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UC Hastings’ Inter-Journal Writing Competition 2020

Inter-JournalWriting Competition

for Journal MembershipCompetition Rules and Instructions

with Accompanying Information on UC Hastings’ Law Journals

START: May 8, 2020DEADLINE: May 23, 2020

emailed to [email protected] by 5:00 PM PDTThank you for participating in the Inter-Journal Writing Competition. Each year, journal editors use the Competition to evaluate candidates for journal membership. Please be sure to carefully review the enclosed information for each journal.

The Competition is designed to assess these skills: Legal reasoning and analysis, Writing ability and style, and Proper Bluebook citation and formatting.

Each journal weighs these factors differently in evaluating Competition entries. In addition, each journal may consider other criteria, such as grades or a personal statement.

You have approximately fifteen days (until May 23, 2020 at 5:00 PM, Pacific Time) to complete your Competition entry. We do not anticipate that you will need anywhere close to that entire time to work on your piece.

Please be aware that, although the issues presented are taken from areas of substantive law that are included in the first-year curriculum, the Competition is a closed universe and will require your understanding and application of the enclosed materials, NOT your external knowledge from your courses. Please allow adequate time to familiarize yourself with these materials and ONLY these materials.

Please read all of the instructions and rules before beginning. Any violation of these rules may result in disqualification.

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mailto:[email protected]


Table of Contents

QUESTIONS OR CONCERNS............................................................................................................................................3

COMPETITION TIMELINE................................................................................................................................................3

2L STUDENT NOTES REQUIREMENT..............................................................................................................................3

INSTRUCTIONS — READ VERY CAREFULLY!...................................................................................................................4

SUBMISSION CHECKLIST.................................................................................................................................................5

HONOR CODE MEMORANDUM.....................................................................................................................................6

GRADE RELEASE AUTHORIZATION.................................................................................................................................7

GRADE RELEASE AUTHORIZATION — INSTRUCTIONS.............................................................................................................7

INFORMATION ABOUT UC HASTINGS’ LAW JOURNALS...............................................................................................8

SUMMARY TABLE............................................................................................................................................................8HASTINGS BUSINESS LAW JOURNAL...................................................................................................................................9HASTINGS COMMUNICATION AND ENTERTAINMENT LAW JOURNAL.......................................................................................10HASTINGS CONSTITUTIONAL LAW QUARTERLY...................................................................................................................11HASTINGS ENVIRONMENTAL LAW JOURNAL.......................................................................................................................12HASTINGS INTERNATIONAL AND COMPARATIVE LAW REVIEW...............................................................................................13HASTINGS JOURNAL OF CRIME AND PUNISHMENT..............................................................................................................14HASTINGS LAW JOURNAL...............................................................................................................................................15HASTINGS RACE AND POVERTY LAW JOURNAL...................................................................................................................17HASTINGS SCIENCE AND TECHNOLOGY LAW JOURNAL.........................................................................................................18HASTINGS WOMEN’S LAW JOURNAL................................................................................................................................19

TECHNICAL EDIT ASSIGNMENT....................................................................................................................................20

TECHNICAL EDIT — INSTRUCTIONS..................................................................................................................................20Instructions to Track Changes Anonymously......................................................................................................21

TECHNICAL EDIT — REPORT...........................................................................................................................................22TECHNICAL EDIT — EXCERPT..........................................................................................................................................23

MEMO ASSIGNMENT...................................................................................................................................................26

MEMO — INSTRUCTIONS...............................................................................................................................................26MEMO — FACTS..........................................................................................................................................................28MEMO – THE ASSIGNMENT............................................................................................................................................31MEMO — RESEARCH MATERIALS....................................................................................................................................32

DAHL CIVIL CODE..........................................................................................................................................................33

DAHL CASELAW............................................................................................................................................................35

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Questions or Concerns For any questions or concerns regarding the Inter-Journal Writing Competition procedures or rules, email Tom McCarthy, director of the O’Brien Center for Scholarly Publications, at [email protected]. Do not consult anyone else (student or non-student) or solicit their assistance about any aspect of the completion and delivery of your Competition entries.

You received an Inter-Journal Writing Competition Number in your UC Hastings (@uchastings.edu) email. You must identify yourself by your Assigned Competition Number only on all your entries in the Competition. Failing to do so will risk disqualification.

