July 2015 California Bar Exam

User avatar
BuenAbogado
Posts: 238
Joined: Sun Jul 05, 2015 3:43 pm

Re: July 2015 California Bar Exam

Postby BuenAbogado » Fri Jul 24, 2015 5:15 pm

Charger wrote:Is it just me or are the Barbri essays for CA mostly from February exams? Like, out of the 8 con law essays, 7 are from February administrations.


That's because Con Law is generally a February topic. I think because it's harder, and second time test takers tend to avoid rookie mistakes so it's harder for the graders to distinguish between examinees.

User avatar
robinhoodOO
Posts: 874
Joined: Wed Mar 16, 2011 1:08 pm

Re: July 2015 California Bar Exam

Postby robinhoodOO » Fri Jul 24, 2015 5:32 pm

BuenAbogado wrote:
Charger wrote:Is it just me or are the Barbri essays for CA mostly from February exams? Like, out of the 8 con law essays, 7 are from February administrations.


That's because Con Law is generally a February topic. I think because it's harder, and second time test takers tend to avoid rookie mistakes so it's harder for the graders to distinguish between examinees.


Mark my words: There will be ConLaw on this exam. Do. Not. Ignore. ConLaw.

Calicakes
Posts: 115
Joined: Wed May 20, 2015 1:31 am

Re: July 2015 California Bar Exam

Postby Calicakes » Fri Jul 24, 2015 5:41 pm

Which CP formula to use?

H and W marry in 2011
W moves into H's house that he owned since 1995
H pays a couple mortgage payments with SP and thereafter makes no payments.
H and W refianace, and W's name goes on title 2years after they marry.

10 years later they divorce. What is W's interest in house? Which formula would you use?

User avatar
BuenAbogado
Posts: 238
Joined: Sun Jul 05, 2015 3:43 pm

Re: July 2015 California Bar Exam

Postby BuenAbogado » Fri Jul 24, 2015 5:44 pm

robinhoodOO wrote:
BuenAbogado wrote:
Charger wrote:Is it just me or are the Barbri essays for CA mostly from February exams? Like, out of the 8 con law essays, 7 are from February administrations.


That's because Con Law is generally a February topic. I think because it's harder, and second time test takers tend to avoid rookie mistakes so it's harder for the graders to distinguish between examinees.


Mark my words: There will be ConLaw on this exam. Do. Not. Ignore. ConLaw.


lol, I didn't, but it's too late for one who did.

User avatar
SpAcEmAn SpLiFF
Posts: 291
Joined: Thu Apr 24, 2008 5:16 pm

Re: July 2015 California Bar Exam

Postby SpAcEmAn SpLiFF » Fri Jul 24, 2015 5:47 pm

Quick conlaw question:
For organizational standing, one of the requirements is that the lawsuit wouldn't require the individual's participation in the lawsuit. What's an example of a situation in which the individual's participation would be required?

User avatar
brotherdarkness
Posts: 3254
Joined: Thu Nov 08, 2012 8:11 pm

Re: July 2015 California Bar Exam

Postby brotherdarkness » Fri Jul 24, 2015 5:52 pm

SpAcEmAn SpLiFF wrote:Quick conlaw question:
For organizational standing, one of the requirements is that the lawsuit wouldn't require the individual's participation in the lawsuit. What's an example of a situation in which the individual's participation would be required?


When one of the individuals has a better or different claim than the others. When I read model answers, Barbri usually writes something like "there is no requirement that the individual members be a part of the lawsuit because they all have the same claim."

User avatar
BuenAbogado
Posts: 238
Joined: Sun Jul 05, 2015 3:43 pm

Re: July 2015 California Bar Exam

Postby BuenAbogado » Fri Jul 24, 2015 5:59 pm

Calicakes wrote:Which CP formula to use?

H and W marry in 2011
W moves into H's house that he owned since 1995
H pays a couple mortgage payments with SP and thereafter makes no payments.
H and W refianace, and W's name goes on title 2years after they marry.

10 years later they divorce. What is W's interest in house? Which formula would you use?


