2015 February California Bar Exam Forum

[a male human]

For Question 5 - July, 2009 (Remedies, Civ Pro, Ethics), I have a question about this particular paragraph/question:

"Thereafter, Paul, one of the neighbors and a plaintiff in the state court case, separately
retained Lawyer and filed an application for a permanent injunction against Diane in
federal court asserting the same causes of action and requesting the same relief as in
the state court case. Personal jurisdiction, subject matter jurisdiction, and venue were
proper. The federal court granted Diane’s motion to dismiss Paul’s federal court
application on the basis of preclusion.

Question 2. Was the federal court’s denial of Paul’s application for a permanent injunction
correct? Discuss. Do not address substantive property or riparian rights."

Without the underlined sentence, would you still have analyzed this question under Res Judicata or would you have done a write up for permanent injunction (as in #1 which I did not post here)? In other words, I'm trying to see if that question 2 only hinged on res judicata solely because of the underlined sentence, or if it was also hinted at during the rest of the paragraph (I don't think it was).

Which part of the facts without the underlined part would trigger a rule element for res judicata?

Probably the part about the same causes of action and same relief, I suppose.

Hmm I see. I guess I'm not sure res judicata would be a big issue even with the underlined portion, unless a question asked whether that dismissal under preclusion was proper. Civ pro calls usually identify the main issue for you.

However, you'll raise res judicata if there are other relevant facts elsewhere.

If you were limited to the facts I see, I would kind of raise it and wave it away with a quick conclusion based on a presumption and also place the discussion after more significant issues. Generally, the fewer rule elements the facts trigger for an issue, the less important it is.

[redblueyellow]

For Question 5 - July, 2009 (Remedies, Civ Pro, Ethics), I have a question about this particular paragraph/question:

"Thereafter, Paul, one of the neighbors and a plaintiff in the state court case, separately
retained Lawyer and filed an application for a permanent injunction against Diane in
federal court asserting the same causes of action and requesting the same relief as in
the state court case. Personal jurisdiction, subject matter jurisdiction, and venue were
proper. The federal court granted Diane’s motion to dismiss Paul’s federal court
application on the basis of preclusion.

Question 2. Was the federal court’s denial of Paul’s application for a permanent injunction
correct? Discuss. Do not address substantive property or riparian rights."

Without the underlined sentence, would you still have analyzed this question under Res Judicata or would you have done a write up for permanent injunction (as in #1 which I did not post here)? In other words, I'm trying to see if that question 2 only hinged on res judicata solely because of the underlined sentence, or if it was also hinted at during the rest of the paragraph (I don't think it was).

Which part of the facts without the underlined part would trigger a rule element for res judicata?

Probably the part about the same causes of action and same relief, I suppose.

Hmm I see. I guess I'm not sure res judicata would be a big issue even with the underlined portion, unless a question asked whether that dismissal under preclusion was proper. Civ pro calls usually identify the main issue for you.

However, you'll raise res judicata if there are other relevant facts elsewhere.

If you were limited to the facts I see, I would kind of raise it and wave it away with a quick conclusion based on a presumption and also place the discussion after more significant issues. Generally, the fewer rule elements the facts trigger for an issue, the less important it is.

Oddly enough, the model answers both solely focused on res judicata for that particular question with absolutely no reference to the injunction elements or the like (whereas the first question was a full injunction analysis). If not for that final underlined sentence, I would've had no idea that they would want a complete analysis solely on claim preclusion. I'm hoping that our questions are prompted in such a manner vs us trying to figure out what they're asking exactly.

[a male human]

Upon closer read, I think the model answers are correct. Disregard what I said earlier (sorry).

P filed the PI against D. Then the court dismissed P's PI because of preclusion. Then the call asks if that dismissal was correct, i.e., was there really preclusion.

Thus, the issue is in fact preclusion. Did the models also talk about issue preclusion?