Journals are expected to begin extending invitations around July 1, 2020. Posted invitations will be emailed to all rising 2Ls and may be posted on the Hastings Journals website. To protect student privacy, all posted materials will list invitations by assigned competition numbers, not names.

Competition Timeline Spring Semester 2020 Receipt of Assigned Competition Number to uchastings.edu emailMay 8, 2020 Competition Start Date5:00 PM PDT, May 23, 2020 Submission Deadline*Around July 1, 2020 Journal Invitations Posted5:00 PM PDT, August 10, 2020 Deadline to Respond to ALL Invitations

Please respond to ALL the membership offers you may receive, yes or no, by 5:00 PM PDT on August 10, 2020. You may join only one (1) journal.

2L Student Notes Requirement All 2L journal members are required to write notes for grades and academic credit. A note is an article of legal scholarship addressing some aspect of the law, its application, development, etc. Student-written notes are a basic part of the journals’ publishing program at UC Hastings. The Academic Regulations pertaining to journals can be found in Section VIII, Subsection C, § 2601–2612 (2019–20 ed.)

Student-written notes may be submitted for review by the journal editors for publication. Journals may choose to set their own limits on the number of student-written notes it publishes in any given year. In some cases, additional academic credit is awarded to the author for the publication of a note. A student-written note, generally, is twenty-five (25) pages long and has one hundred (100) footnotes.

Not only is a published note of value to the resume of a newly-minted J.D., but also the editorial process of preparing the note for publication — the rewriting and refining of the text, working closely with other student editors, etc. — is a very important part of the journal experience.

2L students who do not fulfill the note requirement for their journal may receive a NOT PASS on their transcript for journal. 2L students disinclined to write a note for journal are advised to avoid joining any journal.

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https://www.uchastings.edu/wp-content/uploads/2018/07/Academic-Regulations.pdf

https://www.uchastings.edu/academics/journals/



Instructions — Read Very Carefully! Step 1. Read the Competition Rules Read the enclosed Competition instructions and rules very carefully. ANY deviation from the instructions or rules may result in disqualification.

Step 2. Email Grade Release Authorization Emailing this language authorizes the Records Office to distribute your grades to the staff of journals who examine grades as part of their evaluation of entries. This email should be sent separately from other emails.. If you are only applying to journals that do not consider grades, you do not need to send an email.

Step 3. Complete the Memo AssignmentRead the enclosed Facts and Research Materials, and ONLY the enclosed materials. You may NOT consult external sources. Complete the Memo Assignment in a new Microsoft Word Document. Save your Memo as MEMO_COMP#XXX, replacing the Xs with your Assigned Competition Number.

Step 4. Complete the Technical Edit AssignmentSave the Technical Edit Excerpt and Technical Edit Report into a new Microsoft Word Document. Be sure to also copy and paste the footnotes of the Technical Edit Excerpt. If you wish to edit by hand, print the pages of the Excerpt. Read all of the Technical Edit Instructions and complete the Technical Edit Assignment. Save your Technical Edit as EDITING_COMP#XXX, replacing the Xs with your Assigned Competition Number.

Step 5. Prepare Your EntriesDO NOT INCLUDE YOUR NAME ON ANY DOCUMENTS OR ENTRIES. Identify yourself by your Assigned Competition Number ONLY. Be sure to follow the instructions for preserving your anonymity on page 24. Save your Memo and your Technical Edit as two (2) separate Microsoft Word documents.

Step 6. Submit Your EntriesUsing only your uchastings.edu email account, email entries to [email protected]. First, send one (1) email containing just the text of the Grade Release Authorization, with the subject line, IJWC Authorization COMP#XXX (replacing the Xs with your competition number). Then, send one (1) email for each journal to which you wish to submit your entries. Use one of the following appropriate subject lines, replacing the Xs with your Assigned Competition Number.

HBLJ Submission COMP # XXX HICLR Submission COMP # XXXCOMM/ENT Submission COMP # XXX HLJ Submission COMP # XXXCLQ Submission COMP # XXX HRPLJ Submission COMP # XXXHJCP Submission COMP # XXX HSTLJ Submission COMP # XXXHELJ Submission COMP # XXX HWLJ Submission COMP # XXX

If your entry to a particular journal requires additional information, such as a personal statement, please save it as a separate Microsoft Word document titled STATEMENT_Journal-Abbreviation_COMP#XXX. Replace “Journal-Abbreviation” with abbreviations from the sample subject lines in the above table and replace the Xs with your Assigned Competition Number. Attach any Personal Statement with your Memo and Technical Edit to one (1) email for each journal submission.

