Law Exam
Lecture Notes Week 7
Law & Policy Chris Beck
Lecture Notes October 11, 2016
Overview Notes
How law is passed and looking at any road bumps that are encountered
What challenges face federal critical infrastructure with implementation of cybersecurity policy?
Lecture Notes: Education Law
Constitutional Law; what’s going on now; certain cases
Brown v Board of Education 347 U.S. 483
Ended the segregation and set up the start of the civil rights movement regarding
Overturning the former case of Plessy v Ferguson
Separate but equal with public facilities claiming that it was deemed constitution with equal protection clause
Oliver brown was the main plaintiff with the case
Daughter needed to be bused long distances
Kansas City Law with segregation with educational facilities for children
Overturned the Plessy v Ferguson ruling with the Brown v Board of Education
Infringement of the Fourteenth Amendment Equal Protection Clause
The segregation of races regardless of equal facilities—the segregation had a detrimental effect upon the children
Looking at the integration of the children with education
Equal Protection Clause of the Fourteenth Amendment
Equal Protection Clause
Due Process (Procedural Due Process)
Every time the government is involved everything needs to be fair across the board
Plessy v Ferguson was even innovative for the time
With Religion the government can only go in and do something if it meets the test of the Equal Protection Clause it is under high scrutiny due to the test that can never be met—you need the compelling reason as to why the court or government is getting involved
California Civil Procedure
Courts in California
Highest Trial Court in the State of California—Superior Court is our highest trial court and every court after that is the appellate
Supreme court is has one chief justice and 6 associate justices
They get to choose what they hear
This is the same with the lower level appellate courts and lower level trial courts
THEY MUST REVIEW EVERY CASE WHERE THE DEATH PENALTY HAS BEEN OPPOSED
Appellate Districts
6 districts for the Appellate Court
Then we have 8 districts within the districts
1st District (A)
2nd District (B)
3rd District (C)
4th District (D, E, G)
San Diego (located in) jurisdiction over matters from Imperial and San Diego Counties
Riverside and has jurisdiction from Inyo, Riverside, and San Bernardino Counties
Santa Ana jurisdiction over matters from Orange County
5th District (F)
6th District (H)
Appellate Courts
Federal Courts have limited jurisdiction and they can only hear certain cases
Federal question jurisdiction
Diversity jurisdiction
The plaintiff or plaintiffs or defendants live in different states and the amount they are suing over is over $75,000
Plaintiffs want to be in state court Defendants want to be in state courts
State Civil Court more complicated
The Federal Rules of Federal Procedures in courts (75 rules)
Much more clear cut and structured
Compared to state and civil court is messy
Discovery
In federal court the amount of discovery you can do is very little
The amount of depositions you can do is 10 statutorily and they cannot exceed 7 hours
Plaintiff’s attorney’s will try to bleed their fees out
7 hours to get your deposition
State law at the end of your notice of telling someone that you are doing a deposition then you can let them do it for multiple days for however many hours
Your fees are much more state courts
Plaintiffs you have the bleed them dry option in state courts
Law Suit
Must submit a claim within 6 months with government cases
Statute of limitations must submit a claim to the government claim within 6 months upon denial you can sue
The rest of them have a statute of limitations—how long after something happens can you file a suit before you can’t do anything
The reason would be evidence starts to diminish relatively quickly
Eye witnesses begin to forget
Document retention policies aren’t strong enough
They aren’t based upon the propensity for evidence to disappear
Statute of Limitations—based upon the gravity of the crime not the propensity of the evidence to disappear
TEST: Statute of Limitations issue for a lawsuit—these are the three things you are looking for
Which Statute of Limitations applies (what is the tort you are suing for)
When does the action accrue
Are there anything tolling provisions
Tolling—pausing
Common statute of limitations
Must file for personal injury or wrongful death within 2 years
Written contracts 4 years
Oral contracts are 2 years
Legal malpractice is 1 year
Government 6 months
Libel and slander are 1 year
After the civil suit—the judgment
A money judgment statute of limitations is 10 years—you must collect or enforce your judgment within 10 years you can request the extension but without that the money will disappear
When does the action accrue
When did it happen
When was it discovered or should have been discovered
Are there anything tolling provisions
Did anything pause the statute of limitations
If you were a minor the statute of limitations wouldn’t begin until you were 18
Incarceration
Lack of capacity—doesn’t begin starting again until the person regains capacity again
The largest one you will find is when someone is under age of majority (?) check oral recording
When signing the contract you should assume that if a statute of limitations exists then they will be try to push you quickly through it (?) check notes
You can lengthen a statute of limitations (running rule) cannot extend longer than 4 years than the original statute of limitations is
California Courts
Subject matter jurisdiction
Court Case—General jurisdiction
Based upon subject matter
Unlimited cases amount sued for is over $25,000
They will give you free reign to run and litigate your case
