della in exchange for some compensation to be clarified below.

Finally, the last formation issue is whether this is a unilateral or bilateral contract. The critical difference being that a unilateral contract can be cancelled by a party at any time prior to full performance and a bilateral contract cannot be cancelled after performance begins. A bilateral contract involves both parties giving consideration in exchange for performance. Here Della is promising money and Peter is promising labor, that's a bilateral contract. Della can argue that this is an installment contract that involves three one-year terms, even if that is true she cannot cancel the contract after the beginning of each one-year period.

III. The Statute of Frauds Prevents enforcement of the land sale provision (but see IV below).

The issue is whether, assuming a contract exists, the statute of frauds prevents its enforcement. The statute of frauds states that contracts for the sale of land, or contracts for personal services that will last more than a year, must be in writing unless an exception applies. Della can argue that the agreement was for money and that she never signed a contract that could be enforced against her. Peter can respond that this was a contract for personal services for three one-year periods, since each period could be completed within a year, they do not, in the aggregate, frustrate the statute of frauds. Peter’s argument fails, since the oral agreement contains an interest in land, that portion must be in writing sufficient to satisfy the statute of frauds.

IV. Promissory Estoppel brings the interest in land back into play.

The issue is whether promissory estoppel remedies all of the problems heretofore listed for Peter. Courts will enforce a contract where a plaintiff has relied on a representation of the defendant to his detriment. Here, Peter believed that he had elected a lower salary in exchange for an interest in land in three years. Della was aware he believed this and removed that portion from the written agreement. However, Peter never signed the agreement only Della did. Therefore Della cannot use this writing as a memorial of the agreement and cannot invoke the parole evidence rule. Peter's reliance on Della's promise was reasonable he took $30,000 less in salary for a $50,000 parcel of land. Therefore, Peter c an use promissory estoppel to enforce the interest in land clause of the agreement.

V. Remedies: Peter can obtain salary for the rest of the year.

The issue is whether Peter can obtain his salary for the final quarter of the year he was fired. As noted above, a bilateral contract cannot be terminated once performance begins. Therefore, since Della "had always been satisfied with his work" Peter was performing and Della is obligated to perform as well. Since Peter's quarterly salary is $10,000. Peter is entitled to $10,000.

VI. Remedies: Peter can obtain the land by specific performance.

The issue is whether Peter can obtain the land by specific performance. Specific performance is available when (1) legal remedies are inadequate; (2) the underlying contract that reasonable, supported by adequate consideration and contains definite terms so that the court knows what to enforce; (3) the existence of a mutuality of remedies; and (4) a substantial similarity of the requested performance to that promised in the contract.

Peter can argue that legal remedies are inadequate because all parcels of land are unique and that the parcel here is a unique remedy for which monetary compensation is insufficient. Next, he can argue that the contract was valid as noted above. Della can respond that mutuality of remedies cannot exist in employment contracts because she could not have compelled Peter to finish working because Courts are reluctant to require a person to labor. Peter can respond that in land for labor cases mutuality is not so rigidly enforced for the laborer. Peter's argument is correct because case law loosely enforces mutuality requirements. Finally, Peter substantially performed by working 75% of the year.

Therefore Peter should be able to obtain the parcel of land by specific performance.

Question 3: Can I get a witness? (California Evidence) California Bar Exam

2012-10-07T00:16:00.000-07:00

This is the first of three criminal questions on this test, the most in recent memory since criminal subjects are rarely tested compared to torts and constitutional law. This question is probably to calibrate the testing group since virtually the same issues were asked in July 2010 question 3.

Vicky was killed on a rainy night. The prosecution charged Dean, a business rival, with her murder. It alleged that, on the night in question, he hid in the bushes outside her home and shot her when she returned from work.

At Dean’s trial in a California court, the prosecution called Whitney, Dean’s wife, to testify. One week after the murder, Whitney had found out that Dean had been dating another woman and had moved out, stating the marriage was over. Still angry, Whitney was willing to testify against Dean. After Whitney was called to the stand, the court took a recess. During the recess, Dean and Whitney reconciled. Whitney decided not to testify against Dean. The trial recommenced and the prosecutor asked Whitney if she saw anything on Dean’s shoes the night of the murder. When Whitney refused to answer, the court threatened to hold her in contempt. Reluctantly, Whitney testified that she saw mud on Dean’s shoes.

The prosecution then called Ella, Dean’s next-door neighbor. Ella testified that, on the night Vicky was killed, she was standing by an open window in her kitchen, which was about 20 feet from an open window in Dean’s kitchen. She also testified that she saw Dean and Whitney and she heard Dean tell Whitney, “I just killed the gal who stole my biggest account.” Dean and Whitney did not know that Ella overheard their conversation.

Dean called Fred, a friend, to testify. Fred testified that, on the day after Vicky was killed, he was having lunch in a coffee shop when he saw Hit, a well-known gangster, conversing at the next table with another gangster, Gus. Fred testified that he heard Gus ask Hit if he had “taken care of the assignment concerning Vicky,” and that Hit then drew his index finger across his own throat.

Assuming all appropriate objections and motions were timely made, did the court properly:

1. Allow the prosecution to call Whitney? Discuss.

2. Admit the testimony of:
(a) Whitney? Discuss.
(b) Ella? Discuss.
(c) Fred? Discuss.

Answer according to California law.

I. Whitney should not have to testify because she has spousal privilege.

The issue is whether Whitney has a privilege not to testify against Dean. In California, a married person has a privilege not to testify against his spouse in any proceeding unless an exception applies. Here, Whitney and Dean are married and Whitney invoked her spousal privilege because she "decided not to testify against Dean" and "refused to answer" questions. The prosecution can argue that this silence is not adequate to invoke a privilege which must be asserted affirmatively.

Assuming that argument prevailed the prosecution has a further hurdle to cross since a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege under this section unless the party calling the spouse does so in good faith without knowledge of the marital relationship. Here, the prosecution knows that Whitney and Dean are married and must affirmatively seek Dean's consent to call Whitney. This failure to do so should result in Whitney being unable to testify.

IIA. If Whitney does testify her testimony is admissible because it is relevant and is based on personal observation.

Whitney's statement has logical and legal relevance because it tends to shoe that Dean was outside at the time of the murder.

For evidence to be admissible it must be relevant which, under California law, is any evidence that has any tendency to make any fact of consequence, that is at issue, more or less probable than it would be without such evidence. Under Proposition 8 of the California Constitution (hereafter Prop. 8), any evidence that is relevant may be admitted in a criminal case. However, Prop. 8 makes an exception for balancing under California Evidence Code (hereafter CEC) 352, which gives a court discretion in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion of issues, or misleading the jury.

Whitney's statement has logical and legal relavance because the mud on Dean's shoes tends to prove that he was outside on "a rainy night" which would have been necessary to place him at the scene of the crime.

Whitney has personal knowledge because she saw Dean's shoes.

A witness may only testify as to those matters to which one has personal knowledge, in that one must have perceived the matter in some manner, such as by hearing or observing it. Here, Whitney saw Dean's shoes and has personal knowledge of their state satisfying this requirement.

Since Whitney has personal knowledge of a relevant observation she may testify as to that observation.

IIB. Ella's statement is admissible because Dean's admission is an exception to the rule against hearsay and the criminal nature of the statement voids the marital communication protection.

Ella's statement possesses Logical/Legal Relevance and personal knowledge because she observed Dean admitting to kill Vicky.

The statement is relevant because it tends to show that Dean admitted to killing Vicky to his wife. Since Ella observed the statement she is certain of its source giving her personal knowledge of a logially and legally relevant statement.

Ella's statement does not violate the rule against hearsay because Dean's statement is an admission by an opponent of the prosecution.

Hearsay is an out of court statement offered for the truth of the matter asserted. However, in California admissions by one party may be offered by the other party as an exception to this rule. While Ella is reporting an out of court statement offered for its truth, since Dean is apparently admitting that he killed someone it is an exception to the rule against hearsay.

Ella's statement does not violate the martial communication exception because Dean's statement was made in furtherance of a crime.

Communications intended to be confidential made between spouses during marriage are not admissible unless an exception applies. An exception applies to spouses when the communication relates to a crime or fraud. Here, Dean may claim that he and Whitney intended their solitary late night discussion to be private. Even if that were true, the communication about how he "just killed the gal" relates to the crime of murder. Therefore the marital communication exception does not apply.

Therefore, Ella's statement is admissible because Dean's admission is an exception to the rule against hearsay and the criminal nature of the statement voids the marital communication protection.

IIC. Fred's statement violates the rule against hearsay and is inadmissible.

Fred's statement has Logical and Legal Relevance because it tends to show that Hit killed Vivky and not Dean.

As a preliminary manner, the issue is whether the hand motion is an action and a statement or a complete statement. A statement is present when conduct tends to create a message. Here the finger movement, is meant to convey a message and the entire action is a statement. The statement, if true can tend to show that someone other than Dean killed Vicky, which exonerates Dean and meets the requirements of logical and legal relevance.

Fred's statement violates the rule against hearsay because the meaning of Hit's statement cannot be discerned without Hit's testimony.

Hearsay is defined above. An exception to the rule against hearsay applies to unavailable declarants who make statements against penal interest. Here, admitting to killing Vicky is against Hit's penal interest. However, it is not immediately clear whether Hit is unavailable. Even if he cannot be located the statement still fails as to the rule against hearsay because only the declarant can explain what he meant. Any other interpretation of the situation is too speculative.

Therefore, since Fred's statement violates the rule against hearsay it is inadmissible.

Question 2: When Hal met Wendy (Community Property) California Bar Exam

2012-10-07T00:15:00.001-07:00

This is a fastball question, which was kind of funny. How many unpaid lawyers out there would love to be able to get mortgages on client property in exchange for legal services? Actually California permits this in divorce proceedings (CFC 1102e). Who knew?

Wendy and Hal are married and live in California. A year ago, Wendy told Hal that she would not tolerate his drinking any longer. She insisted that he move out of the family home and not return until he completed an alcohol treatment program. He moved out but did not obtain treatment.

Last month, Hal went on a drinking spree, started driving, and struck a pedestrian. When Wendy learned of the accident, she told Hal that she wanted a divorce.

Hal has consulted Lawyer about defending him in a civil action filed by the pedestrian. He is currently unemployed. His only asset is his interest in the family home, which he and Wendy purchased during their marriage. Lawyer offered to represent Hal if Hal were to give him a promissory note, secured by a lien on the family home, for his fees. Hal immediately accepted.

1. Is Wendy’s interest in the family home subject to damages recovered for injuries to the pedestrian? Discuss. Answer according to California law.

2. Is Wendy’s interest in the family home subject to payment of Hal’s legal fees? Discuss. Answer according to California Law.

3. What, if any, ethical violations has Lawyer committed? Discuss. Answer according to California and ABA authorities.

I. Community Property

California is a community property state. All property and debts obtained in marriage is community property, except (i) property acquired prior to marriage; (ii) property acquired during marriage by gift or inheritance; and (iii) property designated as nonmarital through an agreement between spouses.. All property obtained by either spouse either before the marriage or after separation is separate property. At divorce, each spouse is entitled to half of the community property and all of their separate property unless an exception applies.

Here, "Wendy and Hal are married...." Therefore community property laws apply. They never divorced and never separatated. However, Hal did "move[] out." This is considered "living separately" under the California Family Code (CFC).

II. Wendy's interest in the home.

The issue is whether Pedestrian (P) can attach a money judgment to Wendy's interest in the family home. Generally, the debts (such as tort judgments) of one spouse can be attached to any community property. However, when "living apart" leads to "divorce" or separation, it is considered the constructive end of the marriage for the purpose of creditor. Generally, Wendy's interest could not be touched. However, if Hal and Wendy reconciles then they are no longer living apart and Wendy interest can be attached. The disposition of this issue depends on future events that have yet to unfold.

