BLaw280 Midterm

Law

"Law" is a body of rules prescribed by a legitimate political authority which must be obeyed by citizens, subject to legal consequences

Legal Reasoning

(1) *Common Law Reasoning* ex. for legal reasoning: - Issue: Can Jane go to concert? - Rule: Jane's curfew is midnight. - Application of Facts: The concert ends at 12:30 a.m. If Jane goes to concert, Jane will not be home until 1:00 a.m. - Conclusion: Jane cannot go to concert. (2) *Statutory Interpretation* ex. for statutory interpretation: - Issue: Does Jim have to pay $481 fine for driving in HOV lane? - Rule: (1) CA Vehicle Code §21655.5 provides that a driver must have 1 or more passengers in his/her car to drive in the HOV lane; (2) violation of Vehicle Code §21655.5 = $481 fine. - Application of Facts: Jim drove his car in HOV lane with no passengers in his car. - Conclusion: Jim must pay $481 fine.

4 Elements of Negligence

(1) *Duty* (2) *Breach* (3) *Causation* (4) *Damages*

✭✭✭ If none of the three traditional grounds exist for general personal jurisdiction, Court can only exercise jurisdiction over nonresident D if:

(1) *Forum State Long Arm Statute*; and (2) *Due Process (Minimum Contacts Test)* ARE BOTH SATISFIED

4 Levels of Wrongfulness

(1) *Intent* (2) *Recklessness* (3) *Negligence* (4) *Strict liability*

Types (Sources) of Law

(1) Constitutions (2) Statutes (3) Common Law (4) Equity (5) Administrative Regulations & Agency Decisions (6) Ordinances (7) Treaties (8) Executive Orders

Classifications of Law

(1) Criminal law vs Civil law (2) Substantive law vs Procedural Law (3) Public law vs Private law

Diversity jurisdiction (Subject matter jurisdiction)

(1) Diversity jurisdiction exists when i. the dispute is *between citizens of different states*✭✭✭ ii. the amount in *controversy exceeds $75,000*✭✭✭ *corporations are "citizens" of their -state of incorporation -state of principal place of business

Federal question jurisdiction (Subject matter jurisdiction)

(2) Federal question jurisdiction exists when the *dispute arises under the Constitution, laws, or treaties of the U.S.*✭✭✭ >What is the case about? Is the lawsuit based on a federal law? Does the lawsuit "arise under" federal law? >Note - No diversity OR dollar threshold required for federal question subject matter jurisdiction.

A federal law requires that employers with 15 or more employees take steps to "reasonably accommodate" the religious needs and practices of their employees. A law, such as this one, that gives rights and imposes duties is an example of a(n)________________law.

(CH1 - Classifications of Law) a. Procedural b. *Substantive* c. Inculpatory d. Exculpatory

A state statute requiring that the plaintiff serve the complaint on the defendant within 60 days of filing the complaint with the court is an example of a ______law.

(CH1 - Classifications of Law) a. Substantive b. *Procedural* c. Inculpatory d. Judge-made -->procedural law controls the behavior of government bodies (mainly courts) as they establish and enforce rules of substantive law

The town of passed a law forbidding parking on Main Street between the hours of 9:00 a.m. and 4:00 p.m. This is an example of an ordinance. True or False?

(CH1 - Sources of Law) *True* -->ordinances are subunits of state governments (e.g., counties, cities, public universities, school districts) for local issues

Common law is also known as _____________law.

(CH1 - Sources of Law) a. *judge-made* b. statutory c. public d. codified

In a civil suit, a plaintiff normally must prove each element of her case:

(CH2 - Civil Procedure) a. By clear and convincing evidence. b. *By a preponderance of the evidence.* c. Beyond a reasonable doubt. d. By a practical tendency. -->In most civil cases, the plaintiff bears the burden of proof to prove his/her/its case by a preponderance of the evidence

The first of the pleadings in a civil case is filed by the plaintiff and contains the allegations he is making against the defendant. This document is called the_________.

(CH2 - Civil Procedure) a. Summons b. Affidavit c. *Complaint* d. Counterclaim

Corporation negligently pollutes plaintiff's drinking water. Plaintiff dies of a heart attack. If autopsy revealed that Plaintiff's heart attack primarily related to hardening of the arteries, can Plaintiff still prevail in a negligence lawsuit against corporation?

(CH7 - Actual Cause) No, because the corporation's negligence was not the actual cause of plaintiff's death; BUT FOR the corporation's negligence, Plaintiff would have still died of a heart attack!

Carneal was 14 year old freshman who regularly played "Doom", "Rampage", "Resident Evil" and "Final Fantasy." Carneal took gun to school and shot and killed three students and wounded others. Families of dead and wounded sued producers of video games. Do producers owe duty of care?

