2017 February California Bar Exam Forum

[rcharter1978]

what merger clause???!?!

God, I need to stay away from TLS...... now I am worried about essay 2 lol!!!

All I wrote for Essay 2 was:

Breach of Contract (little on the misrep)
Compensatory damages (FMV - Contract Price +Consequential & Incidental - Profits saved)
Consequential Damages
Incidental Damages
Special Damages
Reliance Damages (just guessing)
Restitution
Recession
Punitive Damages
Specific Performance (one sentence saying it won't work)

Anyone did the same???? OHHHHHHH mannnnnnnnnnnnn

LOL, when I took the exam the first time my friends had to have a mini intervention to keep me off of TLS

[I-object]

I did the same. Got right into writing about the remedy because I didnt have much time, plus I think its closer to what I believe is expected for these broad call asking for what remedies can P recover...etc.
I followed the threads here. Some argued first the fault , wrongness or breach before getting to the remedy itself. Like I said , my view differed slightly. While I dont know for sure here is my opinion.

I think the examiners put a lot of thought in designing a remedies question to specifically and clearly show such fault, wrongness or breach to challenge us on which issues to really focus. Given the short time, most students , thinking exactly like a lawyer should, will first outline and discuss "why" the plaintiff is entitled to the remedy. This is inherent in all of us. That is, before getting to the remedy we must first build a foundation to justify the result. That naturally lends itself to discussion on issues like Parol Evidence exceptions, Oral Condition Precedent, certain contract breaches, fraud ,misrepresentation, and the like. By the time the student justifies the breach , fraud or wrongdoing, he/she has very little time to discuss the actual call of the question, "what remedies, if any , is P entitled?", or "what recovery..".etc. If so then I believe we are to briefly mention the wrongdoing and jump right into the remedy because potentially there many remedies, legal and in equity, that are likely applicable.

Anyway heres kind of what I discussed:

Remedies:

Misrep its elements, P relied on it.

Legal Remedies:
There were money damages. My view was, some time went by before P discovered that nighbor was going to remove the parking easement. D told P would only have to pay $50 a month, when actually had to pay $100, and the parking was one block away. Plus the difference between the contract price $200,000 and the market price after discover of the murder $160,000 was $40,000. So I believe $40,000 was to be figured somewhere in the analysis.

Expectation damages
to Make P whole again, would be to at least award P $40,000 because this was not a mistake, it was an intentional omission that D had a fiduciary to disclose but did not. D knew nighbor was going to construct a building (or something like that) and P was not going to get the prime parking and would have to park down the street for $50 more than the contract price. The $40,000 figure was easier to explain, but the future cost for paying for parking? thats a little beyond my understanding of remedies, so I just said he owed the difference between the market price and contract price $50 per month.

Legal Restitution
Since D was unjustly enriched and the benefit was $40,000 P could rest on receiving at least that amount, and again the parking.

Consequential
While the terms for the consequences of the reduced price, limited parking and furniture P incurred, these terms could not have been contemplated at time of the contract because D lied to P and misrepresented the facts. So P would be entitled to consequential damages for the consequences of the breach. $40,000 difference in K price and FMV. Plus some of the costs of furnature. But some furniture would not be available because its part of the normal cost of remodling.

Reliance
P relied to her detriment on D misrep. She repainted, remodeled, changed carpet or things like that dont recall. Anyway some of this would be I forget what I said exactly , but some was not due to not being necessary

Equitable Damages

injunction
But it wont work because nighbor despite getting ready to construct building to remove easement was not a party in interest. P only had a cause of action against D. This may not have been an issue I just thought Id throw it in.

Equitable Restitution
same as restituition above

Recision
Same as above. Said reformation would not be available because even though P was operating under a mistake of fact, D was not. The proper remedy would be recision, but just mentioned reformation quickly

Constructive Trust
Ran out of time , said make D a trustee of the difference of what was gained,

Equitable Lien
That P could place a lien on D personal or real property for the amounts unjustly gained ( This exam was my last I ran out of time)

The above is close to what I had time to write. Litterly flew through it without any deep analysis because ran out of time.

[InterAlia1961]

I did the same. Got right into writing about the remedy because I didnt have much time, plus I think its closer to what I believe is expected for these broad call asking for what remedies can P recover...etc.
I followed the threads here. Some argued first the fault , wrongness or breach before getting to the remedy itself. Like I said , my view differed slightly. While I dont know for sure here is my opinion.

I think the examiners put a lot of thought in designing a remedies question to specifically and clearly show such fault, wrongness or breach to challenge us on which issues to really focus. Given the short time, most students , thinking exactly like a lawyer should, will first outline and discuss "why" the plaintiff is entitled to the remedy. This is inherent in all of us. That is, before getting to the remedy we must first build a foundation to justify the result. That naturally lends itself to discussion on issues like Parol Evidence exceptions, Oral Condition Precedent, certain contract breaches, fraud ,misrepresentation, and the like. By the time the student justifies the breach , fraud or wrongdoing, he/she has very little time to discuss the actual call of the question, "what remedies, if any , is P entitled?", or "what recovery..".etc. If so then I believe we are to briefly mention the wrongdoing and jump right into the remedy because potentially there many remedies, legal and in equity, that are likely applicable.

Anyway heres kind of what I discussed:

Remedies:

Misrep its elements, P relied on it.

Legal Remedies:
There were money damages. My view was, some time went by before P discovered that nighbor was going to remove the parking easement. D told P would only have to pay $50 a month, when actually had to pay $100, and the parking was one block away. Plus the difference between the contract price $200,000 and the market price after discover of the murder $160,000 was $40,000. So I believe $40,000 was to be figured somewhere in the analysis.

Expectation damages
to Make P whole again, would be to at least award P $40,000 because this was not a mistake, it was an intentional omission that D had a fiduciary to disclose but did not. D knew nighbor was going to construct a building (or something like that) and P was not going to get the prime parking and would have to park down the street for $50 more than the contract price. The $40,000 figure was easier to explain, but the future cost for paying for parking? thats a little beyond my understanding of remedies, so I just said he owed the difference between the market price and contract price $50 per month.

