July 2015 California Bar Exam Forum

[robinhoodOO]

Quick question. Say house bought with Community Prop funds but taken title in husband's name only. This is not enough to rebut presumption of CP right? How could husband successfully argue it is SP?

It depends whether it happened before 1985 or after.

What depends on this? I think it would be presumed CP because the source of the property is CP funds. The husband I guess could argue that it was a gift, but in order for that transmutation to stand (post-1985) the gift would have to be in writing.

Also, there is no writing requirement for the gift exception, but it simply wouldn't apply in this situation regardless.

[Pleasye]

Quick question. Say house bought with Community Prop funds but taken title in husband's name only. This is not enough to rebut presumption of CP right? How could husband successfully argue it is SP?

It depends whether it happened before 1985 or after.

What depends on this? I think it would be presumed CP because the source of the property is CP funds. The husband I guess could argue that it was a gift, but in order for that transmutation to stand (post-1985) the gift would have to be in writing.

Also, there is no writing requirement for the gift exception, but it simply wouldn't apply in this situation regardless.

Oh yeah you're right about the writing, sorry. Why wouldn't the gift exception apply here?

[robinhoodOO]

Quick question. Say house bought with Community Prop funds but taken title in husband's name only. This is not enough to rebut presumption of CP right? How could husband successfully argue it is SP?

It depends whether it happened before 1985 or after.

What depends on this? I think it would be presumed CP because the source of the property is CP funds. The husband I guess could argue that it was a gift, but in order for that transmutation to stand (post-1985) the gift would have to be in writing.

Also, there is no writing requirement for the gift exception, but it simply wouldn't apply in this situation regardless.

Oh yeah you're right about the writing, sorry. Why wouldn't the gift exception apply here?

To be an exception to the transmutation writing requirement, gifts must be (1) personal in nature (i.e. clothing, jewelry, etc.), (2) be used solely by the spouse to him the gift is made, and (3) not be substantial in value taking into consideration circumstances of the marriage.

(1) It's not personal in nature (and appears to be their residence).

(2) It probably won't be used solely by the Husband.

(2) Unless they are multi-millionaires, it is too substantial in value.

[BuenAbogado]

Quick question. Say house bought with Community Prop funds but taken title in husband's name only. This is not enough to rebut presumption of CP right? How could husband successfully argue it is SP?

It depends whether it happened before 1985 or after.

What depends on this? I think it would be presumed CP because the source of the property is CP funds. The husband I guess could argue that it was a gift, but in order for that transmutation to stand (post-1985) the gift would have to be in writing.

Also, there is no writing requirement for the gift exception, but it simply wouldn't apply in this situation regardless.

Insufficient facts in hypo so must assume all potential tools available at his disposal for a suit.

Pre 1985 - He could argue they made an oral or written agreement.
Post 1985 - He could argue oral plus estoppel or gift exception, or produce a writing.

May not succeed but still can argue.

[Pleasye]

Quick question. Say house bought with Community Prop funds but taken title in husband's name only. This is not enough to rebut presumption of CP right? How could husband successfully argue it is SP?

It depends whether it happened before 1985 or after.

What depends on this? I think it would be presumed CP because the source of the property is CP funds. The husband I guess could argue that it was a gift, but in order for that transmutation to stand (post-1985) the gift would have to be in writing.

Also, there is no writing requirement for the gift exception, but it simply wouldn't apply in this situation regardless.

Oh yeah you're right about the writing, sorry. Why wouldn't the gift exception apply here?

To be an exception to the transmutation writing requirement, gifts must be (1) personal in nature (i.e. clothing, jewelry, etc.), (2) be used solely by the spouse to him the gift is made, and (3) not be substantial in value taking into consideration circumstances of the marriage.

(1) It's not personal in nature (and appears to be their residence).

(2) It probably won't be used solely by the Husband.

(2) Unless they are multi-millionaires, it is too substantial in value.

Oh I thought you meant that this wasn't the correct situation in which to attempt to apply the exception.

[robinhoodOO]

Quick question. Say house bought with Community Prop funds but taken title in husband's name only. This is not enough to rebut presumption of CP right? How could husband successfully argue it is SP?

It depends whether it happened before 1985 or after.

What depends on this? I think it would be presumed CP because the source of the property is CP funds. The husband I guess could argue that it was a gift, but in order for that transmutation to stand (post-1985) the gift would have to be in writing.

Also, there is no writing requirement for the gift exception, but it simply wouldn't apply in this situation regardless.

