Law Exam

Review for Final

• Lemon law/test

• Comprehensive

• 10 amendments

• Will bring in questions again

Essay:

• Rule

• Application

• Conclusion

• Decent size portion of the test

• Tort side: assault, battery,

• Now: strict liability, vicarious liability

  • When a superior is responsible

Torts and Crimes

• Crimes are things that you prosecute for

• Torts are things that you sue for

• They can be the same

• You are going to be suing for a tort arresting for a crime

• In a criminal court you don’t get to choose to press charges

• The biggest element of civil law and civil liability these are the biggest

  • Duty

  • Breach

  • Causation

Torts or crimes

• Assault placing someone in

• Battery the unlawful touching of another

• Burglary the unlawful entry of a person

• Robbery the unlawful taking of a person by force or fear

• Homicide unlawful killing of another with malice or forethought

• Felony murder rule while in the commission of a felony that results in the unlawful death of another

Stare Decisis

Supreme Court Justices:

1. Stephen Breyer

2. Proposed candidate by current administration

3. Ginsburg

4. Kagen

5. Sotomayer

6. Thomas

7. Kennedy

Bill of rights:

Know all of them

Marbury vs. Madison

• Established the theory of judicial review

Free speech: expression without constraint;

Libel—written defamation slander—spoken defamation the absolute defense to any defamation is

NEAR v Minnesota

Government can’t restrict expression or speech unless under certain circumstances

New York Times Co v United States

New York Times Co v Sullivan: the public official needs to show that the person acted with actual malice against them

Actual malice: the knowing and reckless disregard of the truth

Limited Issue Public official

14th amendment applies the bill of rights to the states

Equal protection

Applies these to the states

Schenck v Ohio

Clear and Present Danger Test—at what point freedom of speech is no longer protected

Broad v Brandenburg Test—imminent lawlessness test

Obscenity: Justice Potter Stuart “I don’t know what obscenity is but I know it when I see it”

Rule espoused: the Miller v California case

Our standing test for obscenity nothing is found to be obscene other than child pornography, beastiality,

Shield laws

Trademarks: protect a mark something that identifies you a logo

Patents: protect new novel idea

Copyrights: protect new works you created, poem, song, etc.

4th amendment free speech

Roe v Wade—the right to privacy with abortion up to a certain point

The California Supreme Court explicitly grants privacy

Federal Law: employers cannot discriminate under these major 11

1. Race

2. Sex

3. Pregnancy

4. Religion

5. Age

6. National origin

7. Disability

8. Military service or affiliation (if you have been in active combat)

9. Genetic information

10. Bankruptcy

11. Citizenry status

Civil Rights Rules apply to the federal government

The way they are applied to the states and adopt these rules are through their police powers which they can use for health public safety etc.

The courts have found that the state’s use of their police powers to adopt civil rights are infallible

No discrimination age over 40

Section 504: first expanded the right of a reasonable accommodation

Know how a disability is defined according to ADA

Miranda:

You have the right to remain silent

Anything you say can and will be used against you in a court of law

You have the right to an attorney

If you cannot afford an attorney one will be assigned to you

Do you understand these rights that I have thus far stated do you wish to waive your rights and talk to me

Establishment clause:

Know the expressed right according to religion with the first amendment

Free exercise clause

Establishment clause is the big one as being an individual who works as a public official impeding upon a person’s rights

No national religion, no national establishment against a religion, no discrimination against a

Lemon test: secular purpose, do not foster an extensive entanglement with the government and religion, if they are favoring a religion

RLUIPA

BROWN ACT: California’s open meeting law

The public comment

The public has to be allowed to comment as long as the item is on the agenda or per view

Unless the subcommittee is held prior to the public

California Public Records

In California if you are going to sue a government entity you have to set forth a claim to the government entity you must file a claim to the government entity within 6 months of the original date of the injury

Civil Procedure:

• Supreme Court for the State of California reviews every single death penalty case

• Statute of Limitations looked at before filing a lawsuite

  • Goal cases brought timely manner and decay of evidence

• Statute of Limitations: looking at which ones applies

  • When looking at lawsuits

• Which statute of limitation apply

• When did the action accrue

• Are there any tolling provisions (pauses on statute of limitations)

• Plaintiffs like to sue in state court

  • You can build your fees up through the roof and pressures the other side to settle

• Defendants lie to sue in federal court

  • You have more time

• Before a court can hear a case:

  • Subject matter jurisdiction: they have the granted ability to hear that kind of case

  • Courts in the state of California are those of general jurisdiction

  • Personal jurisdiction: the state court has the ability to make orders relating to a defendant