III. Wendy v. Lawyer

The issue is whether a spouse can mortgage the entire community property without another spouse being aware of this. California does not allow only one spouse to encumber property for more than one year without the consent of the other spouse (CFC 1102). Therefore the conveyance is invalid and Lawyer has no rights to Wendy's interest in the house.

IV. Lawyer issues

The issue is whether Lawyer violated the ABA Model Rules (MR) or California rules (CR). Both MR and CR prevent a lawyer from using his position of influence to have an inverse adverse to a client. Here, MR forbids a lawyer from having a simultaneous interest in property with a client without signed informed consent stating that the client had an opportunity to speak with another attorney. CR forbids a lawyer from taking an interest in a community asset except as payment for a dissolution action. Lawyer has violated CR and MR by, at the very least, failing to obtain informed consent before entering into this self-interested transaction because Hal "accepted immediately".

Question 1: Red Car Hits Blue Car (Civil Procedure) California Bar Exam

2012-10-07T00:14:00.000-07:00

This is a change-up federal civil procedure question. Personal and subject matter jurisdiction have been tested many times, if you had some flash cards with the rules on them you were probably fine. New to CBX is the issue of appellate standards of review.

One point of severe nastiness that I want to indicate. The facts of the subject matter jurisdiction question are very similar to J. McIntyre Machinery, Ltd. v. Nicastro, which was decided a month before the bar exam. If you believed the bar review companies who tell you that examiners do not test you on recently decided issues you were misled. Alternately, the court was divided and both sides have strong arguments, so if you went either way with it you are probably fine.

The strategy point here is how to handle your time. This question probably took 35-45 minutes to write. I would recommend finishing early and moving on. If you read ahead, you probably noticed that question three is the fastball and you are going to need to make up time somewhere for it.

From the California State Bar:

Pam and Patrick are residents of State A. While visiting State B, they were hit by a truck owned and operated by Corporation, a freight business.

Corporation is incorporated under the laws of Canada and has its headquarters there, where its President and Secretary are located. State B is the only state in which Corporation conducts its business. Corporation’s drivers and other employees work out of its warehouse in State B.

Pam and Patrick jointly filed a lawsuit against Corporation in federal district court in State A. In their complaint, Pam demanded damages for personal injury in the amount of $70,000 and for property damage in the amount of $10,000; Patrick demanded damages in the amount of $6,000.

Corporation filed a motion to dismiss the complaint for lack of personal jurisdiction. The federal district court denied the motion. After trial, it entered judgment for Pam in the amount of $60,000 and for Patrick in the amount of $4,000.

Corporation has appealed on the grounds of lack of subject matter jurisdiction and lack of personal jurisdiction.

How should the court of appeals rule on each ground? Discuss.

I would start with appellate standards of review and then take each issue individually.

I'll discuss after the jump.

I. The Court of Appeals reviews issues of law, such a personal and subject matter jurisdiction de novo.

The issue is the standards of review of the Court of Appeals (COA). The COA reviews the issues of law decided by a lower court de novo. Since personal jurisdiction (PJ) and subject matter jurisdiction (SMJ) are issues of law they will be reviewed de novo.

As a rule of prudence, COA will only review issues raised at the trial court, except for SMJ, which must be present at all stages of litigation. Corporation (C) raised PJ and SMJ in its motion to dismiss at the district court and therefore can raise these issues on appeal.

Therefore, COA will review personal and subject matter jurisdiction de novo.

II. SMJ exists because diversity jurisdiction exists because the plaintiffs and defendant are from different states and the amount in controversy exceeds $75,000.

Federal courts have jurisdiction over cases and controversies arising under the laws and treaties of the United States and actions where the parties meet the requirements of diversity jurisdiction. Federal courts have diversity jurisdiction when 1) all of the plaintiffs and all of the defendants are citizens of different states and 2) the amount in controversy exceeds $75,000.

A corporation is a citizen of two states: where it is incorporated and where its principal place of business is located. Here, C is a citizen of Canada because it "is incorporated under the laws of Canada and has its headquarters there, where its President and Secretary are located." Individuals can be citizens where they are domiciled. Here, "Pam and Patrick [collectively 'P'] are residents of State A." Therefore, P are citizens of State A. Therefore, since C is a citizen of a different state than P, the diversity of citizenship requirement is satisfied.

The amount in controversy claimed by the plaintiff will control if made in food faith, unless it appears to a legal certainty that the claim is really less than the jurisdictional amount. The claims of two plaintiffs can be aggregated to reach the jurisdictional amount unless the claims are "separate and distinct." The inability of the plaintiff to recover an adequate amount to give the court jurisdiction does not show bad faith or oust the court's jurisdiction. Here, Pam claimed $70,000 in personal injury and $10,000 property damage while Patrick claimed unspecified damages of $6,000. For a tort claim, these numbers appear to be made in good faith and are relatively close to the actual numbers discerned by the court's judgment. If C tries to argue that the court lost jurisdiction for entering a low judgment, that argument will fail because the aggregated amount has "legal certainty" in that it is within the realm of the court's authority to grant and the claims are not "separate and distinct" because they arose from the same automobile accident. C's argument that different people suffered different injuries lacks legal merit because of the proximity of the injuries in time, place manner and source.

Therefore, SMJ exists because diversity jurisdiction exists because the plaintiffs and defendant are from different states and the amount in controversy exceeds $75,000.

III. Personal jurisdiction does not exist because C does not have sufficient minimum contacts with B and lacks a sufficiently pervasive presence for general personal jurisdiction.

The issue is whether the A District Court has personal jurisdiction to hear the case. There are two manners of obtaining personal jurisdiction: general personal jurisdiction and specific personal jurisdiction.

Starting with general personal jurisdiction (GPJ), GPJ exists where a foreign corporation has substantial ties to the forum state such that it is "at home" in the forum state. As noted above, C has it's entire business operation and therefore its "home" in Canada. Therefore, GPJ does not exist.

Specific personal jurisdiction (SPJ) is present when a defendant purposely avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. P can argue that C has put products in the stream of commerce in State B which could reasonably travel to State A and therefore is subject to the privilege of conducting activities within State A. C can respond that the Due Process Clause of the Fourteenth Amendment requires that activities be conducted directly, and not remotely at the forum state. Therefore, since the marketing activity is conducted at state B, state A is not targeted and is therefore lacks sovereign authority to hear the case.

C has the better argument. Due Process applies to all defendants in civil actions in the United States. Therefore, COA should find that the A District Court erred in its interpretation of the law, that C timely objected with its motion to dismiss and should dismiss the case for lack of SMJ.

My answers to the July 2012 California Bar Exam

2012-10-07T00:13:00.001-07:00

So, a funny thing happened the other day. Some people were in the elevator with my wife and asked about whether I would write a series of posts on the July 2012 California Bar Exam similar to the posts I wrote for the July 2011 California bar exam.

As I noted then, there are four general kinds of questions:

Fastballs – your typical issue spotting racehorse question – typically Torts, Contracts, Evidence, Real Property, Wills/Trusts or Civil Procedure. The principles are usually straightforward.

Change-ups – a short question on a very particular area of law – typically Constitutional Law, Criminal Procedure or Business Associations.

Curve-balls – a question that twists a two principles together. Here, you need to resolve the first part correctly, in order to resolve the second part.

Screw-balls – a nasty question that both focuses on a narrow area of law and does not contain the facts necessary to answer the question. Skilled exam takers will read “inferences” into the fact pattern in order to fill in the gaps. Less skilled exam takers will make up a rule based on the facts presented.

Here are links to my other posts on the questions themselves:

Question 1: Red Car Hits Blue Car (Civil Procedure)
Question 2: When Hal met Wendy (Community Property)
Question 3: Can I get a witness? (California Evidence)
Question 4: Who wants to be a Dental Hygienist (Contracts, Remedies)

Debriefing the February 2012 Bar Exam

2012-05-18T20:42:00.000-07:00

The California State Bar has just released the results to the February 2012 California Bar Exam and I am once again writing about how well one must due to pass. Different bar review companies offer percentage estimates ranging from 65% to 70%. I tabulated some statistics from the February 2012 California Bar Exam and reached different results.

For the uninitiated, the exam consists of three components over three days. On the morning of the first and third day, exam takers attempt three essay questions and have three hours to complete the task. These essays very widely in depth and breadth of subject matter, some involve a large number of issues that require cursory treatment, others involve a very specific issue that requires extensive treatment. On the afternoon of the first and third days exam takers attempt the California Performance Test (CPT) which is a three-hour writing assignment. Each essay is worth 100 points and each CPT is worth 200 points for a total raw score of 1000 points. That score is scaled. On the July 2012 exam, the range of possible scores was 40-100 and the average score (by my calculation) was a 61.1 which is one point higher than it was in on the February 2011 Exam and one point lower than it was on the July 2011 Exam. The total number of points that could be earned was then scaled with the following formula:

Scaled written score = (Raw written score x 3.1541 ) – 529.503

The scaled written score is then multiplied by .65 to get the total number of essay points toward the final score. The second day of the Bar exam consists of 200 multiple choice questions on the Multistate Bar Examination (MBE).

The scaling is:

Scaled MBE Score = 3.5 * (43 + (Raw score x (.8 or .9)))

Notably, this MBE issue had a higher mean number of correct questions up to 122 last February and 127 in July to 128. This is probably because the exam was easier. As shown below, an exam taker could score an average of 70 on the essays (9 points above average) and would still need 77 MBE questions correctly answered which is higher than it has been in the last two administrations. On the February 2011 exam, an exam taker with an average essay score of 70 (ten points above average) would have to answer 75 MBE questions correctly to pass.

Here is a chart that shows what I am talking about. The green line represents the 5th percentile of exam takers, the red line represents the 95th percentile of exam takers. As I have mentioned before, one of my theories is that February scores are, on average, lower, because fewer people decimate the exam with a score of 1600 or higher. Here, 326 people did that well, which is proportional with the number on the administration in July (570 of 8456). Sure some people did better or worse, but 90% of exam takers fall between those two lines. The blue line is set of passing scores showing the average raw essay on the x-axis and the average raw MBE on the y-axis. The horizontal line is the California average MBE raw score (128), and the vertical line is my guess as to the average essay score (61.1). Similar to February 2011, the average exam taker failed, but not by much.

By my math if you scored a 62.5 as an average essay and 132 raw on the MBE, you would have passed the exam. Which is much more than was required in July 2011.

Debriefing the July 2011 California Bar Exam

2011-11-18T23:51:00.001-08:00

The California State Bar has just released the results to the July 2011 California Bar Exam and I am again writing about how well one must due to pass. Different bar review companies offer percentage estimates ranging from 65% to 70%. I tabulated some statistics from the July 2011 California Bar Exam and reached different results.

For the uninitiated, the exam consists of three components over three days. On the morning of the first and third day, exam takers attempt three essay questions and have three hours to complete the task. These essays very widely in depth and breadth of subject matter, some involve a large number of issues that require cursory treatment, others involve a very specific issue that requires extensive treatment. On the afternoon of the first and third days exam takers attempt the California Performance Test (CPT) which is a three-hour writing assignment. Each essay is worth 100 points and each CPT is worth 200 points for a total raw score of 1000 points. That score is scaled. On the July 2011 exam, the range of possible scores was 40-100 and the average score (by my calculation) was a 62.1 which is two points higher than it was in on the February 2011 Exam. The total number of points that could be earned was then scaled with the following formula:

Scaled written score = (Raw written score x 2.9096) – 341.9199

The scaled written score is then multiplied by .65 to get the total number of essay points toward the final score. The second day of the Bar exam consists of 200 multiple choice questions on the Multistate Bar Examination (MBE).