Limited court cases where the amount is under $25,000
We have a back log of cases and a majority of our cases are dealing with over $25,000 then they will expedite the case and the discovery is limited—you can do less
Small claims $10,000 or less
If you are business small claims is $5,000 or less
Personal jurisdiction
Concerns: The ability of a state court to enter a binding judgment of the defendant
Example: if a California citizen gets into an accident in mexico
Courts can hear cases as long as the plaintiff resides in the state of California during the time of the accident
If the plaintiff has personally served in the state of California to the defendant and the defendant was in the state of California
To get them personally served while in the state of California this also counts if they are flying in a plane over the state of California
If a person consents to the California jurisdiction
This arises in contracts cases
If you serve the case to your defendant and the plaintiff files their papers then they no longer deal with jurisdiction
When a person has minimal/medium (?) contracts with the foreign state means that they can expect to be hailed into court there
If a person sells shoes primarily in London but the main factor of their shoes is in state of Washington
If you have dealing with the certain state and then they can pull you into court
Internet is where this issue arises—if you are doing business on the internet then you can be sued in any court
Serving the defendant personally in the state of California
We are primarily talking about the defendant not the plaintiff because the plaintiff has already submitted the court’s jurisdiction because everything regarding the plaintiff they have already filed and submitted to the jurisdiction of the court
If the defendant then you go the other way around
Serving or being processed
Personal service—the absolute preferred method the personal who served it will file the action to the court and file an affidavit saying that you served it and that you are a 3rd party to the suits
You at least have the liability of serving your suit
Cost of legal expenses is the biggest liability for anything
To be able to serve someone: the person serving someone
Over the age of 18
Not a party to the case
TEST
Example: Divorce Case Mom is going to serve Dad and she can have the kid do it because their name isn’t on the suit if the child is over 18
Other ways to serve something—some documents require personal service
Substitute service—a person of reasonable intellectual age goes to a place to serve a person
File a declaration of due diligence
Good faith—reason to believe that you serve the right place, person, etc.
You served this person
Over the age of 18 and not a party to the case
Can mail some—proof of service is kept with the document
Serving by mail—a notice of taking deposition
In California deposition must give 10 days before deposition and if by mail 15 days prior to the date of deposition
If you are filing a motion to have your case dismissed—requires the personal service, substitute service, or service by mail with a receipt of acknowledgement or note of acknowledgement of receipt
Service by publication—serving someone by publishing it in a periodical or circular that is reasonable for a person to read (belief that the person would read this)
Daily journal
Other newspapers that have regular circulation where the person resides
Example: wife suing for the divorce—has the property, money, etc. entangled and all the documents prepared
If the father is out of the state and avoiding the
You can serve them by any means allowed by the state they are in if you live in California
Must make 3 attempts at places you know he will be
In that situation then you would serve by publication
Need a court order for a service by publication
Called an over the counter court order—you don’t need to actually go into the court house to get the court order
Just recently allowed with twitter, email, service by posting (property-real estate, relief to post it and throw a certified copy in the mail and a post it on the door)
TEST defendants outside the state of California
You can serve a person by any method allowed in that state
If California requires personal service but if the person is in Florida then you can serve them in any way that is legal in that state
Must say in your law suit that you live in a certain area that has jurisdiction with this court hence the suit
Where to file your action (Venue)
The actual county where you are going to file
It changes depending upon the case
Your venue and jurisdiction with family law cases are 3 months for city and 6 months for county
VENUE: refers to the county where the action may be filed
Gives defendant somewhat control over where the case is filed
General Rule:
Contracts Case:
Venue is proper in the county where any of the defendants reside at the commencement of the action
If the defendant does not reside in California you can file in any county
Example: contracts case
The venue is proper in the county where the contract entered is breached, entered, or where the contact was to be performed
You can always agree to venue in advance for contracts
Personal Injury or Wrongful Death
Venue is proper in the county where the injury occurred
Corporate Defendants
Most fluid you can get them just about anywhere
Where the contracts was to be made, minimum contacts, where it was breached, performed, entered,
Government Entities: MANDATORY in the county where the injury occurred
The defendant has been served, jurisdiction over the defendant, but before the defendant responds to your case they can file for removal to get your case to federal court
Federal removal essentially says that federal court is better, want it to be moved there, etc.