  • Ways to make sure the state of California

    • If the defendant resides in California

    • Here with the intent to remain (resides)

    • Will be served while in California

    • Consents to California jurisdiction

    • If defendant has made a general appearance before the court

    • If the defendant has had minimal dealings with the state so that their actions could be reasonable to

• Plaintiff chooses the court so they are submitting to personal jurisidiction

• Service of process: how you notify a defendant of a lawsuit

  • Who can serve someone: over age of 18 not a party to a case

  • Ways to serve someone in California: personal service, serve by mail, outside California you can serve under the state laws

• Venue is proper in any county where the contract is entered into breached or was to be performed

• Where the plaintiff resides

• In the county where the injury occurred

• Government entities mandatory where the injury occurred

• You can amend your complaint one time and after that you have to ask the court permission!!!!

• If you cross complain

  • Counter claim

• If you are suing about a contract if you don’t counter claim you lose the ability to do so

• Striking malicious comments

  • Striking with unrelated

  • The most common thing to strike is to strike punitive damages

• Slap action: if the person is what they are suing for is concerning free speech if they are then it thrown out

• Slap back motion if they say that what they are doing is

• Any time a person sues for defamation the person will sue with a slap back motion

• If it is not a government actor it is not a civil rights case

• Anti slap if speech or freedom of speech can be used

• Deposition what you need

• Deposition: sitting in a room with a court reporter with all the attorneys in the room

• Interrogatories: written deposition where you right it all out and then

• Evidence code 1152 nothing said during settlement negotiations can be used against you at trial

• Default motion locks a person out of a case

• Section 473 must show that there was inadvertence or mistake that was inexcusable

• If you do not answer within 30 days then you have a default against you

• Civil code 473 to attempt to set the default aside

Warrants:

• Warrantless search and seizures

• Demonstrate probable clause

• Issued by a detached party

• Signed

• Plea particularity

  • Describe who you want and what you want particularly

• Custodial arrest, arrest must be lawful, search must be done contemporaneously, if you are not handcuffed you can search the car

• The searches for an arrestee

  • Valid arrest warrant

  • Probable cause that the person is reasonably there

  • If you are looking for an individual the finite scope is where the person is reasonably capable of being

• Exigent circumstances

  • Demonstrate probable cause

  • You had to do it right then and there or else the purposes of getting that warrant are no longer useful

• Searches of cars

  • You don’t need a warrant

  • Need probable cause

    • Has contraband or evidence of a crime

  • If the car is there, on a road it would operate on, capable of operating

  • Here you have an exception

• Plainview doctrine (3 elements!!)

  • If you are in a place and see something you can seize it

  • You must observe it from a lawful vantage

  • You must have a right to physical access to it

  • The nature of the object being subject to seizure must be immediately apparent

• Inventory contents of the car and yourself for the public policy purpose of inventorying your items

• Consent searches:

  • Necessity of actual consent

    • Don’t need explicit permission

    • A person’s actions can be enough

  • Voluntariness requirement

    • You can use a ruse (soft white lie)

    • Can’t lie to them or put undue pressure on them—must be voluntary or else it is thrown out under the fruit of the poisonous tree doctrine

  • Apparent authority doctrine

    • If it is reasonable for the police officers to rely upon an individual giving consent to search a residence regardless of whether or not they live there

• 6th amendment

• Difference 6th amendment does not attach until formal charges of adversarial proceedings

• 5th amendment prior to formal charges

• Once you ask for an attorney under the 6th amendment all questioning stops

• You can withdraw that

• People can question you about a completely unrelated crime about that which you invoked your right to counsel

• Confrontation clause

  • You have the right to confront the witness

  • If the statements are non-testimonial then the 911 tape can be used against you

• Hearsay

  • Rule in general hearsay is an out of court statement offered for the matter of the issue asserted

  • It is given to provide the proof of the statement

Vicarious liability:

• When you are liable for the tortious acts of another

Respondeat superior:

• Employers are responsible for their employees

• Negligent in either hiring or training

• At what point is the employer still responsible for the employees

• Mere deviation doctrine—even if they have made a mere deviation of their work

• You are not responsible if they have abandoned their duties and then committed their tortious act

• At the point when a person has abandoned their job duties the employer is no longer responsible

Strict liability: when you are engaged in an activity so inherently dangerous that liability is assumed

Strict Scrutiny—a compelling government interest (a super important reason why the government needs to do this)

Most basic and elemental rights that the government cannot violate

Intermediate scrutiny:

Rational basis test: this works here so its fine