The issue is what interest W has in the house.

Under the Anti-Lucas rule, property that is jointly owned is community property (CP) at divorce. However, spouses are entitled to reimbursement to their separate property (SP) for 1) Down payments 2) Improvements and/or 3) Principal payments.

Here, H owned the house separately until the refinance, at which time H and W owned the property jointly. Thus, it may be presumed that at the time that H and W refinanced and took joint possession of the house, H had made a down payment to the now CP house from his SP equal to the fair market value of the house.

Thus, at divorce, Anti-Lucas provides that H's SP will be reimbursed the fair market value of the home, which is considered a down payment, from the CP. The facts do not indicate whether CP funds were invested into the house prior to the refinance, but if they were, those funds will be subtracted from H's reimbursement. The court will not necessarily force a sale of the house, but may take the reimbursement from other funds or property. Furthermore, this law will be very useful in the upcoming year, as the records of numerous cheaters will likely be released via the hack of the "Ashley Madison" adulterer website.

hopefulIPgirl
Posts: 45
Joined: Wed Dec 09, 2009 2:34 pm

Re: July 2015 California Bar Exam

Postby hopefulIPgirl » Fri Jul 24, 2015 6:07 pm

BuenAbogado wrote:
Calicakes wrote:Which CP formula to use?

H and W marry in 2011
W moves into H's house that he owned since 1995
H pays a couple mortgage payments with SP and thereafter makes no payments.
H and W refianace, and W's name goes on title 2years after they marry.

10 years later they divorce. What is W's interest in house? Which formula would you use?


The issue is what interest W has in the house.

Under the Anti-Lucas rule, property that is jointly owned is community property (CP) at divorce. However, spouses are entitled to reimbursement to their separate property (SP) for 1) Down payments 2) Improvements and/or 3) Principal payments.

Here, H owned the house separately until the refinance, at which time H and W owned the property jointly. Thus, it may be presumed that at the time that H and W refinanced and took joint possession of the house, H had made a down payment to the now CP house from his SP equal to the fair market value of the house.

Thus, at divorce, Anti-Lucas provides that H's SP will be reimbursed the fair market value of the home, which is considered a down payment, from the CP. The facts do not indicate whether CP funds were invested into the house prior to the refinance, but if they were, those funds will be subtracted from H's reimbursement. The court will not necessarily force a sale of the house, but may take the reimbursement from other funds or property. Furthermore, this law will be very useful in the upcoming year, as the records of numerous cheaters will likely be released via the hack of the "Ashley Madison" adulterer website.


This is how I would answer it too. My understanding is that H would be entitled to the fair market value at the time the property was taken as joint title (and not the current fair market value).

User avatar
BuenAbogado
Posts: 238
Joined: Sun Jul 05, 2015 3:43 pm

Re: July 2015 California Bar Exam

Postby BuenAbogado » Fri Jul 24, 2015 6:13 pm

hopefulIPgirl wrote:
BuenAbogado wrote:
Calicakes wrote:Which CP formula to use?

H and W marry in 2011
W moves into H's house that he owned since 1995
H pays a couple mortgage payments with SP and thereafter makes no payments.
H and W refianace, and W's name goes on title 2years after they marry.

10 years later they divorce. What is W's interest in house? Which formula would you use?


The issue is what interest W has in the house.

Under the Anti-Lucas rule, property that is jointly owned is community property (CP) at divorce. However, spouses are entitled to reimbursement to their separate property (SP) for 1) Down payments 2) Improvements and/or 3) Principal payments.

Here, H owned the house separately until the refinance, at which time H and W owned the property jointly. Thus, it may be presumed that at the time that H and W refinanced and took joint possession of the house, H had made a down payment to the now CP house from his SP equal to the fair market value of the house.

Thus, at divorce, Anti-Lucas provides that H's SP will be reimbursed the fair market value of the home, which is considered a down payment, from the CP. The facts do not indicate whether CP funds were invested into the house prior to the refinance, but if they were, those funds will be subtracted from H's reimbursement. The court will not necessarily force a sale of the house, but may take the reimbursement from other funds or property. Furthermore, this law will be very useful in the upcoming year, as the records of numerous cheaters will likely be released via the hack of the "Ashley Madison" adulterer website.


