California Bar Examination: JULY 2014 Essay Questions 1, 2 and 3

JULY 2014
ESSAY QUESTIONS 1, 2 AND 3
California
Bar
Examination
Answer all 3 questions
Your answer should demonstrate your ability to analyze the facts in the question, to tell the
difference between material facts and immaterial facts, and to discern the points of law and
fact upon which the case turns. Your answer should show that you know and understand
the pertinent principles and theories of law, their qualifications and limitations, and their
relationships to each other.
Your answer should evidence your ability to apply the law to the given facts and to reason in
a logical, lawyer-like manner from the premises you adopt to a sound conclusion. Do not
merely show that you remember legal principles. Instead, try to demonstrate your
proficiency in using and applying them.
If your answer contains only a statement of your conclusions, you will receive little credit.
State fully the reasons that support your conclusions, and discuss all points thoroughly.
Your answer should be complete, but you should not volunteer information or discuss legal
doctrines that are not pertinent to the solution of the problem.
Unless a question expressly asks you to use California law, you should answer according to
legal theories and principles of general application.
Question 1
Percy and Daria entered into a valid written contract for Percy to design and install landscaping
for an exclusive housing development that Daria owned. Percy agreed to perform the work for
$15,000, payable upon completion. Percy estimated that he would work approximately 100
hours a month on the project and would complete the project in three months. His usual hourly
fee was $100, but he agreed to reduce his fee because Daria agreed to let him photograph the
entire landscaping project for an article he planned to propose to Beautiful Yards and Gardens
magazine. He anticipated that publicity from the article would more than compensate him for
his reduced fee.
Percy completed two months’ work on the project when Daria unjustifiably repudiated the
contract. He secured a different project with Stuart in the third month, which paid him $1,500
and took 15 hours to complete. He could have completed Daria’s project at the same time.
At the time Daria unjustifiably repudiated the contract, Percy was negotiating with Tammy to
landscape her property for $30,000. Once Tammy learned what had happened, she stopped
negotiation.
Percy has sued Daria. Ideally, he would like to finish the project with her.
What remedy or remedies may Percy reasonably seek and what is the likely outcome?
Discuss.
Question 2
Pete was a passenger on ABC Airlines (ABC), and was severely injured when the plane in
which he was flying crashed because of a fuel line blockage.
Pete sued ABC in federal court, claiming that its negligent maintenance of the plane was the
cause of the crash.
At trial, Pete’s counsel called Wayne, a delivery person, who testified that he was in the hangar
when the plane was being prepared for flight, and heard Mac, an ABC mechanic, say to Sal,
an ABC supervisor: “Hey, the fuel feed reads low, Boss, and I just cleared some gunk from the
line. Shouldn’t we do a complete systems check of the fuel line and fuel valves?” Wayne
further testified that Sal replied: “Don’t worry, a little stuff is normal for this fuel and doesn’t
cause any problems.”
On cross-examination, ABC’s counsel asked Wayne: “Isn’t it true that when you applied for a
job you claimed that you had graduated from college when, in fact, you never went to college?”
Wayne answered, “Yes.”
ABC then called Chuck, its custodian of records, who identified a portion of the plane’s
maintenance record detailing the relevant preflight inspection. Chuck testified that all of ABC’s
maintenance records are stored in his office. After asking Chuck about the function of the
maintenance records and their method of preparation, ABC offered into evidence the following
excerpt: “Preflight completed; all okay. Fuel line strained and all valves cleaned and verified
by Mac.” Chuck properly authenticated Sal’s signature next to the entry.
Assuming all appropriate objections and motions were timely made, did the court properly:
1. Admit Wayne’s testimony about Mac’s question to Sal? Discuss.
2. Admit Wayne’s testimony about Sal’s answer? Discuss.
3. Permit ABC to ask Wayne about college? Discuss.
4. Admit the excerpt from the maintenance record? Discuss.
Answer according to the Federal Rules of Evidence.

Question 3
Alice’s and Bob’s law firm, AB Law, is a limited liability partnership. The firm represents Sid, a
computer manufacturer. Sid sued Renco, his chip supplier, for illegal price-fixing.
Renco’s lawyer asked Alice for a brief extension of time to respond to Sid’s interrogatories
because he was going on a long-planned vacation. Sid told Alice not to grant the extension
because Renco had gouged him on chip prices. She denied the request for an extension. Sid
also told Alice that he’d had enough of Renco setting the case’s pace, so he wasn’t going to
appear at his deposition scheduled by Renco for the next week, and that he’d pay his
physician to write a note excusing him from appearing. Alice did nothing in response.
In the course of representing Sid, Alice learned that Sid planned a tender offer for the publicly-
traded shares of chipmaker, Chipco. Alice bought 10,000 Chipco shares. By buying the
10,000 Chipco shares, she drove up the price that Sid had to pay by $1 million. When Alice
sold the 10,000 Chipco shares, she realized a $200,000 profit.
1. What ethical violations, if any, has Alice committed regarding:
a. The discovery extension? Discuss.
b. The physician’s note? Discuss.
c. The Chipco tender offer? Discuss.
Answer according to California and ABA authorities.
2. What claims, if any, does Sid have against Alice, AB Law, and Bob? Discuss.
July 2014
California
Bar
Examination
Performance Test A
INSTRUCTIONS AND FILE
TEHAMA COUNTY v. TEPEE CAMPGROUND
Instructions……………………………………………………………………………
FILE
Memorandum to Applicant from Lou Estepe…...…………………………………
Notice to Abate……………………………….………………………………………
Newspaper Article (June 19, 2014)………………………………………………..
Newspaper Article (June 24, 2014)………………………………………...……...
Conditional Use Permit Application – Staff Report………………………...…….
Memorandum to County Commissioners from

Director, Building Department……………………………………………..…….…
Letter from Recreational Park Trailer Industry Association, Inc…………...……
Traffic Impact Assessment………………………………………………………….
Air Quality & Fuel Consumption Analysis………………………………………….

INSTRUCTIONS
1. This performance test is designed to evaluate your ability to handle a select number of
legal authorities in the context of a factual problem involving a client.
2. The problem is set in the fictional State of Columbia, one of the United States.
3. You will have two sets of materials with which to work: a File and a Library.
4. The File contains factual materials about your case. The first document is a
memorandum containing the instructions for the tasks you are to complete.
5. The Library contains the legal authorities needed to complete the tasks. The case
reports may be real, modified, or written solely for the purpose of this performance test.
If the cases appear familiar to you, do not assume that they are precisely the same as
you have read before. Read each thoroughly, as if it were new to you. You should
assume that cases were decided in the jurisdictions and on the dates shown. In citing
cases from the Library, you may use abbreviations and omit page citations.
6. You should concentrate on the materials provided, but you should also bring to bear on
the problem your general knowledge of the law. What you have learned in law school
and elsewhere provides the general background for analyzing the problem; the File and
Library provide the specific materials with which you must work.
7. Although there are no restrictions on how you apportion your time, you should probably
allocate at least 90 minutes to reading and organizing before you begin preparing your
response.
8. Your response will be graded on its compliance with instructions and on its content,
thoroughness, and organization.
APEL & ESTEPE
Attorneys at Law
MEMORANDUM
TO: Applicant
FROM: Lou Estepe
SUBJECT: Tehama County v. Tepee Campground
DATE: July 29, 2014
________________________________________________________________
We represent Jane Maya, who owns and operates Tepee Campground. Jane was
served with a Notice to Abate by the County Attorney’s Office of Tehama County. We have an
abatement hearing scheduled. The abatement hearing is a trial before an independent
administrative law judge.
Before I write my brief, please draft an objective memorandum that discusses and
analyzes the charges made in the Notice to Abate, and evaluates our chances of prevailing
against each charge. Take into consideration arguments likely to be made by the County. A
separate statement of facts is not necessary. Instead, use the facts in your analysis of the
charges.
TEHAMA COUNTY, COLUMBIA
Al Read
County Attorney
P.O. Box 1000
200 King Street
Short Mill, Columbia
June 13, 2014
Jane Maya
Tepee Campground
78200 West Bank Road
Tehama County, Columbia
NOTICE TO ABATE
Property Address:
Recreational Park Trailers at Tepee Campground

78200 West Bank Road
Tehama County, Columbia
NOTICE IS HEREBY GIVEN that the following conditions, activities, or uses exist at Tepee
Campground, 78200 West Bank Road, Tehama County, Columbia, in violation of the following
Tehama County Land Development Regulations (LDRs): 54 recreational park trailers (RPTs)
present in a district zoned rural/residential.
1. The RPTs are permanent structures in violation of LDR, Section 222.1; and
2. The RPTs are an enlargement, expansion, or material increase in intensity of a

nonconforming use; or a change to another nonconforming use that is not a materially less
intense use -- in violation of LDR, Sections 541.1, 541.2, and 541.3.
Required Corrective Action: Removal of all RPTs within 10 days of receipt of this Notice, or
by June 30, 2014, whichever date is later.
Please comply promptly with this Notice or I will refer the matter for an immediate abatement
hearing.
Sincerely,
Al Read
County Attorney, Tehama County

NEWSPAPER ARTICLE
North Country Boomerang

June 19, 2014
GLAMPING DEBUTS ON WEST BANK ROAD
Jane Maya Rolls in 54 Recreational Park Trailers to Provide a Glamorous Camping

Experience.
by Damon Suarez, Boomerang Reporter
Last Monday, a red GMC Denali towing a white recreational trailer rolled down the
Tepee Campground drive toward the rental office, past a row of new modern wood-paneled
cabins.
The sport utility vehicle was pushed down in the back by the weight of the trailer. Jane
Maya, owner of Tepee Campground, guessed the SUV and trailer measured about 55 feet, still
shy of the campsite’s limit of 78 feet for recreational vehicles (RVs).
“That’s not even as big as the biggest RV trailers,” she said, noting the Denali and trailer
didn’t compare to the mega land yachts that come to her campground on West Bank Road.
After parking, the owner turned on a gas-powered generator to run his air conditioner
and appliances. The loud hum was expected to reverberate throughout the campground until
his departure.
In contrast, Maya’s new mobile “cabins” -- which are called recreational park trailers or
RPTs -- took up just 39 feet of each RV slot on which they sat. They too are on wheels, and
were towed by light-duty pickup trucks. But with electricity already hooked up, there were no
noisy generators needed.
Guests at some of the new cabins sat on the front porch, sipping soda.
“This is so much more subdued and quiet, like being in the outdoors was meant to be,”
Maya said of the cabins, which she trucked in last week. “But it’s the same use.”
With the arrival of the mobile cabins, Maya estimates the number of guests such as
those driving the big diesel Denali and trailer will decrease by hundreds. In doing so, she will
transition her decades-old Tepee Campground to a resort called “Solitude.” She said Solitude
Resort will be a new “glampground” where guests can still camp under the stars, albeit in a
mobile cabin with creature comforts -- running water, high-definition TV, and feathered pillows.
“This is the evolution of camping,” she said. “Glamping is in between staying in a hotel
and camping. It’s glamorous camping.”
With diesel prices at more than $4 a gallon, it’s no wonder that occupancy of these
cabins is nearly full every night and rentals on her RV slots are down about 40 percent. “I
don’t think we’d stay open another 5 years just renting to RVs and tent campers,” she said.
“But with recreational park trailers, we expect full occupancy year-round.”
Campgrounds across the country are parking these units on-site, according to Maya.
“It’s the future for campgrounds,” said Maya. She added, “And we go from gas guzzling motor
homes to families who arrive in hybrids or public transportation to stay in certified green
trailers.”
Maya said that she will only accept short-term rental, no permanent or long-time
tenants, but does expect to rent the trailers year-round. “We always have,” she said.
Maya’s trailers are 12-feet wide, built on a chassis, 39-feet long and measure about 395
square feet. “Everything is built onto the trailer,” said Maya. “I personally made sure that they
fit the federal government’s definition of an RV.” Maya added, “No sheds or decks attached,
like you see at mobile home parks.”
Maya’s cabins are paneled with reclaimed mountain snow fencing and each comes with
a fireplace, hardwood floors, and wireless internet. Outside, guests have a deck with a grill
and a private outdoor campfire lawn.
In the kitchen, guests will find a stove, refrigerator, microwave oven, and dishwasher.
Bathrooms come with a sink, granite countertops, and large stand-up shower.
The queen-size plush-top mattresses are covered with luxury linens, goose down
pillows, and European-style bed covers. Furniture and all-wood fixtures were built from pine-
beetle-killed trees.
Maya charges $175 to $300 a night to rent one of her glampers.