Oh yeah you're right about the writing, sorry. Why wouldn't the gift exception apply here?

To be an exception to the transmutation writing requirement, gifts must be (1) personal in nature (i.e. clothing, jewelry, etc.), (2) be used solely by the spouse to him the gift is made, and (3) not be substantial in value taking into consideration circumstances of the marriage.

(1) It's not personal in nature (and appears to be their residence).

(2) It probably won't be used solely by the Husband.

(2) Unless they are multi-millionaires, it is too substantial in value.

Oh I thought you meant that this wasn't the correct situation in which to attempt to apply the exception.

Oh; no, sorry. That was my bad. In that situation, you'd definitely make the gift exception argument

[brotherdarkness]

We aren't penalized for incorrect statements of law on the essays right?

[redblueyellow]

We aren't penalized for incorrect statements of law on the essays right?

I think that's only TN, right?

[BuenAbogado]

We aren't penalized for incorrect statements of law on the essays right?

No, but yes for mistake of fact

[robinhoodOO]

We aren't penalized for incorrect statements of law on the essays right?

You're penalized in the sense that you will get no points or less points for that rule.

[SpAcEmAn SpLiFF]

Can someone give me an example of mistake of law, other than ignorance of the law's existence? I'm having trouble understanding when something's a mistake of law or a mistake of fact

[robinhoodOO]

Can someone give me an example of mistake of law, other than ignorance of the law's existence? I'm having trouble understanding when something's a mistake of law or a mistake of fact

Jurisdiction A sets forth statutory rape is sleeping with any person younger than 16.

Jurisdiction B sets forth Statutory rape is sleeping with any person younger than 18.

Devin lives in Jurisdiction B and moves to A. He believes it is unlawful to sleep with persons under 18 based on where he came from. One night he sleeps with a 17 year old believing his actions are unlawful.

Devin is not guilty because his actions are lawful and cannot be guilty merely because he thought what he was doing was unlawful.

Alternatively, if Devin thought the person was 17, but she turned out to be 15, he would be guilty of statutory rape because mistake in fact is not a defense in this scenario.

[BuenAbogado]

Can someone give me an example of mistake of law, other than ignorance of the law's existence? I'm having trouble understanding when something's a mistake of law or a mistake of fact

Jurisdiction A sets forth statutory rape is sleeping with any person younger than 16.

Jurisdiction B sets forth Statutory rape is sleeping with any person younger than 18.

Devin lives in Jurisdiction B and moves to A. He believes it is unlawful to sleep with persons under 18 based on where he came from. One night he sleeps with a 17 year old believing his actions are unlawful.

Devin is not guilty because his actions are lawful and cannot be guilty merely because he thought what he was doing was unlawful.

Alternatively, if Devin thought the person was 17, but she turned out to be 15, he would be guilty of statutory rape because mistake in fact is not a defense in this scenario.

What if it was in jurisdiction B and she lied about her age and had a fake ID and she was 17 years and 364 days old, and you get in bed with her, and then during intercourse she turned 18.

[SpAcEmAn SpLiFF]

Can someone give me an example of mistake of law, other than ignorance of the law's existence? I'm having trouble understanding when something's a mistake of law or a mistake of fact

Jurisdiction A sets forth statutory rape is sleeping with any person younger than 16.

Jurisdiction B sets forth Statutory rape is sleeping with any person younger than 18.

Devin lives in Jurisdiction B and moves to A. He believes it is unlawful to sleep with persons under 18 based on where he came from. One night he sleeps with a 17 year old believing his actions are unlawful.

Devin is not guilty because his actions are lawful and cannot be guilty merely because he thought what he was doing was unlawful.

Alternatively, if Devin thought the person was 17, but she turned out to be 15, he would be guilty of statutory rape because mistake in fact is not a defense in this scenario.

Thanks. Can we try another example with burglary?
Let's say I tried to burglarize a house, but I suck at being a burglar and I broke into my own house to commit a felony therein and didn't realize it until I was in my own living room. Is that a mistake of fact because, but for the fact I broke into my own home, it would've been burglary?

[robinhoodOO]

Can someone give me an example of mistake of law, other than ignorance of the law's existence? I'm having trouble understanding when something's a mistake of law or a mistake of fact

Jurisdiction A sets forth statutory rape is sleeping with any person younger than 16.

Jurisdiction B sets forth Statutory rape is sleeping with any person younger than 18.

