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law17-msj

Page history last edited by abogado 6 years, 5 months ago

Test I - Motion for Summary Judgment

 

In this exercise you will only prepare the Memorandum of Points and Authorities in support of the Motion for Summary Judgment in the Roman Catholic Bishop of San Diego Case. You are representing the Roman Catholic Church and Bishop of San Diego, and as a matter of law, you are arguing that "there are no disputed facts", and the law supports the dismissal of plaintiff's case

 

1. Read the case  

 

2. Here are the facts of the case. You take these facts, as if, the above case had never been heard and decided, and you are dealing with the case as if it were a "new case".

3. Read materials at - http://missionparalegal.pbworks.com/w/page/32154418/msj

 

3. Then use the format below to prepare your Memo of Points & Authorities

 

You will be representing the Defendant Roman Catholic Church and seeking Summary Judgment based on the Judge agreeing with you on the law, since the facts are undisputed.

 

Your points and authorities will have 6 separate and unique Points & Authorities

Point #1 - tort law - negligence - requires a violation of a "duty" - if there is no "duty" (describe why no duty in this point. The authority for this point is the Nally case (click here).


Point #2 - law on negligent hiring or retaining of an employee - there is no violation of negligent hiring here - "The principal (Church) may be negligent because it has reason to know that the agent (Omemega), because of his qualities, is likely to harm others in view of the work" - however, in our case, Church had no reason to believe.... - The authority for this point is the UNDERWRITERS INS. CO. V. PURDIE (click here)  and Restatement of Torts Section 213 - comment D (click here)


Point #3 - law on privacy rights - The priest had right to privacy to his "sexual life" and the Church would violate his privacy rights by asking him about it (Please note: this principle of law does not apply to such cases today) - the authority for this point is the - GRISWOLD V. CONNECTICUT (click here) - EISENSTADT V. BAIRD (click here)


Point #4 law on affirmative duty to protect - The Church had no affirmative duty to protect the minor. If she had been a student in their church operated school, then one could establish such a duty to protect. But she was not a student. the authority for this point is the -VIRGINIA G. V. ABC UNIFIED SCHOOL DISTRICT,  (click here)  


Point #5 - no civil duty - religious decision based on religious belief does not impose a civil duty. the priestly vow of celibacy does not create a civil duty.   There is no civil duty on the part of the priest to remain "celibate". - the authority for this point is the - Torasco v. Watkins,  (click here)  


Point #6no special duty - Nally case   - The authority for this point is the Nally case (click here).


Use the following format: under Point & Authority #1 - remove the instruction paragraphs

 

MEMORANDUM OF POINTS & AUTHORITIES

 

STATUTORY BASIS FOR A MOTION FOR SUMMARY JUDGMENT

 

If the plaintiff fails to establish there is a triable issue of material fact on any of their causes of action, the defendant is entitled to summary judgment as a matter of law. (Code Civ. Proc. 437c, subd. (o)(2); Transamerica Occidental Life Ins. Co. v. State Bd- of Equalization (1991) 232 Cal.App.3d 1048, 1053 [284 Cal.Rptr. 9].)


Format to follow for each Point and Authority

 

Point & Authority # 1(example of how you do a point and authority)

#1 - state the legal principle
#2 - state the legal authority
#3 - give short statement of the law under the legal principle (i.e. a "mini brief - just a sentence of two)
#4 - show how the legal principle in #3 applies to the case at hand (Roman Catholic Church of San Diego)

see below how to do the 1st Point and Authority:

1. State the general legal principle (instructions only) - aka the "Point"

 

The Roman Catholic Church is not liable for the actions of another and is under no duty to protect another from harm in the absence of a special relationship of custody or control.

 

2. State the Legal authority (instructions only) - aka the "Authority"

 

NALLY vs. GRACE VS. COMMUNITY CHURCH. 5 WITKIN~ SUMMARY OF CAL. LAW (9th Ed 1988) TORTS, 6, p-61), RODRIGUEZ V. INGLEWOOD

 

3. (instructions only) State the Facts of the Nally Case (in general) - see case at http://duedates.pbwiki.com/nally

 

In the Nally case the facts which are similar to our case are as follows: .....

 

4. (instructions only) State the facts in our case (Roman Catholic case) and draw the conclusion of why the Nally case dictates the same result in the Roman Catholic case.

 

In our case, the facts are ..... and therefore the legal principle of the Nally case applies in support of our motion for summary judgment.

This is how the point and authority would look


        The Roman Catholic Church is not liable for the actions of another and is under no duty to protect
        another from harm in the absence of a special relationship of custody or control.

        Nally v. Grace Community Church - 47 Cal.3d 278 (1988)

In the Nally case, Nally engaged in formal and informal counseling with three of Grace's biblical counselors. Nally's emotional state continued to deteriorate and, in February 1979, his mother took him to a psychiatrist who prescribed an antidepressant medication. The next month, Ken attempted suicide by taking an overdose of the antidepressant and was hospitalized. Although the counselors from Grace Church were aware that this was not Nally's first suicide attempt and although he told them, during his hospitalization, that he was determined to succeed in a future attempt, they did not share this information with his parents, physicians, or the hospital staff. Nally's parents did not support having their son involuntarily committed and Ken was released from the hospital. About a week later, Nally used a shotgun to take his own life.  The ruled  that the Church and its pastoral counselors had established no "special relationship" with Ken Nally and thus had no "legal duty" that would render it responsible for his death

In our case, similarly, the Roman Catholic Church had no prior knowledge or reason to know the priest was a risk to engage in a sexual relationship with a minor.  Also the Church had neither prior notice of the priest's unfitness nor a duty in the employment context to investigate the priest's sexual conduct.  Therefore there was no "duty" and no "breach of duty" and therefore no negligence.