NEWSPAPER ARTICLE
Tehama Times Eagle

June 24, 2014
TEPEE CAMPGROUND GOING ROGUE?
It’s an RV, It’s a Cabin, It’s a Modular Home.
by Zena Owens, Times Eagle Correspondent
Though enmeshed in a legal battle with Tehama County about whether she needs
permission to use cabins-on-wheels, Jane Maya, owner of Tepee Campground, decided to
bring the units in anyway. She believes they are allowed, while the County Planning
Department says she needs a special permit for them.
Recreational park trailers, or RPTs as they are known in the trade, are a fast-growing
trend in the camping community. They bear little resemblance to a typical RV. They look
more like modular cabins.
“Jane says these RPTs are just like RVs. I don’t agree,” said Planning Director Jason
Drulard.
County land regulations do not allow permanent structures in campgrounds without the
permission of the County. Two months ago, Maya sought permission to bring RPTs on 54 of
her RV sites.
Drulard acknowledged that Maya at first tried to work with the County. “I really regret
what has happened,” Drulard said. “We persuaded Jane to seek a conditional use permit, but
then her neighbors flooded the County Commissioners with complaints, and they temporarily
suspended the process.”
Drulard admits that government does not move at the pace of commerce, but says he is
just following protocol. “I am absolutely appreciative of her frustration right now,” Drulard
added.
Drulard pleaded with Maya to hang in there. “She’s come so close with this application.
To bail now, it’s a shame,” Drulard said. “But at this point, given that she has withdrawn her
application for a conditional use permit, we can’t just let her bring the units in.”
The delay was the last straw for Maya. “I was at the end of my rope,” she said.
“I had them built, ready for delivery, and even booked, when the County Commissioners
decided not to hear my case,” Maya exclaimed.
Maya is moving RPTs onto her site as quickly as they can build them in Red Bluff.
Maya herself designed the cabins with a builder of prefabricated modular homes.
“Just because I made these cool, I shouldn’t be persecuted for that,” Maya said. “If they
looked tacky, I would probably have gotten approval.”
Everything Maya wants to do hinges on the County’s definition of an RPT.
“The Planning Department and the County Commission never got to decide whether an
RPT is a structure. Now a judge will do it,” lamented Drulard. If the units are in violation, fines
and legal action could result.
What will Maya do if she loses?
“If they want to defeat this project, then they are going to have the Wild West out here,”
Maya warned. “We can pack this place with aluminum-sided trailers. I can rent these sites for
$600 a month and fill every one. It’s going to be filled with people rebuilding their dirt bikes out
front. So if they want to see that, game on.”
CONDITIONAL USE PERMIT APPLICATION
STAFF REPORT
BY JASON DRULARD, PLANNING DIRECTOR, TEHAMA COUNTY
April 30, 2014
APPLICANT: Tepee Campground
OWNER: Jane Maya
REQUEST: Conditional Use Permit to use Recreational Park Trailers (RPTs) on 50%
of the current campsites, to be located on the site year-round and rented
for visitor use on a short-term basis.
PLANNING DEPARTMENT STAFF FINDINGS:
PROJECT HISTORY
Tepee Campground has been in existence since the mid-1970s. Thereafter, when the
County adopted its first land use regulations, the campground was a permitted nonconforming
or a “grandfathered” use.
In 1994, the current Tehama County Land Development Regulations (LDRs) were
adopted and all properties within Tehama County were rezoned. As part of that rezone, the
Tepee Campground property was located in a district zoned rural/residential. Within the
rural/residential zoning district, campgrounds are a permitted use requiring a Conditional Use
Permit (CUP). Since this was a campground that existed prior to the current zoning
regulations and would require a CUP under the current LDRs if newly proposed, the existing
campground is considered a permitted nonconforming use per the definition of Nonconforming
Use (LDR, Section 540).
In 1979, the campground had a total of 142 campsites (33 tent sites and 109 RV, i.e.,
recreational vehicle, sites) on 7.6 acres, and structures (A-frame office, residential duplex,
shed and store) totaling 5,100 square feet. Under current permitted density ratios for
campsites, Tepee Campground would have the same number of sites as it has now.
The current site consist of 33 tent sites, 109 RV sites, and related structures.
ISSUES
Issue 1: Are RPTs recreational vehicles (RVs) or are they structures being used as
lodging?
Recreational park trailer (RPT) use is not defined in the LDRs generally or in the
campground definition. The LDRs, when written, could not have contemplated all uses or
inventions. Campgrounds are defined in the LDRs as “establishments providing overnight or
short-term sites for recreational vehicles, trailers, campers or tents, that have no permanent
structures. . . . “ LDR, Section 222.1.
Classification depends on whether RPTs are considered recreational vehicles (RVs) or

structures. The County Building Department has not treated RPTs, or RVs, as buildings in the
past. (See attached Building Department Memorandum.)
RVs, in general, are defined in, although not regulated by, federal regulations (24
C.F.R. Section 3282.8 (g)). The RPT industry claims that RPTs fit within the criteria of RVs.
The RPT industry has established construction standards for RPTs. To meet the standards,
RPTs must be limited to 400 square feet, built on a single chassis, mounted on wheels, and
must comply with various requirements for electrical, plumbing, and heating systems. If
certified under the RPT industry standards, many states treat RPTs as vehicles; for example,
by taxing them as vehicles. (See attached Recreational Park Trailer Industry Association
letter.)
Although RPTs are hauled to their ultimate resting place on wheels, they hook up to
sewer systems, draw power from the grid, and feature running water and refrigeration.
If classified as structures, RPTs could not be placed in a campground (LDR, Section

222.1); they would require building permits and would be subject to the County Building Code
requirements for buildings. Neither short-term rentals of lodging, nor mobile home parks,
which are intended for long-term occupancy, would be permitted in a rural/residential zone
without a conditional use permit.
Issue 2: Are RPTs an enlargement, expansion, or material increase in intensity of a

nonconforming use, or a change to another nonconforming use?
This change is not a new development in a rural/residential zone, but rather it is a

change in the operational characteristics of what exists on the property. The overall proposed
development, as an existing nonconforming use, may not be compatible with the surrounding
uses (a campground among rural residences).
The applicant describes the use as a form of campground use, and thus identical to the
existing non-conforming use. The fact that customers stay for short periods of time, that the
vehicles may meet the federal definition of recreational vehicles (RVs), and that the owner
intends no expansion of the existing pads lends support to this view.
By affixing the so-called trailers to her land and attaching them to services, however,
has the applicant changed the use of her property? No longer is she charging visitors $27.50
per night to park vehicles in a campsite. Instead, she will be charging more than $175 per
night for a room.
Staff notes significant differences between campgrounds and a property equipped with
RPTs. In the former, the patron brings a vehicle to the property and removes it when leaving.
In the latter, the landowner maintains the vehicle on the property, rents it to a patron and
repairs, maintains, and cleans it between occupancies. The use may be very similar to a motel
unit in that a guest comes to the campground in a passenger vehicle, stays a limited time,
leaves, and the campground staff cleans the unit to prepare it for the next guest. As noted
above, short-term rentals, such as a motel or hotel, would not be permitted in the
rural/residential district.
A common complaint from neighbors is that the campground has expanded the number
of sites over time, and that the introduction of RPTs will further increase site density. Staff
cannot substantiate either claim. The County’s historical aerial photography indicates that the
campground’s current configuration is almost identical to the 1978 layout, suggesting little, if
any, expansion has occurred over the years in terms of site development. This application
seeks to replace one-half of the current RV sites with RPT sites. There would be no increase
in the number of sites.
RPTs will be no bigger than many, if not most, RVs. The maximum length of RPTs is
40 feet, although they may be wider, at 12 feet versus 8 feet for most RVs. In general, the
footprint or structure floor area of the pads will be smaller than the current pads. The bulk of
current RVs, in total, may be greater than proposed RPTs.
Some neighbors and nearby businesses have supported the appearance of the
attractive wood-sided RPTs and the enhanced landscaping.
The County Transportation Department estimates a slight reduction in traffic entering
and leaving the campground, more importantly, replacing the less nimble fuel-inefficient RVs
with passenger cars. The Traffic Impact Assessment is attached.
Applicant also asserts other benefits mitigating or minimizing potential adverse impacts
to neighboring properties, such as benefits to air quality and fuel consumption. (See attached
Air Quality & Fuel Consumption Analysis submitted by the applicant.)
The campground is one block from a county bus shelter, and across from the extensive
network of pathways for hiking and biking. The site has safe, convenient, and direct access to
public transportation.
From comments and community complaints, it is probable that there has been a small
amount of long-term use on the property for many years. Long-term use would be an
established, historical use. Applicant could probably convert part or all of the campground into
a mobile home park.
Applicant has proposed a 30-day stay limit for the entire campground -- all RPTs, RVs,
and tent campers. Current uses by long-term renters would go away. If the CUP is granted,
staff recommends that it be limited so that only short-term rentals are allowed at the
campground, not only for RPTs, but for all users. Precluding continuation of long-term use at
this campground, located as it is in the rural/residential zone, has significant benefit for the
character of the surrounding neighborhood, by preventing RPTs from becoming in effect a
mobile home park.
MEMORANDUM
TO: County Commissioners
FROM: Director, Building Department
DATE: April 21, 2014
RE: Recreational Park Trailers
The Tehama County Building Code has no provisions on recreational park trailers
(RPTs) or any other recreational vehicles (RVs). We have never issued a building permit for
one, nor inspected an RPT before or after installation.
The Building Code does not make a distinction between types of RVs, whether fifth
wheels, towable trailers, or motor homes; it considers them all to be RVs. While the building
code recognizes RVs, it does not regulate them.
I checked with Peter Mendez of the HUD Office on Manufactured Housing, and he said
that RPTs are not being regulated by HUD.
If the Commissioners decide that RPTs are structures, then of course the full Building
Code regime of permits for construction, code standards, and inspection would be applicable.
In the opinion of the Tehama County Building Department, RPTs pose less of a risk to
the public than a conventional RV and therefore should not be subject to anything that we are
not willing to require of fifth wheels, towable trailers or motor homes, provided the property was
located in an area zoned for such use.
RECREATIONAL PARK TRAILER INDUSTRY ASSOCIATION, INC.
Washington, D.C.
recreationalparktrailers.com
April 15, 2014
Dear Commissioners:
The Recreational Park Trailer Industry Association (RPTIA) is the national trade
association representing the manufacturers of recreational vehicle park trailers and their
related suppliers. The Association also represents allied retailers, RV parks and resorts.
We submit this letter in support of the application from Tepee Campground for a
conditional use permit.
Recreational park trailers (RPTs) are RVs primarily designed as temporary living
quarters for recreation, camping or seasonal use. They are built on a single chassis, mounted
on wheels, and have a gross trailer area not exceeding 400 square feet in the set-up mode.
One type is less than 8’6” in width and designed for frequent travel on highways, while the
other and more popular type is usually 12’ in width, must be transported with special
movement permits from state highway departments, and are usually sited in a resort or RV
park for an extended term, typically several years.
A determination by your county that these vehicles are “structures” would have a
catastrophic impact on the campground industry and businesses related thereto. All RVs in
the United States have been classified by the states and federal government using the criteria
outlined above. If Tehama County were able to classify one of these RV units as a “structure”
and require it to meet local building codes as a “structure,” this same logic could then be
applied to all other RVs, including folding camping trailers, travel trailers, fifth wheel travel
trailers, and motor homes. Local building codes are designed for structures that are rigid, not
for vehicles that are designed for transport on roads and highways. While the RPT might look
like a building, it is not. It is a vehicle.
Respectfully submitted,
George Rubottom
Executive Director
TRAFFIC IMPACT ASSESSMENT
TEPEE CAMPGROUND
For TEHAMA COUNTY PLANNING DEPARTMENT