This is how I would answer it too. My understanding is that H would be entitled to the fair market value at the time the property was taken as joint title (and not the current fair market value).


Definitely. My mistake.

User avatar
robinhoodOO
Posts: 874
Joined: Wed Mar 16, 2011 1:08 pm

Re: July 2015 California Bar Exam

Postby robinhoodOO » Fri Jul 24, 2015 6:15 pm

BuenAbogado wrote:
hopefulIPgirl wrote:
BuenAbogado wrote:
Calicakes wrote:Which CP formula to use?

H and W marry in 2011
W moves into H's house that he owned since 1995
H pays a couple mortgage payments with SP and thereafter makes no payments.
H and W refianace, and W's name goes on title 2years after they marry.

10 years later they divorce. What is W's interest in house? Which formula would you use?


The issue is what interest W has in the house.

Under the Anti-Lucas rule, property that is jointly owned is community property (CP) at divorce. However, spouses are entitled to reimbursement to their separate property (SP) for 1) Down payments 2) Improvements and/or 3) Principal payments.

Here, H owned the house separately until the refinance, at which time H and W owned the property jointly. Thus, it may be presumed that at the time that H and W refinanced and took joint possession of the house, H had made a down payment to the now CP house from his SP equal to the fair market value of the house.

Thus, at divorce, Anti-Lucas provides that H's SP will be reimbursed the fair market value of the home, which is considered a down payment, from the CP. The facts do not indicate whether CP funds were invested into the house prior to the refinance, but if they were, those funds will be subtracted from H's reimbursement. The court will not necessarily force a sale of the house, but may take the reimbursement from other funds or property. Furthermore, this law will be very useful in the upcoming year, as the records of numerous cheaters will likely be released via the hack of the "Ashley Madison" adulterer website.


This is how I would answer it too. My understanding is that H would be entitled to the fair market value at the time the property was taken as joint title (and not the current fair market value).


Definitely. My mistake.


Maybe I'm missing something, but unless there is a valid transmutation, the property is still SP and the effect is that CP now has an ownership interest equivalent to the percentage of the re-fi compared to the home's value. It's basically just a moores-marsden analysis for SP enhanced by CP where CP obtains an ownership interest or right of reimbursement (whichever is greater).

Then, if it is a valid transmutation you can do a 2640 reimbursement for H's SP--unless it was waived in writing.

I think, but don't know offhand, that change in title is a presumptive transmutation. If that's the case, you'd need to "bridge the gap" by showing there was an actual transmutation once title changed. It would also be rebuttable.
Last edited by robinhoodOO on Fri Jul 24, 2015 6:23 pm, edited 1 time in total.

User avatar
brotherdarkness
Posts: 3254
Joined: Thu Nov 08, 2012 8:11 pm

Re: July 2015 California Bar Exam

Postby brotherdarkness » Fri Jul 24, 2015 6:22 pm

Isn't there a transmutation because they took title jointly? I thought the rule was that when you take title to property in a manner that contradicts the method of payment, the form of title controls. So if H paid for a house out of SP but took title in both H&W, the property would be SP...

Very unsure about this, tho. Really need to work on community property.

ETA -- But after 1985, it has to be in writing. I suppose the title could be a writing, but if the parties aren't intending to change the ownership from SP to CP (or vice versa), then maybe it's not a valid transmutation...

Calicakes
Posts: 115
Joined: Wed May 20, 2015 1:31 am

Re: July 2015 California Bar Exam

Postby Calicakes » Fri Jul 24, 2015 6:25 pm

robinhoodOO wrote:
BuenAbogado wrote:
hopefulIPgirl wrote:
BuenAbogado wrote:
Calicakes wrote:Which CP formula to use?

H and W marry in 2011
W moves into H's house that he owned since 1995
H pays a couple mortgage payments with SP and thereafter makes no payments.
H and W refianace, and W's name goes on title 2years after they marry.

