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by: Danielle Smart
Danielle Smart
CSU Chico
GPA 2.3

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Legal Para Professional
Sally Anderson
Class Notes
para pro
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This 11 page Class Notes was uploaded by Danielle Smart on Thursday March 3, 2016. The Class Notes belongs to POLS 4550 at California State University Chico taught by Sally Anderson in Winter 2016. Since its upload, it has received 20 views. For similar materials see Legal Para Professional in Political Science at California State University Chico.

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Date Created: 03/03/16
Bill of rights and T ort Law Thursday, February 25, 2016 2:44 PM Right to a jury trial  Which amendment provides right to a civil jury trial? o 7th What is a tort?  A tort is a civil wrong beyond a breach of contract for which the law provides redress.  The law of tort focuses on the private rights of redress. Torts Focus  2 main categories 1. INTENTIONAL TORTS i. Generally committedd by a knowing party 2 Negligence i. Probably most important and heavily tested cause of action in torts 1. Did the defendant as would a reasonable prudent would Why are tort/ civil claims important?  To the individual o To be fair o we aren't responsible for what others do  To the public o Accident prevention o Holds us accountable o Spreads the cost  Responsible party pays cost of damage caused  To the legal System o Provides redress without criminal act Basic intentional torts  To the person: o BATTERY o ASSAULT o FALSE IMPRISONMENT o IIED - Intentional Infliction of Emotional Distress Negligence [CA Civil Code Section 1714(a)] Negligence Elements 1 D had legal duty Elements Restated 1 Duty -legally recognized relationship between the parties 2 Standard of care - the required level of expected conduct 3 Breach of Duty - D's act must have breached the required level of expected conduct 4 Cause-in-fact -P's harm must have the required nexus to the D's breach of duty 5 Proximate cause - There are no policy reasons to relive the D of liability 6 Damages- the P suffered a cognizable injury Why is negligence most litigated tort?  Because the elements are easily outlined but very complex. o Duty - Why? Standard of Care? Breach of duty? Cause in fact? Proximate Cause? Damage Premises Liability  An owner occupier or lessor of land and premises can be liable for dangerous conditions on the premises.  The O/O/L is under the duty to exercise ordinary care in the use or maintenance of the premises in order to avoid exposing persons to an unreasonable risk of harm. T orts Tuesday, February 23, 2016 2:25 PM Complaint Assignment Notes  Use a form complaint  Use CEB Practice Guide o o Use parker09  Type everything  Print and bring forms Torts CH 7 Pleadings Sets forth all of the issues for the case Single most important activity in litigation What are 3 principles purposes of pleadings?  Defining the issues o Plaintiffs allegations tell defendant what is being claims o Defendant's admissions or denials of the allegations tell plaintiff and the court what is in dispute o When all parties have been served and answered the case is said to be "at issue" and the parties can proceed to develop the evidence while case proceeds to trial  Serve as permanent record of the issues o Define and limit scope of discovery. o Provide guideline of the evidence to be introduced at trial; o Provide a limit to the type of recovery and amount available; o On appeal, guide the appellate court to the evidence offered on the issues that are defines in the pleadings.  Meet constitutional due process requirement by telling the defendant (& the court) what the plaintiff's claims are. o W/o this function, a defendant would not know what the claims were or how to best defend him or herself;  This would be a violation of the due process right, because it would be required to defend an action without knowing the claims that are made against him or her. o w/o this function, the court (& other parties) would have no checklist to compare plaintiffs evidence to, to see if he/she has proven their case; o Court wouldn’t know what remedy was appropriate b/c it wouldn’t know what the claims are o Claims could also continue to change as the evidence were discovered if they were not defined in the pleadings What is a Cause of action?  A ground for theory of relief - a set of facts which, under substantive law entitle a plaintiff to a right to recovery, if proven. o What are "causes of action" called in federal court?  "Claims" or "counts." o Examples of causes of action  Breach of contract  Negligence What if a cause of action set forth in the complaint is missing an essential element?  A missing essential element is a fatal defect. The court cannot provide the requested relief or allow the action to continue if no cause of action is plead.  It is important that the essential elements of a cause of action be researched, identified, and properly plead, or the cause of action and the complaint will be subject to attack.  Elements To Prove o Breach of Duty o Cause the damages Where to find elements  Law  Jury instruction What are the four types of pleading used in civil litigation practice? 1 Complaint- Pleading that contains the plaintiff's allegations and the prayer, which defines the relief he or she is seeking from the court. 2 Answer- Pleading that responds to the complaint, either admitting or denying them. 3 Demurrer-Pleading/Motion asserting the plaintiff has not properly plead a cause of action- that a cause of action is defective because it does not include an essential element, etc. a Called a motion to dismiss in federal court 2 Cross-Complaint (stat)/counterclaim (federal)- a complaint filed by a defendant, back across the "v" asserting causes of action (stat) or claims (federal) against the plaintiff Cross Complaint/Counterclaim  A cross complaint or counterclaim back is simply another complaint  And a pleading which must be responded to as if it were an original complaint. Defendant's Claims for relief Against Plaintiff  State Court o Cross Complaint o Makes the plaintiff a cross defendant  FINISH THIS SLIDE Who can sue  A "real party in interest"  The person who has the right to sue under substantive law - i.e. "Standing" Standing in a Nutshell  The constitution (generally) requires that a person/ entity actual suffer some direct and unique harm as a result of the conduct complained of. It is this requirement is not met the plaintiff will not have a legal standing to sue i.e. "lacks standing" Plaintiff must also have the legal capacity to sue and be sued  Corporation are creatures of statue. Legal "persons" who have the capacity to sue and be sued provided they have complied with statutory formalities.  Corporations that are improperly formed do not comply with statutory requirements cannot sue or defend actions in the California courts  Persons lacking capacity must be represented by a guardian ad litem, who sues on their behalf o Ex.  Minors  Incompetents Joinder  Compulsory o P Must join all persons necessary for a fair adjudication of the issues  Permissive o Anyone can join the plaintiff or be joined as a defendant if they have a claim or interest in the property or controversy, that is the subject matter. Factors for Joinder 1 Right to relief must arise out of the same transaction 2 Right to relief must be asserted by or against them jointly, severally or in the alternative. 3 Must be on question of law of fact in common to all parties. Doe Defendants  If you are not sure of proper name  Suspect additional defendants  Must make 2 allegations o P unaware of ID of DOE Relation Back Doctrine  After statue has run can then name the Doe defendants RBD allows you to relate back the does to the date the complaint was filed Drafting Allegations  Know the elements to the cause of action o Statues o Legal Theories o Court opinions o For Does the P needs to say they do not know their ID's o And they are liable in some way for the injuries suffered Allegations  Inconsistent allegations - allowed Incorporation by reference   Alleging o On or About o At or Around  Information and belief - without personal knowledge ***most important***  Pleading with particularity o Be general as long as with some particularity. Defendant needs to know what they are defending themselves against o Unless suing for fraud or malice must be specific in pleading Prayer  Check all boxes that apply  What you are asking for  How do you want the plaintiff to be made whole Subscription  Signature  Verification not always needed Rules Apply  Complaint  Cross complaint  Counterclaims  Cross-claims  Etc.


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