By Lopez-Granada Engineering
Big City, Columbia
April 21, 2014
Summary:
This traffic impact assessment is a narrowly focused examination of a proposed change to the
operational characteristics on the existing recreational vehicle site. While RVs would still visit
the site, one-half of the use would shift to patrons coming in SUVs and passenger cars. The
proposed development will slightly reduce vehicle traffic flow on West Bank Road, introduce no
increase in traffic impacts, and provide more than adequate vehicular site access. The change
would have the benefit of replacing the less nimble fuel-inefficient RVs with passenger cars.
The applicant’s proposal would likely increase the number of patrons, yet decrease the number
of recreational vehicles accessing and exiting the property.
AIR QUALITY & FUEL CONSUMPTION ANALYSIS FOR RECREATIONAL
VEHICLE SITE REPLACEMENT WITH RECREATIONAL PARK TRAILERS
Report prepared for Tepee Campground
By Science for Hire
April 10, 2014
ABSTRACT
Tepee Campground is seeking to diversify a portion of its inventory to include

recreational park trailers (RPTs) on premises. By swapping out a subset of existing
recreational vehicle (RV) spaces for RPT sites, the Campground will be positioned to offer
visitors an ecologically friendly alternative to driving or towing their lodging, which is inherent to
RV travel.
Our study has shown that replacing one traditional RV site with one RPT site could save
approximately 9,500 gallons of fuel and reduce the CO2 emissions released into the
atmosphere by 363,000 pounds each year. If Tepee Campground replaced 54 RV sites with
RPT sites, it would save 513,000 gallons of fuel consumption and reduce carbon emissions by
19,602,000 pounds or 9,801 tons annually.
July 2014
California
Bar
Examination
Performance Test A
LIBRARY
LIBRARY
Selected Tehama County Land Development Regulations…............……
Tall Timbers Resort v. Oregon Construction Department

Appellate Division (2010)………………………………………………….………
County of Los Banos v. Leskiewicz

Columbia Court of Appeal (2000)………………………………………………..
SELECTED TEHAMA COUNTY
LAND DEVELOPMENT REGULATIONS
DIVISION 200: ZONING DISTRICT REGULATIONS
The purpose of this article is to establish zoning districts and uses that regulate the type and
density of land uses within the county to:
A. Ensure the protection of the desired community character of each zoning district;
B. Promote adequate housing and business activity within the county;
C. Promote stability of existing land uses and protect them from inharmonious influences
and harmful intrusions; and
D. Ensure that uses and structures enhance their sites and are compatible with the natural
beauty of the county’s setting and critical natural resources.
DIVISION 220: ZONING DISTRICTS USES
*****
Section 222. Campgrounds
222.1. Campground use means establishments providing overnight or short-term sites for
recreational vehicles, trailers, campers or tents, that have no permanent structures other than
a management office, laundry, small grocery, storage facility, and sanitary facilities that shall
be solely for the occupants of the campground.
222.2. Camping Sites. Each camping site in the campground shall consist of a camp pad that
provides adequate parking, the camp site (including a fireplace or barbecue, and a table), a
pole for hanging food stores or bear proof boxes, where appropriate, and a surrounding active
recreational area.
*****
Section 540. Nonconforming Use
Nonconforming use means any use of land, building or structure which was established
pursuant to the zoning and building laws in effect at the time of its development, but which use
is not permitted by these Land Development Regulations for the zoning district in which it is
located. A use permitted by right at the time of its development, but now designated as a
nonconforming use for the zoning district in which it is located, is a permitted nonconforming
use. A Conditional Use Permit is not required to continue the existing use, but a Conditional
Use Permit is required for any change of use.
Section 541. Change in Use or Characteristics
541.1. A nonconforming use shall not be enlarged or expanded in areas of structure or land
occupied.
541.2. A nonconforming use shall not be materially increased in intensity.
541.3. A nonconforming use shall not be changed to another nonconforming use unless any
new use is a materially less intense nonconforming use.
541.4. The determination of the level of intensity shall include consideration of traffic
generated, perceived level of activity, operational characteristics and potentially adverse
impacts on neighboring lands.
TALL TIMBERS RESORT v. OREGON CONSTRUCTION DEPARTMENT
Appellate Division (2010)
On November 30, 2008, the Commissioner of the State of Oregon Construction

Department (Commissioner or Department) adopted a new set of regulations, which
determined that recreational park trailers (RPTs) are subject to the State Uniform Construction
Code (Construction Code).
Appellants, who are a seller of RPTs, the owner of a campground in which RPTs are
installed, and the owners of an RPT, challenge the validity of these regulations on the ground
the Construction Code Act does not confer authority upon the Department to regulate RPTs
under the Construction Code.
The applicable administrative regulation defines a “recreational park trailer” (RPT) as a

trailer-type unit that is primarily designed to provide temporary living quarters for recreational,
camping, or seasonal use, that meets the following criteria:
1. Is built on a single chassis mounted on wheels;
2. Has a gross trailer area not exceeding 400 square feet in setup mode,
and, if less than 320 square feet in the setup mode, would require a
special movement permit for highway transit; and
3. Is certified by the manufacturer as complying with standards set by the

recreational park industry.
In proposing the adoption of the challenged regulation, the Department stated:
Commonly referred to as “park models,” recreational park trailers (RPTs) are

types of recreational vehicles (RVs) that are installed in recreational vehicle
parks or condominium campgrounds based upon long-term ground leases, or
ownership in the case of condominium campgrounds. Site built appurtenances
such as decks, sunrooms, and others are often attached to the recreational park
trailers. They are typically used as vacation homes.
RPTs are constructed in generally the same manner as single family dwellings
and incorporate the same types of electrical, plumbing, and mechanical systems
as dwellings.
An RPT is closed construction, which means that it arrives at the site already
assembled so that most building, plumbing, mechanical and electrical systems
cannot be inspected because they are already concealed.
RPTs may be found sited in campgrounds, in mobile home or manufactured

home parks or on individual lots. Wherever they are and whether they are used
for vacation purposes or as permanent residences, they are subject to the
requirements of the Construction Code.
The Department received extensive comments regarding its proposals for adoption of
the regulation. Those comments and the Department's responses mirror to a substantial
extent the arguments presented in this appeal.
The purposes of the Oregon Construction Code Act include “providing requirements for
construction and construction materials consistent with nationally recognized standards” and
“insuring adequate maintenance of buildings and structures throughout the State and
adequately protecting the health, safety and welfare of the people.” To accomplish the
legislative objective of protecting the health, safety, and welfare of occupants of buildings and
structures, the Legislature delegated authority to the Commissioner of the Department to
“adopt a State Construction Code for the purpose of regulating the structural design,
construction, maintenance and use of buildings or structures to be erected, and the alteration,
renovation, rehabilitation, repair, maintenance, removal or demolition of buildings or structures
already erected.”
Our Supreme Court has indicated that the Construction Code Act is remedial in nature,
and designed to address directly matters affecting health, safety and welfare. By its own
terms, the Construction Code Act's provisions must receive liberal construction to advance its
purposes.
The key terms of the Construction Code that the Legislature authorized the Department
to adopt are “structure” and “building.” The Commissioner of the Department has interpreted
“structure” and “building” to include RPTs. The Commissioner cited various reasons
supporting this interpretation, including:
· A recreational park trailer (RPT) is a combination of the same types of

materials used in any home and it involves all the same safety issues as a
home.
· It is intended for the same type of occupancy as any other vacation home.
· A recreational park trailer (RPT) is a structure that is enclosed with

exterior walls -- walls identical in construction to those of any dwelling.
· It is clearly designed for housing or shelter and it is arranged for the

support of individuals.
· It is equipped with plumbing, electrical and mechanical systems just as is

any dwelling.
Appellants challenge the Commissioner’s interpretation that RPTs are “structures,”