10 years later they divorce. What is W's interest in house? Which formula would you use?


The issue is what interest W has in the house.

Under the Anti-Lucas rule, property that is jointly owned is community property (CP) at divorce. However, spouses are entitled to reimbursement to their separate property (SP) for 1) Down payments 2) Improvements and/or 3) Principal payments.

Here, H owned the house separately until the refinance, at which time H and W owned the property jointly. Thus, it may be presumed that at the time that H and W refinanced and took joint possession of the house, H had made a down payment to the now CP house from his SP equal to the fair market value of the house.

Thus, at divorce, Anti-Lucas provides that H's SP will be reimbursed the fair market value of the home, which is considered a down payment, from the CP. The facts do not indicate whether CP funds were invested into the house prior to the refinance, but if they were, those funds will be subtracted from H's reimbursement. The court will not necessarily force a sale of the house, but may take the reimbursement from other funds or property. Furthermore, this law will be very useful in the upcoming year, as the records of numerous cheaters will likely be released via the hack of the "Ashley Madison" adulterer website.


This is how I would answer it too. My understanding is that H would be entitled to the fair market value at the time the property was taken as joint title (and not the current fair market value).


Definitely. My mistake.


Maybe I'm missing something, but unless there is a valid transmutation, the property is still SP and the effect is that CP now has an ownership interest equivalent to the percentage of the re-fi compared to the home's value. It's basically just a moores-marsden analysis for SP enhanced by CP where CP obtains an ownership interest or right of reimbursement (whichever is greater).



To clarify a little further. I was trying to figure out my own situation and relate it to a formula so I'd remember.

I am happily married so hopefully this will never apply to me. Also, we're W and W. Doubt we'd ever see that on the exam.

W(1) moves in with W(2) in 2010. W(2) owns house since 1995 We become Domestic Partners in 2012( I think its treated as a valid marriage).
W's marry in 2013. W's refiance 2x, 2nd time W(1) name goes on title. W(1) did not want her name on previously. W(1) paid a few payments with SP before becoming domestic partners and marriage. All other payments and expenses are paid with CP.

Once again, hopefully this will never happen, but say 10 or 15yrs down the line, W's divorce.

The formula is?

User avatar
robinhoodOO
Posts: 874
Joined: Wed Mar 16, 2011 1:08 pm

Re: July 2015 California Bar Exam

Postby robinhoodOO » Fri Jul 24, 2015 6:26 pm

brotherdarkness wrote:Isn't there a transmutation because they took title jointly? I thought the rule was that when you take title to property in a manner that contradicts the method of payment, the form of title controls. So if H paid for a house out of SP but took title in both H&W, the property would be SP...

Very unsure about this, tho. Really need to work on community property.

ETA -- But after 1985, it has to be in writing. I suppose the title could be a writing, but if the parties aren't intending to change the ownership from SP to CP (or vice versa), then maybe it's not a valid transmutation...


There may be a presumption of a transmutation for change in title (I don't remember offhand, but I recall the Weaver case, but it may have been overturned), but (1) It'd be rebuttable and (2) You'd have to still discuss transmutation because the initial presumption is SP because it was acquired pre-marriage.

So, basically: You'd have to start there, argue SP, and then say the change in title presumed a transmutation (which H can rebut). And then go down both paths:

1) If transmutation, 2640 reimbursement rights.

2) If not transmutation and H rebuts, CP obtains an ownership interest re re-fi

User avatar
robinhoodOO
Posts: 874
Joined: Wed Mar 16, 2011 1:08 pm

Re: July 2015 California Bar Exam

Postby robinhoodOO » Fri Jul 24, 2015 6:32 pm

Calicakes wrote:
The formula is?


Unless we're able to clarify whether there is a presumption of transmutation for change in title, I'd argue Yes, but say Husband can rebut the transmutation.

Basically say:

There is a presumption that change in title during marriage is a valid transmutation. Here, Husband took SP property and added Wife to title; thus, making an effective transmutation. This presumption may, however, be rebutted.

