2017 February California Bar Exam Forum

[Roupie]

How was the analysis on #2 re QM? Funny thing today: I saw a car with a license plate (black/gold) that said QNMERIT as I was walking into the testing center...

Issue 2 was if B would be successful under QM. I think the 1st case has the elements of QM

Where did fit your ultra vires discussion?

I did ultra virus as a sub issue under issue 1 immunity.

You're the second person on this thread to list it under immunity. Not sure if I messed up or not.

I did ultra vires as a threshold issue for QM.

First case said something like "municipality may be liable for benefits received where it had power to contract in the subject matter, in such a case..."then it went on to list QM factors. I interpreted "power to contract" as a reference to delegated power, which was what ultra vires was about. That ultravires court even referenced the first case.

As for the dissent, it seemed like the dissent was arguing that ultra vires was not a threshold requirement to bRing a QM claim.


not sure how UV fits under the immunity analysis except as a stand alone issue.

[Lawless!]

How was the analysis on #2 re QM? Funny thing today: I saw a car with a license plate (black/gold) that said QNMERIT as I was walking into the testing center...

Issue 2 was if B would be successful under QM. I think the 1st case has the elements of QM

Where did fit your ultra vires discussion?

I did ultra virus as a sub issue under issue 1 immunity.

You're the second person on this thread to list it under immunity. Not sure if I messed up or not.

I did ultra vires as a threshold issue for QM.

First case said something like "municipality may be liable for benefits received where it had power to contract in the subject matter, in such a case..."then it went on to list QM factors. I interpreted "power to contract" as a reference to delegated power, which was what ultra vires was about. That ultravires court even referenced the first case.

As for the dissent, it seemed like the dissent was arguing that ultra vires was not a threshold requirement to bRing a QM claim.


not sure how UV fits under the immunity analysis except as a stand alone issue.

I ran into the UV issue later in my analysis and couldn't figure out how it would fit logically. But then I saw that quote you mentioned. And looked like a limit to liability. So the City could claim the k was UV and limits its liability under issue 1. But I see the way you see it up it makes sense.

There is no one way to set up issues. So long as your analysis is logical. You can look at past PTs and see PTs with same scores and different structures.

[CalBar3Day]

Planned on sleeping in but I'm still having bar anxiety after that PT. I am wide awake. FML.

[sittin_pretty]

Curious as to how everyone approached Corp Q. Did you discuss Corp formation or agency authority for part 1. What about part 2 shareholder suits? And can't remember part 3....?

I discussed agency authority. And I've been angst-ridden ever since about whether that's the right analysis for the question of a Director/Officer's liability for a corporate contract (as opposed to a principal's liability for a contract entered into by an agent). I've been thinking not, ever since the exam ended, and that I screwed up by spending time on authority that I should have been spent on de facto/de jure/estoppel corporate formation (based on what people here are saying though, not based on my memory of the question... was formation REALLY an issue or was the problem written away it was assumed to be ok??). I also completely missed the issue of piercing the veil, which was probably one of the most important on this question.

I think I hit everything else, and decently though. Any reassurances that 1) authority actually was worth some points to analyze and 2) an answer that omitted formation and pcv but was otherwise good could still be above a 55 would be much appreciated

(my other answers, if I recall right, had to do with respective duties, obligations and liabilities (with lots of focus on duty of care/biz judgment, duty to disclose, and limited liability in general, although I may have muddied the exception applications up a bit), and a bit on distribution order during dissolution/liquidation, and shareholders' rights to sue, including for when the proper steps aren't followed in a fundamental change to corporate structure. I also didn't go into much detail over the sale of XYZ supplies to the company other than it didn't violate a duty of loyalty since he got the board's ok)

[osuna911]

How was the analysis on #2 re QM? Funny thing today: I saw a car with a license plate (black/gold) that said QNMERIT as I was walking into the testing center...