arguing that they should be classified as recreational vehicles (RVs). Appellants rely on the
definition of RVs contained in the regulations of the Federal Manufactured Home Construction
& Safety Standards Act. The Act governs “manufactured homes.” The regulations issued
pursuant to the Act expressly exclude “recreational vehicles” from the category of
“manufactured homes.” In the federal regulations, “recreational vehicles” are defined as: (1)
built on a single chassis; (2) 400 square feet or less when measured at the largest horizontal
projection; (3) self-propelled or permanently towable by a light duty truck; and (4) designed
primarily not for use as a permanent dwelling, but as temporary living quarters for recreational,
camping, travel, or seasonal use. 24 CFR, Section 3282.8(g).
Appellants contend that RPTs fit the federal definition of an RV. An RPT, however, can
be distinguished from a conventional RV. It is a special type of RV that is intended for
installation in a “park.” They are built under a different standard than conventional RVs. The
principal difference between the national consensus standard for RVs and the standards for
RPTs, is that the RPT standard covers all types of the requirements typically found in a
building code while the RV standard does not.
Appellants cite other distinctions between RPTs and manufactured homes, or most
other homes, to support their contention that RPTs are not structures. In their view, both a
manufactured or other home is a structure because it is constructed, erected, or attached to
something with a fixed location on the ground. For example, RPTs have a fifth wheel for
hauling and are designed for greater mobility and movement than a manufactured home. An
RPT is not manufactured to HUD specifications for a manufactured home and has a maximum
area of 400 square feet. The wheels are not removed from the chassis of an RPT, as are
wheels from a manufactured home, and an RPT is not placed on a permanent foundation. An
RPT is left on its wheels and parked on a recreational vehicle pad. RPTs remain readily
movable.
The federal definition of RVs also contains a standard that is entirely dependent upon its
intended use, i.e., “designed primarily not for use as a permanent dwelling, but as temporary
living quarters for recreational, camping, travel, or seasonal use.” 24 C.F.R, Section
3282.8(g)(4). Appellants say the standard is an objective one, and that a reasonably prudent
person would use as a temporary dwelling what was designed for temporary use, although
such temporary dwelling also may be used for permanent living quarters for one or more
families or individuals. Appellants contend that the objective design of the trailer for normal
use controls, rather than the subjective intent of the user. Thus, travel and recreational design
determines the temporary nature of the trailer, notwithstanding that there may be those
individuals who may use it as a permanent dwelling.
However, the appellants’ contentions, whether they are correct or not, miss the point.
We do not need to classify RPTs as either manufactured homes or RVs. The Department has
determined that RPTs are structures, even if primarily designed to provide temporary living
quarters for recreational, camping, or seasonal use.
The Department’s determination that RPTs fall within the Construction Code’s definition
of “structure” is not plainly unreasonable and therefore must be upheld.
Affirmed.
COUNTY OF LOS BANOS v. LESKIEWICZ
Columbia Court of Appeal (2000)
The County of Los Banos (County) commenced an abatement proceeding to enjoin the
defendant-landowners from renting space for recreational vehicles and other camping trailers
to members of the public. Defendants own a 14-acre tract of land in Los Banos County, made
up of three separate parcels. It is located in a rural-agricultural district, which does not permit
the uses made by Defendants of renting camping sites.
Prior to the adoption of the county zoning ordinance, Defendants had improved the 14-
acre tract by trimming trees, removing and burning brush, grading, erecting retaining walls,
building a road, installing a cesspool, and erecting an outhouse. They also built two tents, a
picnic area, and a camping trailer; the trailer was there for about three weeks. During the time,
Defendants rented the facilities to the public for camping. For one or two years, the “picnic
area-campground” operated in summers to permit outdoor visits for two to four families at a
time.
Thereafter, the County adopted its zoning ordinance which did not permit commercial
uses, such as campgrounds, in the rural-agricultural district.
Over several years, Defendants erected a building to provide sanitation services for
picnickers and campers. The record does not indicate whether Defendants obtained a building
permit for the building. Defendants expanded their business to allow the rental of sites for
camping trailers and tents. Gradually more sites were added, eventually growing to about 20
picnic-camping sites.
Defendants then started to erect additional sanitary facilities, consisting of toilets and
showers, on the land and more grading and landscaping to further increase the capacity for
more camping sites, and larger sites for bigger recreational vehicles. Defendants were
informed by the County Planning Department that, because a business use was involved, the
building permit could not be issued until a Conditional Use Permit was applied for and obtained
from the County Commission. Defendants sought the Conditional Use Permit, and were
eventually granted a variance, recognizing that the campground use was a legal
nonconforming use which Defendants had a right to continue, but concluding that Defendants
had no right to enlarge its camping operation.
Defendants challenged that determination. The County also brought an abatement
proceeding. In the consolidated cases, the trial court upheld the County’s determination.
It is well-recognized law that, if before the adoption of the zoning ordinance, the
defendants had established a use as a picnic and camping park, they acquired a vested right
to continue that use thereafter as a nonconforming use.
A legal nonconforming use has been defined as authority granted to the owner to use
his property in a manner otherwise violative of the zoning regulations. In other words, it is in
the nature of a waiver of the strict letter of the zoning ordinance without sacrifice to its spirit
and purpose. Over the ensuing years Defendants have properly relied on the nonconforming
use, thus acquiring a vested right which could not be affected or changed after the
nonconforming use was granted.
Having thus acquired a nonconforming use to use their 14-acre tract as a picnic and
camping park, any regulation of the county zoning ordinance which would prevent that use did
not apply to Defendants’ 14-acre tract.
Hence the issue presented on this appeal, which is whether Defendants can rent space
for recreational vehicles and other camping trailers, cannot be resolved by a determination of
whether such trailers come within the zoning ordinance that regulates the use of “trailers
and/or mobile homes” in this district of the County. Rather, the issue is whether the use of
such trailers is a method ordinarily and reasonably adopted to make the original use granted to
Defendants available to them without constituting a substantial change in the nature and
purpose of that original use, or whether, on the contrary, the use of these trailers would
constitute such a departure from the original use as to constitute a new and impermissible use.
The burden of establishing that the use in question is fundamentally the same use and
not a new and impermissible one is on the party asserting it. This is in accordance with the
general policy of zoning to carefully limit the extension and enlargement of nonconforming
uses. However, the use cannot be interpreted in such a way as to unlawfully reduce the
original vested interest acquired by the nonconforming use.
We feel that some amount of latitude must be allowed a nonconforming use for
reasonable expansion and the maintenance of accessory uses. Businesses should not be
prevented from staying competitive in their respective markets by expanding or evolving in the
modern world. The fact that improved and more efficient or different instrumentalities are used
in the operation of the use does not preclude the use made from being a continuation of the
prior nonconforming use, provided that such means are ordinarily and reasonably adapted to
make the established use available to the owners and so long as the original nature and
purpose of the undertaking remain unchanged.
The determination of whether the use challenged is substantially the same kind of use as
that which was originally obtained is necessarily based in large measure on the facts and
circumstances of the particular case. In deciding whether the particular activity is within the
scope of the established or acquired nonconforming use, consideration may be given to,
among others, the following factors:
(1) To what extent does the use in question reflect the nature and purpose of the prevailing
nonconforming use?
(2) Is it merely a different manner of utilizing the same use or does it constitute a use
different in character, nature, and kind?
(3) Does this use have a substantially different effect on the neighborhood?
The degree to which the original nature and purpose of the undertaking remains
unchanged largely determines whether there has been a change in the preexisting use.
We are unable to say on the record before us that the decision of the trial court was
based on a finding and ruling that the renting of spaces by Defendants on their 14-acre tract
for more and larger recreational vehicles would constitute such a change in, or enlargement of,
the use of their land for the granted use of a picnic and camping park as to amount to the
substitution of a new and different use. The case is remanded for disposition in accordance
with the principles enunciated in this opinion.
Reversed and remanded.

JULY 2014
ESSAY QUESTIONS 4, 5 AND 6
California
Bar
Examination
Answer all 3 questions
Your answer should demonstrate your ability to analyze the facts in the
question, to tell the difference between material facts and immaterial facts, and
to discern the points of law and fact upon which the case turns. Your answer
should show that you know and understand the pertinent principles and
theories of law, their qualifications and limitations, and their relationships to
each other.
Your answer should evidence your ability to apply the law to the given facts
and to reason in a logical, lawyer-like manner from the premises you adopt to
a sound conclusion. Do not merely show that you remember legal principles.
Instead, try to demonstrate your proficiency in using and applying them.
If your answer contains only a statement of your conclusions, you will receive
little credit. State fully the reasons that support your conclusions, and discuss
all points thoroughly.
Your answer should be complete, but you should not volunteer information or
discuss legal doctrines that are not pertinent to the solution of the problem.
Unless a question expressly asks you to use California law, you should
answer according to legal theories and principles of general application.
Question 4
One summer afternoon, Officer Prowl saw Dan, wearing a fully buttoned-up
heavy winter coat, running down the street. Officer Prowl ordered Dan to stop.
Dan complied. As Officer Prowl began to pat down Dan’s outer clothing, a car
radio fell out from underneath. Officer Prowl arrested Dan and took him to the
police station.
At the police station, Officer Query met with Dan and began asking him questions
about the radio. Dan stated that he did not want to talk. Officer Query
responded that, if Dan chose to remain silent, he could not tell the District
Attorney that Dan was cooperative. Dan immediately confessed that he stole the
radio.
Dan was charged with larceny. He retained Calvin as his attorney. He told
Calvin that he was going to testify falsely at trial that the radio had been given to
him as a gift. Calvin informed Dan that he would make sure he never testified.
Calvin filed motions for the following orders: (1) suppressing the radio as
evidence; (2) suppressing Dan’s confession to Officer Query under Miranda for
any use at trial; and (3) prohibiting Dan from testifying at trial.
At a hearing on the motions a week before trial, Dan, in response to Calvin’s

motion for an order prohibiting him from testifying, stated: “I want to represent
myself.”
1. How should the court rule on each of Calvin’s motions? Discuss.
2. How should the court rule on Dan’s request to represent himself?

Discuss.
Question 5
Henry and Wynn married in 2000. During the first ten years of their marriage,
Henry and Wynn lived in a non-community property state. Henry worked on
writing a novel. Wynn worked as a history professor. Wynn kept all her earnings
in a separate account.
Eventually, Henry gave up on the novel, and he and Wynn moved to California.
Wynn then set up an irrevocable trust with the $100,000 she had saved from her
earnings during the marriage. She named Sis as trustee and Henry as co-
trustee. She directed that one-half the trust income was to be paid to her for life,
and that the other one-half was to be paid to Charity, to be spent only for disaster
relief, and that, at her death, all remaining assets were to go to Charity.
Wynn invested all assets in XYZ stock, which paid substantial dividends, but
decreased in value by 10%. Charity spent all the income it received from the
trust for administrative expenses, not disaster relief.
Later, Sis sold all the XYZ stock and invested the proceeds in a new house, in
which she lived rent-free. The house increased in value by 20%.
Henry has sued Sis for breach of trust, and has sued Charity for return of the
income it spent on administrative costs.
1. What is the likely result of Henry’s suit against Sis? Discuss.
2. What is the likely result of Henry’s suit against Charity? Discuss.
3. What rights, if any, does Henry have in the trust assets? Discuss.
Answer according to California law.
Question 6
Owner owned and operated a small diner where Cook and Waiter worked. After
closing one day, Cook called in sick for the following day. Owner knew that an
acquaintance, Caterer, owned and operated a catering business. Owner asked
Caterer to fill in for Cook. Owner told Caterer: “I want you to run the kitchen for
one day. I will pay you your standard catering fee. I just need somebody who
knows what he’s doing.” Caterer agreed, telling Owner, “I’ll bring my own knife
set, but I assume the kitchen is fully equipped.”
Owner did not check Caterer’s references. If he had, he would have learned that
Caterer’s business had once been shut down by the health department.
Caterer went to Owner’s diner and started to cook. Patron, a customer, ordered
chicken wings from Waiter. Waiter gave the order to Caterer.
A notice posted on the kitchen wall, entitled “Health and Safety Code Section 300
Notification,” stated: “To avoid food poisoning, all poultry products must be
cooked at a minimum temperature of 350 degrees.” Upon observing that the
oven was set at 250 degrees, Waiter informed Caterer that the oven should be
set at 350 degrees. Caterer responded: “Just worry about waiting tables, and
leave the cooking to me.” Caterer did not raise the temperature of the oven, and
removed the chicken wings shortly thereafter.
Waiter served Patron the chicken wings. Patron ate the chicken wings and
suffered food poisoning as a result.
Under what theory or theories, if any, might Patron bring an action for negligence
against Caterer, Waiter, and/or Owner, and what is the likely outcome? Discuss.
July 2014
California
Bar
Examination
Performance Test B
INSTRUCTIONS AND FILE
RILEY INSTRUMENTS, INC. v. LRI, INC.
Instructions………………………………….…………………………………………..
FILE
Interoffice Memorandum to Applicant from Helen Rivera………..………………
Memorandum Regarding Persuasive Briefs…………………………………...….
Arbitrator’s Final Decision and Award………………………………………………
Letter from Helen Rivera to Arbitrator………………………………………………
Letter from Mark Stilton to Arbitrator……………………………………………….
Arbitrator’s Amended Final Decision and Award…………….……………..…….
Petition to Vacate Arbitrator’s Amended Final Decision and Award……………