Example: Matilda (#111) wants to apply to HLJ and HELJ. Here are Matilda’s three (3) separate emails:

Email #1To: [email protected]: IJWC Authorization COMP# 111

Email #2To: [email protected]: HLJ Submission COMP # 111

Email #3To: [email protected]: HELJ Submission COMP # 111

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Body of Email: [grade authorization text] No Attached Documents.

Attached Documents:• EDITING_COMP#111• MEMO_COMP#111• STATEMENT_HLJ_COMP#111

Attached Documents:• EDITING_COMP#111• MEMO_COMP#111• STATEMENT_HELJ_COMP#111

Submission Checklist Grade Release Authorization Email (if necessary)

Copy the text of the Grade Authorization Email into an email, and fill in the requested information. Email one copy to [email protected] with the subject line “IJWC Authorization COMP# XXX.”

Technical Edit Remove your name from Microsoft Word track changes bubbles.

Edit the text of the Excerpt substantively.

Edit the citations of the Footnotes, adhering to the Bluebook (20th ed.).

Complete the Technical Edit Report, using each row of the table for a single change. Remove your name from any part of the Technical Edit Assignment.

Save the Technical Edit Excerpt and Technical Edit Report as a single document titled EDITING_COMP#XXX, replacing the Xs with your Assigned Competition Number.

Memo Assignment Write your Assigned Competition Number in the top right corner of the first page of your Memo.

Include the heading from page 3435 at the top of the first page of your memo.

Write a six (6) to ten (10) page Memo addressing the issues in the Facts and Research Materials.

Remove your name from any part of the Memo Assignment.

Save your Memo as MEMO_COMP#XXX, replacing the Xs with your Assigned Competition Number.

Supplemental Materials Write any personal statements that you wish to submit to journals that require or accept them.

Remove your name from any part of your supplemental materials, including personal statements or memorandums that you submit in lieu of the IJWC Memo.

Save any personal statements as STATEMENT_Journal-Abbreviation_COMP#XXX, replacing the Xs with your Assigned Competition Number and replacing “Journal-Abbreviation” with the abbreviation of the journal for which you wrote that statement. For example, Candidate 123’s personal statement for HBLJ will be titled STATEMENT_HBLJ_COMP#123. See page 4 for the journal abbreviations.

Submission Attach your Technical Edit Assignment, your Memo Assignment, and any personal statements to

an email addressed to [email protected].

In the subject line of the email, indicate your Assigned Competition Number and the journal to which you wish to submit your materials. See page 4 for detailed instructions.

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Send a separate email for each journal to which you wish to apply.

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Honor Code Memorandum MEMORANDUM

To: Participants in the Inter-Journal Writing CompetitionFrom: Grace Hum, Assistant Dean of StudentsRe: Application of the Code of Student Conduct and Discipline to the Inter-Journal

Writing CompetitionDate: May 1, 2020

This memorandum is intended to provide you with information regarding the College’s policy regarding the consequences of violating the Inter-Journal Writing Competition rules.

The ten journals explicitly prohibit any participant in the Competition from talking with another person about any aspect of the writing problem or the participant’s entry. By entering the Competition, each student agrees to work individually, submit a product that reflects only that student’s efforts, and abide by the UC Hastings Code of Student Conduct and Discipline.

Violating any of the Inter-Journal Writing Competition rules is considered as serious as cheating on an examination and will subject a student to disciplinary action pursuant to the Code of Student Conduct and Discipline. Depending on the circumstances, various penalties may be imposed on any student found cheating or plagiarizing. See § 104. Suspension and dismissal are the most serious sanctions. See § 115(B)(5), (6). Alternatively, a letter of reprimand may be placed in the student’s file summarizing the problem and findings, which may be transmitted to the Committee of Bar Examiners for its review when it evaluates the character and fitness of an applicant for the Bar. See § 115(B)(1).