My amazing wife passed the July 2011 exam (by how much one will never know) and she told me that she thought the MBE was really hard. When I took my exams (Maryland 7/2010; California 2/2011), I thought the MBE was easy. It turns out statistically she was correct. Getting a 50th percentile score on this exam would have earned you substantially more points than earning a 50th percentile score on the February exam, even though there was only a difference of two scaling points between the tests.

The scaling is:

Scaled MBE Score = 3.5 * (40.4+ (Raw score x (.8 or .9)))

Notably, this MBE issue had a higher mean number of correct questions up to 122 from 127. However, the scaling indicates that the exam was more difficult, with higher scores being earned for fewer correct responses. As shown below, an exam taker could score an average of 70 on the essays (just 8 points above average) and pass the exam with only 64 MBE questions correctly answered. On the February 2011 exam, an exam taker with an average essay score of 70 (ten points above average) would have to answer 75 MBE questions correctly to pass.

Here is a chart that shows what I am talking about. The green line represents the 5th percentile of exam takers, the red line represents the 95th percentile of exam takers. The lines are substantially further apart than they were in February 2011, primarily because of a large number of exam takers with very high scores (some 570 people decimated the exam earning scores over 1600, whereas only a handful did that well in February 2011). Sure some people did better or worse, but 90% of exam takers fall between those two lines. The blue line is set of passing scores showing the average raw essay on the x-axis and the average raw MBE on the y-axis. The objects are various bar exam companies' ideas of what passing scores are. The horizontal line is the national average MBE raw score (127), and the vertical line is my guess as to the average essay score (62.1). Unlike February 2011, the average exam taker passed, but not by much.

By my math if you scored a 62.5 as an average essay and 120 raw on the MBE, you would have passed the exam. Which is much less than scores bar review companies advertise.

San Francisco Challenges Constitutionality of Mail Delivery and Fails

2011-11-16T19:19:00.001-08:00

The City and County of San Francisco failed in a court action to compel the U.S. Postal Service to provide centralized mail delivery to single room occupancy buildings (SROs). Currently, SROs receive mail through "single-point" delivery and Judge Richard Seeborg ruled that was just fine. More details below the jump.

SRO's are kind of unique to San Francisco (though other large cities have them). Basically, a person takes an old hotel and leases the rooms to one or two people as a living arrangement for some sustained amount of time. These arrangements normally have lower costs because the rooms are smaller, so they appeal to the poor and those who have no need for personal appliances. There are three large SRO's in San Francisco.

In a typical apartment building, each unit has its own mailbox and the mail carrier puts each unit's mail into the respective box. This is known as "centralized delivery" (all the boxes are in a central location). In a hotel, the letter carrier takes the mail to the front desk clerk who distributes it. This is known as "single point delivery." Now, if there is no mail clerk (like the group home I stayed in my 2L summer in Boston), then the mail carrier puts the mail in a heap on the floor. The Postal Service treats SROs as hotels in order to reduce costs (in this case it estimates the savings at $2 million) and the City believes throwing mail in a heap in a low income housing development leads to unnecessary mail theft and is therefore unconstitutional.

Neither side has great facts going for it. The City met with the Postmaster when it was considering an ordinance to require SRO owners to give units individual mail boxes to allow for centralized delivery. The Postmaster said she could not guarantee central delivery, even with the fancy new boxes. Nonetheless the city passed the ordinance and the mail carriers began to deliver the mail to individual boxes. Well, that ended up taking a long time to complete a mail route and as soon as the Postmaster learned of this she ordered the mail carriers to go back to throwing the mail in a heap on the floor (presumably next to the individual mail boxes). Among other things, the City complains that this violates the equal protection rights of the tenants. Judge Seeborg disagreed:

Here, the USPS has presented legitimate reasons for treating SROs as hotels under POM. Plaintiffsare not able to demonstrate that the USPS’s reasoning lacks “some footing in the realities” of the classification or that it is merely a pretext for impermissible discrimination. Lazy Y [Ranch v. Behrens (9th Cir. 2008)]. Because rational basis scrutiny imposes a “strong presumption of validity” and requires courts to avoid judging the “wisdom, fairness, or logic” of the agency’s decisions, plaintiffs’ equal protection claim must fail.

Judge Seeborg granted summary judgment for the Postal Service. The case is City and County of San Francisco v. United States Postal Service, No. 09-1964

San Francisco v. Postal Service Constitutional MSJ

Former Stay at Home Mom to join U.S. District Court for the Northern District of California

2011-11-15T12:15:00.001-08:00

The Northern District of California Blog congratulates Judge Yvonne Gonzales Rodgers on her recent confirmation to the U.S. District Court for the Northern District of California. Nearly all of the judges on the Northern District of California were either partners in large law firms or prosecutors. Until now, none spent any noticeable time as a homemaker, and that makes Judge Rodgers a little different.

According to her submission to the Senate Judiciary Committee, Judge Rodgers was born Maria Yvonne Gonzales in Houston, Texas in 1965. She graduated from Princeton University in 1987 and started to attend the University of Texas School of Law that year. She then met and married Matt Carlson Rodgers, changed her name to Yvonne Gonzales Rodgers and left law school for a year. She returned in 1989 for her 2L year and then spent her 3L year at Boalt Hall School of Law (U.C. Berkeley). She graduated from Texas in 1991. After graduation she joined (what is now) Cooley LLP and eventually became a partner in that firm. In 1997, her son Christopher was born which led to her involvement in the Wildwood Elementary School Parent Board, she became president from 2002-2003 and was on the board until 2008.

As Senator Feinstein explains:

In 2003 she took time away from the practice of law to devote time to her children, who I believe are here today. Judge Gonzalez Rogers, and her husband Matt, have three young children – Christopher is sixteen, Maria is 12, and Joshua is 10. And they very excited not only to support their mother’s nomination, but also to tour the Capitol tomorrow.

In 2004, she worked on a voter initiative for a proposed parcel tax renewal and increase which passed the following year. Judge Rodgers then volunteered to be on the Alameda Grand Jury in 2005, where she was selected and served for one year and was then renominated for a second year. During this time she was compensated at $15 per day.

In 2007, she decided $15 a day was too much and volunteered to be a Judge Pro Tem on the Alameda County Superior Court. At that time the Piedmont Unified School District asked her to oversee it's Proposition 37 bond drive to repair schools damaged by earthquakes. She did so, and the initiative passed with over 80% support. Governor Arnold Schwarzenegger appointed her to the Superior Court for Alameda County on July 25, 2008 and she was reelected without opposition.

In the fall of 2010 Judge Rodgers decided she wanted to be a federal judge so she wrote Diane Feinstein's advisory committee a letter stating as much. The committee interviewed Judge Rodgers in November 2010 and the Senator interviewed her in January 2011. She was then put in contact with the Department of Justice in February and the White House in March. President Obama submitted her nomination on May 4, 2011. Here confirmation hearing was on July 13, 2011 (you can watch it here, she was asked one question). Edit: A previous version of this article referred to Judge Rodgers as a "homemaker." I have changed this to "stay at home mom."

Previewing Detainees Torture Claims at the Ninth Circuit

2011-10-28T12:12:00.000-07:00

About two years ago Judge Jeffery S. White made minor headlines by ruling that Jose Padilla's claims that Berkeley Law Professor John Yoo's legal memoranda to various officials in the Bush Administration caused governmental personal to violate Padilla's constitutional rights while he was held in a military prison in Iraq.

Among other things, Professor Yoo claimed he had qualified immunity as to the entire transaction, Judge White's opinion to the contrary makes this case immediately appealable. The legal issues are very complex, so let's dive right in to it.

Mr. Padilla claims that on May 8, 2002 he was arrested at Chicago's O'Hare International Airport pursuant to a material witness warrant issued by the U.S. District Court for the Southern District of New York. While trying to get the warrant lifted, President George W. Bush wrote a letter to Defense Secretary Donald Rumsfeld stating that Mr. Padilla was an al Queda solider who formerly fought against the United States and ordering the Secretary to take Mr. Padilla into custody. The Secretary complied and transferred Mr. Padilla to the Consolidated Naval Brig in Charleston, SC.

There Mr. Padilla alleges that he was subjected to constant lighting and noise, sleep deprivation, removal of religious items, stress positions and inadequate medical attention in violation of a plethora of Constitutional rights. He is suing Professor Yoo in an original action under the Constitution allowed by Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (U.S. 1971). This is where things get tricky.

In order to sue under Bivens, a plaintiff must show two things 1) there is currently no other remedy available for this situation and 2) it's a good idea to create a new kind of federal litigation. Up front, there is a dispute on point one. Professor Yoo argues that Mr. Padilla has another remedy - he could have filed for a petition for habeas corpus. In fact he filed such a petition... and lost. Judge White takes the interesting tact of viewing this issue in terms of collateral estoppel or issue preclusion.

The Court is unconvinced that Padilla's habeas petition creates an inference of estoppel. First, the Fourth Circuit merely reversed a grant of summary judgment and remanded to the district court for a factual hearing. See Padilla v. Hanft, [] (4th Cir.2005) ("Padilla V"). A reversal of a grant of summary judgment does not qualify as a final judgment for collateral estoppel purposes.

The U.S. District Court for the District of South Carolina, in a case with identical facts found that Padilla's mother could not sue Secretary Rumsfeld because Courts are cautioned against creating new kinds of federal litigation. Lebron v. Rumsfeld (D. S.C. 2011).

The Court finds that "special factors" are present in this case which counsel hesitation in creating a right of action under Bivens in the absence of express Congressional authorization. These factors include the potential impact of a Bivens claim on the Nation's military affairs, foreign affairs, intelligence, and national security and the likely burden of such litigation on the government's resources in these essential areas. Therefore, the Court grants the Defendants' Motion to Dismiss (Dkt. Entry 141) regarding all claims of Plaintiffs arising from the United States Constitution.

Lebron is on appeal to the Fourth Circuit. The other case dealing with these issues is Vance v. Rumsfeld (7th Cir. 2011) which split the Seventh Circuit 2-1 in favor of allowing a cause of action with somewhat different facts (U.S. Citizens held abroad). The Ninth Circuit asked Prof. Yoo and Mr. Padilla to brief the meaning of Vance.

The majority in Vance found that a Bivens remedy should exist and that the court need not be cautioned against creating it.

If we were to accept the defendants' invitation to recognize the broad and unprecedented immunity they seek, then the judicial branch — which is charged with enforcing constitutional rights — would be leaving our citizens defenseless to serious abuse or worse by another branch of their own government. We recognize that wrongdoers in the military would still be subject to criminal prosecution within the military itself. Relying solely on the military to police its own treatment of civilians, however, would amount to an extraordinary abdication of our government's checks and balances that preserve Americans' liberty. The district court correctly allowed plaintiffs to proceed with their Bivens claims for torture.

The dissent argued that this was a judicial overreach.

I think it clear that there are special factors and precedents that should control this case. The court holds otherwise, but I would point to what I see as the five defects in the court's holding: (1) the lack of precedent in its favor; (2) the underestimation of the risks of judicial review of wartime military activity; (3) its unsuccessful attempt to distinguish precedent from other circuits; (4) the inapplicability of recent habeas corpus jurisprudence; and finally (5) the failure to recognize the consequences of its holding and the precedent it sets.

So where does this leave Mr. Padilla and Professor Yoo? This is a close question, I imagine that the Ninth Circuit will affirm Judge White and that the U.S. Supreme Court will reverse. In two years we will see if I am correct.

Trustee can use estate fees to fight debtor's friend's defamatory statements

2011-10-25T17:36:00.001-07:00

The U.S. District Court for the Northern District of affirmed a bankruptcy court's ruling allowing a trustee to fund a defamation lawsuit with bankruptcy estate funds against a friend of the debtor who was continually posting defamatory posts about the trustee on the internet.