INSTRUCTIONS
1. This performance test is designed to evaluate your ability to handle a

select number of legal authorities in the context of a factual problem
involving a client.
2. The problem is set in the fictional State of Columbia, one of the United
States.
3. You will have two sets of materials with which to work: a File and a
Library.
4. The File contains factual materials about your case. The first document is
a memorandum containing the instructions for the tasks you are to
complete.
5. The Library contains the legal authorities needed to complete the tasks.
The case reports may be real, modified, or written solely for the purpose of
this performance test. If the cases appear familiar to you, do not assume
that they are precisely the same as you have read before. Read each
thoroughly, as if it were new to you. You should assume that cases were
decided in the jurisdictions and on the dates shown. In citing cases from
the Library, you may use abbreviations and omit page citations.
6. You should concentrate on the materials provided, but you should also
bring to bear on the problem your general knowledge of the law. What
you have learned in law school and elsewhere provides the general
background for analyzing the problem; the File and Library provide the
specific materials with which you must work.
7. Although there are no restrictions on how you apportion your time, you
should probably allocate at least 90 minutes to reading and organizing
before you begin preparing your response.
8. Your response will be graded on its compliance with instructions and on its
content, thoroughness, and organization.
MARTIN, RIVERA & TRAN, LLP
Attorneys and Counselors at Law
Eagle Point, Columbia
INTEROFFICE MEMORANDUM
TO: Applicant
FROM: Helen Rivera
RE: Riley Instruments, Inc. v. LRI, Inc.
DATE: July 31, 2014
On May 12, 2014, we received the Final Decision and Award of Arbitrator
Stanley Warren ruling in favor of our client, Riley Instruments, Inc. Later we
realized that Arbitrator Warren had failed to address one of the issues that we
had submitted to him and that he had also failed to award us attorney’s fees. We
brought these matters to his attention on May 27, 2014. Over the objection of
Mark Stilton, the attorney for the defendant LRI, Inc., Arbitrator Warren sent us
an Amended Final Decision and Award, dated July 11, 2014, covering the
omitted issue, awarding us our fees, and inviting us to file an application for fees.
LRI has filed a petition in the Superior Court to vacate the Amended Final
Decision and Award. We now need to respond by opposing LRI’s petition to
vacate.
Please draft for my review a brief in opposition to LRI’s petition. Be
guided by our Office Memorandum on Persuasive Briefs. You must be sure to
refute each of the points raised in LRI’s petition and argue persuasively why the
court should deny LRI’s petition.
MEMORANDUM
August 15, 2011
SUBJECT: Persuasive Briefs
Unless otherwise instructed, attorneys shall include in all briefs a short

and concise Statement of Facts written in such a way as to persuade the tribunal
that the facts support our client’s position. The Statement of Facts is not an
indiscriminate recitation of all the facts in the case. Although the facts must be
stated accurately, careful selection of the ones pertinent to the legal arguments
and that support our client is not improper.
The Argument section of the brief should contain separate segments,
each labeled with carefully crafted headings that summarize the argument in the
ensuing segment. Do not write a brief that contains only a single broad heading.
Each heading should succinctly state the reasons why the tribunal should adopt
the position you are advocating and not merely a bare legal or factual
proposition.
The body of each argument should match the relevant facts to the legal
authorities and argue persuasively how the facts as applied to those authorities
support our client’s position. Authority that favors our client should be
emphasized, but contrary authority should be addressed in the argument and
distinguished or explained. Do not reserve argument for reply or supplemental
briefs.
You need not prepare a table of contents, a table of cases, a summary of
the argument, or an index. These will be prepared after the draft is approved.
ARBITRATION PROCEEDINGS BEFORE
THE MANUFACTURERS ARBITRATION ASSOCIATION
PURSUANT TO THE AGREEMENT OF THE PARTIES
In the Matter of an Arbitration between
RILEY INSTRUMENTS, INC., MAA Case No. 14-1322
Plaintiff FINAL DECISION

AND AWARD
and
LRI, INC.,
Defendant.
Including a counterclaim by LRI, Inc. for

breach of contract to recover the
contract price.
I.
INTRODUCTION
Riley Instruments, Inc. (Riley) and LRI, Inc. (LRI) entered into a contract
under which LRI agreed to manufacture and supply computer chips to Riley in
accordance with Riley’s specifications. This arbitration is pursuant to that
contract, which provides, inter alia, that:
ARBITRATION OF DISPUTES.
In the event a dispute arises under this contract, which dispute the
parties are unable to settle amicably, the parties agree that the
dispute shall be submitted to final and binding arbitration to be
conducted under the rules of the Manufacturers Arbitration
Association. The arbitrator shall award a reasonable attorney’s fee
to the prevailing party in the dispute.
II.
THE ISSUES
At the commencement of the hearing in this matter, the parties agreed

upon the following statement of the issues to be submitted to the Arbitrator for
decision:
Whether LRI breached its contract by failing to manufacture the
cp426i series chip according to Riley’s specifications and whether
LRI intentionally concealed a manufacturing flaw in the production
run of the chips delivered to Riley. If so, what shall be the
appropriate remedy? If not, shall LRI recover the contract price on
its counterclaim?
III.
CONCLUSIONS AND AWARD
The Arbitrator finds and concludes that LRI breached its contract as
alleged by Riley and that Riley suffered damages from said breach. According to
the proof, Riley’s damages, consisting of lost profits, cost of cover for
replacement goods, delays in delivery of product to its customers, and
associated administrative expenses, totaled $875,650.
Accordingly, the Arbitrator makes the following AWARD:
1. LRI shall forthwith pay Riley $875,650 as contract damages;

2. Said amount shall bear interest at the legal rate from and after the date
of this AWARD;
3. LRI shall pay Riley $12,133 as its costs in this matter;
4. LRI shall pay $7,500 as administrative and filing fees to the
Manufacturers Arbitration Association.
5. LRI shall take nothing on its counterclaim.
Dated: May 9, 2014
_____Stanley Warren____________
Stanley Warren
Arbitrator
35 Birdshot Plaza, Suite 1900
May 27, 2014
Stanley Warren
Law Offices of Stanley Warren
4289 Greyfeather Drive, Suite 430
Re: Riley Instruments, Inc. v. LRI, Inc.

Manufacturers Arbitration Association
Case No. 14-1322
Dear Arbitrator Warren:

I write on behalf of my client, Riley Instruments, Inc. On May 12, 2014, we
received your Final Decision and Award dated May 9, 2014. We wish to point
out to you what we believe are inadvertent omissions therein, and we request
that you change the Award to cover the omissions.
First: The agreed-upon submission stated two issues: (1) whether LRI
breached its contract and (2) whether LRI intentionally concealed a
manufacturing flaw. Regarding the second point, we refer you to our post-
hearing brief in which we recite the following evidence, fully supported by the
testimony and documents in the record:
LRI’s former Director of Manufacturing gave unrebutted testimony that he
knew about a flaw in the computer chips manufactured for Riley and that he
consciously decided not to disclose it because he knew it would cause Riley to
reject the chips. Also, we presented unrebutted evidence that Riley spent
$75,000 for an engineering analysis to determine why the chips were not
performing as intended and that it was only after incurring that expense that Riley
discovered the flaw. In our brief, we also argued for an award of punitive
damages based on LRI’s intentional concealment.
Your Final Decision and Award does not appear to have dealt with the
concealment issue and the damages attributable thereto, as well as the punitive
damages remedy.
Second: The contract pursuant to which this arbitration was conducted
provides that: “The arbitrator shall award a reasonable attorney’s fee to the
prevailing party in the dispute.”
Although you did not explicitly state in your Award that Riley was the
prevailing party, it is clear that Riley did prevail in all respects over LRI and is
therefore entitled to its attorney’s fee.
Accordingly, we respectfully request that you change your Final Decision
and Award to cover the intentional concealment, punitive damages, and
attorney’s fee issues.
Very truly yours,
By_____Helen Rivera____________
Helen Rivera, Partner
cc: Mark Stilton, Attorney for LRI, Inc.

LAW OFFICES OF MARK STILTON
MARK STILTON
Attorney at Law
1823 Herrick Blvd., Suite 3
May 30, 2014
Stanley Warren
Law Offices of Stanley Warren
4289 Greyfeather Drive, Suite 430
Re: Riley Instruments, Inc. v. LRI, Inc.

Case No. 14-1322
Dear Arbitrator Warren:

I strenuously object, on behalf of my client, LRI, Inc., to the request by
Riley Instruments, Inc. that you amend your Final Decision and Award in the
above-referenced matter. Suffice it to say that, having issued your Final Decision
and Award, you are without authority, power, or jurisdiction by reason of the
doctrine of functus officio to do anything further with respect to that Award.
Sincerely,
Mark Stilton
cc: Helen Rivera

ARBITRATION PROCEEDINGS BEFORE
THE MANUFACTURERS ARBITRATION ASSOCIATION
PURSUANT TO THE AGREEMENT OF THE PARTIES
In the Matter of an Arbitration between
RILEY INSTRUMENTS, INC., MAA Case No. 14-1322
Plaintiff AMENDED
FINAL DECISION
and AND AWARD
LRI, INC.,
Defendant.

contract price.
I.
INTRODUCTION
On May 29, 2014, the Arbitrator received Riley Instruments, Inc.’s May 27,
2014 letter requesting an amended Final Decision and Award, asserting that the
Arbitrator had inadvertently omitted from his May 9, 2014 Final Decision and
Award rulings on three issues:
1. Whether LRI intentionally concealed a manufacturing defect and, if
so, what damages Riley Instruments should recover as a
consequence;
2. Whether Riley Instruments should recover punitive damages on
account of the intentional concealment; and
3. Whether Riley Instruments should recover its attorney’s fees.
LRI’s attorney responded on May 30, 2014 in opposition to Riley’s request
by asserting that the Arbitrator is functus officio and therefore has no power to
amend the initial Final Decision and Award.
II.
DISCUSSION
Counsel for Riley Instruments is correct in her assertion that the omissions
recited in her May 27, 2014 letter were entirely inadvertent. The Arbitrator has
reviewed the record in this case, including the transcript of the hearing, the
documentary evidence, and the arguments set out in the post-hearing briefs of
the parties and concludes that an Amended Final Decision and Award is
appropriate and within the Arbitrator’s power to resolve ambiguities and correct
omissions.
First, the Arbitrator intended, but neglected, to state specifically that LRI
intentionally concealed from Riley Instruments the manufacturing defect and,
therefore breached the term in the contract between the parties that provided
explicitly that, “LRI shall monitor the production of the cp426i series chip and
furnish Riley with periodic quality control reports.” Implicit in that term is LRI’s
obligation to inform Riley Instruments of any problems. The monetary award of
$875,650 that was recited in the Arbitrator’s May 9, 2014 Final Decision and
Award in fact includes the $75,000 that Riley Instruments incurred for the
engineering study that led to the discovery of the flaw. It should have been
itemized as follows: $800,650 for lost profits, cost of cover for replacement
goods, delays in delivery of product to its customers, and associated
administrative expenses; $75,000 for the engineering study to discover the
manufacturing flaw.
The record, by reason of the unrebutted testimony of the Director of
Manufacturing formerly employed by LRI, also supports Riley Instruments’
assertion that LRI’s concealment was intentional and with knowledge that, if
disclosed, it would have caused Riley Instruments to reject the entire production
run of computer chips. (See transcript at p. 327.) The Arbitrator, again
inadvertently, neglected to make that finding explicit in the original Final Decision
and Award and hereby corrects that omission by making it explicit that LRI’s
concealment was intentional and with a motive to deceive. The Arbitrator finds
he has the authority under the clear terms of the submission to determine the
“appropriate remedy” and that LRI’s intentional breach of contract warrants
imposition of punitive damages to punish LRI for its unconscionable conduct.
Accordingly, the Arbitrator awards $100,000 as punitive damages in favor of
Riley Instruments and against LRI as prayed for in Riley Instruments’ closing
brief.
Finally, Riley Instruments is correct in its assertion that it is entitled to
recover a reasonable attorney’s fee in accordance with the arbitration provision
of the parties’ contract that states that “[t]he arbitrator shall award a reasonable
attorney’s fee to the prevailing party in the dispute.” Obviously, Riley Instruments
is the prevailing party. Thus, the Arbitrator hereby awards to Riley Instruments a
reasonable attorney’s fee.
III.
AMENDED AWARD
The Arbitrator incorporates herein by this reference his May 9, 2014 Final
Decision and Award and issues the following AMENDED AWARD:
1. LRI shall forthwith pay Riley Instruments $800,650 as contract
damages for lost profits, cost of cover for replacement goods, delays in
delivery of product to its customers, and associated administrative
expenses;
2. LRI shall forthwith pay Riley Instruments $75,000 as damages for the
expense of an engineering study that led to the discovery of the
manufacturing flaw;
3. LRI shall forthwith pay Riley Instruments $100,000 as punitive
damages for the intentional concealment of the manufacturing flaw;
4. Said amounts shall bear interest at the legal rate from and after the
date of this AMENDED AWARD;
5. LRI shall pay Riley $12,133 as its costs in this matter;
6. LRI shall pay $7,500 as administrative and filing fees to the
Manufacturers Arbitration Association.
7. LRI shall take nothing on its counterclaim.
8. Riley Instruments, as the prevailing party in this dispute, shall recover
a reasonable attorney’s fee. Within 30 days of the date of this
Amended Award, Riley Instruments shall lodge with the Arbitrator and
serve upon LRI its application for attorney’s fees, supported by billings
and time records. Within 15 days thereafter, LRI shall lodge with the
Arbitrator and serve upon Riley Instruments LRI’s memorandum, if
any, challenging Riley Instruments’ application. The Arbitrator will then
rule on the amount of fees based on the submissions of the parties.
Dated: July 11, 2014
_____Stanley Warren____________
Stanley Warren
Arbitrator
Mark Stilton
Law Offices of Mark Stilton
1823 Herrick Blvd., Suite 3
Attorney for LRI, Inc.
SUPERIOR COURT OF THE STATE OF COLUMBIA