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https://uch--simpplr.na96.visual.force.com/apex/Simpplr__FileDetail?fileId=0692M00000MdtBKQAZ&siteId=a0i41000003vuBiAAI


Grade Release Authorization

Grade Release Authorization — InstructionsOn this page is Grade Release Authorization, which permits the Records Office to distribute your first-year grades and section rank to the executive staff of journals that use grades as part of the evaluation of entries. The text below should be copied and pasted into a separate email and sent to [email protected] with the subject line, “IJWC Authorization COMP# XXX” (replacing the Xs with your competition number). The highlighted portions denote parts of the email that should be replaced with your personal information.

If you are solely applying to journals that do not require the use of grades, please do not submit this email.

Authorization Text Below

Assigned Writing Competition Number: XXXXName (Please Print): Last, First (Middle Initial)

I, name: first last hereby give permission to the Hastings Records Office to release my class and section rank to the executive staff of any UC Hastings Law Journal that considers grades as part of their criteria for membership. I understand that the sending of this email is meant to, and will serve as a signature and authorization of the release of my grades.

I understand that this release applies only to the participant selection process of the above-mentioned Scholarly Publications.

name: first lastdate (Month Day, Year)

Sample Grade Release Authorization:

Assigned Writing Competition Number: 123Name (Please Print): Wormwood, Matilda

I, Matilda Wormwood, hereby give permission to the Hastings Records Office to release my class and section rank to the executive staff of any UC Hastings Law Journal that considers grades as part of their criteria for membership. I understand that the sending of this email is meant to, and will serve as a signature and authorization of the release of my grades.

I understand that this release applies only to the participant selection process of the above-mentioned Scholarly Publications.

Matilda WormwoodMay 8, 2020

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Information about UC Hastings’ Law Journals Summary Table

Disclaimer: the information provided in the Summary Table was checked by multiple parties, but you should still read the Journal Introductions (below) to ensure compliance with the requirements.

Journal Name Considers Grades?

Considers Tech Edit?

Considers Memo?

Personal Statement and/or Statement of Interest?

Annual Issues

Dues

Hastings Business Law Journal (HBLJ)

Yes Yes Yes Optional Personal Statement.

1-3 Yes

Hastings Communications and Entertainment Journal (Comm/Ent)

Yes Yes Yes Optional Statement of Interest

2 Yes

Hastings Constitutional Law Quarterly (CLQ)

Yes Yes Yes Required Personal Statement; Optional Statement of Interest

4 Yes; payment plans avl. for those with demonstrated need.

Hastings Environmental Law Journal (HELJ)

Not Required

Yes Yes* / alt. Required Personal Statement

2 Yes

Hastings International and Comparative Law Review (HICLR)

Yes Yes No. Submit a legal writing sample.

Required Statement of Purpose, Optional Personal Statement

2 Yes

Hastings Journal of Crime and Punishment (HJCP)

Yes Yes No Required Personal Statement plus Short Answer Response

2 Yes

Hastings Law Journal (HLJ)

Yes Yes Yes Optional (via Diversity Application)

6 Yes

Hastings Race and Poverty Law Journal (HRPLJ)

Yes Yes Yes* / alt. Required Personal Statement, Optional Statement of Interest

2 Yes

Hastings Science and Technology Law Journal (HSTLJ)

Yes Yes Yes Optional Personal Statement

2 Yes

Hastings Women’s Law Journal (HWLJ)

Yes Yes Yes* / alt. Optional Personal Statement

2 Yes

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Yes* / alt. denotes that in lieu of the IJWC Memorandum, you may elect to submit a legal writing sample instead from one of your LRW courses. Please be sure to remove all identifying information, replace names with competition numbers, and follow the directions of each journal on labeling and content.

Hastings Business Law JournalJOURNAL’S GENERAL STATEMENT

Hastings Business Law Journal (“HBLJ”) is ranked within the top ten commercial law journals in the country and is ahead of business law journals at N.Y.U., Northwestern, and Georgetown. Numerous state and federal court decisions have cited our articles, including the California, Delaware, and Texas state supreme courts alongside the U.S. Supreme Court. Our articles have also been cited in more than 350 other academic articles. Additionally, some of HBLJ’s past symposiums have featured prominent law professors, SEC officials, and general counsels from companies such as Apple and Google. Finally, our current alumni base includes partners at several of the American Lawyer Top 100 firms and in-house counsels at Facebook, Cisco, and various tech startups.

