Exam No. ____________________ PEPPERDINE UNIVERSITY SCHOOL OF LAW FINAL EXAMINATION – Remedies PART II–Essay Questions FALL SEMESTER 2003 PROFESSOR: Nichols Total No. of Essays: 2
Total No. of Pages: 5 Time: 2 Hours
The grade on the essay part of the exam will count 66 2/3% of the total exam grade. ________________________________________________________________________ INSTRUCTIONS READ THIS CAREFULLY 1. Unless indicated otherwise, you should apply the majority rule if there is a majority-minority split of authority (or apply the modern trend versus traditional rule if you must choose). If you are writing the exam: if you use more than one blue book for your answer, please number them (e.g., Book 1 of 2, Book 2 of 2). Also, you do not need to skip every other line. However, please write legibly on the front side of the paper only, and use only blue or black ink. This examination is a closed book test. Budget your time carefully when writing the essays and their various parts. I strongly recommend taking the first few minutes of your time to read the essay question(s) in full and outline your answer(s). You may use abbreviations for statutes, persons, parties, or cases (e.g., “P” for “Patty” or Clark for Clark v. Kent), as long as there is no potential confusion. This examination must not be taken from the examination room at any time. Please turn in your essay questions with your exam at the end of the time period. Use your assigned examination number and write nothing that will divulge your identity.
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Good luck and have a great holiday break!
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Essay I. (60 min.) Ahmad is a famous actor who made a name for himself by playing a rags-toriches prize-fighting boxer. In a series of movies, Ahmad has played the character of Boris, originally a savvy teenager who grew up on the streets of Philadelphia and fended for himself by learning to box. Boris made a name for himself by defeating older, more established opponents, and finally won lasting glory at age 25 by taking down the reigning champion of the boxing world. Later installments of the Boris series showed Boris struggling to maintain his competitive edge as he faced growing responsibilities and complications in life. Cliff, a former boxer turned climatologist, has been stationed in Antarctica for the past 5 years studying global warming and ozone depletion. Ten years ago, Cliff had declined the opportunity to sell his story to Ahmad for $30,000. Five years ago, immediately before leaving for Antarctica, Cliff received another letter from Ahmad saying that Ahmad wanted to make a rags-to-riches boxing movie, and soliciting any opinions or comments from Cliff. Cliff was in a hurry to leave the country and never responded. Cliff has not been back to the United States since he received his assignment and has been unable to stay current on cultural events. Back in the United States for the first time in five years on furlough, Cliff visited a friend’s house. They ordered pizza and rented the latest installment in the Boris movies on DVD (a novel concept for Cliff): “Boris IV: Boris Comes Home.” Cliff loved the film because it took him back to his roots, so he decided to watch the early “Boris” films. The next night he checked out the original Boris movie: “A Man Named Boris.” When he watched it, he was immediately struck by how much the story of Boris paralleled his own. In fact, by the time he viewed “Boris II: Boris is Back,” Cliff was convinced that the Boris character was entirely based upon his own rags-to-riches boxing story from some 17 years ago. Incensed that he was never properly consulted on the Boris series and that he did not profit from the tremendously financially successful set of movies, Cliff quickly consulted an attorney. Cliff’s attorney convinced him to threaten Ahmad with a lawsuit, which he did, but Ahmad responded that he was done making new Boris movies anyway because he believed the concept was “tired.” Cliff then sued Ahmad for misappropriation of Cliff’s image and story. In the midst of dealing with the lawsuit by Cliff, Ahmad decided to run for public office. Having played an accountant in one of his early films, Ahmad thought he’d be a good fit for State Treasurer. When the press combed through Ahmad’s finances, the press and Ahmad discovered that Ahmad’s trusted agent/manager (Daryl) had apparently been skimming money. For years Ahmad had placed Daryl in charge of his finances and had even allowed Daryl to keep some of his prized possessions, including his first Oscar trophy, but Daryl betrayed that trust. Daryl initially took $10,000 from Ahmad’s money and placed it into his own bank account, which had a prior balance of $3,000. Daryl was an avid user of Ebay, and he purchased a signed poster of Sherry Sherona for $3,000 on Ebay. (If Daryl had bothered to look in the collectibles store around the corner he would have seen the exact same poster for $1,000.) Daryl then got a tax refund and made a deposit of $4,000 in the bank account. It felt so good to make a deposit that he took an additional $4,000 of Ahmad’s money and deposited it, too. He promptly went back to Ebay and placed a winning bid
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on stock for Poofa Co., a new hairstyling salon for dogs. He spent $5,000 from his bank account for the Poofa stock; the stock promptly doubled in value to $10,000. Daryl then lost the remaining $13,000 from his bank account while gambling in Las Vegas. In addition to taking Ahmad’s cash, Daryl also sold Ahmad’s Oscar trophy through Ebay. Daryl’s ad on Ebay said that the Oscar was a genuine replica, and Daryl sold the Oscar to the highest bidder. Earl had always been a huge fan of Ahmad’s work, and he placed a winning bid of $3,000 for Ahmad’s Oscar. (Had he known it was the real Oscar, he would have been willing to pay $5,000 for it.) When Daryl shipped the Oscar to Earl, Earl was amazed at how real the Oscar looked. As soon as Ahmad discovered what Daryl and Earl had done, he sued them both. Daryl promptly declared bankruptcy. Part A (60%): Discuss all available remedies (legal, equitable, restitutionary, or otherwise) for Cliff in an action against Ahmad, and the defenses Ahmad may raise to Cliff’s claims. What is the most likely remedial result for Cliff versus Ahmad? (Excluding any defenses, assume that there is a valid basis for liability.) Part B (40%): Discuss the available legal and restitutionary remedies only for Ahmad in actions against Daryl and Earl, and the defenses they may raise to Cliff’s claims. What are the most likely remedial results? (Excluding any defenses, assume that there is a valid basis for liability in Ahmad’s actions against Daryl and Earl.)