RADLEY COUNTY
LRI, INC.,
Petitioner Civ. Case No. 14-44378
vs. PETITION TO VACATE

ARBITRATOR’S
RILEY INSTRUMENTS, INC., AMENDED FINAL
DECISION AND AWARD
Respondent.

contract price.
An arbitration was conducted under the rules of the Manufacturers

Arbitration Association pursuant to a contract between LRI, Inc. and Riley
Instruments, Inc. On May 9, 2014, Arbitrator Stanley Warren issued a Final
Decision and Award in favor of Riley Instruments. On May 27, 2014, Riley
Instruments, in a letter to the arbitrator, asserted that the arbitrator had failed to
rule on certain issues and requested that the arbitrator amend the May 9, 2014
award to include the allegedly omitted issues.
On July 11, 2014, Arbitrator Warren issued an Amended Final Decision
and Award in which he purported to “correct” the earlier award. Both of the
arbitrator’s awards are attached hereto as exhibits.
LRI, Inc. moves on the following grounds to vacate the Amended Final
Decision and Award.
1. Once he issued his Final Decision and Award, the arbitrator was
functus officio and had no power whatsoever to amend or otherwise change the
award. It is a fundamental common law principle that once an arbitrator has
made and published an award, his authority is exhausted and he is functus officio
and can do nothing more in regard to the subject matter of the arbitration. The
policy that lies behind this is an unwillingness to permit one who is not a judicial
officer, and who acts informally and sporadically, to reexamine a final decision
that he has already rendered because of the potential evil of outside
communication and unilateral influence which might affect a new conclusion.
See, Transport, Inc. v. National Petroleum Corp., Col. Ct. App. (1990).
2. The purported amendment and the request therefor were in any event
untimely. Rule 46 of the Commercial Arbitration Rules of the Manufacturers
Arbitration Association requires that the arbitrator must “dispose of the request
[for a correction] within 20 days after service of the request.” Also, Columbia
Code of Procedure, Section 1284, requires that any request for a correction be
made “not later than 10 days after service of a signed copy of the award on the
applicant” and that the requested correction be made “not later than 30 days after
service of a signed copy of the award on the applicant.” On all counts, the
requisite time limits were exceeded.
3. Both Rule 46 and the CCP Section 1286.6 allow the arbitrator to make
“corrections” only for essentially clerical, typographical, or computational errors
not affecting the merits of the award. The arbitrator clearly exceeded the scope
of any power he may have had by (a) adding a finding, not made in the original
award, regarding the alleged liability of LRI for an alleged intentional
concealment, (b) recharacterizing the amount of the contract damages award,
and (c) deciding that Riley Instruments is entitled to attorney’s fees and claiming
to retain the power to determine the amount. These are clearly substantive
changes “affecting the merits of the award.”
4. The arbitrator committed a grave error of law by awarding punitive
damages in a contract case. It is a fundamental principle of law that punitive
damages do not lie for breach of contract.
LRI, Inc. therefore moves the court to vacate the arbitrator’s July 11, 2014
Amended Final Decision and Award.
Dated: July 16, 2014
Respectfully submitted,
LAW OFFICES OF MARK STILTON
By_____Mark Stilton______________
Mark Stilton
Attorney for LRI, Inc.
July 2014
California
Bar
Examination
Performance Test B
LIBRARY
LIBRARY
Selected Provisions of the Commercial Arbitration Rules of the

Manufacturers Arbitration Association and of the
Columbia Arbitration Act………………………………………………..……………..
Monroe v. Henson & Bailey

Columbia Supreme Court (1992)……………………………………………………..
Marco v. Chandler
Columbia Court of Appeals (1995)………………………....…………………....…..
Transport, Inc. v. National Petroleum Corp.

Columbia Court of Appeals (1990)……………………….…………………………..
Classic Construction, Inc. v. Vladomir Development Co., et al.

Columbia Court of Appeals (1999)……………………….…………………………..
Commercial Arbitration Rules
Rule 43. Scope of Award

The arbitrator may grant any remedy or relief that the arbitrator deems just and
equitable and within the scope of the agreement of the parties.
* * * * *
Rule 46. Modification of Award

Within 10 days after the service of an award, any party, upon notice to the other
parties, may request the arbitrator to correct any clerical, typographical, or
computational errors in the award. The arbitrator is not empowered to
redetermine the merits of any claim already decided. The arbitrator shall dispose
of the request within 20 days after service of the request to the arbitrator and any
response thereto.
Columbia Arbitration Act

Columbia Code of Procedure (CCP)
Section 1283. Award

The award shall be in writing and signed by the arbitrators concurring therein. It
shall include a determination of all the questions submitted to the arbitrators, the
decision of which is necessary in order to determine the controversy.
Section 1284. Application for Correction

The arbitrators, upon written application of a party to the arbitration, may correct
the award upon any of the grounds set forth in subdivisions (a) and (c) of Section
1286.6 not later than 30 days after service of a signed copy of the award on the
applicant. Application for such correction shall be made not later than 10 days
after service of a signed copy of the award on the applicant.
Section 1285. Petition to Confirm, Correct, or Vacate

Any party to an arbitration in which an award has been made may petition the
court to confirm, correct or vacate the award. The petition shall name as
respondents all parties to the arbitration and may name as respondents any
other persons bound by the arbitration award.
* * * * *
Section 1285.2. Response to Petition

A response to a petition under this chapter may request the court to dismiss the
petition or to confirm, correct or vacate the award.
* * * * *
Section 1286.2. Grounds for Vacation

The court shall vacate the award if the court determines any of the following:
(a) The award was procured by corruption, fraud or other undue means.
(b) There was corruption in any of the arbitrators.
(c) The rights of the party were substantially prejudiced by misconduct of
a neutral arbitrator.
(d) The arbitrators exceeded their powers and the award cannot be
corrected without affecting the merits of the decision upon the
controversy submitted.
(e) The rights of the party were substantially prejudiced by the refusal of
the arbitrators to postpone the hearing upon sufficient cause being
shown therefor or by the refusal of the arbitrators to hear evidence
material to the controversy or by other conduct of the arbitrators
contrary to the provisions of this title.
* * * * *
Section 1286.6. Correction by Court

The court, unless it vacates the award pursuant to Section 1286.2, shall correct
the award and confirm it as corrected if the court determines that:
(a) There was an evident miscalculation of figures or an evident mistake
in the description of any person, thing or property referred to in the
award;
(b) The arbitrators exceeded their powers but the award may be
corrected without affecting the merits of the decision upon the
controversy submitted; or
(c) The award is imperfect in a matter of form, not affecting the merits of
the controversy.
Monroe v. Henson & Bailey
Columbia Supreme Court (1992)
Walter Monroe was employed as a lawyer by the law firm of Henson &
Bailey under an employment contract that contained an agreement to submit
“any dispute arising out of this contract to final and binding arbitration.” There
was a provision in the contract regarding allocation of attorney’s fees in the event
Monroe left the firm and took clients with him. When Monroe resigned, a number
of clients followed him to his new practice, and a dispute arose over how to
allocate the fees earned and to be earned. The parties submitted the dispute to
an arbitrator, who essentially ruled against Monroe. Monroe petitioned the trial
court to vacate the award. That court denied his petition.
We granted review and directed the parties to address the limited issue of
whether and under what conditions a trial court may review an arbitrator's
decision.
1. The General Rule of Arbitral Finality.

This case involves private, nonjudicial arbitration, which the parties
submitted to an arbitrator pursuant to their written agreement. The Columbia
Arbitration Act, found in the Code of Procedure (CCP), represents a
comprehensive statutory scheme regulating private arbitration in this state and
expresses a strong public policy in favor of arbitration as a speedy and relatively
inexpensive means of dispute resolution.
The arbitration clause included in the employment agreement in this case
specifically states that the arbitrator's decision would be both binding and final.
The arbitrator's decision should be the end, not the beginning, of the dispute.
Thus, an arbitration decision is final and conclusive because the parties have
agreed that it be so. The courts simply assure that the parties receive the benefit
of that bargain by minimizing judicial intervention in the arbitration process.
Arbitrators may base their decisions upon broad principles of justice and
equity, and in doing so may expressly or impliedly reject a claim that a party
might successfully have asserted in a judicial action. Moreover, they are not
bound to award on principles of dry law, but may decide on principles of equity
and good conscience, and make their award according to what is just and good.
Thus, it is the general rule that, with narrow exceptions, an arbitrator's decision
cannot be reviewed for errors of fact or law.
In reaffirming this general rule, we recognize there is a risk that the
arbitrator will make a mistake. That risk, however, is acceptable – first, because
the parties have voluntarily and contractually agreed to bear that risk, and
second, because by enacting the Columbia Arbitration Act, the Legislature has
reduced the risk by providing for judicial review in circumstances involving
serious problems with the award itself or with the fairness of the arbitration
process. The Act sets forth the grounds for both vacation and correction of an
award. See, CCP Sections 1286.2 and 1286.6.
In the present case, Monroe puts forth three exceptions to the general rule
that he claims apply to his case. First, he claims a court may review an
arbitrator's decision if an error of law is apparent on the face of the award and
that error causes substantial injustice. Second, he claims the arbitrator
exceeded his powers. Third, he argues courts will not enforce arbitration
decisions that are illegal or violate public policy.
2. Error of Law on the Face of the Arbitration Decision Does Not Warrant
Judicial Review.
As previously noted, the Legislature has set forth grounds for vacation and
correction of an arbitration award, and an error of law is not one of the grounds.
Early cases, predating the Columbia Arbitration Act, followed the common
law rule that arbitration awards were freely reviewable by the courts, particularly
if the challenge to the award was based on an error of law. Later cases drew
back on that view, especially in light of the passage of the Act, but even then the
courts were reluctant to adopt a hands-off approach. Finally, this court
pronounced that the merits of the controversy between the parties are not subject
to judicial review. The form and sufficiency of the evidence and the credibility
and good faith of the parties, in the absence of corruption, fraud or undue means
in obtaining an award, are not matters for judicial review. In this way, this court
suggested that the Columbia Arbitration Act – and not the common law –
established the limits of judicial review of arbitration awards. Thus, we held that
in the absence of some limiting clause in the arbitration agreement, the merits of
the award, either on questions of fact or of law, may not be reviewed except as
provided in the statute.
The law has thus evolved from its common law origins and moved toward
a more clearly delineated scheme rooted in statute. We adhere to the line of
cases that limit judicial review of private arbitration awards to those cases in
which there exists a statutory ground to vacate or correct the award. Those
decisions permitting review of an award where an error of law appears on the
face of the award causing substantial injustice have perpetuated a point of view
that is inconsistent with the modern view of private arbitration and are therefore
disapproved.
3. The Arbitrator Did Not Exceed His Powers.