Legal Restitution
Since D was unjustly enriched and the benefit was $40,000 P could rest on receiving at least that amount, and again the parking.

Consequential
While the terms for the consequences of the reduced price, limited parking and furniture P incurred, these terms could not have been contemplated at time of the contract because D lied to P and misrepresented the facts. So P would be entitled to consequential damages for the consequences of the breach. $40,000 difference in K price and FMV. Plus some of the costs of furnature. But some furniture would not be available because its part of the normal cost of remodling.

Reliance
P relied to her detriment on D misrep. She repainted, remodeled, changed carpet or things like that dont recall. Anyway some of this would be I forget what I said exactly , but some was not due to not being necessary

Equitable Damages

injunction
But it wont work because nighbor despite getting ready to construct building to remove easement was not a party in interest. P only had a cause of action against D. This may not have been an issue I just thought Id throw it in.

Equitable Restitution
same as restituition above

Recision
Same as above. Said reformation would not be available because even though P was operating under a mistake of fact, D was not. The proper remedy would be recision, but just mentioned reformation quickly

Constructive Trust
Ran out of time , said make D a trustee of the difference of what was gained,

Equitable Lien
That P could place a lien on D personal or real property for the amounts unjustly gained ( This exam was my last I ran out of time)

The above is close to what I had time to write. Litterly flew through it without any deep analysis because ran out of time.

No discussion of Seller's defenses? In all my preparations for the bar, I was instructed to always discuss defenses, and there were several here, not the least of which there was no material misrepresentation about the property. The parking space simply didn't bear on the value of the contract. Neither did the murder at CL. I wouldn't be so sure a recitation of every possible remedy, absent the underlying legal theory, was the way to go. This question was similar to the Contracts/Remedies question in Feb. 2015. The only difference is that the 2015 was UCC. But you'll notice both had similar calls. You'll also notice to get to the discussion of remedies, you had to go through the legal theory first. There was also a remedies essay in that administration. You'll notice that there, the call asked questions about specific remedies. Therefore, no underlying discussion of the legal theory was necessary. This question about the fraud was not like that. You couldn't get to an appropriate remedy without the underlying theory. Some chose contract. Some went with tort. What matters is how you argued. Not what position you took.

[InterAlia1961]

Impeachment is a big deal. Of course they wont mention impeachment when they are testing it. The attorney directly asked Donna during cross if she offered to pay for medical expenses in the fact pattern. Probably 5 points worth

A close read of the fact pattern revealed that Donna never said she did not offer to pay medical bills. Donna testified that her company was not responsible for the accident. I didn't see any impeachment issues. Several rebuttal issues, but rebuttal and impeachment are two different concepts. I thought they were testing relevance heavily. I also didn't see any double hearsay. I have been reading some of the answers that say there was, but I'm not sure they understand what double hearsay is. It is not what the nurse heard and then what she wrote. Double hearsay occurs when a declarant seeks to testify about something someone else told another person. If the nurse would have been called to testify that a witness told her that the witness heard the victim claim he wasn't injured, that would be double hearsay. I didn't see anything like that anywhere in the fact pattern. If I'm mistaken, please feel free to correct me. It will come in handy if I'm unsuccessful.

[barexaminerssuck27]

Impeachment is a big deal. Of course they wont mention impeachment when they are testing it. The attorney directly asked Donna during cross if she offered to pay for medical expenses in the fact pattern. Probably 5 points worth

A close read of the fact pattern revealed that Donna never said she did not offer to pay medical bills. Donna testified that her company was not responsible for the accident. I didn't see any impeachment issues. Several rebuttal issues, but rebuttal and impeachment are two different concepts. I thought they were testing relevance heavily. I also didn't see any double hearsay. I have been reading some of the answers that say there was, but I'm not sure they understand what double hearsay is. It is not what the nurse heard and then what she wrote. Double hearsay occurs when a declarant seeks to testify about something someone else told another person. If the nurse would have been called to testify that a witness told her that the witness heard the victim claim he wasn't injured, that would be double hearsay. I didn't see anything like that anywhere in the fact pattern. If I'm mistaken, please feel free to correct me. It will come in handy if I'm unsuccessful.

Here's a question from Adapitbar that talks about double hearsay. This is why doing MBES are so important. I also missed this issue too.

In a civil action for personal injury, the plaintiff alleges that he was beaten up by the defendant during an altercation in a crowded bar. The defendant's defense is that he was not the person who hit the plaintiff. To corroborate his testimony about the cause of his injuries, the plaintiff seeks to introduce, through the hospital records custodian, a notation in a regular medical record made by an emergency room doctor at the hospital where the plaintiff was treated for his injuries. The notation is: "Patient says he was attacked by [the defendant]."

The notation is

A. inadmissible, because the doctor who made the record is not available for cross-examination.
B. inadmissible as hearsay, not within any exception.
C. admissible as hearsay, within the exception for records of regularly conducted activity.
D. admissible as a statement made for the purpose of medical diagnosis or treatment.
EXPLANATION:

The correct answer is B. The plaintiff's statement to the emergency room doctor that the defendant attacked him is an out-of-court statement that is being offered for the truth of the matter asserted -- that the defendant did attack the plaintiff. As such, it is hearsay and not admissible under any exception to the hearsay rule.

Answer A is incorrect because the doctor who made the notation does not need to be present at trial and available for cross-examination before the report itself is admissible under the business record exception to the hearsay rule. The custodian of the hospital records can properly authenticate the document and allow for its admission. In addition, although the medical records may be admissible themselves, the plaintiff's statement to the doctor constituted another level of hearsay, which would make the statement inadmissible.

Answer C is incorrect because, although the notation from the doctor into the medical record meets the exception for records of regularly conducted activities, the plaintiff's statement to the doctor about who the attacker was is another level of hearsay that is inadmissible.

Answer D is incorrect because the plaintiff's statement to the doctor identifying the defendant as the attacker was not a statement made for the purpose of medical diagnosis or treatment. Not everything a patient states to a doctor is admissible under this exception to the hearsay rule, and a statement identifying the assailant to the doctor serves no reasonable purpose for diagnosis or treatment and is consequently inadmissible under that exception.