(CH7 - Duty) No, because as we discussed in class, the *victims are not foreseeable plaintiffs* according to almost all courts that have looked at this issue and considered social policy and impact on holding video game manufacturers potentially responsible for such injuries and deaths.

Beth invited friends for a BBQ and touch football game in her backyard. Roger, one of her guests, broke his ankle when his foot slipped into a hole as he ran out for a pass. Several malfunctioning sprinkler heads have been removed from the lawn for repairs, leaving dangerous, but hidden, holes. In common law, would Beth be liable to Roger for his injuries?

(CH7 - Duty) a. *Yes, she had a duty to warn him of hidden dangers.* b. Yes, she is liable in strict liability. c. No, her only duty to Roger was not to entrap him on the property. d. No, as an adult playing a sport, Roger is presumed to have assumed the risk of such dangers

Traditionally, landowners owe the highest duty of care to

(CH7 - Duty) a. Trespassers b. Invited social guests c. Family members d. *Business invitees*

Mary saw two boys swimming across a river she knew had a deep and dangerous channel. She did not warn the boys or try to stop them. If one of the boys were injured, could Mary be sued for negligence?

(CH7 - Duty) a. Yes, because the danger to the boys was foreseeable b. Yes, because she owed them an enforceable moral duty c. Yes, because all adults have a duty of car to all minors d. *No, because Mary had no duty of care to the boys*

Golfer hits spectator in the head with golf ball. Spectator while unconscious waiting for ambulance is struck by a bolt of lightning and is killed. Is golfer liable for Spectator's death? Why or why not?

(CH7 - Proximate Cause) As we discussed in class, no proximate cause---not natural and probable consequence of golfer's negligence that the string of unusual events would occur resulting in death by lighting strike!

A statute require homeowners to fix sidewalks adjacent to their homes. Pedestrian trips and is injured because of unrepaired sidewalk. Is there any special doctrine or rule that allows Pedestrian to bypass the requirement to establish that homeowner owed Pedestrian a duty of care and also that the homeowner was negligent (failed to act with reasonable care?)? Will Pedestrian be able to use this special rule in this case?

(CH7) Negligence per se...yes, because most likely Pedestrian is within the class of persons protected by the statute and the harm suffered was the type that the statute was designed to protect against. --> If D's conduct violated a statute, P can conclusively establish both duty and breach if: (1) P was *within the class of persons* intended to be protected by the statute; and (2) P suffered *harm of a sort* that the statute was intended to protect against

Assume that Sussex County has a law requiring that all passenger elevators be inspected every six months. Local Hospital failed to have its passenger elevator inspected when required, and a door that malfunctioned injured a hospital visitor. Visitor's attorney will use the doctrine of ________________to show that Local Hospital breached a duty of care.

(CH7) a. Assumption of risk b. *Negligence per se* c. Negligence d. Contributory negligence --> If D's conduct violated a statute, P can conclusively establish both duty and breach if: (1) P was *within the class of persons* intended to be protected by the statute; and (2) P suffered *harm of a sort* that the statute was intended to protect against

Iris was at fault in a car crash in which Phil was injured. As they waited for the EMT's to arrive, a plane, which was part of a nearby air show, crashed into Phil, significantly increasing his injuries. Iris will not be liable for this second set of injuries because the plane crash was a(n)___________________cause.

(CH7) a. Proximate b. Legal c. Foreseeable d. *Superseding or Intervening*

Every promise is legally enforceable.

(CH9 - Contract Classifications) *False*

The main element of a contract is fairness

(CH9 - Contract Classifications) *False*

Elements of a Contract

*1. Offer* *2. Acceptance* *3. Consideration* > statute of frauds > capacity > illegality > misinterpretation, fraud, mistake

Responsive Pleadings

*Answer* -General Denial -Affirmative Defenses (ex. Statute of Limitations, Fraud, Illegality, Capacity) -*Cross-Complaint / Counterclaim* -*Motion to Dismiss* (aka *Demurrer*)✭✭✭ > If no timely responsive pleading = *Default*

Bilateral vs Unilateral K

*BILATERAL* - each side makes a promise to one another - offeror's promise and offeree's return promise - *a promise for a promise*) *UNILATERAL* - Unilateral contracts: only one party makes a promise and demands a performance, not a return promise - offeror's promise and promisee's performance - *a promise for an act*) - "I will loan you $1,000,0000 if you agree to pay me back in equal monthly payments over 30 years with 5% interest." - If the K isn't clearly unilateral, it IS bilateral. - Exam Hint: Unilateral K offer can *only* be accepted by *performance* • Unilateral Ks are, in reality, rare.