If Husband is unable to rebut the transmutation, he is entitled to a reimbursement claim under Section 2640 for (1) Down payments, (2) improvements, and (3) principal payments.

If Husband rebuts the transmutation and the property is determined to remain his separate property, the community is entitled to a share in the SP, valued at a % of the re-finance compared to the value of the property.

Example: Re-fi was $250K and house was $500K. CP entitled to 50% interest in property. H would get 75% at dissolution (half of CP (25%) and all SP (50%)

hopefulIPgirl
Posts: 45
Joined: Wed Dec 09, 2009 2:34 pm

Re: July 2015 California Bar Exam

Postby hopefulIPgirl » Fri Jul 24, 2015 6:34 pm

brotherdarkness wrote:Isn't there a transmutation because they took title jointly? I thought the rule was that when you take title to property in a manner that contradicts the method of payment, the form of title controls. So if H paid for a house out of SP but took title in both H&W, the property would be SP...

Very unsure about this, tho. Really need to work on community property.

ETA -- But after 1985, it has to be in writing. I suppose the title could be a writing, but if the parties aren't intending to change the ownership from SP to CP (or vice versa), then maybe it's not a valid transmutation...


Hmmm I was thinking there is a presumption in all property held jointly being CP unless there is a written agreement to rebut that presumption. The SP house would be treated as CP under this presumption and then you'd apply anti-Lucas.

This closely follows Winter 2003 - the cabin by the lake was given to W in inheritance and then W executed a deed with H & W as joint tenants. Barbri model answer says that house became presumptively CP.

Calicakes
Posts: 115
Joined: Wed May 20, 2015 1:31 am

Re: July 2015 California Bar Exam

Postby Calicakes » Fri Jul 24, 2015 6:36 pm

robinhoodOO wrote:
Calicakes wrote:
The formula is?


Unless we're able to clarify whether there is a presumption of transmutation for change in title, I'd argue Yes, but say Husband can rebut the transmutation.

Basically say:

There is a presumption that change in title during marriage is a valid transmutation. Here, Husband took SP property and added Wife to title; thus, making an effective transmutation. This presumption may, however, be rebutted.

If Husband is unable to rebut the transmutation, he is entitled to a reimbursement claim under Section 2640 for (1) Down payments, (2) improvements, and (3) principal payments.

If Husband rebuts the transmutation and the property is determined to remain his separate property, the community is entitled to a share in the SP, valued at a % of the re-finance compared to the value of the property.

Example: Re-fi was $250K and house was $500K. CP entitled to 50% interest in property. H would get 75% at dissolution (half of CP (25%) and all SP (50%)



Curious why H( or W2 in this case) would get improvements. We basically renovated the entire house using CP funds. Why would that become a SP interest at disolution?

User avatar
BuenAbogado
Posts: 238
Joined: Sun Jul 05, 2015 3:43 pm

Re: July 2015 California Bar Exam

Postby BuenAbogado » Fri Jul 24, 2015 6:40 pm

robinhoodOO wrote:
Calicakes wrote:
The formula is?


Unless we're able to clarify whether there is a presumption of transmutation for change in title, I'd argue Yes, but say Husband can rebut the transmutation.

Basically say:

There is a presumption that change in title during marriage is a valid transmutation. Here, Husband took SP property and added Wife to title; thus, making an effective transmutation. This presumption may, however, be rebutted.

If Husband is unable to rebut the transmutation, he is entitled to a reimbursement claim under Section 2640 for (1) Down payments, (2) improvements, and (3) principal payments.

If Husband rebuts the transmutation and the property is determined to remain his separate property, the community is entitled to a share in the SP, valued at a % of the re-finance compared to the value of the property.

Example: Re-fi was $250K and house was $500K. CP entitled to 50% interest in property. H would get 75% at dissolution (half of CP (25%) and all SP (50%)


Is there any type of an even fathomable way that you can rebut a transmutation if H and W are joint owners on a deed? I mean, you could say that maybe the deed was fabricated, but that is making up facts and would probably piss the graders off.