So for our essay,
Pete's statement to nurse (inner level)
Nurse statement to medical records (outer level) Remember hearsay is also records, doesn't need to be a statement

Here's another MBE regarding impeachment and substantive evidence. The examiners are not going to mention impeachment when they are trying to test it. However, during cross Donna's statement was mentioned, points out that the examiners wants you to mention impeachment. As in, would or how the relevant fact be introduce into evidence. An analysis regarding prior inconsistent statement and saying it it won't be enter as substantive because she did not say that statement under oath, hearing, or depo. Here, Donna testified that her company was not responsible but during the visit (last paragraph) Donna did mention about the medical expenses being paid. This also ties in with party admission, etc.

A plaintiff sued a defendant for illegal discrimination, claiming that the defendant fired him because of his race. At trial, the plaintiff called a witness, expecting him to testify that the defendant had admitted the racial motivation. Instead, the witness testified that the defendant said that he had fired the plaintiff because of his frequent absenteeism. While the witness is still on the stand, the plaintiff offers a properly authenticated secret tape recording he had made at a meeting with the witness in which the witness related the defendant's admissions of racial motivation.

The tape recording is

A. admissible as evidence of the defendant's racial motivation and to impeach the witness's testimony.
B. admissible only to impeach the witness's testimony.
C. inadmissible, because it is hearsay not within any exception.
D. inadmissible, because a secret recording is an invasion of the witness's right of privacy under the U.S. Constitution.
EXPLANATION:

The correct answer is B. The tape recording is admissible to impeach the witness's testimony that the defendant fired the plaintiff for frequent absenteeism. However, the tape recording contains out-of-court statements that are being offered for the truth of the matter asserted - that the defendant fired the plaintiff because of his race. As such, it is hearsay. Since it does not meet the requirements of any exception to the hearsay rule, the tape is inadmissible as substantive evidence.

Answer A is incorrect because prior inconsistent statements are inadmissible as substantive evidence unless they were given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. Answer C is incorrect because, although the statements on the tape recording are hearsay, they can still be used to impeach the witness's testimony that the plaintiff was fired for absenteeism. Answer D is incorrect because the statements on the tape were not privileged communications, and whatever invasion of privacy that may have occurred would not affect the admissibility of the evidence because the taping was not done by the state.

I had a tutor for this bar exam and she used to be a bar grader. She told me that every sentence in a fact pattern goes into an argument or issue. So If the bar examiner went out of their way to put a sentence regarding cross examination, it is worth more points. Good luck to everyone!

[InterAlia1961]

Pete wasn't introducing the evidence to show the cause of the injuries. He was introducing the evidence to show that he had injuries. No damage. No negligence claim. Again, I don't remember seeing anywhere that Donna denied offering to pay medical bills. She stated that her business wasn't responsible for Pete's injuries.

There wasn't any double hearsay here. There wasn't an impeachment issue either. Impeachment involves calling into question the credibility of a witness. No one was attacking Donna's credibility. Plaintiff was rebutting her statement.

At any rate, it looks like the California legislature is demanding that the State Bar do something about the high cut rate for next time. If they do it, it won't affect us.

SACRAMENTO—Democratic members of the Assembly Judiciary Committee asked the California Supreme Court on Thursday to temporarily reduce the required passing score on the state bar exam.

http://m.therecorder.com/#/article/1202 ... gle.com%2F

[letspass2017]

Pete wasn't introducing the evidence to show the cause of the injuries. He was introducing the evidence to show that he had injuries. No damage. No negligence claim. Again, I don't remember seeing anywhere that Donna denied offering to pay medical bills. She stated that her business wasn't responsible for Pete's injuries.

There wasn't any double hearsay here. There wasn't an impeachment issue either. Impeachment involves calling into question the credibility of a witness. No one was attacking Donna's credibility. Plaintiff was rebutting her statement.

At any rate, it looks like the California legislature is demanding that the State Bar do something about the high cut rate for next time. If they do it, it won't affect us.

SACRAMENTO—Democratic members of the Assembly Judiciary Committee asked the California Supreme Court on Thursday to temporarily reduce the required passing score on the state bar exam.

http://m.therecorder.com/#/article/1202 ... gle.com%2F

I don't think this guy understands hearsay or how evidence essays supposed to work. Sorry man. Yes, Donna did denied it during CX.

Been reading the posts. I agree with the majority on the evidence essay. lets pass this!

[I-object]

Am pretty confident there was Double Hearsay. But if you didnt discuss its not a show stopper. Hearsay by itself, adequately argued would have been acceptable, likely not worth major points.

Double Hearsay

Here Nurse's job was write down information in the Intake form. To be clear the Nurse and Doctor need to know how Petes injuries occurred so to better assess his diagnosis. So Pete can say "I was in a car collision". That part is permissible for diagnosis or treatement. But He cant say, "it was Drivers fault". That would not be helpful for diagnosis or treatement.

So the intake form has two layers. First layer, what Pete said to Nurse. "I was in a car collision". Second the intake form itself, or better said, what Nurse wrote down as to what Pete said. Remember we dont know if Nurse wrote exactly what Pete said. To make this point easy to understand, imagine if Nurse decided to write ...Pete said "I fell from a tree". Even though the intake form appears to be a single statement made by Pete, its really two separate and independent statements made by two different people, Pete and Nurse.

Pete's statement comes in under statements made for purposes of diagnosis or treatment. Nurses statement comes in Present sense impression. There were other exceptions likely Petes physical, mental or emotional condition, Nurses effect on listener. But the point here is that there were two distinct statements and each needed an exception to admit the intake form.

Hope this helps.

[I-object]

‫impeachment

in my opinion was a little tricky and required clearly reading who said what and who was testifying.

Driver's Statement not applicable under impeachment:
Driver, dont recall her name, made an out of court statement admitting fault. Said to Pete something like "Im sorry I thought light was green" or something like that. The point is Driver was the one making the admission. But Driver was not the one testifying. Donna was. (I think, but am pretty sure)

The admission comes in under Vicarious admission because driver made the statement during the course and scope of her job, making a pizza delivery for Donna the owner.