Contract and Noncontract Theories of Recovery

*CONTRACT* - concept: voluntary agreement - remedy: enforce promise *QUASI-CONTRACT* - concept: unjust enrichment - remedy: reasonable value of services *PROMISSORY ESTOPPEL* - concept: foreseeable reliance - remedy: enforce promise or recover reliance losses

Criminal vs Civil Law ✭✭✭

*CRIMINAL LAW* - the law under which the government prosecutes someone for committing a crime - it creates duties that are owed to the public as a whole *CIVIL LAW* - mainly concerns obligations that private parties owe to each other - it is the law applied when one private party sues another

✭✭✭Promissory estoppel (non-contract obligation)

*Concise Promissory Estoppel Rule*: 1. A Promise; 2. Which the promisor should foresee will induce reliance by promiseE; 3. Actual reliance by promisee; and 4. Injustice to promisee. *VERY Concise Promissory Estoppel Rule*: 1. Promise; 2. Foreseeable reliance (by promisee); 3. Actual reliance; and 4. Injustice.

Executed vs Executory KP:

*EXECUTED* - fully performed by both parties to the contract *EXECUTORY* - one or both parties still have contractual obligations to perform

Express vs Implied K

*EXPRESS* - agreement of parties manifested by words, written or oral (formed by language) *IMPLIED* - agreement not shown by words, but by acts and conduct of parties (formed by conduct)

Forum State Long Arm Statute (personal jurisdiction over nonresident defendants)

*Long arm statute* is a state statute limiting type of cases in which it will permit exercise of personal jurisdiction. - Under these statutes, *nonresident individuals and businesses may become subject to the jurisdiction of the state's courts by, for example, doing business within the state*, contracting to supply goods or services within the state, committing a tort (a civil wrong) within the state, or committing a tort outside the state if it produces harm within the state -->[law which gives a local state court jurisdiction over an out-of-state company or individual whose actions caused damage locally or to a local resident. The legal test is whether the out-of-state defendant has contacts within the state which are "sufficiently substantial."}

Public law vs Private law

*PUBLIC LAW* - concerns the powers of government and the relations between government and private parties *PRIVATE LAW* - establishes a framework of legal rules that enables parties to set the rights and duties they owe each other

Subject Matter Jurisdiction vs In Personam Jurisdiction ✭✭✭

*SUBJECT MATTER JURISDICTION* (1) Diversity jurisdiction, or (2) Federal question jurisdiction *IN PERSONAM JURISDICTION* (1) Presence (2) Domicile (3) Consent *--if none of the three above traditional grounds exist for general personal jurisdiction* (1) Forum State Long Arm Statute (2) Due Process / Minimum Contacts Test ^^BOTH must be satisfied

Substantive law vs Procedural Law ✭✭✭

*SUBSTANTIVE LAW* - sets the rights and duties of people as they act in society *PROCEDURAL LAW* - controls the behavior of government bodies (mainly courts) as they establish and enforce rules of substantive law

Pleadings - Complaint (Initial Considerations)

*The Parties* -Who will be a Defendant in the suit? *Jurisdiction* -Where (geographically), in which state to file suit? -Which type of court? (E.g., State vs. Federal and Unlimited v. Limited) *Venue* -Where (geographically), in which country and/or court district to file suit? -Forum selection clauses may dictate jurisdiction/venue *Causes of Action and Prayer* -What types of claims are alleged, and what damages/remedies are requested?

Valid vs Unenforceable K

*VALID* - binding & enforceable agreement *UNENFORCEABLE* - valid argument, but for some reason, the law cannot enforce it (e.g., .unconscionability, statute of limitations, etc.)

Void vs Voidable K

*VOIDABLE* - otherwise valid K, but due to circumstances surrounding formation of agreement, K may be rejected at option of one party (e.g., mistake, duress, lack of capacity, fraud, etc.) *VOID* - agreement without legal effect because prohibited by law

Two bodies of law govern contracts:

*common law* - common law of contracts is evolving *uniform commercial code* - statutory law in every state -contains 9 articles

UCC Article 2

- *Article 2 expressly applies to contracts for the sale of goods* (UCC Section 2-102) > UCC 1-105: goods are tangible, movable, personal property > Does not apply to sale of services, intangible property (stocks, intellectual property), or real estate (See PC #4) > UCC 2-104: special rules apply for *merchants* • "merchants" regularly deal in certain types of goods • UCC applies regardless of merchant status.