Issue 2 was if B would be successful under QM. I think the 1st case has the elements of QM

Where did fit your ultra vires discussion?

Immunity - under sub element of Authority to contract

[cal_pushed]

I messed up PTB big time.......... said the city had immunity if he statute was strictly construed and completely forgot to argue for estoppel Also I felt like both PT's had very little directions from the Boss.

Where was there law or any mention of estoppel?

It was on the second case - Galx case - mere irregularity s in procedural issues such the need for Quorum present - should be ignored and plaintiff should be able to invoke Estoppel if the City recived A benefit by P. But that case for an actual renovation of the ball park and not just a service as with Blanchard...

That was a Supreme Court case, the last case Hiram was an appeals court case which said the City Charter should strictly construed - Coroson charter didn't have any exceptions as to what K and what Ks that it couldn't get into without approval...

That was what I should have put but ran out of time

In the 2nd case, did the contract comply with the charter? I never saw estoppel. I didn't think to overrule the last case, but now that you mentioned it, the dissent was there...

"Estoppel" was mentioned in the Hiram case in this context: "Because they didn't have the right to contract, opposing part cannot enforce contract through estoppel" or something like that... In other words, because the contract wasn't properly made, it can't be enforced regardless of the 3P's reliance and performance on it ... In other words, 3Ps can get hamboned by a city.

The estoppel shit was meant to trip us up. It literally was interchangeable with immunity. "Lack of use of estoppel" = Immunity.

In Hiram the court held running a water utility was proprietary, but went through a list of ways the contract violated the Vanderbilt city charter and therefor was ultra virus. The dissent disagreed, saying city shouldn't be allowed to retain a benefit under these circumstances.

[sittin_pretty]

My outline for B:

I. Immunity
A. Rule: If governmental as opposed to proprietary function, immunity applies.
Analysis: in cases involving profit-generating water pipes and ball parks, function was consequently proprietary, so no immunity. In contrast, here, water treatment plant wasn't just NOT a money-maker, it's a money-loser, instead functioning for health, safety, wellbeing of citizens. Different from profit-generating water system in other case.
Conclusion: therefore, governmental function and immunity.
B. Rule: also immunity if lack of ability to contract (I didn't call it ultra vires, but same thing).
1. Law: case law saying if no ability to contract, no liability. But there's a mix of authority in following the lead precedent; while the original state supreme court case (Lyros?) indicates there doesn't have to be valid contract for Q.M., appellate court decision with dissent seems to limit that rule by holding that that if there's a city charter limiting how contracts entered into, failure to comply means no liability (but dissent says, wait! Lyros! Q.M!)
2. Analysis: No formal contract here, & didn't comply with city charter, but does that mean city didn't have ABILITY to contract? Valid arguments in both directions
3. Conclusion: Court could rule either way on ability to contract b/c of above, but still, probably immunity under I.A. (governmental, not proprietary, function)

II. Elements of QM clearly set forth in 1-2-3-4 format in one of the cases. Pretty easy to apply and go through. As long as you start with the right elements. Just plop in the right facts. (benefit? slightly disputable since didn't get grant... but probably still benefit because could help with future contracts & lots and lots of value/work performed... and accepted... etc. <--- delivered in organized 1-2-3-4 fashion). Conclusion: 4 elements satisfied.

III. Damages: one of the cases had an explicit discussion on the many types of damages allowed, including how the lower court had erred by not allowing damages for such thing as overhead and expected profits... which the appeals courts said COULD be allowed along with actual damages. Stuck to paraphrasing and applying that case. Conclusion: Blanchard can get compensated for everything on the invoice and then some.

IV. Overall conclusion: oops, forgot to do one. Hopefully won't matter too much.

[osuna911]

I weirdly miss waking up and going over my notes before walking in to the death trap....