Donna Statement discussed under impeachment
Donna, the owner , was on the stand under cross examination. My understanding when a witness is on Cross , the issue is Impeachment. Here Donna actually went to the hospital. She also made an out of court statement, but her's was not an admission like Driver. Donna said "Ill pay your medical bills" or something like that.

The offer to pay medical bills does not come for public policy reasons. Donna said she was not liable, but more importantly said she did not go the hospital. (I could be wrong, but its what I sort of remember) Pete wanted to impeach her because she did come to the hospital , so he could ask her about specific acts because it was asked directly to her, not by extrinsic means. This would be proper form of impeachment, but the purpose of her visit to the hospital was to offer to pay his medical bills. Because offers to pay medical bills are inadmissible ,Donnas statement should not have been admitted. Thus the statement was improperly admitted.

Again I could be very wrong here.

[InterAlia1961]

‫impeachment

in my opinion was a little tricky and required clearly reading who said what and who was testifying.

Driver's Statement not applicable under impeachment:
Driver, dont recall her name, made an out of court statement admitting fault. Said to Pete something like "Im sorry I thought light was green" or something like that. The point is Driver was the one making the admission. But Driver was not the one testifying. Donna was. (I think, but am pretty sure)

The admission comes in under Vicarious admission because driver made the statement during the course and scope of her job, making a pizza delivery for Donna the owner.

Donna Statement discussed under impeachment
Donna, the owner , was on the stand under cross examination. My understanding when a witness is on Cross , the issue is Impeachment. Here Donna actually went to the hospital. She also made an out of court statement, but her's was not an admission like Driver. Donna said "Ill pay your medical bills" or something like that.

The offer to pay medical bills does not come for public policy reasons. Donna said she was not liable, but more importantly said she did not go the hospital. (I could be wrong, but its what I sort of remember) Pete wanted to impeach her because she did come to the hospital , so he could ask her about specific acts because it was asked directly to her, not by extrinsic means. This would be proper form of impeachment, but the purpose of her visit to the hospital was to offer to pay his medical bills. Because offers to pay medical bills are inadmissible ,Donnas statement should not have been admitted. Thus the statement was improperly admitted.

Again I could be very wrong here.

I agree with most of what you posted. Here's my issue. I saw what Plaintiff wanted admitted during his case in chief. Then, I saw what Donna testified to not on cross, but on the defendant's case in chief. Then, on rebuttal, Plaintiff sought to have the statement made at the hospital. Maybe I read the question wrong, but the language didn't specifically say "cross exam" or "direct." It was noticeably absent. It did say "rebuttal," which is not the same as cross-examination. If it was on rebuttal, we are necessarily talking about the the plaintiff, who gets a chance to rebut the defendant's case before the jury gets it. And while it is proper to impeach on cross-exam, there was nothing to impeach here.

[I-object]

In a sense I agree with you especially if you saw the key word rebuttal. If so then I suppose we
argue first what Pete said, then I suppose Donna's rebuttal of that testimony, fact or evidence.

But I have to ask myself, what then would a rebuttal argument look like? How would I IRAC that?

While I agree rebuttal and impeachment are separate concepts, on cross , credibility and
veracity of witness's testimony will always be in question and available to impeach regardless of who is
testifying. It is the meat and potatoes issue when on cross. Moreover, Impeachment is something examiners have tested in the past. Rebuttal? Im not so sure. I could be wrong.

I suppose Im saying facts will always be refuted. That's why their in court. And if were are
supposed to refute facts, then the essay may look like he-said she-said argument. But is that
what the examiners really want?

impeachment on the other hand calls for a deeper discussion. It calls into question the validity
of the witnesses testimony. After all the truth is being sought. If so, what mechanism or tools would be
at that party's disposal?. Discredit by opinion? , reputation? or Specific Acts? maybe bias? Is
extrinsic evidence admissible?

So you can see there's a lot more to writing on impeachment than rebuttal.

This is my view and I could be wrong.

I suppose we will find out soon enough.

[InterAlia1961]

In a sense I agree with you especially if you saw the key word rebuttal. If so then I suppose we
argue first what Pete said, then I suppose Donna's rebuttal of that testimony, fact or evidence.

But I have to ask myself, what then would a rebuttal argument look like? How would I IRAC that?

While I agree rebuttal and impeachment are separate concepts, on cross , credibility and
veracity of witness's testimony will always be in question and available to impeach regardless of who is
testifying. It is the meat and potatoes issue when on cross. Moreover, Impeachment is something examiners have tested in the past. Rebuttal? Im not so sure. I could be wrong.

I suppose Im saying facts will always be refuted. That's why their in court. And if were are
supposed to refute facts, then the essay may look like he-said she-said argument. But is that
what the examiners really want?

impeachment on the other hand calls for a deeper discussion. It calls into question the validity
of the witnesses testimony. After all the truth is being sought. If so, what mechanism or tools would be
at that party's disposal?. Discredit by opinion? , reputation? or Specific Acts? maybe bias? Is
extrinsic evidence admissible?

So you can see there's a lot more to writing on impeachment than rebuttal.

This is my view and I could be wrong.

I suppose we will find out soon enough.

[InterAlia1961]

Heavy discussion on rebuttal. The reason for the rebuttal was highly discussable.

Anyway, I thought it might be helpful to know where we are in the grading process. The graders got the questions on the last day of the exam. They had until last Saturday to research their version of a model answer. Last Saturday, they got together to determine the grading scale. They got the first fifteen answers they will analyze as a group. Next Saturday, they will meet to evaluate how they did. Then, they'll each get 10 separate essays or PTs, which ever they are assigned to grade on their own. They meet again the following Saturday to make sure they are grading according to the agreed upon rubric. That Saturday, they are each given their share of the exams to grade. All the graded exams must be turned a month before results are released. We'll know they're done when they release the questions on the CalBar site.

I swear on all that is holy, if the State Bar does what the legislature asks and drops the high cut rate for the July 2017 CBX and leaves us out in the cold, I'll be putting my law degree to good use. I'll be furious.

[Zeloney]

I based my response to the Remedies question on Real Property law.

First, I stated that the Buyer had no contractual remedies as the title had passed.