2. Breach of Duty of Care (element of negligence)✭✭✭

- *Did D live up to T.A.R.P. (or other applicable) standard of care?* > P must show D's conduct imposed an *unreasonable* risk of harm on P > Generally, did D act as TARP in the same or similar circumstances? > *Balancing Test*: ✭✭✭• *Foreseeability of harm* - determines whether the defendant owed the plaintiff a duty (as noted above) - determines defendant's duty of reasonable care entailed in the case at hand. • Severity of harm • Burden on D to avoid harm • Utility of D's conduct *2a. Negligence Per Se*

Recklessness (level of wrongfulness)

- AKA "willful and wanton conduct" or "gross negligence" - Conscious indifference to a known and substantial risk of harm - *Punitive damages*

Why are intentional torts more serious than unintentional torts?

- Compensatory damages - Punitive damages (actual damages not required) - Avoids bankruptcy discharge - No insurance coverage All = LEVERAGE against the D

Intent (level of wrongfulness)

- Desire to cause certain consequences - Equivalent = *"substantial certainty"* that consequences will result from actions Substantial certainty" that - *Punitive damages*

Negligence (level of wrongfulness)

- Failure to use reasonable care • Unlike intent or reckless torts (which look at D's conduct and mindset), negligence focuses only on D's *conduct* - Chapter 7 conduct. - *No punitive damages*

Intro to Negligence

- Intentional Torts v. Negligence - Consumer Protection v. Tort Reform - California Civil Code Section 1714: "Everyone is responsible for an injury occasioned to another by his or her want of ordinary care of skill in the management of his or her property or person..."

2a. Negligence Per Se

- Legislatures often enact statutes that establish standards of care for private conduct. - If D's conduct violated a statute, P can conclusively establish both duty and breach if: (1) P was *within the class of persons* intended to be protected by the statute; and (2) P suffered *harm of a sort* that the statute was intended to protect against

Strict liability (level of wrongfulness)

- Liability irrespective of fault - [liability which does not depend on actual negligence or intent to harm] - Chapter 7 & Chapter 20 (Products Liability) - *Punitive damages possible*

The UCC and Hybrid Contracts

- Many contracts involve the sale of both goods and services = *"hybrid contracts"* aka *"mixed contracts"* - What law applies? UCC or Common law? --> Use predominant factor test

Defamation

- Two competing interests at stake: 1. plaintiff (Π)'s interest in reputation protection; 2. defendant (∆)'s interest in freedom of speech - Defamation is an 1) Unprivileged 2) Publication of 3) False and defamatory 4) Statement of fact about ("of and concerning") another person.

✭✭✭Quasi-contract (non-contract obligation)

- avoids *unjust enrichment*: 1. Plaintiff confers (discusses) benefit on Defendant; 2. Defendant accepts and retains benefit; 3. It is unjust to keep benefits w/o paying.

Motion to dismiss (aka demurrer) ✭✭✭

- the procedural device for ending the case at this early stage - this motion often is made after the plaintiff has filed her complaint - a successful motion to dismiss means that the defendant wins the case; if the motion fails, the case proceeds

Civil Procedure

-A set of rules establishing how a lawsuit proceeds from beginning to end -Adversarial System -Standard of Proof > In most civil cases, the plaintiff bears the burden of proof to prove his/her/its case by a *preponderance of the evidence* -Heightened standard applies in some civil cases

Conversion / Trespass to Chattels or Personal Property (intentional torts)

-*D's intentional interference with P's personal property* *conversion = cost to replace* - the defendant's intentional exercise of dominion or control over the plaintiff's personal property without the plaintiff's consent - usually, the personal property in question is the plaintiff's goods *trespass to chattels = cost to repair* --> Types of Interference - Acquisition or removal - Transfer to 3rd Person - Withholding possession - Destruction or alteration - Using property --> Degree of interference is key - Full value = conversion; repair = trespass

Alternative Dispute Resolution

-*Mediation* - parties choose neutral party to aid in the *NONBINDING* resolution of the dispute ✭✭✭-*Arbitration* - dispute decided by *BINDING* ruling by one or more arbitrators - arbitration is the submission of a dispute to a neutral, nonjudicial third party (the arbitrator) who issues a binding decision resolving the dispute - usually results from the parties' agreement.

Legal Reasoning by Statutory Interpretation

-*Plain Meaning Rule* -*Precedent* (i.e., prior interpretation of statute) -*General Public Purpose* (widely accepted notion of public policy) -*Legislative History* (e.g.: "All stop signs must be painted red.")