Devin lives in Jurisdiction B and moves to A. He believes it is unlawful to sleep with persons under 18 based on where he came from. One night he sleeps with a 17 year old believing his actions are unlawful.

Devin is not guilty because his actions are lawful and cannot be guilty merely because he thought what he was doing was unlawful.

Alternatively, if Devin thought the person was 17, but she turned out to be 15, he would be guilty of statutory rape because mistake in fact is not a defense in this scenario.

Thanks. Can we try another example with burglary?
Let's say I tried to burglarize a house, but I suck at being a burglar and I broke into my own house to commit a felony therein and didn't realize it until I was in my own living room. Is that a mistake of fact because, but for the fact I broke into my own home, it would've been burglary?

I believe he'd be guilty under the circumstances (at least under the MPC). Mistake in fact is not available where, had the facts been as the defendant believed, D would have committed the crime.

For example, D has a bag of what he believes to be cocaine and sells it to a friend. However, the bag is really flour. D can still be guilty. In that scenario, because mistake doesn't go to intent, D can be guilty.

[redblueyellow]

I believe he'd be guilty under the circumstances (at least under the MPC). Mistake in fact is not available where, had the facts been as the defendant believed, D would have committed the crime.

For example, D has a bag of what he believes to be cocaine and sells it to a friend. However, the bag is really flour. D can still be guilty. In that scenario, because mistake doesn't go to intent, D can be guilty.

Did you find anywhere in the Kaplan materials where they break down CL vs MPC for Crim? Or is it randomly interspersed in the outlines?

[Redamon1]

Although I think in those mistake of fact questions, the most you can convict the person is ATTEMPT. The crime didn't really take place but the defendant had the state of mind to be convicted.

ETA: to take an example, you shoot a gun into your neighbor's bed to kill in the middle of the night, but it turns out the bed was empty. You can't be convicted of murder, but you can be convicted of attempted murder.

[robinhoodOO]

I believe he'd be guilty under the circumstances (at least under the MPC). Mistake in fact is not available where, had the facts been as the defendant believed, D would have committed the crime.

For example, D has a bag of what he believes to be cocaine and sells it to a friend. However, the bag is really flour. D can still be guilty. In that scenario, because mistake doesn't go to intent, D can be guilty.

Did you find anywhere in the Kaplan materials where they break down CL vs MPC for Crim? Or is it randomly interspersed in the outlines?

I don't remember offhand, but I recall a few places where they pointed out MPC variations...

[robinhoodOO]

Try this guy's breakdown
http://www.onelbriefs.com/outlines/crim/mistake.htm

[a male human]

Looking for some guidance with limited time remaining. I may get flamed for this post, but I've had trouble dealing with anxiety regarding this test and I was wondering if anyone could reason with me.

So, I haven't had a chance to write a bunch of essays out fully. I've written probably 1-2 for each subject, so probably around 20 total. I've tried to outline an additional 2 essays per subject. Based on the data I've seen that most essay issues repeat from previous exams my essay study has been mostly: skimming outlines, setting general essay structure guides for each subject, and memorizing every rule that appears in the Barbri essays. So, for example, Barbri gives 8 old essays per subject and I made notecards for each rule that appeared and memorized those (there is a lot of repeat stuff and some essays have few rules).

I'm a pretty good writer. I graduated from a top school in the top 5% of my class. I feel like I have a pretty good idea of how to write a law school exam, but I'm growing a little concerned that my style is too verbose for the bar. Since I've memorized a good chunk of rules I tend to hit the major issues and I don't usually run out of time (though I do go right up to the limit in most cases). My essays average about 1900-2200 words depending on the source material and the subject. I tend to go pretty heavy on analysis, though I've practiced somewhat cutting this down on clear issues and instead hitting more issues.

I might be overreacting or unnecessarily freaking out here, but I know that people who graduate at the top of their class fail all the time, especially in CA. By the time studying is over I will have completed probably 85% of my Barbri PSP, but I've also done some extra stuff (completed most of the Qs in Emanuels, did the full day and half day MBEs that are not covered in the PSP). I'm not that worried about the MBE. However, when I started the prep, I was thinking that my MBE and PTs would carry me, but now I'm not sold on that in CA. My MBEs are above average, but I'm definitely not expecting to walk in there and hit an 80+% or some absurd number, especially given the relative uncertainty surrounding Civ Pro. I've written out probably 4 full PTs, but I am by no means confident I'll pull a 65 on both for sure come test day.