User avatar
BuenAbogado
Posts: 238
Joined: Sun Jul 05, 2015 3:43 pm

Re: July 2015 California Bar Exam

Postby BuenAbogado » Fri Jul 24, 2015 6:43 pm

Calicakes wrote:
robinhoodOO wrote:
Calicakes wrote:
The formula is?


Unless we're able to clarify whether there is a presumption of transmutation for change in title, I'd argue Yes, but say Husband can rebut the transmutation.

Basically say:

There is a presumption that change in title during marriage is a valid transmutation. Here, Husband took SP property and added Wife to title; thus, making an effective transmutation. This presumption may, however, be rebutted.

If Husband is unable to rebut the transmutation, he is entitled to a reimbursement claim under Section 2640 for (1) Down payments, (2) improvements, and (3) principal payments.

If Husband rebuts the transmutation and the property is determined to remain his separate property, the community is entitled to a share in the SP, valued at a % of the re-finance compared to the value of the property.

Example: Re-fi was $250K and house was $500K. CP entitled to 50% interest in property. H would get 75% at dissolution (half of CP (25%) and all SP (50%)



Curious why H( or W2 in this case) would get improvements. We basically renovated the entire house using CP funds. Why would that become a SP interest at disolution?


Then the renovation money is CP and is not applicable to Anti-Lucas, which only covers improvements if they are SP.

However, if in the process of the renovation you destroyed improvements that W2's SP made while you jointly owned the house, you still enjoyed those improvements while they lasted. It is fair that W2 gets reimbursed for them.

If the improvements were made prior to joint ownership, the improvements are factored into the appraisal for fair market value at the time of the joint ownership which is essentially a down payment on the refinanced mortgage.

User avatar
robinhoodOO
Posts: 874
Joined: Wed Mar 16, 2011 1:08 pm

Re: July 2015 California Bar Exam

Postby robinhoodOO » Fri Jul 24, 2015 6:47 pm

Well, (1) I'm sure there is, but without seeing a Q I wouldn't know, and (2) I'd discuss both avenues for full points in an essay. Presumption route and rebuttal route. (3) I just want to reiterate the importance of calling the alteration in title a transmutation.

User avatar
robinhoodOO
Posts: 874
Joined: Wed Mar 16, 2011 1:08 pm

Re: July 2015 California Bar Exam

Postby robinhoodOO » Fri Jul 24, 2015 6:52 pm

Calicakes wrote:
robinhoodOO wrote:
Calicakes wrote:
The formula is?


Unless we're able to clarify whether there is a presumption of transmutation for change in title, I'd argue Yes, but say Husband can rebut the transmutation.

Basically say:

There is a presumption that change in title during marriage is a valid transmutation. Here, Husband took SP property and added Wife to title; thus, making an effective transmutation. This presumption may, however, be rebutted.

If Husband is unable to rebut the transmutation, he is entitled to a reimbursement claim under Section 2640 for (1) Down payments, (2) improvements, and (3) principal payments.

If Husband rebuts the transmutation and the property is determined to remain his separate property, the community is entitled to a share in the SP, valued at a % of the re-finance compared to the value of the property.

Example: Re-fi was $250K and house was $500K. CP entitled to 50% interest in property. H would get 75% at dissolution (half of CP (25%) and all SP (50%)



Curious why H( or W2 in this case) would get improvements. We basically renovated the entire house using CP funds. Why would that become a SP interest at disolution?


I wasn't giving an increased value, I was just providing an example to make the law easier to understand. I used a static #, assuming the value remained constant ($500K at time title changed).

This could be much easier if someone found a good CP Q that dealt with this sort of answer...haha

Calicakes
Posts: 115
Joined: Wed May 20, 2015 1:31 am

Re: July 2015 California Bar Exam

Postby Calicakes » Fri Jul 24, 2015 6:56 pm

robinhoodOO wrote:
Calicakes wrote:
robinhoodOO wrote:
Calicakes wrote:
The formula is?


Unless we're able to clarify whether there is a presumption of transmutation for change in title, I'd argue Yes, but say Husband can rebut the transmutation.