[cal_pushed]

Pretty much Sam conclusion on immunity but said water utility is likely same as waste treatment/ utility. Not sure it was a loser couldn't find facts as to any profit or operation costs except for potential fines. Said even the dissent in Hiram didn't disagree that it was proprietary but that the ultra vires doctrine should have a limit, beyond irregularity in contracting when the city is benefited by the ultra vires act.

[Snowboarder1588]

Yea. Similar analysis on the PT B here, but I said the function was proprietary. Oh well, I don't really think the conclusion is that important, I think they just care aboout organization and argument. At least I hope that's the case.

[cal_pushed]

Yea. Similar analysis on the PT B here, but I said the function was proprietary. Oh well, I don't really think the conclusion is that important, I think they just care aboout organization and argument. At least I hope that's the case.

Think it was proprietary. Considering objective memo,I think that's the conservative case law supported argument. Then raise the dissent and other possible arguments, but I mean ... tell the client (city) don't worry about it you're good, based on a dissent from ct of appeals and hoping to distinguish between a water utility and a treatment facility seems a bit aggressive.

[cal_pushed]

Yea. Similar analysis on the PT B here, but I said the function was proprietary. Oh well, I don't really think the conclusion is that important, I think they just care aboout organization and argument. At least I hope that's the case.

Think it was proprietary. Considering objective memo,I think that's the conservative case law supported argument. Then raise the dissent and other possible arguments, but I mean ... tell the client (city) don't worry about it you're good, based on a dissent from ct of appeals and hoping to distinguish between a water utility and a treatment facility seems a bit aggressive.

Also, if you found governmental, then you didn't need to discuss really ultra virus? Unless it's: likely gov immunity, but if not then ultra virus consideration..

[SlowLearner]

I found a statement by the mayor where she said the private sector would not come in and help... so I said government function using this.

[cal_pushed]

I found a statement by the mayor where she said the private sector would not come in and help... so I said government function using this.

At the council meeting, I felt like that was a good fact going towards government function. Just didn't feel like i could write it up well enough in that direction based on no real facts about profiting; and ambiguity. Private sector won't help, could also mean there is a private sector and thus a proprietary function?

[osuna911]

Doesn't matter what the likely conclusion is, have to argue for bothsides - as the Boss requested.... if you concluded one side and didn't talk about the other you are SOL- that would be persuasive

[sittin_pretty]

I found a statement by the mayor where she said the private sector would not come in and help... so I said government function using this.

Nice catch!

My governmental-not-proprietary analysis focused on distinguishing the cases where there was a profit made (one of the key issues for proprietary, but you're right, the other is whether private parties could do the work! wish I'd seen that fact you caught!), and explaining that here, the very fact that the plant was so expensive they had to apply for GRANTS to run and repair and renovate shows it isn't profitable. (and there's evidence in the record of money deficit, not profit)

[cal_pushed]

Doesn't matter what the likely conclusion is, have to argue for bothsides - as the Boss requested.... if you concluded one side and didn't talk about the other you are SOL- that would be persuasive

Think addressing countersides is necessary, but boss needs to inform client on state of the law as to their position and likely outcome; not provide them with a summary of cases. Did you not make a predictive outcome? Or just said, it's gov immunity or proprietary; it's ultra virus it's not; it's valid claim, jk it's not. There's damages, Jk there's not? I mean, I get objective but I took that as meaning don't feel obligated to argue one particular side, but tell me what the law on this issue is and apply it reasonably to the facts so the city knows their exposure.

[cal_pushed]

What about the case cited within galax or Harlem? Was about a good paragraph, how'd you guys use it?

[cal_pushed]

I found a statement by the mayor where she said the private sector would not come in and help... so I said government function using this.

Nice catch!

My governmental-not-proprietary analysis focused on distinguishing the cases where there was a profit made (one of the key issues for proprietary, but you're right, the other is whether private parties could do the work! wish I'd seen that fact you caught!), and explaining that here, the very fact that the plant was so expensive they had to apply for GRANTS to run and repair and renovate shows it isn't profitable. (and there's evidence in the record of money deficit, not profit)

Good point. Need for grant does present strong inference that no profit. Not even enough to make necessary repairs/ upgrades. That's spot on.