[cndounda1985]

I just did another PT...i got all the rules down but reading the model answers really makes me feel self-conscious. Sigh....I'm just hoping it's enough to pass because these model answers look like these folks had way more then 3 hours to type.

[cndounda1985]

Does anyone know if we can bring our luggage to the exam center (Oakland Convention Center) and leave it there?

You can't bring anything inside the actual convention center other then that ziploc bag but you can leave your luggage outside the front doors. The area where the test is is blocked off to hotel guests and it's closed off during lunch so nobody can go in.

[redblueyellow]

For Remedies, can someone please confirm the proper rules for me?


Compensatory Damages (Torts): 1) Foreseeability 2) Actual Causation 3) Certainty 4) Unavoidability

vs.

Compensatory Damages (Contracts): 1) Foreseeability 2) Actual Causation 3) Certainty 4) Mitigation

Are these tests supposed to be the same regardless if it's K or Torts? Why do I have differing sources of information saying that Torts is supposed to have "unavoidability" vs Contracts having "mitigation?"

Which one is it? And if it's actually correct the way I have it right now, what's the difference between unavoidability and mitigation?

[redblueyellow]

Upon closer read, I think the model answers are correct. Disregard what I said earlier (sorry).

P filed the PI against D. Then the court dismissed P's PI because of preclusion. Then the call asks if that dismissal was correct, i.e., was there really preclusion.

Thus, the issue is in fact preclusion. Did the models also talk about issue preclusion?

Thanks! Nope, no issue preclusion discussion. Only claim preclusion.

[cndounda1985]

For Remedies, can someone please confirm the proper rules for me?


Compensatory Damages (Torts): 1) Foreseeability 2) Actual Causation 3) Certainty 4) Unavoidability

vs.

Compensatory Damages (Contracts): 1) Foreseeability 2) Actual Causation 3) Certainty 4) Mitigation

Are these tests supposed to be the same regardless if it's K or Torts? Why do I have differing sources of information saying that Torts is supposed to have "unavoidability" vs Contracts having "mitigation?"

Which one is it? And if it's actually correct the way I have it right now, what's the difference between unavoidability and mitigation?

It's been a few days since I reviewed Remedies, I believe the requirement for actual damages the four factors are only for compensatory tort damages. For Ks, Compensatory damages: you only need expectancy , incidental damages, consequential damages & liquidated damages if the parties have agreed to that. The measure of expectancy damages is the value of the benefit less the value actually received. There is no requirement of actual damages for Ks, it's either money damages, restitutionary damages or Specific performance

[redblueyellow]

For Remedies, can someone please confirm the proper rules for me?


Compensatory Damages (Torts): 1) Foreseeability 2) Actual Causation 3) Certainty 4) Unavoidability

vs.

Compensatory Damages (Contracts): 1) Foreseeability 2) Actual Causation 3) Certainty 4) Mitigation

Are these tests supposed to be the same regardless if it's K or Torts? Why do I have differing sources of information saying that Torts is supposed to have "unavoidability" vs Contracts having "mitigation?"

Which one is it? And if it's actually correct the way I have it right now, what's the difference between unavoidability and mitigation?

It's been a few days since I reviewed Remedies, I believe the requirement for actual damages the four factors are only for compensatory tort damages. For Ks, Compensatory damages: you only need expectancy , incidental damages, consequential damages & liquidated damages if the parties have agreed to that. The measure of expectancy damages is the value of the benefit less the value actually received. There is no requirement of actual damages for Ks, it's either money damages, restitutionary damages or Specific performance

We're pretty close, but I'm just confused because all the outlines and stuff I have indicate that for Contracts I'd need to prove that the P "qualifies" for Compensatory damages by meeting the 4 elements (with the difference of unavoidability/mitigation) and then subsequently pick one from Expectancy, Reliance, or Restitutionary interest options.

Do I not need to prove the "compensatory" damage category to qualify for either the expectancy or reliance damages? (Restitutionary damages is in its own category of "Restitution")

[cndounda1985]

For Remedies, can someone please confirm the proper rules for me?