When title passes, the land sale contract is extinguished (along with the Implied covenant of marketability).
The only basis for a suit by Buyer after title passes is an express covenant, if any, in the deed. There are six possible covenants:
Seisin
Right to Convey
Encumbrances
Quiet Enjoyment
Warranty
Further Assurances

Next, I based my argument for Fraud on the following Real Property law regarding defects in land.

Sale of Existing Land and Buildings—Liability for Defects

The seller of existing buildings (not new construction) may be liable to the purchaser for defects such as a leaky roof, flooding basement, or termite infestation, on any of several different theories:

1) Misrepresentation (Fraud)
The seller is liable for defects about which he knowingly or negligently made a false statement of fact to the buyer if the buyer relied on the statement and it materially affected the value of the property.

2) Active Concealment
The seller will be liable for defects, even without making any statements, if he took steps to conceal the defects {e.g., wallpapering over water damage).

3) Failure to Disclose
Most states hold a seller liable for failure to disclose defects if: (i) he knows or has reason to know of the defect; (ii) the defect is not apparent, and the seller knows that the buyer is unlikely to discover it upon ordinary inspection; and (iii) the defect is serious and would probably cause the buyer to reconsider the purchase if known. Factors increasing the likelihood that liability will be imposed in these cases include whether the property is a personal residence, whether the defect is dangerous, and whether the seller created the defect or made a failed attempt to repair it.


So, regardless of the amount of damages awarded, all of Buyer's remedies were legal, as monetary damages were sufficient, thus there were no equitable remedies applicable here.

I could be wrong, but this is how I saw the question.

[InterAlia1961]

I based my response to the Remedies question on Real Property law.

First, I stated that the Buyer had no contractual remedies as the title had passed.

When title passes, the land sale contract is extinguished (along with the Implied covenant of marketability).
The only basis for a suit by Buyer after title passes is an express covenant, if any, in the deed. There are six possible covenants:
Seisin
Right to Convey
Encumbrances
Quiet Enjoyment
Warranty
Further Assurances

Next, I based my argument for Fraud on the following Real Property law regarding defects in land.

Sale of Existing Land and Buildings—Liability for Defects

The seller of existing buildings (not new construction) may be liable to the purchaser for defects such as a leaky roof, flooding basement, or termite infestation, on any of several different theories:

1) Misrepresentation (Fraud)
The seller is liable for defects about which he knowingly or negligently made a false statement of fact to the buyer if the buyer relied on the statement and it materially affected the value of the property.

2) Active Concealment
The seller will be liable for defects, even without making any statements, if he took steps to conceal the defects {e.g., wallpapering over water damage).

3) Failure to Disclose
Most states hold a seller liable for failure to disclose defects if: (i) he knows or has reason to know of the defect; (ii) the defect is not apparent, and the seller knows that the buyer is unlikely to discover it upon ordinary inspection; and (iii) the defect is serious and would probably cause the buyer to reconsider the purchase if known. Factors increasing the likelihood that liability will be imposed in these cases include whether the property is a personal residence, whether the defect is dangerous, and whether the seller created the defect or made a failed attempt to repair it.


So, regardless of the amount of damages awarded, all of Buyer's remedies were legal, as monetary damages were sufficient, thus there were no equitable remedies applicable here.

I could be wrong, but this is how I saw the question.

I don't think you're wrong. I argued much the same, except that there were contractual remedies if fraud was proven. Buyer has to sue on the warranties in the title, unless there was fraud in the contract. I argued that even if there was misrepresentation, it wasn't material. I'm certain that there were several different ways to argue it and still pass. My guess is that your way is likely one of the high-scoring ways. Especially when you consider the graders are practicing attorneys.

[barexaminerssuck27]

I based my response to the Remedies question on Real Property law.

First, I stated that the Buyer had no contractual remedies as the title had passed.

When title passes, the land sale contract is extinguished (along with the Implied covenant of marketability).
The only basis for a suit by Buyer after title passes is an express covenant, if any, in the deed. There are six possible covenants:
Seisin
Right to Convey
Encumbrances
Quiet Enjoyment
Warranty
Further Assurances

Next, I based my argument for Fraud on the following Real Property law regarding defects in land.

Sale of Existing Land and Buildings—Liability for Defects

The seller of existing buildings (not new construction) may be liable to the purchaser for defects such as a leaky roof, flooding basement, or termite infestation, on any of several different theories:

1) Misrepresentation (Fraud)
The seller is liable for defects about which he knowingly or negligently made a false statement of fact to the buyer if the buyer relied on the statement and it materially affected the value of the property.

2) Active Concealment
The seller will be liable for defects, even without making any statements, if he took steps to conceal the defects {e.g., wallpapering over water damage).

3) Failure to Disclose
Most states hold a seller liable for failure to disclose defects if: (i) he knows or has reason to know of the defect; (ii) the defect is not apparent, and the seller knows that the buyer is unlikely to discover it upon ordinary inspection; and (iii) the defect is serious and would probably cause the buyer to reconsider the purchase if known. Factors increasing the likelihood that liability will be imposed in these cases include whether the property is a personal residence, whether the defect is dangerous, and whether the seller created the defect or made a failed attempt to repair it.


So, regardless of the amount of damages awarded, all of Buyer's remedies were legal, as monetary damages were sufficient, thus there were no equitable remedies applicable here.

I could be wrong, but this is how I saw the question.

Has anyone ever heard of One-Timers Bar Review? I went to their Facebook page and they said essay 2 was based on the following cases:

1) Stambovsky v. Ackley, 572 N.Y.S. 2d 672 (1991)
2) Reed v. King, 145 Cal. App. 3d 261 (1983).

I read both cases. Both cases talked about misrepresentation and remedies, including rescission and compensatory damages (general and special). I COULD BE WRONG BUT if you didn't talk about recession, restitution or compensatory damages, you are way out of the ball park. I am only basing my opinion based on what One-Timers Bar Review said and the two cases.

Thus, based on the two cases, I believe the essay 2 is supposed to go like this:

VERY QUICK analysis of dispute over duties of disclosure owed from sellers to buyers in a residential sales agreement, including misrepresentation. It's a remedies question, not contact essay. Then straight into recession, restitution, compensatory damages. Consequential (foreseeable, unavoidable, certainty, causation), reliance, punitive etc.

http://lawprofessors.typepad.com/contra ... 46/page/2/
https://www.facebook.com/One-Timers-Per ... 640378186/
https://h2o.law.harvard.edu/collages/3789

I have provided links above. Thoughts?