Monroe argues that, in allocating the earned and to-be-earned fees as he
did, the arbitrator exceeded his powers, but it is unclear what Monroe’s theory is
other than that the arbitrator’s interpretation of the contract is erroneous. It is
well settled that arbitrators do not exceed their powers merely because they
assign an erroneous reason for their decision. A contrary holding would permit
the exception to swallow the rule of limited judicial review; a litigant could always
contend the arbitrator erred and thus exceeded his powers. To the extent
Monroe argues his case comes within CCP Section 1286.2, subdivision (d),
merely because the arbitrator reached an erroneous decision, we reject the point.
It is within the “powers” of the arbitrator to resolve the entire “merits” of the
“controversy submitted” by the parties. Obviously, the “merits” include all the
contested issues of law and fact submitted to the arbitrator for decision. The
arbitrator's resolution of these issues is what the parties bargained for in the
arbitration agreement. Monroe does not argue that the arbitrator's award strayed
beyond the scope of the parties' agreement by resolving issues the parties did
not agree to arbitrate. The agreement to arbitrate encompassed “any dispute
arising out of” the employment contract. The parties' dispute over the allocation
of attorney's fees following termination of employment clearly arose out of the
employment contract; the arbitrator's award does no more than resolve that
dispute. Under these circumstances, the arbitrator was within his “powers” in
resolving the questions of law presented to him.
A related paramount principle that bears on the arbitrator’s power to
determine and resolve the merits is this: Unless the contract, the submission, or
the rules governing the arbitration provide otherwise, an arbitrator’s choice of
relief awarded to the prevailing party does not exceed his or her powers so long
as it bears a rational relationship to the underlying contract and to the breach
thereof as interpreted, expressly or impliedly, by the arbitrator. This holds true as
to any plausible theory of the arbitrator’s interpretation of the contract. In this
case, the logical connection of the nature of the relief fashioned by the arbitrator
to the underlying contract is plain. Thus, the award is not subject to vacation or
correction based on any of the statutory grounds asserted by Monroe.
We conclude that an award reached by an arbitrator pursuant to a
contractual agreement to arbitrate is not subject to judicial review except on the
grounds set forth in CCP Sections 1286.2 and 1286.6. Further, the existence of
an error of law apparent on the face of the award, even one that causes
substantial injustice, does not provide grounds for judicial review.
The judgment is affirmed.
Marco v. Chandler
Columbia Court of Appeals (1995)
Plaintiffs and appellants Joel Marco and Linda Marco (collectively, Marco)
appeal a judgment insofar as it awards $19,575 in attorney’s fees to defendant
and respondent Dixie N. Chandler (Chandler). The essential issues are whether
the arbitrator exceeded his powers by denying an award of attorney’s fees to
Chandler, and whether the trial court erred in awarding attorney’s fees to
Chandler for the underlying arbitration instead of remanding to the arbitrator for
that purpose.
In March 1991, Marco entered into a real estate purchase contract to
acquire certain property from Chandler. Marco subsequently filed an action for
rescission. Because the contract contained an arbitration clause, the matter was
referred to the Manufacturers Arbitration Association. In an award made January
9, 1992, the arbitrator denied Marco's claim against Chandler and denied all
requests for attorney’s fees. On April 20, 1992, Chandler filed a petition in the
trial court to correct the arbitration award. Chandler contended that the arbitrator
exceeded his power by not applying the attorney’s fee provision and that the
error appeared on the face of the record. The contract between the parties
provided that “[i]n any action, proceeding or arbitration arising out of this
agreement, the prevailing party shall be entitled to reasonable attorney's fees.”
The matter was heard May 22, 1992, at which time the trial court ordered the
matter back to the arbitrator to clarify his denial of attorney’s fees to Chandler.
On October 13, 1992, the arbitrator filed a clarification of the award,
stating that Chandler prevailed against Marco but that, in rendering the award, he
believed he had the discretion to deny the request for attorney’s fees,
notwithstanding the determination that Chandler was the prevailing party. He
added, “If the arbitrator does not have that discretion and the prevailing parties
are entitled to attorney’s fees as a matter of right, attorneys' fees should be
awarded to the prevailing parties to the degree such fees were incurred in
arbitrating the claim upon which they prevailed.”
On November 20, 1992, Chandler filed a second petition in the trial court
to correct and to affirm the award as clarified by the arbitrator. In the petition,
Chandler sought a correction of the award to reflect her entitlement to reasonable
attorney’s fees as the prevailing party. Marco filed opposition papers, arguing
that the petition was time-barred, that the trial court lacked the power to correct
the award even if the petition were timely, that Chandler had failed to provide any
admissible and competent evidence of whether the attorney’s fees sought were
reasonable or necessary, and that sanctions should be imposed against
Chandler and her counsel.
Chandler's reply papers asserted the petition was timely. Chandler's
counsel attached a copy of her prior bill in this matter, in the amount of $19,575,
and asked the court to make a determination of the amount of fees Chandler was
entitled to.
The trial court granted Chandler’s motion and awarded Chandler $19,575
as a reasonable attorney’s fee. Marco appealed.
1. There is no merit to Marco's contention that the trial court was bound
by the arbitrator's denial of an award of attorney’s fees.
Marco, citing the Columbia Supreme Court’s decision in Monroe v.
Henson & Bailey, contends the trial court was bound by the arbitrator's decision
denying Chandler an award of attorney’s fees, i.e., that the trial court had no
power to review the arbitrator’s decision. The argument lacks merit.
In Monroe, the Supreme Court clarified the law as to the limited scope of
judicial review of arbitration awards. Monroe held an award rendered by an
arbitrator pursuant to a contractual agreement to arbitrate is not subject to judicial
review except on the grounds set forth in the Columbia Arbitration Act.
Here, the arbitrator’s decision to deny Chandler an award of attorney’s
fees, notwithstanding his finding Chandler was the prevailing party, exceeded his
powers because the agreement provides that “the prevailing party shall be
entitled to reasonable attorney’s fees.” (Italics added.)
Had the arbitrator found neither Marco nor Chandler was the prevailing
party, the arbitrator properly could have declined to make any award of attorney’s
fees. But having made a finding Chandler was the prevailing party, the arbitrator
was compelled by the terms of the agreement to award her reasonable attorney’s
fees and costs. That error was subject to correction because Section 1286.6(b)
of the Columbia Arbitration Act provides an award shall be corrected if “[t]he
arbitrators exceeded their powers [and] the award may be corrected without
affecting the merits of the decision ….“ (Italics added.)
2. There is, however, merit to Marco’s contention that the amount of

attorney’s fees to be awarded for the arbitration proceeding is to be determined
by the arbitrator.
The issue is whether the arbitrator should have been directed to decide
the amount of attorney’s fees to be awarded for the arbitration proceeding, or
whether the issue of the amount of those fees was a matter for the trial court.
An award of attorney fees for the arbitration itself is within the arbitrator’s
purview. After the arbitrator declined to award Chandler her attorney’s fees,
notwithstanding his determination she was the prevailing party, the trial court was
empowered to correct the award to provide for an award of attorney’s fees to
Chandler. However, the trial court should have remanded the matter to the
arbitrator to determine the amount of attorney’s fees to which Chandler was
entitled for the arbitration proceeding, rather than making that determination at
the trial court level. It is the arbitrator, not the trial court, who is best situated to
determine the amount of reasonable attorney’s fees to be awarded for the
conduct of the arbitration proceeding. We remind the arbitrator that he is
compelled by the parties’ agreement to award reasonable attorney’s fees to the
prevailing party and that he lacks discretion to do otherwise.
The judgment is reversed insofar as it awards $19,575 in attorney’s fees
to Chandler, and the matter is remanded to the arbitrator for a determination of
the amount of attorney’s fees.
Transport, Inc. v. National Petroleum Corp.
This case involves an arbitration of a dispute between the petitioner,

Transport, Inc. (Transport), and the respondent, National Petroleum Corp. (NPC),
over the transportation of petroleum products. The issues that the parties initially
submitted to the arbitrators for decision were: (1) whether NPC breached its
contract by canceling the fourth shipment it had agreed to tender to Transport,
and (2) if so, what damages Transport suffered. At the commencement of the
arbitration, the parties agreed to bifurcate the liability and damages issues,
requesting the arbitrators to issue first a “partial final award” on the question of
liability, i.e., whether NPC breached the contract.
After issuance of a “partial final award” in which the panel of arbitrators
found in favor of Transport on the issue of liability, one of the three arbitrators
died. Transport sought in the court below to confirm the “partial final award” and
requested the court to appoint a replacement for the deceased arbitrator and
remand the matter to the reconstituted panel for a decision on the issue of
damages.
NPC cross-petitioned the court to vacate the partial final award, require
the parties to select a new panel of arbitrators, and commence the matter anew.
The court below, exercising its authority under the Columbia Arbitration Act,
appointed an arbitrator to replace the deceased one, confirmed the partial final
award, and remanded the case to the reconstituted panel for decision on the
issue of damages.
On this appeal, NPC argues that, notwithstanding that the ruling of the
arbitrators here was titled “partial final award,” the general rule is that an arbitral
decision is not final unless it conclusively decides every point required by and
included in the submission of the parties. That is in fact the general rule, but it
must be assessed in light of two other pertinent principles: First, if the parties
agree that the panel of arbitrators is to make a final decision as to part of the
dispute, the arbitrators have the authority and responsibility to do so. Second,
once the arbitrators have finally decided the submitted issues, they are in
common law parlance functus officio, meaning that their authority over those
questions is ended.
The latter principles govern the present dispute. The parties agreed at the
commencement of the arbitration to a bifurcated decision. They asked the panel
to decide the issue of liability. Prior to the death of the third arbitrator, the panel
ruled on that issue conclusively, deciding every point required by and included in
the first part of the parties’ submission. Thus, with respect to liability, the original
panel was functus officio, so the reconstituted panel cannot be ordered to
rearbitrate that issue.
The Columbia Arbitration Act makes specific provision for filling vacancies
in arbitration panels: The court is authorized to do so upon application of a party
if the agreement of the parties does not otherwise provide. This authority
extends to pending arbitrations. The court below acted within its authority.
We affirm the judgment of the court below.
Classic Construction, Inc. v. Vladomir Development Co., et al.
Appellants Vladomir Development Company (Vladomir) and Mandeville

