2017 February California Bar Exam Forum

[elijah54594]

Wills trusts/CP
K/Rem
Evidence

So... I'm feeling corporations on Thursday... which I'm not thrilled about

Professional Responsibilities + Corporations
Crim law + Crim Pro

Torts or Civ Pro

That's my prediction

I'd be surprised if you got civ pro.

I wasn't surprised by evidence because they did civ pro like this: General civ pro, skip an administration, then .CA civ pro. So, i figured evidence would be the opposite and it was; CA evidence, skip an administration, general evidence.

So, id be surprised if they have you civ pro again (not saying they can't or won't but I'd be surprised) you'll get a PR question though. I wonder if they will do a criminal law or con from pro question. I think it's been a while.

My favorite thing from July was that folks insist it was CA Civ Pro. Yes, it was based in CA, but the facts did not matter. I got a 70 on that essay and did not mention anything CA at all. Just grip it and rip it folks.

[blogger21]

Wills trusts/CP
K/Rem
Evidence

So... I'm feeling corporations on Thursday... which I'm not thrilled about

Professional Responsibilities + Corporations
Crim law + Crim Pro

Torts or Civ Pro

That's my prediction

I'd be surprised if you got civ pro.

I wasn't surprised by evidence because they did civ pro like this: General civ pro, skip an administration, then .CA civ pro. So, i figured evidence would be the opposite and it was; CA evidence, skip an administration, general evidence.

So, id be surprised if they have you civ pro again (not saying they can't or won't but I'd be surprised) you'll get a PR question though. I wonder if they will do a criminal law or con from pro question. I think it's been a while.

My favorite thing from July was that folks insist it was CA Civ Pro. Yes, it was based in CA, but the facts did not matter. I got a 70 on that essay and did not mention anything CA at all. Just grip it and rip it folks.

I went with a straight Contracts + Remedies b/c they gave you initial facts about a contract, therefore I actually went into contract formation analysis briefly as well. Remedies were generally the same as torts (damages) but I did argue for rescission of the contract, and if not, then restitution for 60k to put the buyer in a position of if they sell for the $160, they'll be whole.

[a male human]

Wills trusts/CP
K/Rem
Evidence

So... I'm feeling corporations on Thursday... which I'm not thrilled about

Professional Responsibilities + Corporations
Crim law + Crim Pro

Torts or Civ Pro

That's my prediction

I'd be surprised if you got civ pro.

I wasn't surprised by evidence because they did civ pro like this: General civ pro, skip an administration, then .CA civ pro. So, i figured evidence would be the opposite and it was; CA evidence, skip an administration, general evidence.

So, id be surprised if they have you civ pro again (not saying they can't or won't but I'd be surprised) you'll get a PR question though. I wonder if they will do a criminal law or con from pro question. I think it's been a while.

My favorite thing from July was that folks insist it was CA Civ Pro. Yes, it was based in CA, but the facts did not matter. I got a 70 on that essay and did not mention anything CA at all. Just grip it and rip it folks.

People got so mad over what it was, lol.

[rcharter1978]

Wills trusts/CP
K/Rem
Evidence

So... I'm feeling corporations on Thursday... which I'm not thrilled about

Professional Responsibilities + Corporations
Crim law + Crim Pro

Torts or Civ Pro

That's my prediction

I'd be surprised if you got civ pro.

I wasn't surprised by evidence because they did civ pro like this: General civ pro, skip an administration, then .CA civ pro. So, i figured evidence would be the opposite and it was; CA evidence, skip an administration, general evidence.

So, id be surprised if they have you civ pro again (not saying they can't or won't but I'd be surprised) you'll get a PR question though. I wonder if they will do a criminal law or con from pro question. I think it's been a while.

My favorite thing from July was that folks insist it was CA Civ Pro. Yes, it was based in CA, but the facts did not matter. I got a 70 on that essay and did not mention anything CA at all. Just grip it and rip it folks.

So, I don't know how to quote myself from months ago. But I specifically remember saying that I think they meant for that question to be a CA Civ Pro, but they didn't make it clear enough. So if there was a substantial number of people who answered according to FRCP they would still get credit, because there would be a mutiny.

With CA Evidence, the call of the question was VERY, VERY clear....as it has been with all other subjects that have a CA/FR distinction. But the call of the question on that exam didn't sound clear at all.

So, I suspect they wanted that to be a CA Civ Pro question, but because they weren't very clear on the call of the question, and because there are instructions that say "answer according to Federal/general rules unless told otherwise" they would give credit if a substantial number of people answered according to the federal rules. Which seemed fair to me. People who answered using CA Civ Pro maybe got MORE credit, but I didn't think they would ding people for using the FRCP.