Arden Van Upp filed for Chapter 11 bankruptcy on July 10, 2009. She had three pieces of property in San Francisco including one at 2550 Webster Ave. Which is shown above. Ms. Van Upp mad a marketing plan to sell the property.

In August 2009, several secured creditors objected to debtor’s marketing plan for the Webster Street Property, calling her proposed listing price “unrealistic given the rundown condition of the . . . property.”

The secured creditors wanted the trustee to take over the marketing plan. The Bankruptcy Court granted the motion and put Trustee David A. Bradlow in charge of the marketing plan. He then tried to evict the tenants including Samuel Sloan, a friend of Ms. Van Upp. Mr. Sloan then began to get involved in the bankruptcy proceeding.

Sloan describes himself in Bankruptcy Court filings as a “close personal friend of Arden VanUpp” who resided at the Webster Street property from 1991 until sometime after debtor filed for bankruptcy. []The Bankruptcy Court described Sloan as “an officious . . . meddler, to say the least,” declared him to be a vexatious litigant on debtor’s motion, and imposed a filing injunction against him in the bankruptcy case. [Notably, the] Bankruptcy Court also found that Sloan “at all relevant times had very close connections with the debtor.”

So, there is a difference of opinion, what's the big deal.

Around the same time that debtor filed her motion to declare Sloan a vexatious litigant, trustee requested permission to use estate assets to file a complaint against Sloan for defamation. Although the Bankruptcy Court issued a tentative ruling against trustee before the hearing on his motion, see Tentative Ruling (Bankr. Doc. 293), ultimately the Bankruptcy Court gave him permission to file acomplaint for declaratory and injunctive relief in an adversary proceeding in the Bankruptcy Court usingestate assets, see Feb. 2010 Transcript 61:17–61:21 (Appellees’ Appendix 135) (“I’m inclined to allow you a reasonable amount of fees to try to get this . . . carefully-tailored relief.”)

The entire issue is whether the trustee can do this. Judge Susan Illston went with some decisions from the Southern District of California for guidance and determined that it did.

Section 330(a)(4) of the Bankruptcy Code provides that a trustee or employed professional person may not be compensated for services that were not reasonably likely to benefit the debtor’s estateor otherwise necessary to the administration of the case. “The absence of a monetary benefit to theestate is not determinative of whether compensation for . . . attorneys is awarded or denied.” In re HCSCorp., (Bankr. S.D. Cal. 1986). As one bankruptcy court explained:

HCS, (citing In re Nucorp Energy, Inc., (9th Cir. 1985)). On the basis of this reasoning, bankruptcy courts have determined that “[a] representative of the bankruptcy estate in otherwise good standing is entitled to defend him or herself from allegations of malfeasance by a creditor, and, unless malfeasance is established, the estate shall bear the reasonable costs of suchdefense.” See In re Yelow Cab, Co., (Bankr. S.D. Cal. 1997) (explaining that thisis the rule established by HCS , and that the rule is “correct”). The same logic applies to defense of claims of malfeasance made by the debtor.

Trustees are an integral part of the successful operation of the bankruptcy laws. If thisCourt required the trustee to pay for his or her own representation, given the relatively modest compensation the Code provides for trustees, the practical effect would be that fewtrustees would be willing to serve. This is especially true regarding non-attorney trustees.The Ninth Circuit has expressly recognized the concern that absent provisions for adequate compensation of bankruptcy professionals, highly qualified professionals would abandon bankruptcy work in favor of more remunerative kinds of work.

The Case is Van Upp v. Wendell Rosen Black and Dean LLP and the opinion is below the jump.

Van Upp v. Wendell Rosen Black and Dean LLP Bankruptcy Appeal

Bankruptcy Court Rules in California

2011-10-23T22:40:00.000-07:00

People in California can discharge their debt by consumer bankruptcy protection law under chapter 7 and chapter 13 Bankruptcy. Debt settlement and debt consolidation methods are also there for debtors who want to get rid of their debt by negotiation. There are many non profit debt settlement companies who can help you with proper debt relief solutions. This procedure can put less pressure on your credit score. The time may take a bit longer with these debt settlement and consolidation processes. However, if anyone is bent on discharging his debt right away, he can best resort to chapter 7 Bankruptcy. Once a borrower files Chapter 7 Bankruptcy, the court seizes his asset to liquidate it to reimburse the compensation of his creditors. With Chapter 13, the court arranges a repayment plan for the borrower and helps him to pay off his debt through long term installments. Now, it is your responsibility to assess what chapter would best serve your purpose.

In California, one needs to go through a means test before getting eligible for filing bankruptcy. This means test will determine which Chapter of Bankruptcy you should file. Depending on your median income and family size, it will take decision. Even the length of the Chapter 13 repayment plan is decided on the basis of means test.

The California state law mandates that one must go through financial management courses before and after filing bankruptcy. One course is supposed to be taken before filing bankruptcy. Another course is carried along 45 days right after filing bankruptcy. In the first course, the debtor is given credit counseling for 6 months. Any reputed government approved agency must be chosen for taking up such course.

Filing chapter 7 you can totally discharge some type of your debt liabilities. In return, you need to give up certain portion of your asset to the court. Certain exemptions can be achieved under California state bankruptcy law and federal law. In 2010, one was eligible to get exemption up to $150,000 in home equity, $2,550 for vehicle and $6750 for jewelry.

When you surrender your property, the court will assess the nature of your asset. Non-exempt assets can be liquidated to produce liquid money to compensate the loss of your creditor. If the asset proves to be essential, it could get exemption.

Bankruptcy should always be looked upon as a last ditch option for any debtor.

Sony prevails in Infringement Lawsuit as Judge kills Trans Video Electronics' Patent

2011-10-18T15:22:00.000-07:00

Figure 1 from the '801 patent

Trans Video Electronics is a company based in Washington, DC which somehow obtained U.S. Patent No. 5,991,801 from a pair of inventors in Indiana. The '801 patent covers a global digital video news distribution system and a figure is shown to the right.

Trans Video argues that Sony has infringed the patent and Sony has responded that the patent is invalid for failing to have an enabling disclosure as required by 35 U.S.C. § 112.

While Trans Video has tried to amend its complaint, the current complaint only alleges infringement of claim three which reads:

3. An information distribution system for a network, comprising:

a plurality of video clip storage units that each store data related to a particular subject matter;

a master communications unit coupled to the digital network that establishes communications with the network in order to receive a synchronous digital signal corresponding to the data related to said particular subject matter stored in a respective one of said plurality of video clip storage units;

a plurality of distribution amplifier units coupled to said master communications unit, wherein each of the plurality of distribution amplifier units has an input that receives said synchronous digital signal corresponding to the data from a respective one of said plurality of video clip storage units and at least one output that divides said synchronous digital signal corresponding to the data from said respective one of said plurality of video clip units into a plurality of synchronous signals;

a plurality of communications units, each of said communications units being coupled to one of said plurality of distribution amplifier units to respectively establish communications between respective ones of said plurality of distribution amplifier units and a plurality of receiving stations in the digital network to receive and output corresponding ones of said plurality of synchronous signals to the plurality of receiving stations;

a master controller unit coupled to said plurality of communications units to control said plurality of communications units from a central location;

and a menu storing unit accessible from the digital network that stores information indicating the subject matter associated with each of said plurality of video clip storage units and information as to how to access each of said video clip storage units.

The disputed Figure 5

The parties dispute whether the drawings and written description explain how to make the device described in the third claim in particular the language in italics above. Sony argues that it doesn't.

In its motion, Sony argued that there is a lack of written description for the invention claimed in claim 3 because, based on the specification, the only possible description for the invention is Figure 5 and it does not include a description of the synchronous digital signal – a command signal, and not video – being split up into a plurality of synchronous signals. See, e.g., Mot. at 12. At the hearing on the motion, Sony expanded on this argument, noting that Figure 5 cannot describe the invention claimed in claim 3 because claim 3 requires that the same synchronous digital signal be received by the master communications unit and passed on to the distribution amplifier units but Figure 5 describes a command signal (i.e., not video) being received by the master communications unit (516) and a video clip being sent on to the distribution amplifier units (531A-H).

Trans Video takes the unique position that Figure 5 does not explain the claim, but rather, when read in conjunction with figure 1B a person of ordinary skill in the art would be able to but everything together and get the invention in claim 3.

Judge Edward M. Chen dismisses this argument out of hand, and probably gets the law wrong in the process.

Trans Video’s argument, however, runs counter to Federal Circuit case law. In evaluating whether the written description requirement has been satisfied, a court does not simply look to see whether the specification contains descriptions of the individual elements of the claim. Rather, a court must look to see whether there is a written description for the entirety of the claimed invention – i.e., the combination of elements.

He synthesizes the issue as such:

whether the written description requirement may be met where the combination of elements comprising the invention is not described at all and instead requires a person of ordinary skill in the art to synthesize elements from different embodiments to come up with the claimed invention.

And finds that the law does not allow for this. The unargued elephant in the room is that the claims are part of the written description which disclose the invention as it can be found in several figures. The person of ordinary skill in the art receives instruction to synthesize from the claim itself. Further, a person of reasonable skill in the art can experiment in order to make a combination work. See In re Wands (Fed. Cir. 1988).

Judge Chen granted summary judgment to Sony and the opinion is here.

Government Objects to Taping Defense of Marriage Act Hearing

2011-09-26T12:08:00.000-07:00

While this blog is mostly retrospective, it's sometimes fun to pregame an upcoming hearing. Golinksi v. U.S. Office of Personnel Management (OPM) is such as case that combines a strange procedural history, interesting issues and excellent counsel.

Karen Golinski is a staff attorney at the U.S. Court of Appeals for the Ninth Circuit. Over twenty years ago she began a relationship with Amy Cunninghis. The couple now has an eight year old son and a valid marriage license issued in California between the time of In re Marriage Cases and the passage of Proposition 8.

Upon marrying Ms. Cunninghis, Ms. Golinsky applied for health benefits for Ms. Cunninghis under Ms. Golinski's, Blue Cross and Blue Shield Service Plan obtained through the Administrative Office of U.S. Courts (AO). AO initially denied the request because Ms. Golinski and Ms. Cunninghis were both women. Ms. Golinski then initiated a complaint under the Ninth Circuit’s Employment Dispute Resolution program (EDR). After a series of unsuccessful mediation sessions, Chief Judge Alex Kozinski, in his capacity as an administrative hearing officer under the EDR program, issued an order directing AO to process Ms. Golinski's application.

At that point OPM stepped in and ordered the Blue Cross and Blue Shield Service Plan administrator not to process the request because Section 3 of the Defense of Marriage Act (DOMA) prohibits extension of benefits under the Federal Employee Health Benefits Act (FEHBA) to same sex spouses of federal employees. Again, Ms. Golinsky appealed to Chief Judge Kozinsky, who ordered OPM to,

cease at once its interference with the jurisdiction of this tribunal. Specifically, OPM shall not advise Ms. Golinski's health plan, the Blue Cross and Blue Shield Service Benefit Plan, that providing coverage for Ms. Golinski's wife violates DOMA or any other federal law.

Again, OPM ignored the order and Ms. Golinski filed suit in federal court to enforce the order under a writ of mandamus which is the subject of the present litigation. Initially, the Department of Justice defended OPM arguing that interpreting FEHBA was under the purview of OPM and not the Ninth Circuit. That OPM interpretation could be reviewed under the Administrative Procedures Act, but it could not be circumvented by an independent assessment of the Ninth Circuit except by judicial review. This is the conclusion Judge Stephen Reinhart reached in The Matter of Levinson (9th Cir. 2009). While the motions pended, the Department of Justice decided DOMA was unconstitutional and ceased defending the statute.