(3) Common law

--> (aka "case law") is judge-made law and use to decide cases according to the doctrine of stare decisis ("let the decision stand") = precedents. -->examples: Hagan v. Coca-Cola; Roe v. Wade; Brown v. Board of Education; defamation; employment-at-will; Price v. High Pointe (p.5). -->*Restatements*: collections of influential common law rules of most states (not "law" unless made so by statute or judicial decision). -e.g., Restatement of Contracts, Restatement of Torts -->Common law applies when there is no applicable statute or other type of law ("fills in the gaps"). -FL § 847.0145: Selling your children = felony. -ME (Wells) § 100-4: Illegal to advertise on tombstones.

Battery (intentional tort)

--> 3 elements: 1. *intentional* - (i) the intent to cause harmful or offensive contact; OR - (ii) intent to cause apprehension that such contact is imminent. > "Transferred Intent" > ***Remember: "Substantial certainty" = Intent 2. *harmful or offensive* - Would contact be offensive to T.A.R.P.? (e.g. Garley v. England v. PC #2 -Wishnatsky v. Huey) 3. *contact with another* - may be direct (bodily contact between P and D) - may be indirect > "force set in motion" by D (ex. throwing a rock, poisoning, ordering dog to attack, pulling out chair, setting trap) > Contact with "item closely associated" with P (e.g., shooting dog on leash, striking horse with rider, knocking plates from P's hand, stolen purse, grabbing pencil)

(7) Treaty

--> President with 2/3 Senate -e.g., The Antarctic Treaty; Warsaw Convention

Priority Rules

-->*Federal supremacy* a rule of priority for conflicts between laws stating that the U.S. Constitution is the supreme law -->*Practical meaning* -Federal law defeats state law -State constitution defeats state legislation -Statute defeats administrative regulation -Statute or regulation defeats common law

✭✭✭ Minimum Contacts Test (personal jurisdiction over nonresident defendants)

-->Due Process under the U.S. Constitution requires that to subject D to a judgment, *D must have certain sufficient minimum contacts with the forum State* such that the maintenance of the lawsuit does not offend traditional notions of fair play and substantive justice. (ex: Consistent with the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, out of state defendants subject to judgment in personam must have minimum contacts with the plaintiff's state in order for it to be fair and reasonable for them to present themselves against a given action in that state itself. ) -Key to whether there is sufficient minimum contacts: (1) *Relatedness* Does P's complaint arise out of D's contacts with forum State? (2) *Purposeful Availment* Has D purposefully availed itself of laws of forum state such that D should reasonably expect to be haled into forum state court? (3) *Nature and Quality of D's Contacts* Do nature and quality of D's contacts with the forum State make jurisdiction reasonable?

(8) Executive Action ("Executive Order")

-->Made by U.S. President (or state governor) -Almost 30 types of Executive Action -e.g., Executive Order, Memoranda, Notices, Determinations, Proclamations (examples of executive actions) Emancipation Proclamation (Lincoln) Internment Camps (Roosevelt) Seizure of Steel Mills (Truman) Authorization of Waterboarding (Bush) Prohibit Waterboarding (Obama) Deferred Action for Childhood Arrivals (Obama) 2-year Prohibition on Executive Branch Workers Working for Lobbyists (Obama) Withdrawal from the TPP (Trump) Build a Southern Border Wall (Trump) De-Funding Sanctuary Cities (Trump)

(1) Constitutions

-->Two major functions: -Establish governmental structure (e.g., separation of powers, federalism) -Prohibits government from passing certain laws or taking certain actions (e.g., Bill of Rights) -->Examples: -U.S.Constitution, California Constitution -Exists at federal and state level -The U.S. Supreme Court plays a notable role in interpreting the Constitution

(2) Statutes

-->enacted by a legislative body (i.e., U.S. Congress or California Legislature) to regulate conduct -->Examples: Clean Air Act, 42 U.S.C. § 7401; CA Business & Professions Code § 7031 -->*Uniform Acts*: model statutes design to promote state-by-state uniformity -Example: Uniform Commercial Code (UCC)

(5) Administrative Regulations & Agency Decisions

-->law from agencies created by statute and hold delegated power -e.g., IRS, EPA, FCC, DOT, FTC, OSHA -Administrative Regulations (like statutes) -Agency Decisions (like common law)

(4) Equity

-->refers to non-monetary remedies -*Injunction*: court forbids a party to do some act or orders a party to perform act -*Specific Performance*: party is ordered to perform according to contract terms -*Reformation*: court rewrites contract -*Rescission*: court cancels contract

(6) Ordinances

-->subunits of state governments (e.g., counties, cities, public universities, school districts) for local issues -e.g., zoning ordinances, no-smoking ordinances, restrictions on plastic bags

Shopkeeper's / Merchant's Privilege

-> *Conditional Privilege* (a.k.a. "Shopkeeper's Privilege") - D Shopkeeper must act with: • (i) *RX cause*; • (ii) in a *RX manner*; and • (iii) for a *RX time* > must detain P no longer than necessary

Contracts

-Contract vs. Tort Law > Tort = statutes and common law impose duties upon people > K = parties themselves agree to duties - Not every promise is legally enforceable - But when a set of promises has the status of contract, a person injured by a breach of that contract is entitled to call on the government (courts) to force the breaching party to honor the contract!