Basically say:

There is a presumption that change in title during marriage is a valid transmutation. Here, Husband took SP property and added Wife to title; thus, making an effective transmutation. This presumption may, however, be rebutted.

If Husband is unable to rebut the transmutation, he is entitled to a reimbursement claim under Section 2640 for (1) Down payments, (2) improvements, and (3) principal payments.

If Husband rebuts the transmutation and the property is determined to remain his separate property, the community is entitled to a share in the SP, valued at a % of the re-finance compared to the value of the property.

Example: Re-fi was $250K and house was $500K. CP entitled to 50% interest in property. H would get 75% at dissolution (half of CP (25%) and all SP (50%)



Curious why H( or W2 in this case) would get improvements. We basically renovated the entire house using CP funds. Why would that become a SP interest at disolution?


I wasn't giving an increased value, I was just providing an example to make the law easier to understand. I used a static #, assuming the value remained constant ($500K at time title changed).

This could be much easier if someone found a good CP Q that dealt with this sort of answer...haha



I wasnt disputing your numbers. I was just wondering why H or hypothetically in my case, my wife would get reimbursmenets for improvements that were paid from CP funds. Oh and to add another kicker, we did some of the improvements before we were married and before title was in both our names. But, we were DP's so I guess technically married.

I remember things better when I can relate them to something in real life, so I was trying to figure it out.

Hopefully I'll never have to deal with this in my real life.

redblueyellow
Posts: 465
Joined: Sun Jan 11, 2015 9:50 pm

Re: July 2015 California Bar Exam

Postby redblueyellow » Fri Jul 24, 2015 7:13 pm

Evidence - Non-hearsay - Impeachment:

Rule: A prior inconsistent statement can be used to impeach a witness via extrinsic evidence. A prior inconsistent statement that was under oath, such as in a trial, deposition, hearing, and affidavit is also admissible for its truth. The witness must first be given the opportunity to explain or deny the prior inconsistent statement during cross-examination.

So first thing, does an affidavit count as "under oath" for substantive purposes? My assumption is NO--there's no ability to cross-examine.

Second, how do you allow for the witness to first be given the opportunity to explain or deny without introducing the extrinsic evidence first?

Would the defense attorney on cross ask the P's W something like "hey, did you ever practice law in another state without being authorized to do so?" The W would respond "no way." Then would the defense attorney said "lol, are you sure about your answer? we have another witness here that says you did! what do you have to say to that?" Then the W would have a chance to deny or explain.

Is there any alternate way or order to do this? I'm having trouble thinking of how the W would be able to admit or deny without being initially confronted with a specific act by the defense atty first, having a chance to respond, then the defense atty accepts the answer, and then places a defense witness on the stand to provide a specific act about P's W [this would be the extrinsic evidence].

______

For all you evidence/crim people out there:

D commits a crime against Plaintiff, Mary. Plaintiff calls the cops, etc etc, now the Prosecution is handling the case. The plaintiff is removed from being the actual "plaintiff" because it is a criminal case and only prosecutors can bring a crim case. If the prosecutor wishes to place Mary on the stand for questioning, what is Mary's title? Witness? Plaintiff?

If the prosecutor wishes to place the defendant on the stand to ask him some questions, what is his title?

I ask because my outlines list out impeachment of the Witness, but never "impeachment of the defendant." Does it work the same way?

User avatar
robinhoodOO
Posts: 874
Joined: Wed Mar 16, 2011 1:08 pm

Re: July 2015 California Bar Exam

Postby robinhoodOO » Fri Jul 24, 2015 7:21 pm

Calicakes wrote:
robinhoodOO wrote:
Calicakes wrote:
robinhoodOO wrote:
Calicakes wrote:
The formula is?


Unless we're able to clarify whether there is a presumption of transmutation for change in title, I'd argue Yes, but say Husband can rebut the transmutation.

Basically say:

There is a presumption that change in title during marriage is a valid transmutation. Here, Husband took SP property and added Wife to title; thus, making an effective transmutation. This presumption may, however, be rebutted.