They want it to have either a federal question or diversity of parties
You need to look to see if a removal is allowed after the venue has been filed
Pleadings: legal papers, things that are filed with the court
Complaint/Summons
If you are suing someone you filing a complaint
In every case you are filing or serve a summons
First thing you are saying is who the parties are, why jurisdiction is proper, why venue is proper—pleading the essential facts/arguments of the case
Included in every complaint: a statement of facts, who is involved, why jurisdiction, identifies the action
DOES 1-10 is 10 people you don’t know yet
Gives you the real opportunity to make sure that the right people are sued
Form Complaint
Judicial count
Name of the party
Action is limited civil cases that it does not exceed 10,000 dollars
Names
Pleading complaint over the unlawful detainer
Vs. another one is failure to pay rent
Custom Complaint is better unless it is simply just a person who isn’t paying rent for example
Inside the complaint you are alleging certain facts
Certain things need to be there to have a claim:
Go to Form Jury Instructions
And make sure you have this
DEMURRER—filing
All the facts in the claim are true and why it shouldn’t be in court
Rarely kick out any entire case
For example 6 things causes of actions on the complaint
3 are going to be thrown out
3 causes of actions will be on the complaint
Without prejudice you can amend your complaint until the opposing side responds to your complain then you can file your first amended complaint
Until you reach your complaint with prejudice with the court
First one is free, second one you have to file relief and request to do so
Statute of limitations as long you have it in your initial request then you wont exceed your statute of limitation
After a complaint then there is a cross complaint
Plaintiff and defendant both are suing each other
PD
DP
Compulsory Counter Claims if you get into a car accident then a person sues you for this you have to sue the person
Built out of the same controversy (same controversy that gave rise to it, same event, same cause of action, same situation that this came out of example: car accident)
Necessitates the compulsory counter claim
Permissive counter claim: you get into a car accident with another and you had a breach of contract on the side lets try this all at once
DEMURRER: 2 types
General: you have nothing here you can’t sue us
Specific: very specifically says that you don’t have jurisdiction over me
When you file a motion for a specific demurrer you are making a special appearance and this is not the general appearance required to submit to the jurisdiction to your court
Motion for judgment on the pleadings: the demurrer that happens after the answer on the complaint of the file
Motion to strike
Paper one: if there is a complaint and then what you say that is extremely slanderous, defamation, libelous and then you would file this
You would strike punitive damages very rarely successful—the most common place to strike a motion is one of punitive damages
Oral motion to strike: you move to strike once a person goes beyond
Punitive damages is for willful, malicious
Slap motion: lawsuits that are filed
If you file a slap motion then you file this for example with anti-slap motion if you say something about the university then you file a suit claiming that it bridges upon your freedom of speech
It is a strategic lawsuit against public participation
Anti-strategic lawsuits against public participation—a motion used to stop people from doing it
Also a slap back motion exists
Whenever the government is involved and whenever they could be abridging your freedom of speech without the reason to do so then you would file a slap motion or anti-slap motion
Pleadings:
Complaint/Summons
Motions
Answer
Answer: for each and every cause in a complaint you have to give an answer either admit it or deny it you will see a few admissions in the beginning admitting that they live there, do business there, etc. then you see denials for the rest of it
They must plead their defense here—if they don’t plead their defense here then they lose their ability to defend
30 days after they were served is when this is due
Unless otherwise noted the answer is due within 30 days TEST
Discovery
The part of the case where you price out everybody
TEST: the formal exchange of information between both sides of the lawsuit
In CA you can ask for in discover is different than information you can request for in court
In court you can only ask and present relevant evidence
In the discovery you can request anything reasonably that could lead you to find relevant evidence
Tools for Discovery:
Production of documents
Interrogatories
Written deposition
Questions:
Please list your insurance company
Any and all facts that you can remember
All the witnesses in your car
In CA its 35 and you can just request more by just filing with the state
Deposition: an out of court examination similar to what you would have in court
You would do this to hear what the other attorney do and to object through depositions because it shows your position in the case
You can ask almost anything you want
This is where you settle the case
The facts lay on the table, all the facts are recorded, there is a settlement discussion
Heard you at the deposition example you said you were gong 45 mph and then in court 25 mph
Admissions
Admit you were going 45 mph
Physical exams
You can file a motion within reason for physical exam and when you are requesting injuries
Subpoenas: a court order to do something (a court order to show up, give a certain document, etc.)
Show up to a hearing, deposition, or for certain records
Other than a subpoena all the others are a request
At the deposition the attorney objects to put it on record
Other privileges:
Doctor patient
Attorney client
Clergy and confessional
Rape counselor and victim
Can NEVER bring up during court discussions during settlement negotiations—no one would say anything at settlement discussions if this was able to be used in court—during these discussions all this is put on the table
Summary Judgment: no genuine dispute of material fact and you are entitled to a judgment as a matter of law
Used by defense a majority of the time
You go through discovery
If you don’t file for this even if you have no chance of getting this then you are committing malpractice
You should always be filing for this judgment and that
Grand Jury: have full subpoena power 3 people on it and then they can choose to hear any case
Federal Courts
If there is a federal question
Diversity jurisdiction
Bankruptcy courts
Treaties between countries
Limited jurisdiction
In Class Argument: Church providing Services the Religious Land Use