Civil Post-Trial Procedure

-Entry of Judgment -Appeal -Bankruptcy -Execution/Enforcement of Judgment >Record Abstract of Judgment (real property) > Notice of Judgment Lien (personal property) > Bank Levy, Keeper Levy, Property Levy > Wage Garnishment > Debtor Examination > Alter Ego, Successor Liability

Presence, Domicile, Consent (In Personam Jurisdiction)

-If general personal jurisdiction exists, Court may exercise jurisdiction over D *regardless of whether P's lawsuit is related to D's contacts with forum State.* *THREE TRADITIONAL GROUNDS THAT FORM BASIS FOR GENERAL PERSONAL JURISDICTION*: (1) *Presence*✭✭✭ - "gotcha" ; served you while you're there; literally/physically serve --> [Being served with a copy of the summons and complaint while physically present in the forum state in sufficient to give a court in that state jurisdiction over the person who was served. That means that even if you were only just passing through the state for a few minutes, if you are properly served, you can be sued in that state.] (2) *Domicile*✭✭✭ - you can sue wherever they live ~ principal place of business --> [Domicile or residence in a state is enough to give courts in that state jurisdiction over you. This also applies to wherever you establish your place of business. In practice, this means that even if the incident took place in another state or even in another country, you can always be sued in the state in which you have established residence or maintain your place of business.] (3) *Consent*✭✭✭ -*Forum Selection Clause* > "All suits arising out of or related to this agreement shall be filed in the courts of Travis County, Texas." --> [Not surprisingly, you can simply consent to a court having personal jurisdiction over you. Consent comes in two basic forms, express and implied. Express consent can be given by voluntarily appearing before the court and submitting yourself to its jurisdiction. This means that even if a court otherwise didn't have power over you, by showing up, you can grant the court that power. Consent also can be implied, and one of the most common forms of implied consent is by driving on the roads of that state. Courts consider you to have given implied consent to the laws regulating roads, and thus if you have a car accident on the road in that state, a court has personal jurisdiction over you.]

Jurisdiction

-In order for a State Court or Federal Court to exercise jurisdiction over a defendant, it must have BOTH: 1. *Subject matter jurisdiction* 2. *In personam jurisdiction* (or an equivalent)

Discovery

-Interrogatories -Request for Independent Medical Exam -Request for Physical Inspection/Testing -Request for Admissions ✭✭✭-*Depositions* > Lay and Expert Witnesses > Parties and Non-Parties > in a deposition, one party's attorney conducts an oral examination of the other party or of a likely witness (usually one identified with the other party). -Requests for Production of Documents > Parties > Non-Parties (subpoena)

Civil Trial Procedure

-Jury Selection > Voir Dire or Jury Questioning -Opening Statement from each party -Parties present evidence through direct examination and cross-examination of lay and expert witnesses; two types of evidence: 1. *Direct Evidence*: does not require any inference to prove a conclusion (e.g., eyewitness testimony, audio/video recordings, photos and some documents) 2. *Circumstantial Evidence*: requires an inference to prove a conclusion (e.g., non-eyewitness testimony, forensic tests/analysis, correspondence and documents, etc.) -Parties may cross-examine other party's witnesses -Closing argument or summation from each party -Verdict > Trier of Fact (judge or jury) scrutinize and weigh credibility of physical evidence, witness testimony and decide outcome of the case based on applying law (jury instructions) to the facts. > Matters of law are decided by a judge.

Service of Process (Service of the Summons and Complaint)

-Personal service > Service upon individual > Service upon entity's registered agent or company officer -Substituted service -Service by certified mail/publication in newspaper

Pre-Trial, Trial and Post-Trial Motions

-Pre-trial motions include motions in limine (e.g., motion to exclude evidence due to unqualified expert or unfairly prejudicial evidence) -Trial and Post-Trial motions may include: > Mistrial (injustice, overwhelming prejudice, deadlocked jury) > Directed verdict (weight of evidence leads to only one reasonable conclusion) > Motion for new trial > Judgment notwithstanding the verdict (JNOV) > Remittitur (D's request for judge to reduce the amount of damages the jury recommended; very common)