Speak of the House of Representatives, John Boehner then decided to have the Bipartisan Legal Advisory Group (BLAG) appoint outside counsel to defend DOMA in Ms. Golinski's case and others. Following the change of the guard, Judge Jeffery White agreed and dismissed the case, however, he tipped his had that a Constitutional argument against DOMA would be available and might prevail.

The Court would, if it could, address the constitutionality of both the legislative decision to enact Section 3 of DOMA to unfairly restrict benefits and privileges to state-sanctioned same-sex marriages or address the conflict regarding the Executive’s decision not to defend the constitutionality of a law it has determined appropriate to enforce. However, the Court is not able to reach these constitutional issues due to the unique procedural posture of this matter.

Ms. Golinski's attorneys picked up on the hint and filed an amended complaint which contained claims for unlawful agency withholding of benefits and a declaratory judgment that DOMA is unconstitutional. BLAG moved to dismiss the complaint stating that Baker v. Nelson (U.S. 1972) and Adams v. Howerton (9th Cir. 1982) have already resolved the issue.

In Baker, two gay men sought to obtain a marriage license, which the county denied them on account of their being of the same gender. The Minnesota Supreme Court affirmed, and the U.S. Supreme Court stated that there was a lack off a federal question to warrant Supreme Court review. BLAG argues that this means the Supreme Court found no error and the case is precedent.

In Adams, a gay man's partner was not granted preference under federal immigration laws since the two were not married. The 9th Circuit found that the federal government's choice to not recognize this union as a marriage was within its discretion.

Ms. Golinski responded by moving for summary judgment. Oddly, she does not mention either Baker or Adams in her motion, but rather takes the tack of the plaintiffs in Perry v. Schwarzenegger (N.D. Cal. 2010). Rather than argue the case law, she argues that DOMA was based on flawed findings and thus it has to rational basis to any legitimate purpose.

There is a hearing on October 21, 2011, Judge White stated that he wanted to videotape the hearing under a new pilot program in the Northern District of California. While Ms. Golinski was fine with that the government was not and because of the objection there will not be a tape of the hearing.

The Case is Golinski v. United States Office of Personnel Management (No. 10-00257).

July 2011 California Bar Exam Question 6: who gets the stuff

2011-08-14T22:00:00.000-07:00

This is the seventh post in my series on the July 2011 California Bar Exam. If you think that my answers are terrible, let me hear it in the comments.

Question six is a very typical community property question. Sometimes there are red herrings or complicated math that can make these questions difficult. Here, the only trap was thinking that premarital titling of property had some effect on its disposition other than by contract law. It doesn't.

Also, the 2006 marriage is meant to avoid the difference in fiduciary duties between spouses before that point, though I doubt you would lose much credit if you used the old rule.

From the California State Bar (pdf):

In 2003, Wendy and Hank were engaged to be married. They discovered that the $10,000 monthly income Wendy derived from a trust fund would terminate upon her marriage or upon her reaching the age of 25, whichever came first. Therefore, they decided to postpone their wedding until Wendy’s 25th birthday, in 2006, and instead began to live together.

Also in 2003, Wendy and Hank agreed that Wendy would pursue a master’s degree in education and that Hank would quit his job and stay home, taking care of the household chores. Wendy opened a checking account in both of their names, into which she deposited her $10,000 monthly trust income. Wendy used funds in the checking account to pay living expenses for Hank and herself. Wendy also used funds in the checking account to buy a new car. She put title to the car in both of their names.

In 2006, Wendy and Hank married. Wendy’s $10,000 monthly trust income terminated. Afterwards, Wendy began teaching at a local college.

In 2008, Wendy learned that her compensation was less than that of her male counterparts and made a claim against the college.

In 2009, Wendy separated from Hank and filed an action for dissolution of marriage. Shortly afterwards, she settled her claim against the college in return for additional salary in the amount of $10,000 per year for the next three years.

Unbeknownst to Wendy, Hank had run up a gambling debt to a casino during their marriage. At the time of their separation, Hank owed the casino $50,000.

Upon dissolution of marriage, what are Wendy’s and Hank’s rights and liabilities with respect to:

1. The car? Discuss.
2. The $30,000 in additional salary under the settlement? Discuss.
3. The $50,000 owed to the casino? Discuss.

I will discuss below the jump.

Answer according to California law.

California is a community property state. Property that is acquired before marriage, after separation, and during marriage by bequest or gift is separate property. All other property is community property. Separate property is the separate property of one party unless a contractual relationship to the contrary exists.

1. The Car

The issue is who has rights in the car. Property acquired by two people prior to marriage is governed by contract law. A valid contract requires an offer, acceptance and consideration. Here, “Wendy and Hank agreed that Wendy would pursue a master’s degree in education and Hank would [provide] homemaking services.” Under Marvin, since there is more involved than merely sex, the contract is valid. That contract extends to the car. The parties jointly titled the car, even though Wendy used her own funds to purchase it, and presumably the car furthered performance of the aforementioned contract (education for homemaking services). Since the car is part of a contract and jointly titled each party has an undivided one-half share in the car.

Therefore, both parties have an interest in the car.

2. The Settlement

The issue is whether the settlement is community property or separate property. Tort settlements depend on their nature to determine whether they are a community or separate property asset. Here, the settlement is for, essentially, back pay that Wendy should have earned had she been correctly compensated. This money should have been in the community but was not, due to the Community College’s tort. Therefore the settlement is community property that can either be apportioned to each spouse with the net present value of the payment stream or as the payments become due.

Therefore the settlement is community property.

3. The Gambling Debts

The issue is who must pay the gambling debts. At the onset, the Casino is free to pursue either the community or Hank for the debt, but it cannot pursue Wendy unless she has some sort of contractual relationship with the casino. Spouses owe one another a fiduciary duty in dealing with finances. After 2006, spouses must disclose all financial transactions to the other spouse “without demand” if it would be unfair to the other spouse not to disclose it. Hank had an obligation to disclose the gambling debt which was “unbeknownst to Wendy….” His failure to do so is a breach of fiduciary duty and will result in the gambling debt being used as a set-off against his interest in the community estate.

Therefore, while the Casino can pursue Hank or the Community for the debt, ultimately, Hank will end up paying it.

July 2011 California Bar Exam Question 5: the Terrible Trespasser

2011-08-14T21:50:00.000-07:00

This is the sixth post in my series on the July 2011 California Bar Exam. If you think that my answers are terrible, let me hear it in the comments.

Question five is a variation on the trespasser question that regularly appears on the California Bar Exam. I score this question as a change up for two reasons 1) the rules tested are extremely obscure and a wrong turn can easily derail you 2) nothing happens. Remember the bar exam question where two people owned something, a bunch of stuff happened and it didn't change the parties rights at all? Well, they're rare, but this is one of them.

From the California State Bar (pdf):

Prior to 1975, Andy owned Blackacre in fee simple absolute. In 1975, Andy by written deed conveyed Blackacre to Beth and Chris “jointly with right of survivorship.” The deed provides: “If Blackacre, or any portion of Blackacre, is transferred to a third party, either individually or jointly, by Beth or Chris, Andy shall have the right to immediately re-enter and repossess Blackacre.”

In 1976, without the knowledge of Chris, Beth conveyed her interest in Blackacre to Frank.

In 1977, Beth and Frank died in a car accident. Frank did not leave a will and his only living relative at the time of his death was his cousin Mona.

In 1978, Chris and Andy learned that Beth had conveyed her interest in Blackacre to Frank. When Mona approached Chris a day later to discuss her interest in Blackacre, Chris told her that he was the sole owner of Blackacre and she had no interest in Blackacre. Chris posted “No Trespassing” signs on Blackacre. He also paid all of the expenses, insurance, and taxes on Blackacre. Andy and Mona have never taken any action against Chris’ possession of Blackacre.

1. What right, title, or interest in Blackacre, if any, did Andy initially convey to Beth,
Chris, and himself? Discuss.

2. What right, title, or interest in Blackacre, if any, are held by Andy, Chris, and Mona?
Discuss.

I will discuss below the jump.

Joint tenancy subject to a condition subsequent

The issue is identifying the interest Andy initially conveyed to Beth, Chris and himself. A fee simple subject to a condition subsequent occurs when an owner in fee simple conveys an interest to a person with a condition, if the condition occurs then the original owner may re-enter the property and repossess it. A joint tenancy with right of survivorship exists where an owner in fee simple titles land to more than one person who all share in interest and possession. The right of reentry is not affected by the Rule Against Perpetuities because it will vest, if at all within the life of Beth or Chris since only their action enacts the right of reentry. Here, Andy conveyed Blackacre to “Beth and Chris ‘jointly with right of survivorship’” and retained for himself “the right to immediately re-enter and repossess Blackacre [if] any portion of Blackacre is conveyed to a third party.”

Andy conveyed a joint tenancy subject to a condition subsequent where Beth and Christ are joint tenants and Andy retains a right of re-entry.

Beth’s transfer to Frank

The issue is what affect Beth’s transfer to Frank had on the joint tenancy subject to a condition subsequent. A joint tenant severs the joint tenancy and creates a tenancy in common upon transferring the joint tenant’s interest. Here, Beth conveyed her interest to Frank. This created a tenancy in common between Chris and Frank and gave Andy a right of reentry.

Beth and Mona

The issue is whether Mona inherited Frank’s interest in Blackacre. A joint tenancy is defeasible and can be passed through probate. Here, Mona is Frank’s only living heir and inherits all of his property including his interest in land.

Also, at this point Andy’s right of reentry vests and he must act on it within the statute of limitations in the jurisdiction where Blackacre is located. While local laws vary, typical statutes of limitation periods range between one and three years. Under any theory it has now been 25 years since the date of vesting and Andy is barred from asserting his right to reentry under the statute of limitations.

Alternately, Andy's right of reentry can fail as an invalid restraint on alienation. Whether a restraint will be valid will depend on 1) the estate restrained 2) the kind of restraint and 3) the extent of the restraint. With regard to the first factor, the estate restrained is a joint tenancy. Restrictions limiting the power of a joint tenant or tenant in common to seek partition are usually upheld, this factor leans toward acceptance. With regard to the second factor, the kind of restraint used is a forfeiture because the grantor may terminate the estate upon the occurance of the condition subsequent. Forfeiture restraints are only invalid where there is a fee involved. Here there is a fee simple involved, making the restraint automatically invalid. Finally, the restraint is reasonable in time because the statute of limitations limits Andy's period of recover to three years as noted above. Since there is a forfeiture restraint of a fee simple the interest is invalid and cannot be enforced.

Mona is a tenant in common with Chris, and Andy has nothing.

Chris and Mona

The issue is whether Chris has obtained title to Blackacre by adverse possession. Adverse possession requires, the open, notorious, hostile, possession of another’s land continuously for the statutory period. Where a cotenant’s ouster is in issue the burden of proof is higher. Chris’s possession was open because he “paid all of the expenses, insurance and taxes” on Blackacre which shows an open possession. Possession was notorious because Chris asserted he “was the sole owner of Blackacre….” Possession was hostile because Chris told Mona to leave and posted “No Trespassing” signs across Blackacre. Jurisdictions range in the period necessary for adverse possession from 10-20 years. Under any of those theories Chris continuously occupied the land for the statutory period.

Alternately, a co-tenant always has a right of partition. Even if Chris has obtained title by adverse possession, he must quiet title in order to enforce his right, before he does this Mona maintains a right to partition the land and obtain a portion of the land or its value at sale.

Additionally, a tenant who ousts another tenant much share rents and profits less taxes paid. Here it is unclear if Chris obtained any rents and profits while he did pay taxes. Mona may or may not have a claim depending on Chris's use of Blackacre.