Compensatory Damages (Torts): 1) Foreseeability 2) Actual Causation 3) Certainty 4) Unavoidability

vs.

Compensatory Damages (Contracts): 1) Foreseeability 2) Actual Causation 3) Certainty 4) Mitigation

Are these tests supposed to be the same regardless if it's K or Torts? Why do I have differing sources of information saying that Torts is supposed to have "unavoidability" vs Contracts having "mitigation?"

Which one is it? And if it's actually correct the way I have it right now, what's the difference between unavoidability and mitigation?

It's been a few days since I reviewed Remedies, I believe the requirement for actual damages the four factors are only for compensatory tort damages. For Ks, Compensatory damages: you only need expectancy , incidental damages, consequential damages & liquidated damages if the parties have agreed to that. The measure of expectancy damages is the value of the benefit less the value actually received. There is no requirement of actual damages for Ks, it's either money damages, restitutionary damages or Specific performance

We're pretty close, but I'm just confused because all the outlines and stuff I have indicate that for Contracts I'd need to prove that the P "qualifies" for Compensatory damages by meeting the 4 elements (with the difference of unavoidability/mitigation) and then subsequently pick one from Expectancy, Reliance, or Restitutionary interest options.

Do I not need to prove the "compensatory" damage category to qualify for either the expectancy or reliance damages? (Restitutionary damages is in its own category of "Restitution")

I guess you were right, my other outlines did not have those 4. I think unavoidability is just the tort version of mitigation of damages. I think they mean the same thing. Sorry about that, all my outlines didn't have that had to look on lean sheets. Thanks.

[morescotchplease]

soo....is everyone ready?

[redblueyellow]

No.

[a male human]

Re mitigation/unavoidability:

I think they are the same thing. AFAIK, "unavoidability" just refers to the duty to mitigate. Plaintiff has to take reasonable steps to mitigate the damages before asking for relief for those damages. If after trying to mitigate there are still damages, those damages are unavoidable and thus meriting compensation from Defendant.

In fact, the standard for compensatory $ damages should be the SAME, whether you are in a tort or contracts situation. So you can recite the same thing ("mitigation" and "unavoidability" are both well-recognized terms) for either case.

But what is reasonable? I think most people would just patch up really urgent damages and not go out of their way to make up for something the other party caused, particularly if they want to leave evidence. I believe this 4th element of compensatory damages should be reasonably easy to meet (well, hopefully there is a piece of fact that makes it a slam dunk).

[CourtneyElizabeth]

soo....is everyone ready?

BAHAHAH GOOD ONE.


Not even remotely.

[SpAcEmAn SpLiFF]

really dumb question:
I skimmed over the instructions for entering the exam...are we not allowed to bring in a bottle of water? I don't see it listed as one of the allowed things.

[flpngino]

Nope. There are water fountains/coolers at all locations.

[melvinIII]

Wills and Trusts Question:

An omitted child is one who is born after the execution of the will and is left out. They can still get their cut, barring exceptions for (1) intentional omission of child, (2) $$ left with another parent, or (3) provided for outside of the will.

Is there such a thing as a pretermitted child? I swear I read that somewhere, but cannot find it now! It is basically a child who is born before the will was made, but still not in it (for whatever reason). However, the presumption is that you would want your child to get some of your stuff, so they are entitled to their intestate share, barring the same three exceptions above.

Can anyone conform or deny this? Thanks!

I asked this question earlier in the thread because the baressays.com model answers have different rules for pretermitted/omitted but there wasn't much response. I think most people use the term omitted for both, as my kaplan materials and the leansheets do. I tried to find the word pretermitted in the CA probate code but I didn't see it there. If it comes up I'm probably just going to make my heading pretermitted/omitted.

Both pretermitted and omitted are entitled to the intestate share barring the same three exceptions. The only difference I have in the two rules is that the omitted child only gets the intestate share if the testator was unaware of the omitted child's existence or believed the child was dead.