But on another note, way to knock that one out of the park

[rcharter1978]

My favorite thing from July was that folks insist it was CA Civ Pro. Yes, it was based in CA, but the facts did not matter. I got a 70 on that essay and did not mention anything CA at all. Just grip it and rip it folks.

People got so mad over what it was, lol.

Yeah, people really went to the mattresses over that question. Such passion!

[rcharter1978]

Wills trusts/CP
K/Rem
Evidence

So... I'm feeling corporations on Thursday... which I'm not thrilled about

OMG, i knew these fools were gonna hit you with a straight evidence question!

You're getting a PR question, be it a crossover or by itself.

At least it was straight FRE! Just... so much typing.

LOL, you are right on. You should have seen my face in February when it was a .CA evidence instruction. I was so mad!

wow I honestly would have cried

I'm not gonna lie...I died a little on the inside when I read that instruction.

[Got'eem]

On essay 2, did S have knowledge that a murder occurred in the condo? I thought he had no knowledge and was only the owner right after the murder took place. If there is no knowledge, then there cant be COA for fraud, right?

[sittin_pretty]

On essay 2, did S have knowledge that a murder occurred in the condo? I thought he had no knowledge and was only the owner right after the murder took place. If there is no knowledge, then there cant be COA for fraud, right?

The murder was a rabbit hole fact. The real fraud issue was knowing about the parking space going away.

[sittin_pretty]

So according to the bar secrets prediction guru, tomorrow we'll get PR, Business Associations (incl potentially corporations), and Civ Pro. POSSIBLY crim, but he had predicted that would be mixed with evidence. He was right though, that we would get evidence, wills, and remedies mixed with either contracts or torts (except that it was actually mixed with... both??).

See:

https://www.youtube.com/watch?v=9URbx3ChGJo

Not that I won't review the other remaining subjects but I'm going with the guru on what to prioritize today.

Good luck to those taking the MBE today!

(I don't have to. Whew. Lawyer's exam.)

[RickSanchez]

On essay 2, did S have knowledge that a murder occurred in the condo? I thought he had no knowledge and was only the owner right after the murder took place. If there is no knowledge, then there cant be COA for fraud, right?

The murder was a rabbit hole fact. The real fraud issue was knowing about the parking space going away.

No, parking space was not material fact. $50 a month is not material. 20% decrease in value is.

[sittin_pretty]

On essay 2, did S have knowledge that a murder occurred in the condo? I thought he had no knowledge and was only the owner right after the murder took place. If there is no knowledge, then there cant be COA for fraud, right?

The murder was a rabbit hole fact. The real fraud issue was knowing about the parking space going away.

No, parking space was not material fact. $50 a month is not material. 20% decrease in value is.

The facts of the problem clearly indicated it was material to her. The cost goes to damages, mitigation and defenses, not to whether it was something important to her that she relied on as the basis of the bargain, which her statement to the seller & his acknowledgement of that statement about how important it was to her indicated it was. ($50 may not be much to you, but that's not how the prima facie case is decided... at least in a contract fraudulent inducement context, it's not an objective standard; it's based on that facts of that case as given to us about what the basis of the bargain in that particular contract was).

Parking space = prima facie element.

20% issue = remedies/damages issue.

(and, if I remember correctly, the 20% decrease in value was at least in part tied to the fact the parking spot went away? I think the problem left that somewhat open, what the exact cause of the 20% decrease was but there was at least an implication that it was at least in part because of the parking issue)

[RickSanchez]

On essay 2, did S have knowledge that a murder occurred in the condo? I thought he had no knowledge and was only the owner right after the murder took place. If there is no knowledge, then there cant be COA for fraud, right?

The murder was a rabbit hole fact. The real fraud issue was knowing about the parking space going away.

No, parking space was not material fact. $50 a month is not material. 20% decrease in value is.

The facts of the problem clearly indicated it was material to her. The cost goes to damages, mitigation and defenses, not to whether it was something important to her that she relied on as the basis of the bargain, which her statement to the seller & his acknowledgement of that statement about how important it was to her indicated it was. ($50 may not be much to you, but that's not how the prima facie case is decided... at least in a contract fraudulent inducement context, it's not an objective standard; it's based on that facts of that case as given to us about what the basis of the bargain in that particular contract was).

Parking space = prima facie element.

20% issue = remedies/damages issue.

(and, if I remember correctly, the 20% decrease in value was at least in part tied to the fact the parking spot went away? I think the problem left that somewhat open, what the exact cause of the 20% decrease was but there was at least an implication that it was at least in part because of the parking issue)

No reasonable person would think having to walk a block and pay extra $50 a month is material enough to rescind the contract.