[InterAlia1961]

Has anyone ever heard of One-Timers Bar Review? I went to their Facebook page and they said essay 2 was based on the following cases:

1) Stambovsky v. Ackley, 572 N.Y.S. 2d 672 (1991)
2) Reed v. King, 145 Cal. App. 3d 261 (1983).

I read both cases. Both cases talked about misrepresentation and remedies, including rescission and compensatory damages (general and special). I COULD BE WRONG BUT if you didn't talk about recession, restitution or compensatory damages, you are way out of the ball park. I am only basing my opinion based on what One-Timers Bar Review said and the two cases.

Thus, based on the two cases, I believe the essay 2 is supposed to go like this:

VERY QUICK analysis of dispute over duties of disclosure owed from sellers to buyers in a residential sales agreement, including misrepresentation. It's a remedies question, not contact essay. Then straight into recession, restitution, compensatory damages. Consequential (foreseeable, unavoidable, certainty, causation), reliance, punitive etc.

http://lawprofessors.typepad.com/contra ... 46/page/2/
https://www.facebook.com/One-Timers-Per ... 640378186/
https://h2o.law.harvard.edu/collages/3789

I have provided links above. Thoughts?

I hope you're correct! That's exactly how I answered it. I started off the bat with rescission. Explained to get to it needed to get evidence of fraud in the contract admitted. Went damages and restitution after that. Betty got nothing. No fraud in connection with the property itself.

Did they analyze any other essays over at One-Timers? Can you post a link? Thank you for posting this. Made my day.

[Zeloney]

I did discuss the different types of damages as well as restitutionary damages. However, I argued that traditional damages were more appropriate than restitutionary damages. I discussed rescission, but argued that it was not available based on the fact that title had passed and since monetary damages were sufficient. Hopefully my arguments were sufficient to get a passing grade.

[SFSpartan]

what merger clause???!?!

God, I need to stay away from TLS...... now I am worried about essay 2 lol!!!

Probably good advice for everyone in this thread. I definitely engaged in the type of post-exam catharsis that's going on here after the July Bar. It didn't make me feel any better, and often actively made me feel worse.

Bottom line here is that the exam is over. There's nothing you can do about it (though I certainly can empathize with the impulse to discuss the exam, given how important it is). The best advice I can give is that y'all should keep yourselves occupied and do something to take your collective minds off of this.

[Lawless!]

I based my response to the Remedies question on Real Property law.

First, I stated that the Buyer had no contractual remedies as the title had passed.

When title passes, the land sale contract is extinguished (along with the Implied covenant of marketability).
The only basis for a suit by Buyer after title passes is an express covenant, if any, in the deed. There are six possible covenants:
Seisin
Right to Convey
Encumbrances
Quiet Enjoyment
Warranty
Further Assurances

Next, I based my argument for Fraud on the following Real Property law regarding defects in land.

Sale of Existing Land and Buildings—Liability for Defects

The seller of existing buildings (not new construction) may be liable to the purchaser for defects such as a leaky roof, flooding basement, or termite infestation, on any of several different theories:

1) Misrepresentation (Fraud)
The seller is liable for defects about which he knowingly or negligently made a false statement of fact to the buyer if the buyer relied on the statement and it materially affected the value of the property.

2) Active Concealment
The seller will be liable for defects, even without making any statements, if he took steps to conceal the defects {e.g., wallpapering over water damage).

3) Failure to Disclose
Most states hold a seller liable for failure to disclose defects if: (i) he knows or has reason to know of the defect; (ii) the defect is not apparent, and the seller knows that the buyer is unlikely to discover it upon ordinary inspection; and (iii) the defect is serious and would probably cause the buyer to reconsider the purchase if known. Factors increasing the likelihood that liability will be imposed in these cases include whether the property is a personal residence, whether the defect is dangerous, and whether the seller created the defect or made a failed attempt to repair it.


So, regardless of the amount of damages awarded, all of Buyer's remedies were legal, as monetary damages were sufficient, thus there were no equitable remedies applicable here.

I could be wrong, but this is how I saw the question.

Has anyone ever heard of One-Timers Bar Review? I went to their Facebook page and they said essay 2 was based on the following cases:

1) Stambovsky v. Ackley, 572 N.Y.S. 2d 672 (1991)
2) Reed v. King, 145 Cal. App. 3d 261 (1983).

I read both cases. Both cases talked about misrepresentation and remedies, including rescission and compensatory damages (general and special). I COULD BE WRONG BUT if you didn't talk about recession, restitution or compensatory damages, you are way out of the ball park. I am only basing my opinion based on what One-Timers Bar Review said and the two cases.

Thus, based on the two cases, I believe the essay 2 is supposed to go like this:

VERY QUICK analysis of dispute over duties of disclosure owed from sellers to buyers in a residential sales agreement, including misrepresentation. It's a remedies question, not contact essay. Then straight into recession, restitution, compensatory damages. Consequential (foreseeable, unavoidable, certainty, causation), reliance, punitive etc.

http://lawprofessors.typepad.com/contra ... 46/page/2/
https://www.facebook.com/One-Timers-Per ... 640378186/
https://h2o.law.harvard.edu/collages/3789

I have provided links above. Thoughts?

[Lawless!]

I based my response to the Remedies question on Real Property law.

First, I stated that the Buyer had no contractual remedies as the title had passed.

When title passes, the land sale contract is extinguished (along with the Implied covenant of marketability).
The only basis for a suit by Buyer after title passes is an express covenant, if any, in the deed. There are six possible covenants:
Seisin
Right to Convey
Encumbrances
Quiet Enjoyment
Warranty
Further Assurances

Next, I based my argument for Fraud on the following Real Property law regarding defects in land.

Sale of Existing Land and Buildings—Liability for Defects

The seller of existing buildings (not new construction) may be liable to the purchaser for defects such as a leaky roof, flooding basement, or termite infestation, on any of several different theories:

1) Misrepresentation (Fraud)
The seller is liable for defects about which he knowingly or negligently made a false statement of fact to the buyer if the buyer relied on the statement and it materially affected the value of the property.