[PennJD83]

I thought pretermitted child= A child that was born after the will was executed. A pretermitted child can take his intestate share unless the child is taken care of elsewhere in the will or if the child's parent is given enough of the estate to care for the pretermitted child. An omitted child is a child that was born before the execution of the will. If an omitted child is left out, then the child can still take its intestate share. However, if the testator intended to leave the child out of the will (and the testator mentions on the face of the will that he intends to leave the child out), the omitted child takes nothing.

[melvinIII]

I'm about to do my last OPE and then I'm pretty much going all out on essays for the next five days. What are you guys focusing on memorizing in the last few days before the test?

I need to memorize which things are hearsay exceptions and which are exclusions. Does anyone have a handy way they remember those distinctions? All I have memorized regarding hearsay is which exceptions require unavailability which I remember using F'DISH (like fiduciary): Former testimony, Dying declaration, Intentional wrongdoing, Statement against interest, personal/family History)

Are you guys memorizing all the different estates and what words create each?

[melvinIII]

I thought pretermitted child= A child that was born after the will was executed. A pretermitted child can take his intestate share unless the child is taken care of elsewhere in the will or if the child's parent is given enough of the estate to care for the pretermitted child. An omitted child is a child that was born before the execution of the will. If an omitted child is left out, then the child can still take its intestate share. However, if the testator intended to leave the child out of the will (and the testator mentions on the face of the will that he intends to leave the child out), the omitted child takes nothing.

Yes, pretermitted is born after the execution of all testamentary documents (including wills and revocable trusts), omitted is born before.

I have the same 3 exceptions applying to both: (1) decedent provided for the p/o child by transfer outside the testamentary instruments and intended it to be in lieu of provision in the testamentary instruments, (2) when the testamentary instruments were executed, decedent had one or more children and left substantially all of the estate to the other parent of the p/o child, or (3) the decedent's failure to provide for the p/o child was intentional and the intent appears on the face of the testamentary instruments.

[mhub172]

Literally know nothing about corporations/agency/partnership. Need advice on what people think are the most important areas so I can quickly study those the next few days. What do people think are the big "must knows" from these subjects? Thanks!

[Evaly]

How many PTs are you guys doing? I have done 2 under exam conditions and 1 with extended time. I outlined 2 more. Did pretty well on my graded PT. With less than a week to go is it worthwhile to write out more PTs completely?

[CourtneyElizabeth]

How many PTs are you guys doing? I have done 2 under exam conditions and 1 with extended time. I outlined 2 more. Did pretty well on my graded PT. With less than a week to go is it worthwhile to write out more PTs completely?

No, you've done more than MANY - but I would read at least one of each type, and the released answers for them so you can see what the bar graders are looking for on each type, and you won't see a certain call and freak out. Like a client letter, persuasive memo, objective memo etc etc...

[CourtneyElizabeth]

Literally know nothing about corporations/agency/partnership. Need advice on what people think are the most important areas so I can quickly study those the next few days. What do people think are the big "must knows" from these subjects? Thanks!

Yeah I'm going to hit those up closer to the test. Since it will be a very brief cursory look, I want to do it a bit closer so maybe some stuff actually sticks. I think the securities laws would be good - 10b5 and such - to look over.

[redblueyellow]

Literally know nothing about corporations/agency/partnership. Need advice on what people think are the most important areas so I can quickly study those the next few days. What do people think are the big "must knows" from these subjects? Thanks!

Agency:
Agent/Principal relationship
Authority (Apparent, Implied)
Duties owed to P, Duties owed to A
Liabilites for P, Liabilities to P

Partnership:
General Partnership
Limited Partnership
Limited Liability Partnership
Limited Liability Co
Liabilities/Rights, Formation, Duties for each

Corps:
Formation/Promoters
Piercing the Corp Veil
Stock types
Board of Director Action
Liabilities/Rights of Directors/Officers/Shareholders
Voting
Fundamental Corp Changes
10b5
16b