[sittin_pretty]

Like I said, it's not an objective (reasonable person) test for materiality in a basis-of-the-bargain contract fraud scenario. Whether a fact is material to a particular person/bargain is governed by a subjective, not an objective, standard. The facts in this particular case clearly spelled out it was material TO HER, that he knew it was important to her, and that she relied on the parking space to her detriment. That was the easy part of the question.

You seem to be confused because you're confusing the prima facie fraud test with the remedies issue.

Rescission, amount of damages, etc, goes to the REMEDIES analysis, not whether there was fraud.

Nothing you're saying negates the prima facie fraud case elements (misrep re. material fact, detrimental reliance, etc.).

But you should be getting your head into the MBE test that starts in half an hour, not posting here.

Good luck today.

[RickSanchez]

Like I said, it's not an objective (reasonable person) test for materiality in a basis-of-the-bargain contract fraud scenario. Whether a fact is material to a particular person/bargain is governed by a subjective, not an objective, standard. The facts in this particular case clearly spelled out it was material TO HER, that he knew it was important to her, and that she relied on the parking space to her detriment. That was the easy part of the question.

You seem to be confused because you're confusing the prima facie fraud test with the remedies issue.

Rescission, amount of damages, etc, goes to the REMEDIES analysis, not whether there was fraud.

Nothing you're saying negates the prima facie fraud case elements (misrep re. material fact, detrimental reliance, etc.).

But you should be getting your head into the MBE test that starts in half an hour, not posting here.

Good luck today.

For fraud or misrepresentation you need material facts. Even without the parking lot as long as there is a close alternative which we do here there is no reason to think she would have not entered into the contract. You can ask for consequential damages because it was reasonably foreseeable. Murder which he had to know or must had at least good reason to know since it must been 20% cheaper when he bought the house and Betty found out within 2 months herself is material because it lowers the market value by $40000.

[Bartaker421]

Ugh...:totally forgot to address the CP issues in that wills question. Someone please tell me that wasn't too fatal...I got caught analyzing wills, holigraphics wills and how property passes testate etc

[sittin_pretty]

One more thought re. #2 and then I'm letting it go.... *EDIT: the below is probably not relevant for bar answer purposes, but good info to have a future lawyers in California who may actually be bringing a fraud suit in a real estate contract context in the future!*
_______

So here's what BarBri didn't teach us (at least, I don't see it in the materials anywhere). The California Code's chapter on contracts has a particular (statutory!) definition for fraud:


"Actual fraud, within the meaning of this Chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

"1.The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; 3. The suppression of that which is true, by one having knowledge or belief of the fact; 4. A promise made without any intention of performing it; or, 5. Any other act fitted to deceive."
Ca. Civ. Code § 1572

and also:

"Constructive fraud consists:
"1.In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud."
Ca. Civ. Code § 1573

Since the problem didn't specify "under California statutory law," I can't imagine they expected us to know the above, but it's informative, I think, in pondering the overlap between contract and tort fraud issues in California.

[RickSanchez]

One more thought re. #2 and then I'm letting it go....

So here's what BarBri didn't teach us (at least, I don't see it in the materials anywhere). The California Code's chapter on contracts has a particular (statutory!) definition for fraud:


"Actual fraud, within the meaning of this Chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

"1.The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; 3. The suppression of that which is true, by one having knowledge or belief of the fact; 4. A promise made without any intention of performing it; or, 5. Any other act fitted to deceive."
Ca. Civ. Code § 1572

and also:

"Constructive fraud consists:
"1.In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud."
Ca. Civ. Code § 1573

Thankfully, we're graded on a curve, and I have a feeling pretty much everyone was not aware of the above.

And since the problem didn't specify "under California statutory law," I can't imagine they wouldn't give full credit for common law-based answers that aren't specific to California's fraud definition.

So there ya go.

Why are we talking about CA statutes? The point is you had to discuss the materiality of facts in order to discuss fraud or misrepresentation or even unilateral mistake which was another possible defense.

[sittin_pretty]

Revised my past post to explain why I posted. More interesting FYI re. the nuances of California fraud law than anything.

But really, yesterday is over. Arguing about problem #2 is a waste of time (and I have no desire to argue). Focus.

And.. good luck.

Outta here.

[RickSanchez]

Revised my past post to explain why I posted. More interesting FYI re. the nuances of California fraud law than anything.

But really, yesterday is over. Arguing about problem #2 is a waste of time (and I have no desire to argue). Focus.

And.. good luck.

Outta here.

Are you in LA or Oakland?

[RickSanchez]

Oh my God I hate mortgage questions so so much

[Guchster]

My official prediction is at least 2 of the 3 will be combo questions. I think I generally agree with the Bar Secrets Guy. I think we're look at the following: PR+BA, Civ Pro, and Crim Law+Crim Pro.