Since Chris has not acted to quiet title and Mona has not requested partition, they are still tenants in common until one of them acts. Andy, as noted above, has nothing.

July 2011 California Bar Exam Question 4: Your friends are my friends?

2011-08-14T21:42:00.000-07:00

This is the fifth post in my series on the July 2011 California Bar Exam. If you think that my answers are terrible, let me hear it in the comments.

Question four is a professional responsibility question with an interesting twist... I don't think the first lawyer did anything wrong (of course if you recognized the same issues and came to a different conclusion you were probably fine). I score this question a screwball. The whole question turns on what Austin specifically does for the medical association and what the association really does with its “recommendations” neither of which is particularly clear, so I made something up.

From the California State Bar (pdf):

Austin had been a practicing physician before he became a lawyer. Although he no longer practices medicine, he serves on a local medical association committee that works to further the rights of physicians to be compensated fairly by health insurance providers. The committee develops recommendations, but its members do not personally engage in public advocacy. Austin is a close friend of several of the other physicians on the committee, though as a lawyer he has never represented any of them.

In his law practice, Austin represents BHC Company, a health insurance provider. BHC has been sued in a class action by hundreds of physicians, including some of Austin’s friends, for unreasonable delay, and denial and reduction of reimbursements for medical services. Austin initially advised BHC that he was not confident it had a defense to the lawsuit. After further research, however, Austin discovered that a stated policy of the health care law is the containment of health care costs. He advised BHC that he could plausibly argue that reimbursements to physicians may legally be limited to avoid a dramatic increase in the health insurance premiums of patients. He explained that he would argue for a modification of existing decisional law to allow such a result based on public policy.

When Bertha, counsel for the class of physicians, heard the defense Austin planned to assert in the lawsuit, she wrote him a letter stating that if he presented that defense she would report him to the state bar for engaging in a conflict of interest.

1. What, if any, ethical violations has Austin committed as an attorney? Discuss.
2. What, if any, ethical violations has Bertha committed? Discuss.

Answer according to California law and ABA authorities.

I will answer below the jump.

Conflict of Interest

The issue is whether Austin’s friendship with a group of plaintiff physicians or his service on the local medical association committee. Under the Model Rules of Professional Conduct (MR) and the California Rules and relevant statutes (CR), a conflict of interest exists where a lawyer’s representation of a client is materially limited by the lawyer’s responsibilities to a third party or by a personal interest of the lawyer.

Here, Austin serves on a local medical association committee which “develops recommendations” to whom is unclear, but not to policymakers. It is likely that the committee contains a set of physicians and a set of health insurance providers who have somewhat adverse goals, but who desire to find a way to work together in order for the physicians to be “fairly compensated.” Austin “serves” on the committee but he is not a director or board member of the association and does not have a fiduciary duty to the association. Under MR, having professional and service interests that clash does not rise to the level of a conflict of interest. Accordingly, he has no conflict between his representation of BHC and his service on the committee, because there is no conflict of loyalties. Under CR, the conflict standard is higher, the lawyer must disclose business and professional contracts that will be adversely affected by the representation. The physicians are "good friends" but it is not clear if Austin has a professional relationship with them making "recommendations" to an undisclosed source without a business motive seems unlikely to arise to this level. If it does, Austin must disclose this interest and risks violating CR if he does not.

Next, named plaintiffs of a class action are not considered clients of an attorney for the purpose of conflict of interest rules. Similarly, they would not be considered opponents for conflict of interest rules. Therefore Austin representing a company against a class of plaintiffs that include his friends does not create a direct conflict. If Austin feels that his personal relationship with his friends impairs his ability to represent BHC he has a duty to disclose that and remove himself (but not his firm) from the litigation. However, this does not appear to be the case, Austin zealously searched for a way to argue for BHC notwithstanding his friends’ stake in the litigation.

Austin has not committed an ethical violation with his representation of BHC.

Legal argument

The issue is whether Austin’s arguing about “public policy” satisfies his obligation of candor to the court and his obligation to avoid raising frivolous claims. Here, Austin has given BHC a candid view of their case and updated his view upon completing more legal research. This is acceptable since attorneys may argue for a change in policy as long as adverse precedent is disclosed.

Austin has not committed an ethical violation with his representation of BHC.

Bertha’s action

Under MR lawyers have an obligation to report attorneys to the state bar for violations of the MR. Under CR lawyers must self-report violations if they are serious. However, this cannot be used as a form of blackmail to argue the underlying claims or defenses in a case. By using the MR or CR to blackmail Austin Bertha has breached her duty as an officer to the court to ensure proceedings are fair.

Bertha has committed an ethical violation.

July 2011 California Bar Exam Question 3: Wait, you're rich?

2011-08-14T21:29:00.000-07:00

This is the fourth post in my series on the July 2011 California Bar Exam. If you think that my answers are terrible, let me hear it in the comments.

Question three is a common law contract question which I would rate a fastball. There are plenty of issues that are not presented in a controversial or tricky way. Note that the question only asks about formation, if you talked about restitution, specific performance or some other remedy you derailed. Otherwise this is pretty straight forward. With general inquiries in contract questions there are two basic ways to approach the question. Dan Shemer, who taught my first bar review in Maryland liked the pneumonic: Until Fall Test Pressure Exhaustion Both Threaten Romance (UCC, Formation, Terms, Performance, Breach, Third Parties, Remedies). Another strategy is to consider the elements for a breach of contract in California: 1) A valid contract 2) plaintiff’s performance 3) defendant’s breach and 4) damages. I think you could use either here successfully.

From the California State Bar (pdf):

Betty is a physician. One of her patients was an elderly man named Al. Betty treated Al for Alzheimer’s disease, but since she believed he was destitute, she never charged him for her services.

One day Al said to Betty, “I want to pay you back for all you have done over the years. If you will care for me for the rest of my life, I will give you my office building. I’m frightened because I have no heirs and you are the only one who cares for me. I need to know now that I can depend on you.” Betty doubted that Al owned any office building, but said nothing in response and just completed her examination of Al and gave him some medication.

Two years passed. Al’s health worsened and Betty continued to treat him. Betty forgot about Al’s statement regarding the office building.

One day Betty learned that Al was indeed the owner of the office building. Betty immediately wrote a note to Al stating, “I accept your offer and promise to provide you with medical services for the rest of your life.” Betty signed the note, put it into a stamped envelope addressed to Al, and placed the envelope outside her front door to be picked up by her mail carrier when he arrived to deliver the next day’s mail.

Al died in his sleep that night. The mail carrier picked up Betty’s letter the following morning and it was delivered to Al’s home a day later. The services rendered by Betty to Al over the last two years were worth several thousand dollars; the office building is worth millions of dollars.

Does Betty have an enforceable contract for the transfer of the office building? Discuss.

I will discuss below the jump

Common law contract

The issue is whether this contract is governed by the common law or the UCC. The common law governs contracts for personal services or the sale of land and the UCC governs contracts for the sale of goods. Here, the contract is either a personal services contract because Betty provided medical services or a contract for the sale of land because Al wanted to barter an office building. In either case, the common law governs.

Formation

The issue is whether Betty formed a valid contract. A contract requires an offer, acceptance and consideration. An offer is a promise to do something or to refrain from doing something conditioned on the offeree’s acceptance. An oral offer lasts until the end of the conversation. Acceptance is a voluntary act of the offeree where the offeree exercises the power conferred by the offer. Consideration is a legally sufficient detriment to make a contract a binding obligation instead of a gift.

Here, Al offered to barter his building when he stated “If you care for me for the rest of my life, I will give you my office building” since he intended to do something upon Betty’s acceptance. However, when Betty, “said nothing in response” the offer lapsed. Even if the end of the conversation did not cause the offer to lapse “two years” is an extreme time for an offer to last, unless accompanied by an option and “Betty forgot” that Al had made the offer. This indicates that their minds never met within a reasonable time to create a contract.
Betty may argue that her letter to Al constituted an acceptance because she agreed to be bound by the terms of his offer. Under the mailbox rule, an acceptance forms a contract when the offeree puts the acceptance into the mailbox. Under the mirror image rule, the acceptance must be the mirror image of the offer and Betty’s letter reflected the terms of Al’s offer. Betty may argue, that this was a unilateral contract and that she could accept it by performing, which she did. Alternately, there is an exception to the mutual assent rule for physicians that perform services on patients. Physicians perform these services with the expectation that they will be paid for them. To the extent Al’s estate relies on an incapacity argument for either terminating the offer or voiding the contract it fails because no capacity is necessary in a contract for medical services. However, the here Betty “never charge [Al] for her services [because] she believed he was destitute.” Betty’s unique belief thwarts the presumption of contractual obligation. Further, her acceptance fails because her power to accept lapsed when the offer lapsed for the reasons stated above.

Assuming that the other elements are present, consideration exists because Betty’s services were “worth several thousand dollars” and Al’s building was “worth millions of dollars” and neither had an obligation to render services to the other. Al’s estate can argue that Betty’s performance of services created a duty to continue to care for Al because Al relied on those creating a contractual obligation for services under promissory estoppel. However, there is nothing to indicate that Al relied on her to his detriment, if he was wealthy he could have hired someone else to care for him and he simply appeared to stick with Betty because he liked her.

Statute of Frauds

The issue is whether, assuming a contract exists, the statute of frauds prevents its enforcement. The statute of frauds states that contracts for the sale of land, or contracts for personal services that will last more than a year, must be in writing unless an exception applies. Al’s estate can argue that the barter was a land sale contract and that Al never signed a contract that could be enforced against him. Betty can respond that this was a contract for personal services for “the rest of [Al’s] life” since his life expectancy is unknown, the law assumes that it can be performed within one year even if it can (and did) take longer. Betty’s argument fails, since the agreement contains an interest in land, that portion must be in writing sufficient to satisfy the statute of frauds.

Promissory Estoppel

The issue is whether promissory estoppel remedies all of the problems heretofore listed for Betty. Courts will enforce a contract where a plaintiff has relied on a representation of the defendant to his detriment. Here, it is unclear why Betty believed Al was destitute if, he did in fact, have millions of dollars. Once she realized that circumstance was incorrect, she endeavored to collect for her services. So, she relied on this belief to her detriment, but Al did not state that he was destitute. To the contrary, he stated that he owned and wanted to give her a building. Betty’s reliance on Al’s appearance of indigence, was unreasonable.

For this reason promissory estoppel fails.

July 2011 California Bar Exam Question 2: I saw this before

2011-08-14T21:22:00.000-07:00

This is the third post in my series on the July 2011 California Bar Exam. If you think that my answers are terrible, let me hear it in the comments.

Question two is a pretty representative Civil Procedure question. All of these issues have been tested in the past ten years. I score this as a curveball since you had to understand the rationale for part one to answer part three.

From the California State Bar (pdf):

Doctor performed surgery on Perry’s spine to insert a metal rod designed by Bolton, Inc. (Bolton). Shortly after the surgery, Perry developed severe back pain at the location where the rod was inserted. Within the applicable statute of limitations for a tort action for negligence, Perry sued Doctor in federal district court, alleging that she was negligent in using Bolton’s rod for the kind of back condition from which he suffered. Personal jurisdiction, subject matter jurisdiction, and venue were proper.

During a deposition, Perry’s attorney asked Doctor to state whether she had performed any other spine surgeries using Bolton’s rods and, if so, whether any of those surgeries had resulted in complications. Doctor’s attorney objected to the questions on the ground that the information requested had nothing to do with whether Doctor was negligent as to Perry, and Doctor refused to answer. After the attorneys properly met and conferred concerning Doctor’s refusal, Perry’s attorney filed a motion to compel Doctor to answer the questions.