[sittin_pretty]

What about the case cited within galax or Harlem? Was about a good paragraph, how'd you guys use it?

Used it, but totally forget how.

It's starting to fade.

Thankfully.

At some point today I'll re-emerge into the real world and not remembering how I applied that case is probably a healthy first step

[cal_pushed]

Although facts didn't say city needed grant, just that they wanted it. And the city council even approved of the project knowing they would owe the 210k if the grant didn't come through. So idk.

[cal_pushed]

What about the case cited within galax or Harlem? Was about a good paragraph, how'd you guys use it?

Used it, but totally forget how.

It's starting to fade.

Thankfully.

At some point today I'll re-emerge into the real world and not remembering how I applied that case is probably a healthy first step

Meant to go back to it. Never mentioned it. Shiiiiit.

[Snowboarder1588]

I think it's apparent that we all had a similar overall foundations for answers, but it seems like we each made some different arguments. This really goes to show that no one is getting an A. The good news my friends is that we just need a D. In fact a D- will even work. Here's to hoping for that D.

[Alicelee5]

Omg I only wrote about ultra vires on part 1...and I addressed the proprietary/government issue in part 2 as a defense against prima facie QM. How screwed am I? Will they give partial points for analyzing one part of a question in another part? Sad because I think I had to do well on tis PT to pass...

[Lawless!]

Curious as to how everyone approached Corp Q. Did you discuss Corp formation or agency authority for part 1. What about part 2 shareholder suits? And can't remember part 3....?

I discussed agency authority. And I've been angst-ridden ever since about whether that's the right analysis for the question of a Director/Officer's liability for a corporate contract (as opposed to a principal's liability for a contract entered into by an agent). I've been thinking not, ever since the exam ended, and that I screwed up by spending time on authority that I should have been spent on de facto/de jure/estoppel corporate formation (based on what people here are saying though, not based on my memory of the question... was formation REALLY an issue or was the problem written away it was assumed to be ok??). I also completely missed the issue of piercing the veil, which was probably one of the most important on this question.

I think I hit everything else, and decently though. Any reassurances that 1) authority actually was worth some points to analyze and 2) an answer that omitted formation and pcv but was otherwise good could still be above a 55 would be much appreciated

(my other answers, if I recall right, had to do with respective duties, obligations and liabilities (with lots of focus on duty of care/biz judgment, duty to disclose, and limited liability in general, although I may have muddied the exception applications up a bit), and a bit on distribution order during dissolution/liquidation, and shareholders' rights to sue, including for when the proper steps aren't followed in a fundamental change to corporate structure. I also didn't go into much detail over the sale of XYZ supplies to the company other than it didn't violate a duty of loyalty since he got the board's ok)

I don't think formation was an issue bc the facts stated the corp was already a Corp entity. There were no facts to argue there was some defective formation and finding a general partnership. The question asked how Suppkier could hold Corp liable and A. So I discussed the agency for Director/officer authority to contract with 3rd P Supplier since president is an agent of the corp and reasonable for S to think A had authority. Thus Corp is liable for the k. And then Pvc to pierce Corp's veil and get to A personally bc under capitalization and alter ego.

Part 2- I discussed directors duties of loyalty for conflict tx with xyz and No disinterested board since the other members were his family, only other shareholder is B and terms likely aren't fair. Also duty of care for the same reasons and then taking inventory. Which is how B could bring direct and derivative suit to recovery losses to herself for stocks she paid for and the corp for the losses for A stealing stuff and the xyz tx and no BJR protection.

Part 3- distribution at dissolution and creditor priority but A's loan is subordinated bc of all his wrongdoing.

I don't think formation was an issue bc it was already in the facts and I didn't see anything about Corp fundamental changes. But I did miss the issue of improper distribution.