2) Active Concealment
The seller will be liable for defects, even without making any statements, if he took steps to conceal the defects {e.g., wallpapering over water damage).

3) Failure to Disclose
Most states hold a seller liable for failure to disclose defects if: (i) he knows or has reason to know of the defect; (ii) the defect is not apparent, and the seller knows that the buyer is unlikely to discover it upon ordinary inspection; and (iii) the defect is serious and would probably cause the buyer to reconsider the purchase if known. Factors increasing the likelihood that liability will be imposed in these cases include whether the property is a personal residence, whether the defect is dangerous, and whether the seller created the defect or made a failed attempt to repair it.


So, regardless of the amount of damages awarded, all of Buyer's remedies were legal, as monetary damages were sufficient, thus there were no equitable remedies applicable here.

I could be wrong, but this is how I saw the question.

Has anyone ever heard of One-Timers Bar Review? I went to their Facebook page and they said essay 2 was based on the following cases:

1) Stambovsky v. Ackley, 572 N.Y.S. 2d 672 (1991)
2) Reed v. King, 145 Cal. App. 3d 261 (1983).

I read both cases. Both cases talked about misrepresentation and remedies, including rescission and compensatory damages (general and special). I COULD BE WRONG BUT if you didn't talk about recession, restitution or compensatory damages, you are way out of the ball park. I am only basing my opinion based on what One-Timers Bar Review said and the two cases.

Thus, based on the two cases, I believe the essay 2 is supposed to go like this:

VERY QUICK analysis of dispute over duties of disclosure owed from sellers to buyers in a residential sales agreement, including misrepresentation. It's a remedies question, not contact essay. Then straight into recession, restitution, compensatory damages. Consequential (foreseeable, unavoidable, certainty, causation), reliance, punitive etc.

http://lawprofessors.typepad.com/contra ... 46/page/2/
https://www.facebook.com/One-Timers-Per ... 640378186/
https://h2o.law.harvard.edu/collages/3789

I have provided links above. Thoughts?

In my opinion, I don't think the issue called for a discussion of the deed covenants because in the past when the examiners wanted a discussion of the covenants they mentioned the type of deed that the seller conveyed or gave us certain facts... but I could be wrong. But with that said, I don't think it hurt your analysis by discussing the deed covenants you probably scored way more points! And I think the rest of your analysis is spot on. Looks like you hit the nail on the head with the exceptions to the no general duty to disclose (caveat emptor), and the subsequent remedies analysis.

Also, I agree with the subsequent post that those cases are probably what the Q was based in or some other similar case/ scenario.

If anyone is interested in seeing how the graders tested fraud in real estate contract and potential remedies, see **Feb 2014 / Q6. ***

Although the 2014 question is distinguishable bc it contains facts calling for constructive trust and equitable lien (which may or may not be a major issue in our Q2), it shows how examiners tested the general rule of no duty to disclose and the exceptions in real estate contracts and a misrepresentation /fraud /deceit cause of action under both tort & contract. Also, this question was post closing but I didn't see a discussion of deed covenants but rather both tort and contract remedies (again I could be way off).

Again, the Feb 2014/ Q6 is not exactly the same as Q2, but it may give us some insight on what they might be expecting in a passing answer.

[gev8787]

I based my response to the Remedies question on Real Property law.

First, I stated that the Buyer had no contractual remedies as the title had passed.

When title passes, the land sale contract is extinguished (along with the Implied covenant of marketability).
The only basis for a suit by Buyer after title passes is an express covenant, if any, in the deed. There are six possible covenants:
Seisin
Right to Convey
Encumbrances
Quiet Enjoyment
Warranty
Further Assurances

Next, I based my argument for Fraud on the following Real Property law regarding defects in land.

Sale of Existing Land and Buildings—Liability for Defects

The seller of existing buildings (not new construction) may be liable to the purchaser for defects such as a leaky roof, flooding basement, or termite infestation, on any of several different theories:

1) Misrepresentation (Fraud)
The seller is liable for defects about which he knowingly or negligently made a false statement of fact to the buyer if the buyer relied on the statement and it materially affected the value of the property.

2) Active Concealment
The seller will be liable for defects, even without making any statements, if he took steps to conceal the defects {e.g., wallpapering over water damage).

3) Failure to Disclose
Most states hold a seller liable for failure to disclose defects if: (i) he knows or has reason to know of the defect; (ii) the defect is not apparent, and the seller knows that the buyer is unlikely to discover it upon ordinary inspection; and (iii) the defect is serious and would probably cause the buyer to reconsider the purchase if known. Factors increasing the likelihood that liability will be imposed in these cases include whether the property is a personal residence, whether the defect is dangerous, and whether the seller created the defect or made a failed attempt to repair it.


So, regardless of the amount of damages awarded, all of Buyer's remedies were legal, as monetary damages were sufficient, thus there were no equitable remedies applicable here.

I could be wrong, but this is how I saw the question.

Has anyone ever heard of One-Timers Bar Review? I went to their Facebook page and they said essay 2 was based on the following cases:

1) Stambovsky v. Ackley, 572 N.Y.S. 2d 672 (1991)
2) Reed v. King, 145 Cal. App. 3d 261 (1983).

I read both cases. Both cases talked about misrepresentation and remedies, including rescission and compensatory damages (general and special). I COULD BE WRONG BUT if you didn't talk about recession, restitution or compensatory damages, you are way out of the ball park. I am only basing my opinion based on what One-Timers Bar Review said and the two cases.

Thus, based on the two cases, I believe the essay 2 is supposed to go like this:

VERY QUICK analysis of dispute over duties of disclosure owed from sellers to buyers in a residential sales agreement, including misrepresentation. It's a remedies question, not contact essay. Then straight into recession, restitution, compensatory damages. Consequential (foreseeable, unavoidable, certainty, causation), reliance, punitive etc.

http://lawprofessors.typepad.com/contra ... 46/page/2/
https://www.facebook.com/One-Timers-Per ... 640378186/
https://h2o.law.harvard.edu/collages/3789

I have provided links above. Thoughts?