Use the following supporting law for your points and authorities

 

Point # 1 - tort law principles

 

SUPPORTING LAW:

 

NALLY vs. GRACE VS. COMMUNITY CHURCH. 5 WITKIN~ SUMMARY OF CAL. IAW (9th Ed 1988) TORTS, 6, p-61), RODRIGUEZ V. INGLEWOOD

 

A tort involves a violation of a legal duty, imposed by statute, contract or otherwise, owed by the defendant to the person injured. Without such a duty, any injury is an injury without wrong. (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, 6, p. 61.) A person is ordinarily not liable for the actions of another and is under no duty to protect another from harm, in the absence of a special relationship of custody or control. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 293 [253 Cal.Rptr. 97, 763 P.2d 9481.) Where, as here, a "complaint alleges injuries resulting from the criminal acts of third persons ... 'the common law, reluctant to impose liability for nonfeasance, generally does not impose a duty upon a defendant to control the conduct of another citations, or to warn of such conduct citations, unless the defendant stands in some special relationship either to the person whose conduct needs to be controlled, or to the foreseeable victim of such conduct. [Citations.]' " (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 712 [230 Cal.Rptr. 823].)


 

Point # 2 - law on negligent hiring or retaining of an employee

 

SUPPORTING LAW:

 

UNDERWRITERS INS. CO. V. PURDIE, RESTATEMENT OF AGENCY SECTION 213, com. D.

 

An employer may be liable to a third person for the employer's negligence in hiring or retaining an employee who is incompetent or unfit. (Underwriters Ins. Co. v. Purdic, supra, 145 Cal.App.3d 57, 69.) The rule of direct employer liability under the Restatement Second of Agency section 213 is: "A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless .... (b) in the employment of improper persons or instrumentalities in work involving risk of harm to others As explained in comment d: "The principal may be negligent because he has reason to know that the agent, because of his qualities, is likely to harm others in view of the work or instrumentalities entrusted to him. If the dangerous quality of the agent causes harm, the principal may be liable under the rule that one initiating conduct having an undue tendency to cause harm is liable therefore.. An agent may be incompetent because of his reckless or vicious disposition, and if a principal, without exercising due care in selection, employs a vicious person to do an act which necessarily brings him in contact with others while in the performance of a duty, he is subject to liability for harm caused by the vicious propensity... One who employs another to act for him is not liable merely because the one employed is incompetent, vicious, or careless. If liability results it is because, under the circumstances, the employer has not taken the care which a prudent man would take in selecting the person for the business in hand .... Liability results not because of the relation of the parties, but because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment (Rest.2d Agency, supra, 213, com. d., italics added.)


 

Point #3 - law on privacy rights

 

SUPPORTING LAW:

 

GRISWOLD V. CONNECTICUT,  EISENSTADT V. BAIRD,  FULTS V. SUPERIOR COURT,  COIT DRAPERY CLEANERS V. SEQUOIA,  KEES V.,MEDICAL BOARD

 

Privacy is a fundamental liberty implicitly guaranteed by the federal Constitution (see Griswold v. Connecticut (1965) 381 U.S. 479, 484-486 [14 L.Ed.2d 510, 514-516, 85 S.Ct. 16781) and is explicitly guaranteed under the California Constitution as an inalienable right. (Cal. Const., art. 1, 1.) The right encompasses privacy in one's sexual matters and is not limited to the marital relationship. (Eisenstadt v. Baird (1972) 405 U.S. 438, 454-455 [31 L.Ed.2d 349, 362364, 92 S.Ct. 10291.) Although the right to privacy is not absolute, it yields only to a compelling state interest. (Fults v. Superior Court (1979) 88 Cal.App.3d 899, 904 [152 Cal.Rptr. 2101.)

 

Moreover, the employer who queries employees on sexual behavior is subject to claims for invasion of privacy and sexual harassment. (See Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App-4th 1595,1599-1600 [18 Cal.Rptr.2d 6921.)

 

An individual's right to privacy also encompasses mental privacy. (Kees v. Medical Board (1992) 7 Cal.AppAth 1801, 1812-1813 [10 Cal.Rptr.2d 1121.)


 

Point # 4 - law on affirmative duty to protect

 

SUPPORTING LAW:

 

VIRGINIA G. V. ABC UNIFIED SCHOOL DISTRICT, (1993) 15 Cal.App.4th 1848, 1851

 

If plaintiff attended a church school, an affirmative duty to protect students may exist, (See Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1851 [19 Cal.Rptr.2d 6711; Rodriguez v. Inglewood Unified School Dist., supra, 186 Cal.App.3d 707, 714-715.)


 

Point # 5 - religious decision based on religious belief does not impose a civil duty. vow of celibacy does not create a civil duty

 

SUPPORTING LAW:

 

TORASCO V. WATKINS

 

The vow of celibacy by clergy is a religious decision based upon religious belief, it does not create a civil duty. Under the free exercise clause of the First Amendment, the state may not compel affirmation of a religious belief nor impose requirements based on belief in any religion. (Trcaso v. Watkins (1961) 367 U.S. 488, 495 [6 L.Ed.2d 982, 987, 81 S.Ct- 16801.)


 

Point # 6 - no special duty

 

SUPPORTING IAW:

 

NALLY VS. COMMUNITY CHURCH There is no special relationship creating a heightened duty of care based on a priest/parishioner relationship in the context of a claim for negligent counseling, Nally v. Grace Community Church, supra.  The Legislature has exempted clergy from licensing requirements applicable to other counselors. That exemption is in recognition "that access to the clergy for counseling should be free from state imposed counseling standards, and that'the secular state is not equipped to ascertain the competence of counseling when performed by those affiliated with religious organizations.' [Citation.]" (lbid.)

 

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