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Essay II. (60 min.) Oregon is home to a national pro-hunting/anti-war organization called Shoot Animals, Not People (“SANP”). SANP is up in arms about the involvement of the United States in the Middle East, and has decided to stage a series of rallies outside its home base in Portland, Oregon. The rallies are scheduled for three consecutive nights, with follow-up rallies once a month for as long as U.S. troops remain in combat in any Middle Eastern country. SANP has made arrangements to hold the rallies on Greg’s farm. Greg is no friend of SANP’s cause, but needs some cash and has therefore agreed to lease his land to SANP for $3000 per night. Greg and SANP have an initial contract for one year, renewable at SANP’s option. The contract calls for 14 nights of use over the year (3 initial nights in July and then 11 more nights over the ensuing months). SANP has agreed to pay Greg within one week of the scheduled date for the rally for each night; SANP will pay a total of $42,000 for the year. Harry’s farm adjoins Greg’s farm, which is otherwise in the open country. Harry is a former sergeant in the army who obtained medals for his bravery in military service, and he is disgusted by SANP and their rallies, believing that SANP is unpatriotic (as well as hypocritical for supporting guns for hunting but not war). SANP holds the first of its three consecutive rallies on July 11, 2004, with over 400 members in attendance. The SANP members are loud and obnoxious, chanting loud cheers all through the night, playing loud music, and ceremonially pouring oil into a stream to show symbolically that they believe U.S. involvement in the Middle East is only about oil. The stream runs from Greg’s property onto Harry’s property, and is the irrigation source for Harry’s apple orchard. The noise from the rally keeps Harry up most of the night, and then, upon waking the next morning, Harry is dismayed to discover the oil polluting the stream. He is convinced that the apples from his apple orchard will suffer if he has to use the polluted water. The next night, July 12, 2004, SANP holds its second rally and the same events happen, with loud cheering and music and the pouring of oil into a stream. The third night, July 13, 2004, SANP holds the third consecutive rally and again conducts itself in the same way. Ingrid, the leader and organizer of SANP, announces to the assembled members that the next rally will occur the following month, on August 10, 2004. To end the rally, Ingrid fires a gun into the air to show her support for guns, but not for war. Since what goes up must come down, the bullet falls into the crowd, striking and killing Jock, a 5-year-old hunting dog who has accompanied his owner, Kate, to the rally. Kate and Jock had been inseparable, particularly after Kate’s husband died two years ago. Jock was a fabulous hunting dog, and Kate declined to sell Jock even when offered $9,000 for him. Kate would have to pay $5,000 for a similar dog with the same training. ***** Part A (50%): Based on the above facts only, discuss what injunctive relief, if any, is available to Harry to stop SANP’s future meetings, what defenses SANP would raise, and the likely result of an action for such relief. (Assume that SANP’s pollution of the stream is wrongful as to Harry.)
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***** After the negative publicity arising from the fatal gunshot wound to Jock, Ingrid decides that SANP should start holding its monthly rallies in California rather than Oregon. On behalf of SANP, she tells Greg that SANP will no longer hold rallies at Greg’s farm. Greg protests, saying, “Ingrid, we had a deal! I need that income to pay off my business loans. If I don’t get the cash from you, I can’t pay my creditors and my business will fail and my creditors will take my house!” Ingrid responds, “Sorry, Greg. I feel for you but we can’t do it. You’ll have to make do.” Greg immediately looks for alternate means of renting out the land, spending $1000 in direct costs to advertise the proposed rental of his land. Because it is good farm land (which Greg isn’t using), Greg is able to rent out the farm land two months later for a fair market price of $1500 per month. SANP was late in paying Greg for its 3 initial rally dates anyway. With the late payments and the loss of income for two months, Greg indeed couldn’t pay his monthly bills and, consequently, Greg’s business failed and his creditors foreclosed on his house. Greg’s business was worth $50,000 and his house was worth $75,000 at foreclosure. Even with SANP gone to California, Harry and his apple orchard felt the effects of the three rallies. Each of the past two years Harry had harvested and sold 1000 bushels of apples, but this year he only harvested 500 bushels. At the time of harvest, apples were selling for $50.00 per bushel (so he would have sold apples for $25,000 instead of the $50,000 a usual crop would have brought in). Harry decided to store the apples awhile after harvest, though, and ended up selling the apples two months later at $100.00 a bushel (for a total of $50,000). ***** Part B: Regardless of your answer to Part A, now assume that Harry is not entitled to any injunctive relief. Also, do not address any potential punitive damages awards below. i. (20%) Discuss what compensatory damages Harry will be entitled to recover in an action against SANP and what defenses may SANP raise. (10%) Discuss what compensatory damages Kate will be able to recover in an action against Ingrid and SANP, assuming Ingrid and/or SANP are liable for Jock’s injuries. (Do not discuss allocation of damages as between Ingrid and SANP.) (20%) Discuss what compensatory damages Greg will be able to recover in an action against SANP for breach of contract and what defenses may SANP raise.
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