I think PT-B is going to be really tough. PT-A seemed too straightforward and not particularly difficult to finish. Usually I'm scrambling to make shit up. I even had time to spell check. I get the feeling they're going to try to thin the herd with it.

I didn't sleep at all last night--I woke up after having a panic attack about Q2 yesterday and couldn't go back to bed and then had another panic attack about not being able to go back to bed. I hope I sleep like a baby tonight.

[Lawless!]

Are we allowed to talk about essays now? What did people think of #2?

Yes, please, let's talk about #2!!

Drove me CRAZY, trying to figure out if it was a triple-cross over.
Tort fraud (misrep) + contract fraud (inducement) + remedies??

Do they DO triple crossovers, like that? Over lunch break in Pasadena, no two people I talked to had approached it the same way. Some people treated it as tort fraud, some contract fraud, one guy even treated it a a pure property cause of action, still don't follow his logic on that one. Something about mergers and deeds.. .he was kinda out there. Me, I treated it as torts + contracts + remedies, but I'm not entirely confident that was right.

But really. I'd like to pinpoint whether it was JUST torts & remedies, or whether they also wanted us to do a contract analysis. Because that would help me figure out what to focus on in prepping for 4-6.

I think we can clearly count on torts being off the table... (and remedies and wills and evidence)... but contracts too?

(and was this property guy onto something?)

I got so caught up in trying to decide between torts and contracts, my remedies analysis suffered as a result. Wish I hadn't let #2 get to me like it did.

I thought it was a contract misrepresentation fraud + remedies (bigger portion).

Just went over misrepresentation both intentional and negligent and other contract defenses.

Then did expectation damage, reliance damage (go for this), consequential damages, incidental damages, and punitive damages.

You can't have punitive damages for a claim of fraud under contracts.

You can where there's fraud

I think my answers were bit incoherent, but I made sure to hit all the issues and at least try to apply all the facts. If contract gets rescinded due to fraud you can claim punitive damage if it was wanton and willful, thus arising to independent tort. But I missed few issues and I am not worried because there is no way to hit every issue with the limited amount of time.

I am worried about my PT though since I only really had like 1800 words for it. I thought I had a pretty good essay but the lack of words scares me.

If you're still wondering what Q 2 was about see Feb 2014. At least in that question the assholes gave direction and specifically asked for tort & K.

Also, for Q 1 see Wills July 2013. Its similar with minor differences.

[Lawless!]

My official prediction is at least 2 of the 3 will be combo questions. I think I generally agree with the Bar Secrets Guy. I think we're look at the following: PR+BA, Civ Pro, and Crim Law+Crim Pro.

I think PT-B is going to be really tough. PT-A seemed too straightforward and not particularly difficult to finish. Usually I'm scrambling to make shit up. I even had time to spell check. I get the feeling they're going to try to thin the herd with it.

I didn't sleep at all last night--I woke up after having a panic attack about Q2 yesterday and couldn't go back to bed and then had another panic attack about not being able to go back to bed. I hope I sleep like a baby tonight.

I felt the opposite about PT A but I think because I panicked and started quoting stuff out of the library. Any. way about Q2 see Remedies Feb 2014. It'll sum it up.

[RickSanchez]

My official prediction is at least 2 of the 3 will be combo questions. I think I generally agree with the Bar Secrets Guy. I think we're look at the following: PR+BA, Civ Pro, and Crim Law+Crim Pro.

I think PT-B is going to be really tough. PT-A seemed too straightforward and not particularly difficult to finish. Usually I'm scrambling to make shit up. I even had time to spell check. I get the feeling they're going to try to thin the herd with it.

I didn't sleep at all last night--I woke up after having a panic attack about Q2 yesterday and couldn't go back to bed and then had another panic attack about not being able to go back to bed. I hope I sleep like a baby tonight.

I felt the opposite about PT A but I think because I panicked and started quoting stuff out of the library. Any. way about Q2 see Remedies Feb 2014. It'll sum it up.

They are similar, but the 2014 was more about constructive trusts and equitable liens. Without those two, the 2014 would be literally a page long. Also, I think the this year's question turns a lot more on what counts as material facts + what is a foreseeable consequential damage (placing 2 showers in a bathroom isn't).

[blogger21]

On essay 2, did S have knowledge that a murder occurred in the condo? I thought he had no knowledge and was only the owner right after the murder took place. If there is no knowledge, then there cant be COA for fraud, right?

The murder was a rabbit hole fact. The real fraud issue was knowing about the parking space going away.

No, parking space was not material fact. $50 a month is not material. 20% decrease in value is.

Are you saying there was no duty to disclose the murder? Honest question. I was trying to look up the answer, but generally I don't think there is a duty at CL. She didn't ask him if there was a murder before she bought right? (sorry to beat a dead horse..I'm intrigued).