Shortly after the statute of limitations had run, Perry learned through a newspaper article that Bolton had been sued by several patients who alleged that they suffered severe back pain after Bolton’s rod was inserted into their spines during surgery. Perry immediately sought and obtained leave to amend his federal complaint to join and include a claim against Bolton, alleging that it had negligently designed the rod. Bolton immediately filed a motion to dismiss Perry’s claim against it on the ground that the statute of limitations had already run.

Perry also learned that Doctor had lost a lawsuit brought by another patient with a back condition like his who had also alleged negligence by Doctor for inserting Bolton’s rod into his spine. Perry filed a motion for summary judgment against Doctor on the basis of preclusion.

1. How should the court rule on Perry’s motion to compel Doctor to answer? Discuss.
2. How should the court rule on Bolton’s motion to dismiss Perry’s claim on the ground that the statute of limitations had run? Discuss.
3. How should the court rule on Perry’s motion for summary judgment? Discuss.

I will discuss after the jump

Motion to Compel

The issue is whether the court should grant Perry’s motion to compel. All material is discoverable that is either related to a claim or defense in the present action or may lead to discoverable information in the present action unless a privilege applies. A motion to compel discovery requires a party to disclose information the moving party is allowed to receive under the discovery rules. Fed. R. Civ. P. 30(d)(1) prohibits any person from instructing a deponent not to answer a question except when necessary to preserve a privilege, comply with a court order, or to permit a motion to limit the inquiry.

Here, information about previous lawsuits may indicate that Doctor had knowledge that the metal rod was defective. If so, this relates to whether Doctor breached a duty of care to Perry or could lead to discoverable information to that effect. Since the material is discoverable, the motion to compel should be granted.

Alternately, Doctor’s attorney may argue that information about previous lawsuits is privileged and therefore not subject to disclosure under Rule 30. Even if this is true, it is Doctor’s attorney who bears the burden of filing a motion for a protective order stating why, under Rule 30(d)(1), the information should not be released. The attorney’s failure to do so is a violation of that rule, for which sanctions may attach.

The Court should grant the motion to compel.

Motion to dismiss

The issue is whether Bolton can dismiss Perry’s complaint. A motion to dismiss challenges the legal sufficiency of a complaint and will be granted when the complaint states no injury for which the law provides relief. Generally, the date of an amended pleading will “relate back” to the date of the original pleading if the amended pleading arises out of the same nucleus of operative fact as the original pleading. [According to Friedenthal’s treatise,] there is a split in authority on whether a products liability claim arises under the same nucleus of operative fact as a medical negligence claim. The majority rule is that the medical negligence includes the use of defective product and therefore the incident arises from same nucleus of operative fact for which the amended complaint should relate back to the original complaint. The minority view is that the defendants and causes of action are different and therefore it is a separate claim altogether.

Bolton will argue that the court should adopt the minority position that the complaint should not relate back to the original filing because the claims and defendants are different creating a separate cause of action altogether. Perry can point to the majority view that Doctor’s negligence (if any) could have included the use of a defective product, once the source of negligence was discovered the claim amendment is proper. Bolton can respond that Perry knew (or easily could have determined) Bolton’s metal rod was in his back from the onset of the injury, whether it was negligence or products liability, Bolton should have been brought into the case much earlier.

The Court will follow the majority position, and deny the motion to dismiss.

Motion for Summary Judgment

The issue is whether Perry should receive summary judgment as to Doctor. Summary judgment is appropriate where 1) there is no genuine issue of material fact and 2) the moving party is entitled to judgment as a matter of law. Claim preclusion prohibits a plaintiff from litigating a claim against a defendant party where 1) the two parties were subject to a prior litigation 2) that resulted in a final judgment on the merits 3) which is related to a claim in the present litigation. Issue preclusion prohibits a party from re-litigating an issue lost in a precious case where the issue 1) is identical in both actions 2) was litigated and decided in the prior action and 3) the issue was necessary for the court’s judgment.

Here, Perry is the plaintiff and was not a party to the prior action. Therefore cannot utilize claim preclusion.
With regard to issue preclusion, the issue in the previous case is whether Doctor was negligent in inserting the rod into the plaintiffs back. It is unclear whether the rod was inserted in a negligent manner or Doctor was negligent because he inserted a defective rod. If the former situation exists, then the issue is sufficiently different to avoid preclusion in the present case. The issue was litigated and decided in the previous action and was a cause of the Court’s decision satisfying the other elements. Doctor may argue that medical negligence cases are extremely fact specific and that the factual scenario of the previous case does relate to a new case with a new patient. Here, Perry can respond that Doctor wrongfully chose not to answer questions about previous cases in his deposition and he should now be forbidden from introducing evidence of differences in the present case as a sanction.

Without evidence of those differences in the record, there is no genuine issue of material fact and the issue preclusion would give Perry partial summary judgment as a matter of law as to the issue of negligence. The issue of damages cannot be resolved from previous cases because the Perry has presented no evidence that his injuries are similar to the other plaintiff’s and he has failed to show an absence of a material fact in this regard. Summary judgment on this issue should be denied and set for trial.

The court will grant the motion for summary judgment in part and deny it in part.

July 2011 California Bar Exam Question 1: the Robbery Run

2011-08-14T20:54:00.000-07:00

This is the second post in my series on the July 2011 California Bar Exam. If you think that my answers are terrible, let me hear it in the comments.

Question one primarily tests the inchoate crimes and your ability to apply them. I would rate this as a fastball question, there are a lot of issues and, if you know the rules, you are in good shape. Robbery runs are common on other state’s bar exams but it has been about 20 years since this came up in California.

From the California State Bar (pdf):

Vicky operates a successful retail computer sales business out of the garage of her house. Vicky told Dan that she intended to go on vacation some days later. Dan subsequently informed Eric of Vicky’s intended vacation and of his plan to take all of her computers while she was away. Eric told Dan that he wanted nothing to do with taking the computers, but that Dan could borrow his pickup truck if Dan needed it to carry the computers away.

While Vicky was scheduled to be away on vacation, Dan borrowed Eric’s pickup truck. Late that night, Dan drove the truck over to Vicky’s house. When he arrived, he went into the garage by pushing a partially open side door all the way open. Vicky, who had returned home early from her vacation, was awakened by noise in her garage, opened the door connecting the garage to the house, and stepped into the garage. When she saw Dan loading computers into the back of the truck, she stepped between Dan and the truck and yelled, “Stop, thief!”

Dan pushed Vicky out of the way, ran to the truck, and drove off. He immediately went to Fred’s house where he told Fred what had happened. In exchange for two of the computers, Fred allowed Dan to hide the truck behind Fred’s house.

What crimes, if any, have Dan, Eric, and/or Fred committed? Discuss.

I will discuss below the jump.

I would start this question off by breaking the question up by defendant (Dan, Eric and Fred) and from there chronologically based on crime.

People v. Dan

I. Solicitation

The issue is whether Dan solicited Eric to assist him in robbing Vicky. Common law solicitation is a misdemeanor where the defendant counsels, incites or induces another to commit or join in the commission of any offense. Modern statutes have limited solicitation liability to felonies. Here, Dan told Eric “of his plan to take all of [Vicky’s] computers while she was away.” The state can argue that this statement incited Eric to allow Dan to use his truck. Dan can respond that Eric stated “he wanted nothing to do with taking the computers….” However, solicitation is based only on the defendant’s act and not the third party’s response to the act.

Dan has committed solicitation.

II. Conspiracy with Eric

The issue is whether Eric entered into a conspiracy with Dan to steal Vicky’s computers. Conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful manner. Here, the state can argue that Dan and Eric agreed to rob Vicky and that Eric manifested his assent by allowing Dan to use his truck. Dan can respond that Eric stated “he wanted nothing to do with taking the computers….” However, conspiracies can be proven by circumstantial evidence. The State will be able to show that even though Eric stated he did not want to be involved in criminal activity, his actions indicated otherwise.

Dan’s next defense is that Eric merely had knowledge of pending or past illegal activity which, when coupled with a lawful action (such as letting a friend borrow a truck) is insufficient to prove an agreement to do an unlawful act. [This is a Lauria defense]. Where direct evidence of intent to participate in a criminal act is lacking, intent may be inferred from 1) a stake in the venture 2) no legitimate use for the goods or service or 3) an unusual volume of business not proportionate to any legitimate demand. Here, Eric had no stake in the venture because he would not profit from Dan’s wrongdoing. Similarly, Dan could have legitimately used the truck and simply chose to use it for theft. Finally, it is unclear about Eric’s truck-lending habits, but a single incident without more does not show a pattern of conduct.

Assuming that Eric has a solid defense for conspiracy, there is a split in authority as to whether Dan can unilaterally enter a conspiracy. Under the Gebardi rule, both parties must be liable for a conspiracy to exist. Under the Model Penal Code, only one party need be liable for the other party to be guilty of conspiracy. Here, the court is likely to follow the majority Gebardi rule and since Eric is not liable for conspiracy Dan will not be liable for conspiracy.

Since the discussion between Dan and Eric fails to show a sufficient agreement between the parties no conspiracy exists.

IIB. Larceny

The issue is whether Dan committed larceny upon Vicky. Larceny is a trespassory taking of the property of another with the intent to permanently deprive the owner of that property. Here, Dan took Vicky's property by lifting the computers and beginning to carry them away. Dan's intent to permanently deprive is manifested by his unambiguous statement to Eric to that affect - since Dan told Eric “of his plan to take all of [Vicky’s] computers while she was away.”

Dan has committed Larceny.

III. Burglary

The issue is whether Dan burglarized Vicky. Common law burglary is breaking and entering of the dwelling house of another at night with the intent to commit a felony or larceny therein. Modern burglary eliminates the dwelling house and night elements. Here, Dan broke into the structure by partially opining Vicky’s garage door and entered into the structure when he “went into the garage….” His intent to commit larceny is manifested by his unambiguous statement to Eric to that affect - since Dan told Eric “of his plan to take all of [Vicky’s] computers while she was away.” Even if the common law definition applies, Dan entered Vicky’s garage, “[l]ate that night.” Dan can raise the defense that the garage is not a “dwelling house” under the common law. Even if that were true, no jurisdiction applies that restriction to modern burglary statutes.
Dan has committed burglary.

IV. Battery

The issue is whether Dan battered Vicky. Battery is an intentional act that results in an unwanted touching. Here, “Dan pushed Vicky out of the way.” He acted intentionally and Vicky did not appear to want to be pushed out of the way.

Dan has committed battery.

V. Assault

The issue is whether Dan assaulted Vicky. Common law assault has two definitions: 1) attempted battery and 2) an intentional act which puts one in fear of an unwanted touching. Anyone who completes a crime is also guilty of attempting that crime, therefore since Dan committed battery he is also committed assault (though they may merge for the purpose of sentencing). Under the majority rule, Dan had to walk in the direction of Vicky before he reached his car since she was standing in the garage door, Vicky must have seen Dan push her and therefore the apprehension of touching and the touching itself are separate acts. Under this view, Dan has committed battery and can be sentenced for both assault and battery.

Dan has committed assault.

VA. Robbery

The issue is whether Dan robbed Vicky. Robbery is larceny (as defined above) plus taking the property from the person or presence of the victim by force intimidation, threat or violence. Here, the larceny aspect is satisfied as noted above. The State will argue that Dan was in Vicky's presence because he stole the computers from her garage which was a place under her control and therefore in her presence. Dan can respond that Vicky had no control over the place because she was not able to close the garage door from her vantage point. The state will argue that pushing Vicky out of the way is sufficient 'violence' to complete Robbery and Dan is unlikely to contest that since he has no defense to battery a noted above.

The State has the better argument and Dan has committed robbery.