Structure of U.S. Judicial Branch

-U.S. District Courts and State Trial Courts are courts of "unlimited jurisdiction." -Under umbrella of unlimited jurisdiction courts, "*limited jurisdiction*" courts exist: >*e.g., Federal*: U.S. Tax Court, Bankruptcy Court, Veteran Claims Court >*e.g., State*: Traffic Court, Family Law Court, Probate Court, Small Claims Court -Appellate Courts decide questions of *law, not fact.*

Trespass to Land (intentional tort)

1. *Intentional* - Intent required for liability is simply the intent to be on the land, not the intent to trepass 2. *Physical intrusion* - e.g., Enters land, throws object on land, remains on Ps land after lease expires 3. *Upon another's real property* - includes air above & soil below to RX distance

Intentional Infliction of Emotional Distress (intentional tort)

1. *Extreme and Outrageous Conduct* - Restatement (Second) of Torts: "beyond all possible bounds of decency"; "utterly intolerable in a civilized community" - ✭✭✭ *Hallmarks of Outrageousness*: • (i) in public; • (ii) continuous or repetitive; • (iii) member of fragile class (e.g., pregnant, children, elderly); & • (iv) special relationship (e.g., employers, innkeeper, common carrier (taxi / bus driver), police officer, clergy, principal) 2. *Intentionally or Recklessly* 3. *Causing Severe Emotional Distress* -so severe that no RX person could be expected to endure it (Examples: PC#6/Durham v. McDonald's)

Subject matter jurisdiction

-refers to a court's authority to hear a particular type of dispute -in State Courts, it is a "common-sense" analysis (e.g., you can't get divorced in small claims court or evict your roommate at the California Supreme Court). -In Federal Courts, subject matter jurisdiction is more limited... -->Two Types of Federal Subject Matter Jurisdiction (1) *Diversity jurisdiction* (2) *Federal question jurisdiction*

Private Nuisance (intentional tort)

1. *Substantial and unRX* - UnRX = Harm outweighs utility of D's conduct OR unfair for P to bear burden of harm w/o compensation - The more commercial the neighborhood, less likely = unRX 2. *Intentional interference* 3. *With P's use and enjoyment of P's land* - Nonphysical invasion of property

Assault (intentional tort)

1. *intentionally* - Necessary intent is same as battery --(i) intent to cause harmful or offensive contact or (ii) intense to cause apprehension that such contact is imminent 2. *causing a person RX apprehension* or fear something bad will happen - words + acts (words alone not enough) - must be aware of act - irrelevant whether contact occurs (i.e., an incomplete battery) 3. *of imminent battery* - about to happen - examples: clenched fist walking towards plaintiff vs "schoolyard bully" with after school threat

Defenses to Intentional Torts

1. Consent - Express or Implied >No defense if D "exceeds scope of consent" (e.g.,EvanderHolyfieldv.MikeTyson 2. Self-Defense 3. Defense of Others 4. Defense of Property - RX force is key ✭✭✭5. Shopkeeper's / Merchant's Privilege ✭✭✭6. Truth (Defamation only) 7. Absolute & Conditional Privileges (Defamation only)

False Imprisonment (intentional tort)

1. intentional *confinement* of a person - Effectively keeping P within a circle of D's creation • Fact-specific: Confinement of young athlete v. senior citizen - Confinement must be "*complete"* - No liability if there is RX means of escape > P must make a RX attempt to test confinement; subjective believe is insufficient 2. for an *applicable* time - generally, P must be aware of confinement --> *Conditional Privilege* (a.k.a. "Shopkeeper's Privilege") - D Shopkeeper must act with: • (i) *RX cause*; • (ii) in a *RX manner*; and • (iii) for a *RX time* > must detain P no longer than necessary

1. Duty of Care (element of negligence)✭✭✭

2 questions to answer: *1. DID THE D OWE P A DUTY OF CARE?* --> *D owes a duty of care to any foreseeable P* > *The Judge* decides whether there exists a duty of care > Courts use concept of duty to express policy that P is entitled to protection in a particular situation > Courts also use duty to limit otherwise potentially infinite liability - Who could foreseeably be hurt by D's actions? > Interpreted broadly by Judge... - Statute can dictate whether duty is owed... - Protection of Lawful Commerce in Arms Act (PLCAA - 2005) - Dram Shop Act • Knighten v. Sam's Parking Valet (Cal. 1998) • Stephenson v. Universal Metrics (Wis. 2002) - Duty to Rescue - Good Samaritan Law - Verdugo v. Target Corp. (Cal. 2014)) *2. IF SO, WHAT IS THE APPLICABLE STANDARD OF CARE?* --> *Generally, the D must act with "reasonable care"* (i.e., D must act as reasonable person in the same or similar circumstances). - T.A.R.P. in D's position (objective) > physical vs. mental characteristics > children > emergencies