If Husband is unable to rebut the transmutation, he is entitled to a reimbursement claim under Section 2640 for (1) Down payments, (2) improvements, and (3) principal payments.

If Husband rebuts the transmutation and the property is determined to remain his separate property, the community is entitled to a share in the SP, valued at a % of the re-finance compared to the value of the property.

Example: Re-fi was $250K and house was $500K. CP entitled to 50% interest in property. H would get 75% at dissolution (half of CP (25%) and all SP (50%)



Curious why H( or W2 in this case) would get improvements. We basically renovated the entire house using CP funds. Why would that become a SP interest at disolution?


I wasn't giving an increased value, I was just providing an example to make the law easier to understand. I used a static #, assuming the value remained constant ($500K at time title changed).

This could be much easier if someone found a good CP Q that dealt with this sort of answer...haha



I wasnt disputing your numbers. I was just wondering why H or hypothetically in my case, my wife would get reimbursmenets for improvements that were paid from CP funds. Oh and to add another kicker, we did some of the improvements before we were married and before title was in both our names. But, we were DP's so I guess technically married.

I remember things better when I can relate them to something in real life, so I was trying to figure it out.

Hopefully I'll never have to deal with this in my real life.


I don't think I meant to say she would. The question turns entirely on how the property is treated (SP or CP), which turns on the Transmutation.

She would, however, get her 50% of the CP contributions/interest at dissolution.

User avatar
robinhoodOO
Posts: 874
Joined: Wed Mar 16, 2011 1:08 pm

Re: July 2015 California Bar Exam

Postby robinhoodOO » Fri Jul 24, 2015 7:22 pm

redblueyellow wrote:Evidence - Non-hearsay - Impeachment:

Rule: A prior inconsistent statement can be used to impeach a witness via extrinsic evidence. A prior inconsistent statement that was under oath, such as in a trial, deposition, hearing, and affidavit is also admissible for its truth. The witness must first be given the opportunity to explain or deny the prior inconsistent statement during cross-examination.

So first thing, does an affidavit count as "under oath" for substantive purposes? My assumption is NO--there's no ability to cross-examine.

Second, how do you allow for the witness to first be given the opportunity to explain or deny without introducing the extrinsic evidence first?

Would the defense attorney on cross ask the P's W something like "hey, did you ever practice law in another state without being authorized to do so?" The W would respond "no way." Then would the defense attorney said "lol, are you sure about your answer? we have another witness here that says you did! what do you have to say to that?" Then the W would have a chance to deny or explain.

Is there any alternate way or order to do this? I'm having trouble thinking of how the W would be able to admit or deny without being initially confronted with a specific act by the defense atty first, having a chance to respond, then the defense atty accepts the answer, and then places a defense witness on the stand to provide a specific act about P's W [this would be the extrinsic evidence].

______

For all you evidence/crim people out there:

D commits a crime against Plaintiff, Mary. Plaintiff calls the cops, etc etc, now the Prosecution is handling the case. The plaintiff is removed from being the actual "plaintiff" because it is a criminal case and only prosecutors can bring a crim case. If the prosecutor wishes to place Mary on the stand for questioning, what is Mary's title? Witness? Plaintiff?

If the prosecutor wishes to place the defendant on the stand to ask him some questions, what is his title?

I ask because my outlines list out impeachment of the Witness, but never "impeachment of the defendant." Does it work the same way?


IF D is dumb enough to testify, he's treated like any other witness. He can't be compelled to testify in a criminal case, however, because of the 5th Amendment.

As for your victim, same deal--EXCEPT Rape Shield may come in.

User avatar
brotherdarkness
Posts: 3254
Joined: Thu Nov 08, 2012 8:11 pm

Re: July 2015 California Bar Exam

Postby brotherdarkness » Fri Jul 24, 2015 7:32 pm

Anyone know anything about reverse Van Camp and reverse Pereira (sp?)? I don't remember Barbri teaching me any of this, but some Kaplan/Themis kids are talking about it.




Return to “Bar Exam Prep and Discussion Forum”

Who is online

Users browsing this forum: summerose, Yahoo [Bot] and 6 guests