On the one hand I feel really dumb for the anxiety because I'm not sure how much more I could have prepared. The biggest factor right now is I have just not been able to get a read for how the CA essays will be graded. Despite what I thought was pretty good writing ability, my Barbri feedback was largely unhelpful (I got 2 65s, 1 60, but all of these were submitted well before I started to focus in on the essays the last 2-3 weeks, and none had helpful substantive feedback -- a Ks essay I turned in was 2200 words, hit every issue except 1 minor quasi-K issue, and got a 65). I split a Baressays account with a friend and I honestly for the life of me can't figure it out. Sometimes I will read answers that miss several major issues, are disorganized, but the right rules are somewhere in there and they'll hit 65s. Then I'll go over 55s for the same essay and the quality is not that different at all. And yet other times I'll see answers that I think are solid -- adequate but not mind blowing -- and they somehow hit 75-80.

Could really use a pep talk if anyone has helpful words to offer. Don't mean to come off as whiny or anything, just seriously having anxiety about all this.

I don't know man. Seems like you're on your way. Your MBE is above average, which is good. You've done 4 PTs, which is also good (as long as your feel comfortable with it). It looks like your concern is that you're not sure what gets you a 65 on essays.

I've never been a grader, but it seems arbitrary to an extent. Accept it.

However, I've noticed that the good essay scores tend to have CLARITY in their answers. That means not making the grader do the work of figuring out what you're saying. This includes:
- clear issue headers (street signs that let them know where you're going) -- bold and/or underline
- clean rule statements (try not to BS too much)
- separated rule and application (don't commingle R and A like a trustee breaching her duties)
- clean conclusion ("Thus, CONCLUSION because SUMMARY OF ANALYSIS.") -- 1-2 sentences
- separated IRACs (e.g., by using clear issue headers)

Good to be humble during preparation. Be arrogant during test day. This is your twice-a-year opportunity to show your stuff. Yes, as a secondary measure, you should make up law and over-include issues.

However, aim to hit as many RELEVANT issues and sub-issues as you can. You can't get to top 5% without doing this, right? Let me know actually because I don't know. You can fudge a couple of rules and applications and get partial credit, but you will get zero credit for an issue you should have sprouted into an IRAC. On the flip side, if you throw in the kitchen sink, you will run counter to what they are looking for per the essay instructions (see the first page of the booklet).

Remember that these graders are people who are incentivized to evaluate your answer in as short a time as possible, being paid $3.25 per booklet (and only $3.75 for PTs!). These people will have seen dozens if not hundreds of similar answers before yours. These people are bored out of their unemployed mind and hate the world and will read your answer while taking a shit or waiting for the red light. These are dangerous people.

Be as gentle on their eyes as possible. Frontload the work for them by doing the above. Make them feel like the $3.25 was a steal, and they just might round up your score...

[soj]

.

[BuenAbogado]

so here's what i'm taking to the exam:
(1) laptop + charger, on essay days
(2) gov photo id
(3) 1-page admission ticket
(4) pencils
(5) other stationery, on essay days
(6) cash for lunch
(7) a watch

am i forgetting anything, like a passport photo like with the mpre? and does all this shit (other than (1)) have to be in a ziploc bag?

A Holy Bible

[a male human]

so here's what i'm taking to the exam:
(1) laptop + charger, on essay days
(2) gov photo id
(3) 1-page admission ticket
(4) pencils
(5) other stationery, on essay days
(6) cash for lunch
(7) a watch

am i forgetting anything, like a passport photo like with the mpre? and does all this shit (other than (1)) have to be in a ziploc bag?

A Holy Bible

a picture of your loved one

[BuenAbogado]

so here's what i'm taking to the exam:
(1) laptop + charger, on essay days
(2) gov photo id
(3) 1-page admission ticket
(4) pencils
(5) other stationery, on essay days
(6) cash for lunch
(7) a watch

am i forgetting anything, like a passport photo like with the mpre? and does all this shit (other than (1)) have to be in a ziploc bag?

A Holy Bible

a picture of your loved one

A picture of your loved one wearing a tshirt that lists the CA Civ Pro distinctions

[Pleasye]

so here's what i'm taking to the exam:
(1) laptop + charger, on essay days
(2) gov photo id
(3) 1-page admission ticket
(4) pencils
(5) other stationery, on essay days
(6) cash for lunch
(7) a watch

am i forgetting anything, like a passport photo like with the mpre? and does all this shit (other than (1)) have to be in a ziploc bag?

We can bring our own scratch paper? your list looks good to me.