Township (Mandeville) appeal from a judgment confirming an amended
arbitration award in favor of respondent Classic Construction, Inc. (Classic).
Vladomir and Mandeville contend that the arbitrator exceeded his powers by
amending the award to determine an issue he had failed initially to decide. They
contend that the trial court was required to vacate the amended award and order
the entire dispute reheard by a new arbitrator.
Facts and Procedural Background

Classic, a subcontractor, performed asphalt work and other improvements
for Vladomir at an elementary school in Mandeville. A dispute arose about the
work. Classic stopped work and served a stop payment notice upon Mandeville,
i.e., a notice that Mandeville should withhold payment pending settlement of the
dispute. Classic then sued Vladomir and Mandeville for damages.
The parties stipulated that the entire dispute would be resolved by binding
arbitration. They briefed the questions presented and introduced oral and
documentary evidence on all issues. The parties each submitted proposed forms
of judgment that addressed all the questions submitted to the arbitrator. The
arbitrator issued his decision awarding Classic $42,051 in damages against
Vladomir for breach of contract, but the award did not resolve the claim against
Mandeville based upon the stop payment notice. The arbitrator did not,
therefore, determine all the questions submitted.
After receiving the award, counsel for Classic wrote a letter to the
arbitrator requesting that he amend the award to include a judgment against
Mandeville based upon the stop payment notice. Counsel for Classic did not
send a copy of this letter to the attorney representing both Vladomir and
Mandeville.
Four days later, counsel for Classic telephoned the administrator for the
arbitrator. The arbitrator confirmed that he had received the letter and said he
would make a decision in the next few days. These calls were also ex parte.
The arbitrator thereafter issued an amended award, which included a
finding favorable to Classic on the cause of action against Mandeville. The
amended portion of the award provided: “Classic’s stop notice directed to
Mandeville is found valid for purposes of this action.” Upon receipt of the
amended award, counsel for Vladomir and Mandeville attempted unsuccessfully
to contact the arbitrator and then learned of the ex parte communications from
counsel for Classic.
Classic subsequently petitioned the trial court to confirm the amended
arbitration award. Vladomir and Mandeville opposed the petition, moved to
vacate the amended award, and requested that the trial court order that the
entire dispute be reheard by a new arbitrator. In a declaration submitted to the
trial court, the arbitrator confirmed that the parties had submitted proposed
judgments at the conclusion of the arbitration that resolved the causes of action
based upon the contract and the stop payment notice. The arbitrator further
confirmed that counsel for Classic notified him that the award omitted a finding
on the latter cause of action, and that he advised counsel for Classic that he had
all the information necessary from the documents received at the arbitration and
his notes to render a decision on this cause of action. The arbitrator stated that
his failure to address the stop notice claim was inadvertent.
The trial court declined to vacate the amended award, granted Classic's
petition to confirm the amended award, and entered judgment in favor of Classic
for $42,051 and against both Vladomir and Mandeville.
Discussion
Vladomir and Mandeville contend that the trial court erred in refusing to
vacate the amended arbitration award because the arbitrator: (1) exceeded his
power under CCP Section 1284 by amending the award; (2) violated procedural
requirements for amending or correcting the award under Section 1284; (3)
issued an amended award based upon information obtained outside the
arbitration in violation of CCP Section 1282.2; and (4) engaged in misconduct
with Classic's counsel in violation of CCP Sections 1286.2 and 1286.6. We
disagree.
As a general rule, courts will indulge every reasonable intendment to give
effect to arbitration proceedings. To ensure that an arbitrator's decision is the
end of the dispute, arbitration awards are subject to very narrow judicial review.
See, Monroe v. Henson & Bailey, Columbia Supreme Court (1992).
Arbitrators must produce an award that includes “a determination of all the
questions submitted to the arbitrators, the decision of which is necessary in order
to determine the controversy.” (CCP Section 1283.) The consequence of an
omission to decide all the questions is not addressed by Section 1283 or by any
other provisions of the Act. Nothing in the statutory scheme either authorizes or
prohibits the amendment of an award.
Section 1286.2 sets forth the exclusive grounds for vacating an arbitration
award. Except on these grounds, arbitration awards are immune from judicial
review in proceedings to confirm or challenge the award. (Monroe, supra.)
The record here does not establish that the amended arbitration award
was procured by corruption, undue means, or misconduct of the arbitrator. In a
sworn declaration, the arbitrator explained that he inadvertently had not resolved
one cause of action and that, when contacted by Classic's counsel, he informed
counsel that he had all the information from the documents admitted during the
arbitration and his notes to issue a decision on the omitted claim. Thus, the
record does not reveal that the arbitrator considered information outside the
arbitration proceeding in ruling upon the claim. Nor does the record reveal any
improper intent or attempt to influence the arbitrator on the part of opposing
counsel. Classic's counsel explained, in a declaration submitted under penalty of
perjury, that he had no intent to reargue the matters presented at the arbitration
or bias the arbitrator, but intended only to remind the arbitrator that both sides
had desired a ruling on the claim and had included it in proposed judgments
previously submitted to him.
In the absence of a showing that the arbitrator was improperly influenced
or actually considered evidence outside the original arbitration proceedings such
that appellants needed a further opportunity to be heard on the stop notice claim,
appellants cannot demonstrate that the amended award was procured by
corruption, fraud, undue means, or misconduct of the arbitrator within the
meaning of Section 1286.2.
The remaining issue is whether issuance of the amended award in
response to an ex parte communication is an action in excess of the arbitrator's
powers or constitutes “other conduct ... contrary to the provisions” of the Act. We
conclude that it is not.
Section 1284 authorizes an arbitrator, upon written application of a party
to the arbitration, to correct the award upon either of the grounds set forth in
Section 1286.6, subdivisions (a) and (c), i.e., where there is a miscalculation of
amounts, a mistake in the description of a person or property referred to in the
award, or where there is a defect in the form of the award that does not affect the
merits of the controversy. Any application to correct an arbitration award under
this section requires notice to the opposing party.
The amendment of the arbitration award in this case does not fall within
these subdivisions. The arbitrator was not “correcting” a miscalculation or
description contained in the prior award or correcting a defect in its “form.”
Rather, he was resolving the remainder of the dispute submitted to him. Thus,
the time limits specified in Section 1284 do not apply.
The absence of a statutory provision authorizing amendment of an award
does not deprive the arbitrator of jurisdiction to do so. The parties concede that
the arbitrator had authority to decide the entire dispute, including the cause of
action against Mandeville. The stop notice claim was raised in the pleadings,
briefed by the parties, and included in proposed judgments submitted by both
sides to the arbitrator. The amendment was made promptly. It is not
inconsistent with other provisions of the original award and it does not
substantially prejudice the legitimate interests of any party. In our view, the
arbitrator was simply finishing his assignment by making a complete and full
award on the matters submitted to him for resolution.
It has been suggested that the ancient rule of functus officio requires the
award to be vacated under the circumstances we face here. That rule survives,
but just barely, to bar arbitrators from revisiting and changing complete awards,
i.e., awards where they in fact decided all the issues presented to them. But
cases holding that an incomplete award is a nullity and must be vacated were
generally decided before Columbia’s Arbitration Act and the Supreme Court’s
instruction that the courts indulge every reasonable intendment to give effect to
arbitration proceedings. To deny arbitrators the authority to complete their task
under such circumstances elevates form over substance.
We conclude Columbia’s contractual arbitration law permits arbitrators to
issue an amended award to resolve an issue omitted from the original award
through the mistake, inadvertence, or excusable neglect of the arbitrator if the
amendment is made before judicial confirmation of the original award, is not
inconsistent with other findings on the merits of the controversy, and does not
cause demonstrable prejudice to the legitimate interests of any party.
This opinion should not be read to condone the actions of Classic's
counsel in communicating ex parte with the arbitrator. Counsel's ex parte
communications were inappropriate, and under different, more egregious
circumstances, might require vacation of an arbitration award.
The judgment is affirmed.

California Bar Examination: JULY 2014 Essay Questions 1, 2 and 3

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California Bar Examination: JULY 2014 Essay Questions 1, 2 and 3

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JULY 2014

ESSAY QUESTIONS 1, 2 AND 3

1. Admit Wayne’s testimony about Mac’s question to Sal? Discuss.

2. Admit Wayne’s testimony about Sal’s answer? Discuss.

3. Permit ABC to ask Wayne about college? Discuss.

4. Admit the excerpt from the maintenance record? Discuss.

Answer according to the Federal Rules of Evidence.

1. What ethical violations, if any, has Alice committed regarding:

a. The discovery extension? Discuss.

b. The physician’s note? Discuss.

c. The Chipco tender offer? Discuss.

Answer according to California and ABA authorities.

Memorandum to Applicant from Lou Estepe…...…………………………………

Newspaper Article (June 19, 2014)………………………………………………..

Newspaper Article (June 24, 2014)………………………………………...……...

Conditional Use Permit Application – Staff Report………………………...…….

Memorandum to County Commissioners from

Letter from Recreational Park Trailer Industry Association, Inc…………...……

Traffic Impact Assessment………………………………………………………….

Air Quality & Fuel Consumption Analysis………………………………………….

FROM: Lou Estepe

SUBJECT: Tehama County v. Tepee Campground

DATE: July 29, 2014

June 13, 2014

Recreational Park Trailers at Tepee Campground

2. The RPTs are an enlargement, expansion, or material increase in intensity of a

County Attorney, Tehama County

North Country Boomerang

GLAMPING DEBUTS ON WEST BANK ROAD

Jane Maya Rolls in 54 Recreational Park Trailers to Provide a Glamorous Camping

by Damon Suarez, Boomerang Reporter

Maya charges $175 to $300 a night to rent one of her glampers.

Tehama Times Eagle

TEPEE CAMPGROUND GOING ROGUE?

It’s an RV, It’s a Cabin, It’s a Modular Home.

by Zena Owens, Times Eagle Correspondent

Everything Maya wants to do hinges on the County’s definition of an RPT.

What will Maya do if she loses?

April 30, 2014

APPLICANT: Tepee Campground

OWNER: Jane Maya

PLANNING DEPARTMENT STAFF FINDINGS:

Classification depends on whether RPTs are considered recreational vehicles (RVs) or

If classified as structures, RPTs could not be placed in a campground (LDR, Section

Issue 2: Are RPTs an enlargement, expansion, or material increase in intensity of a

This change is not a new development in a rural/residential zone, but rather it is a

TO: County Commissioners

FROM: Director, Building Department

DATE: April 21, 2014

RE: Recreational Park Trailers

For TEHAMA COUNTY PLANNING DEPARTMENT

Big City, Columbia

April 21, 2014

By Science for Hire

April 10, 2014

Tepee Campground is seeking to diversify a portion of its inventory to include

Selected Tehama County Land Development Regulations…............……

Tall Timbers Resort v. Oregon Construction Department

County of Los Banos v. Leskiewicz

LAND DEVELOPMENT REGULATIONS

DIVISION 200: ZONING DISTRICT REGULATIONS

B. Promote adequate housing and business activity within the county;