VI. Conspiracy with Fred

The issue is whether Dan entered into a conspiracy with Fred. Conspiracy is defined above. Two parties cannot enter a conspiracy to commit a crime that involves an agreement. As explained below, Fred faces liability for receiving stolen property and being an accessory to robbery. Receiving stolen property requires an agreement between the parties (to exchange contraband for goods or services) and therefore one cannot conspire to commit the crime. Similarly, Fred did not agree to assist in the robbery, he joined the scheme after the fact and therefore faces no liability for conspiracy. Since Fred faces no liability for conspiracy, Dan faces no liability for conspiracy for the reasons explained above.

VII. Merger limitation

The issue is what crimes can Dan be convicted of in light of the merger doctrine. Under Blockburger, a person cannot be convicted of both a crime and a lesser included offense. The merger doctrine does not apply to inchoate crimes except attempt. A lesser included offense contains all of the elements of the greater crime. At common law, assault, battery and larceny were misdemeanors, while robbery and burglary were felonies.

Here, robbery contains all of the elements of larceny, assault and battery, therefore larceny, assault and battery would merge into robbery. However, burglary requires breaking and entering which robbery does not and robbery requires use of force which burglary does not, so those crimes do not merge. Even though only one transaction occurred, Dan can still be found guilty of both robbery and burglary.

People v. Eric

I. Conspiracy with Dan

There is no conspiracy with Dan for the reasons stated above.

II. Accessory liability for burglary

The issue is whether Eric has committed burglary. Burglary is defined above. At common law, an accessory before the fact is a person who is absent at the time of the crime but who procured, incited, advised, counseled or encouraged the principal to commit the crime. Under modern laws, anyone who aids or abets a principal is liable for the principal’s crime. Here, Eric allowed Dan to use his truck, knowing that it would aid Dan in committing burglary.

Eric has committed burglary.

People v. Fred

I. Conspiracy with Dan

There is no conspiracy with Dan for the reasons stated above.

II. Receiving stolen property

The issue is whether Fred received stolen property from Dan. Receiving stolen property is 1) the receiving of stolen property 2) known to be stolen 3) with the intent to permanently deprive the owner. Here, Fred received two stolen computers, after Dan told him they were stolen which he did not intend to return to Vicky.

Dan has received stolen property.

III. Accessory after the fact / obstruction of justice / misprision of a felony

The issue is whether Fred is an accessory after the fact to Dan’s burglary. At common law, misprision of a felony was a failure to report a felony knowing one had occurred. At common law, an accessory after the fact was a person who, knowing that a felony has been committed, aided assisted, comforted or received the felon. Under modern statutes, misprision no longer exists in most states and accessory after the fact is now called obstruction of justice, though the elements remain the same. Here, Fred knew that Dan stole the computers because Dan “told Fred what had happened.” Dan aided Fred by agreeing to store the computers and did not report Fred to the police.

Dan can argue that Fred had stolen the computers, assaulted and battered Vicky but not that he had committed burglary. If this is true all of Dan’s crimes disclosed to Fred are common law misdemeanors to which no liability for accessory after the fact / obstruction of justice / misprision of a felony can lie. However, Dan likely told Fred the truth, that he had committed burglary, a felony and Fred’s assistance is sufficient for accomplice liability.

Fred is an accessory after the fact to Dan’s burglary.

My answers to the July 2011 California Bar Exam

2011-08-14T20:46:00.000-07:00

I am always on the look for topics that people want to read on this blog. Since I received such a popular reaction to my post on bar exam scoring I will provide my answers, in a series of posts to the July 2011 California Bar Exam (CBX) essay questions. First, here is a little on the language that I use to describe the questions.

There are four basic kinds of questions that I categorize based on baseball.

Fastballs – your typical issue spotting racehorse question – typically Torts, Contracts, Evidence, Real Property, Wills/Trusts or Civil Procedure. The principles are usually straightforward.

Change-ups – a short question on a very particular area of law – typically Constitutional Law, Criminal Procedure or Business Associations.

Curve-balls – a question that twists a two principles together. Here, you need to resolve the first part correctly, in order to resolve the second part.

Screw-balls – a nasty question that both focuses on a narrow area of law and does not contain the facts necessary to answer the question. Skilled exam takers will read “inferences” into the fact pattern in order to fill in the gaps. Less skilled exam takers will make up a rule based on the facts presented.

Here are links to my other posts on the questions themselves:

Question One: Criminal Law (the robbery run)
Question Two: Civil Procedure (I saw this before)
Question Three: Contracts (wait, you’re rich)
Question Four: Professional Responsibility (Your friends are my friends)
Question Five: Real Property (terrible trespasser)
Question Six: Community Property (who gets the stuff)

Chapter 7 Bankruptcy Offer Shelter To Californians Who Meet The Criteria

2011-08-04T02:18:00.000-07:00

Only few states have been slapped as hard by the economic collapse than California. Both the people and the government are striving hard to come out of the situation and eager for a fresh beginning. In the last three years, the number of people seeking debt relief programs and bankruptcy filings in California has tripled.

These days, many Californians are opting for Chapter 7 Bankruptcy, as it is very fast to get through. After continuous struggle to regain financial stability, families that are completely exhausted and want to shed off their debts, have decided to pursue chapter 7 Bankruptcy. Another attractive feature of Chapter 7 bankruptcy is that it engages no payback of debts. However, the most challenging object for families is to qualify for it. This article deals with the necessary steps to be taken in order to qualify for a Chapter 7 Bankruptcy in California State.

Chapter 7 Bankruptcy in California: A Two-Part Test

There are two essential constituent to qualify for a Chapter 7 bankruptcy. Firstly, the family have to prove before the court that they do not have sufficient household income to repay their debts. There must not be any extra money leftover that could be used to pay creditors. However, with the rising living expenses in California and soaring gas and food prices, this is certainly the easiest hurdle. The second constituent is more difficult, passing the means test.

The Means Test in California

The bankruptcy court makes use of a means test to determine if a family qualifies for a Chapter 7 bankruptcy. The bankruptcy court looks at the average monthly income of a household and for the last six months and assesses that figure. If the monthly household income is less than the required and shows no disposable income, then the person most likely qualifies for filing a Chapter 7 bankruptcy.

The means test is based on calculations from the Census Bureau. This amount might vary according to state and family size. The average income for a household is amended each year. Presently, the average numbers for California are:

Single person household: $48,009

Two person household: $62,970

Three person household: $68,670

Four person household: $78,869

An additional $7,500 is added for each additional person beyond a family of four.

Those who do not qualify these amounts may still qualify for a Chapter 7 bankruptcy. These people have to document additional practical living costs before the court. The debtor has to fill out the extensive means test form that deducts additional living costs like health insurance, taxes, daycares, etc., to decide the monthly disposable income.

Bankruptcy is a complex arena. There are many rules and requirements to be followed and fulfilled. If you are thinking of filing bankruptcy, you should consult an experienced bankruptcy attorney to achieve the best results.

Some thoughts for California Bar Exam takers

2011-07-22T18:29:00.000-07:00

The California Bar Exam is upcoming and so is the question of how well must one do to past. Different bar review companies offer percentage estimates ranging from 65% to 70%. I tabulated some statistics from the February California Bar Exam and reached different results.

For the uninitiated, the exam consists of three components over three days. On the morning of the first and third day, examinees attempt three essay questions and have three hours to complete the task. These essays very widely in depth and breadth of subject matter, some involve a large number of issues that require cursory treatment, others involve a very specific issue that requires extensive treatment. On the afternoon of the first and third days examinees attempt the California Performance Test (CPT) which is a three-hour writing assignment. Each essay is worth 100 points and each CPT is worth 200 points for a total raw score of 1000 points. That score is scaled. On the February 2011 exam, the range of possible scores was 40-100 and the average score (by my calculation) was a 60.1. The total number of points that could be earned was then scaled with the following formula:

Scaled written score = (Raw written score x 2.8372) – 311.0880

The scaled written score is then multiplied by .65 to get the total number of essay points toward the final score. The second day of the Bar exam consists of 200 multiple choice questions on the Multistate Bar Examination (MBE).

The scaling is a bit different but it's essentially:

3.5 * (42.8 + (Raw score x (.8 or .9)))

What's interesting here is that the first few questions correct are worth .8 then every forth or fifth question is worth .9. As the exam taker gets more questions correct, those answers are more frequently worth more points.

Here is a chart that shows what I am talking about. The green line represents the 5th percentile of exam takers, the red line represents the 95th percentile of exam takes. Sure some people did better or worse, but 90% of exam takers fall between those two lines. The blue line is set of passing scores showing the average raw essay on the x-axis and the average raw MBE on the y-axis. The objects are various bar exam companies' ideas of what passing scores are. As you can see, virtually no one obtained a 70% on both the essay and MBE. The horizontal line is the national average MBE raw score (122), and the vertical line is my guess as to the average essay score (60.1). So, the average exam taker failed the exam, but not by much.

By my math if you scored a 62.5 as an average essay and 125 raw on the MBE, you would have passed the exam. Which is a 62.5% on the exam as a whole. So, if you are taking the exam and are not scoring in the 70's, don't worry, no one else is either.

I wish you all the best of luck.

Magistrate allows Title VII claim, omitted in bankruptcy petition, to proceed to trial

2011-07-05T22:56:00.000-07:00

Yoshimoto v. O'Reilly Automotive, Inc. is a routine employment discrimination case with a procedural twist. When Mr. Yoshimoto declared Chapter Seven bankruptcy he failed to include his employment discrimination claims as assets in his schedule. He subsequently reopened the bankruptcy, added the claims and worked out an agreement on proceed splitting with the trustee. O'Reilly now argues that the failure to disclose the claims judicially estopps Magistrate Laurel Beeler from now considering them. Funtanilla v. Swedish Hospital Health Services (W.D. Wash. 2011) explains that the Ninth Circuit rigorously enforces this rule,

Courts have, therefore, imposed judicial estoppel even where a discharge is later vacated, [Hamilton v. State Farm Fire & Cas. Co., (9th Cir. 2001)], and even where the debtor has offered to reopen his or her bankruptcy case and amend his or her petition, id.

Nonetheless, the precedent on this matter is anything but clear, as Judge Beeler explains.

On the other hand, the Ninth Circuit affirmed a district court’s application of judicial estoppel ina similar case where the district court determined that “the Court’s interest in protecting the judicial system outweighs the interest of plaintiff's creditors or the value of preventing a windfall to defendants.” Laisure-Radke v. Barr Laboratories, Inc.(W.D. Wash. June 22, 2006), aff’d, (9th Cir. 2009), but see Craft v. Demeyer Furniture, Inc. (D. Idaho Feb. 13, 2011) (explicitly disagreeing with this statement and declining to follow Laisure).

Judge Beeler sided with Mr. Yoshimoto denying the motion for summary judgment. However, as Magistrate Barry M. Kurren explains in Ah Quin v. County of Kauai Department of Transportation (D. Haw. 2010), the Ninth Circuit has ruled on this issue twice in a manner contrary to Judge Beeler:

The Ninth Circuit also applied judicial estoppel in several unpublished opinions. See, e.g., Laisure-Radke v. Barr Laboratories, Inc., (9th Cir. 2009) (applying judicial estoppel where the debtor failed to disclose her claims in bankruptcy court, obtained a discharge based on the failure to disclose, and later moved to reopen her bankruptcy proceedings); Rose v. Beverly Health & Rehabilitation Serv., Inc., 295 Fed.Appx. 142 (9th Cir. 2008) (applying judicial estoppel where the debtor failed to disclose her claims in bankruptcy court, obtained a discharge, later moved to reopen the bankruptcy proceedings and "claimed subjective ignorance of the disclosure requirements").

We'll see what happens with this one.