Tort

A tort is a civil wrong, other than a breach of a contract > Tort v. Crime > Purpose of tort law -->Remedies 1. *Compensatory damages* > Special Damages (e.g., loss of earnings, property damage and medical expenses) > General Damages: "Pain and Suffering" 2. *Punitive damages* - awarded in addition to actual damages in certain circumstances

3. Causation (element of negligence)

Causation link between the alleged misconduct and the injury requires: *1. ACTUAL CAUSE*✭✭✭ - Plaintiff would not have been injured *BUT FOR* Defendant's breach of duty (act or omission); and *2. PROXIMATE CAUSE*✭✭✭ - Plaintiff's injury was the *natural and probable consequence* of Defendant's breach of duty > If latter event is foreseeable, D is liable. > If latter event is unforeseeable, the cause will absolve D from liability.

Defenses to Negligence

Defendants have 2 key defenses to negligence claims: 1. *Comparative Negligence* 2. *Assumption of Risk*

Assumption of Risk (defense to negligence)

P's *voluntary consent* to *known danger* - *IMPLIED* Assumption of Risk - *EXPRESS* Assumption of Risk > *Exculpatory clause*: P expressly assumes risk of injury by a contract term that may relieve D of a duty of care otherwise owed to P.

Comparative Negligence (defense to negligence)

Plaintiff's recovery reduced (or possibly barred) by the negligence of Plaintiff or others --> *Pure v. Mixed Comparative System* ✭✭✭ - Under a *PURE SYSTEM*, courts apply the formula regardless of the plaitiff's and the defendant's percentage shares of the negligence - Under a *MIXED SYSTEM*, the formula operates only when the defendant's share of the negligence is greater than (or, in some states, greater than or equal to) 50 percent --> comparative negligence formula is: *Plaintiff's recovery = Defendant's percentage share of the negligence causing the injury × Plaintiff's proven damages* (ex. Assume that Dunne negligently injures Porter and that Porter suffers $100,000 in damages. A jury determines that Dunne was 80 percent at fault and Porter 20 percent at fault. Under comparative negligence, Porter would recover $80,000 from Dunne.) - $80,000 comes from Dunne's 80% in damages x $100,000 in damages (e.g., Cabral v. Ralph's (p. 225); Currie v. Chevron (p. 231)3

Non-Contract Obligations

Sometimes the law enforces an obligation to pay for certain losses or benefits even in the absence of mutual agreement and exchange of value; the court then applies: *QUASI-CONTRACT* - avoids unjust enrichment *PROMISSORY ESTOPPEL* - protects reliance

Public Figure Plaintiff Cases✭✭✭

The Court mandated that such *a [public figure] plaintiff prove actual malice by clear and convincing evidence*. Individual persons or corporations are public figures if they either (1) are well known to large segments of society through their own voluntary efforts, or (2) have voluntarily placed themselves, in the words of the Supreme Court, at "the forefront of a particular public controversy." *he or she must prove not only the usual elements of defamation but also a First Amendment-based fault requirement known as actual malice* *actual malice* knowledge of falsity or reckless disregard for the truth.

What is jurisdiction?

The United States has 52 court systems—a federal system plus a system for each state and the District of Columbia. This section describes the various types of state courts. It also considers the important subject of *jurisdiction*, something a court must have if its decision in a case is to be binding on the parties. - the official power to make legal decisions and judgments

Predominant Factor Test

Use the predominant factor test (aka predominant purpose test) to determine what law applies. *Predominant Factor Test (4 Factors)* 1. Language of Parties' K; 2. Nature of Business of the Supplier of Goods/Services; 3. Reason the Parties Entered into K; and 4. RespectiveAmountsCharged

Comparative Fault (defense to negligence)

trier of fact collectively determines P's and D's relative shares of "fault" (including both comparative negligence and implied assumption of risk) that caused P's injuries.

Intentional Torts

✭✭✭ (1) Battery (2) Assault (3) Intentional Infliction of Emotional Distress (4) False Imprisonment (5) Trespass to Real Property (6) Private Nuisance (7) Conversion (8) Trespass to Chattels (Personal Property) -->ABC-FITTP (assault, battery, conversion, false imprisonment, intentional infliction of emotion distress, trespass to real property, trespass to chattels or personal property, private nuisance) don't need to know: (9) Defamation (10) Invasion of Privacy

Contract Classifications

✭✭✭ *1. Bilateral vs Unilateral K* *2. Valid vs Unenforceable K* *3. Void vs Voidable K* *4. Express vs Implied K* *5. Executed vs Executory K*