I agree that facts might be based on California cases, but shouldn't we answer according Common Law?

[Lawless!]

I based my response to the Remedies question on Real Property law.

First, I stated that the Buyer had no contractual remedies as the title had passed.

When title passes, the land sale contract is extinguished (along with the Implied covenant of marketability).
The only basis for a suit by Buyer after title passes is an express covenant, if any, in the deed. There are six possible covenants:
Seisin
Right to Convey
Encumbrances
Quiet Enjoyment
Warranty
Further Assurances

Next, I based my argument for Fraud on the following Real Property law regarding defects in land.

Sale of Existing Land and Buildings—Liability for Defects

The seller of existing buildings (not new construction) may be liable to the purchaser for defects such as a leaky roof, flooding basement, or termite infestation, on any of several different theories:

1) Misrepresentation (Fraud)
The seller is liable for defects about which he knowingly or negligently made a false statement of fact to the buyer if the buyer relied on the statement and it materially affected the value of the property.

2) Active Concealment
The seller will be liable for defects, even without making any statements, if he took steps to conceal the defects {e.g., wallpapering over water damage).

3) Failure to Disclose
Most states hold a seller liable for failure to disclose defects if: (i) he knows or has reason to know of the defect; (ii) the defect is not apparent, and the seller knows that the buyer is unlikely to discover it upon ordinary inspection; and (iii) the defect is serious and would probably cause the buyer to reconsider the purchase if known. Factors increasing the likelihood that liability will be imposed in these cases include whether the property is a personal residence, whether the defect is dangerous, and whether the seller created the defect or made a failed attempt to repair it.


So, regardless of the amount of damages awarded, all of Buyer's remedies were legal, as monetary damages were sufficient, thus there were no equitable remedies applicable here.

I could be wrong, but this is how I saw the question.

Has anyone ever heard of One-Timers Bar Review? I went to their Facebook page and they said essay 2 was based on the following cases:

1) Stambovsky v. Ackley, 572 N.Y.S. 2d 672 (1991)
2) Reed v. King, 145 Cal. App. 3d 261 (1983).

I read both cases. Both cases talked about misrepresentation and remedies, including rescission and compensatory damages (general and special). I COULD BE WRONG BUT if you didn't talk about recession, restitution or compensatory damages, you are way out of the ball park. I am only basing my opinion based on what One-Timers Bar Review said and the two cases.

Thus, based on the two cases, I believe the essay 2 is supposed to go like this:

VERY QUICK analysis of dispute over duties of disclosure owed from sellers to buyers in a residential sales agreement, including misrepresentation. It's a remedies question, not contact essay. Then straight into recession, restitution, compensatory damages. Consequential (foreseeable, unavoidable, certainty, causation), reliance, punitive etc.

http://lawprofessors.typepad.com/contra ... 46/page/2/
https://www.facebook.com/One-Timers-Per ... 640378186/
https://h2o.law.harvard.edu/collages/3789

I have provided links above. Thoughts?

I agree that facts might be based on California cases, but shouldn't we answer according Common Law?

Well that is the common law rule... Generally, sellers of land have no duty to disclose (caveat emptor) defects. And then you would discuss the 3 types of exceptions (see Zeloney's post above) created to the general common law rule of no duty to disclose. There is a duty imposed on the seller under those 3 exceptions when he (1) takes affirmative steps to conceal defects (i.e. Painting over the defect, or asks another to hide facts); (2) failure to disclose a material defect that seller knows the buyer is unaware of or is not discoverable upon an inspection (i.e. Maybe the disclosure of past murders that decrease the value of the home); or (3) when the the seller makes misrepresentations of material facts that induce the buyer to rely on seller's statements or opinion (if seller knows buyer is relying on his statements or opinions. i.e. Telling buyer parking lots exist when he knows parking lot will not be available anymore, the house is in an urban area where parking is essential, and has knowledge that buyer relying on such available parking). Under #3 the buyer has no duty to investigate sellers statements of facts or opinion and bc seller is in a better position to know such facts about the property, and buyer is justified to rely seller's statements of fact or opinion without having to investigate.

Then a subsequent discussion of appropriate remedies under tort &/or k.

[Lawless!]

Heavy discussion on rebuttal. The reason for the rebuttal was highly discussable.

Anyway, I thought it might be helpful to know where we are in the grading process. The graders got the questions on the last day of the exam. They had until last Saturday to research their version of a model answer. Last Saturday, they got together to determine the grading scale. They got the first fifteen answers they will analyze as a group. Next Saturday, they will meet to evaluate how they did. Then, they'll each get 10 separate essays or PTs, which ever they are assigned to grade on their own. They meet again the following Saturday to make sure they are grading according to the agreed upon rubric. That Saturday, they are each given their share of the exams to grade. All the graded exams must be turned a month before results are released. We'll know they're done when they release the questions on the CalBar site.

I swear on all that is holy, if the State Bar does what the legislature asks and drops the high cut rate for the July 2017 CBX and leaves us out in the cold, I'll be putting my law degree to good use. I'll be furious.

How do you know this? If it's true, it's very insightful considering the bar exam and the grading process have no transparency and scores are subject to the absolute descretion of the graders. And leaving the examinees without any means of questioning the process. If it's true it's a relief to know where they are in this whole process

[InterAlia1961]

How do you know this? If it's true, it's very insightful considering the bar exam and the grading process have no transparency and scores are subject to the absolute descretion of the graders. And leaving the examinees without any means of questioning the process. If it's true it's a relief to know where they are in this whole process

You can look at the grading information on the CalBar site. There's a link about the grading process here http://admissions.calbar.ca.gov/Portals ... 2017_R.pdf. It explains in detail how it works. And an article at the following link filled in some of the blanks. I find it helpful to know where in the process they are, even though I can't do anything at all but wait.

Here's the link: https://www.barissues.com/p/demystifyin ... process-2/ and another one that I found helpful http://www.barexamstats.com/the-califor ... g-process/

I'm still fretting over the call of the question on the evidence essay. I thought the call of the question was whether the hospital record was properly admitted. Maybe I was wrong.