MEMBER SELECTION PROCESS

To be considered for a position on HBLJ, please submit the Inter-Journal Writing Competition (“IJWC”) materials and an optional personal statement. We will evaluate your application based on your IJWC submission, your grades, and the information you provide in your personal statement. Personal statements provide us with insight into your experience and personality. While your personal statement does not need to contain obvious “business experience,” it must explain your interest in HBLJ and in business law. The optional personal statement may not exceed 250 words. Remember to use your competition number, not your name, in all submissions to HBLJ.

DUTIES OF NEW MEMBERS

2L journal members are essential to HBLJ’s success. As HBLJ publishes a high-quality product, your primary responsibilities will be reviewing sources and editing. 2L members may contribute to various HBLJ-related functions including: planning symposiums, assisting in article selection, and organizing alumni events. Each 2L will write a Note on a current business law topic of their choosing and the best notes will be published. In addition to the scholastic endeavors, 2L members will have the opportunity to participate in both social and networking events with current and past HBLJ members, Hastings alumni, and Bay Area business professionals.

Hastings Business Law Journal wishes you the best of luck in the Inter-Journal Writing Competition!

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Hastings Communication and Entertainment Law JournalSUMMARY OF MEMBER SELECTION PROCESS

Second-year members are chosen through a weighing of performance in the Writing Competition and grades. We also provide students with the opportunity of submitting a statement of interest if they would like to. However, this is not mandatory. The statement of interest is intended to help the Comm/Ent Editorial Board decide between students who may have equal scores. Also, please DO NOT use your name for any of the documents required. We would like to keep this process as fair as possible.

JOURNAL’S GENERAL STATEMENTComm/Ent is the nation’s premier law journal dedicated to the scholarly publication of literature addressing the intellectual property, sports, communications, and entertainment industries. With an outstanding reputation among practitioners and academics, Comm/Ent is consistently ranked among the top five journals in the nation within our focus area. Our journal explores the important legal questions associated with the changing trends in communication and entertainment, and it has effectively done so since the journal’s inception in 1976.

Recent Comm/Ent articles have encompassed a vast array of legal issues relating to radio and television broadcasting, film, sports, labor, cable television, music recordings, copyrights, trademarks, patents, the First Amendment, satellite communications, computer technology, the Internet, advertising, telecommunications, and commercial speech.Comm/Ent takes tremendous pride in producing an annual symposium. Our symposium attracts the leading practitioners and litigators in the fields of IP, communications, and entertainment law, and provides attendees with a fantastic opportunity to network. For example, a prominent commissioner of the Federal Communications Commission, Rachelle Chong, got her start as Comm/Ent’s former Editor-in-Chief.

As a Comm/Ent member, you will be essential to the success of the journal. Members’ responsibilities include: examining articles and student notes to ensure proper citations, making substantive and technical edits to pieces in preparation for publication, assist in planning the annual symposium, and generally supporting the senior editors at their request on various projects. Additionally, each member writes a “note” on a cutting-edge issue on the law within the scope of the journal’s focuses, and the best of these will be published in an upcoming issue.

Comm/Ent produces a high-quality product while maintaining a relaxed and flexible atmosphere for members. We are dedicated to making the second-year membership a useful, rewarding, and “entertaining” experience. Comm/Ent has developed a strong online presence that benefits all members, while providing the legal community with a new, useful service. We strongly encourage each member to contribute ideas, time, and their focus to the needs of the journal.

The Comm/Ent Editorial Board wishes you the best of luck in the Inter-Journal Writing Competition, and we hope to have you on our team next year.

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Hastings Constitutional Law QuarterlySUMMARY OF MEMBER SELECTION PROCESS

Hastings Constitutional Law Quarterly ("CLQ or the Quarterly") is dedicated to publishing innovative and reputable articles, many of which have been cited by courts across the nation. The Quarterly has captured the attention of the United States Supreme Court, State Supreme Courts, and State Appellate Courts. Here is a quick reference of what we have accomplished.

CLQ is excited to invite rising 2Ls to apply to our journal. If you are interested in constitutional law issues, willing to work hard to produce high-quality, cutting-edge legal scholarship, and enjoy working on a diverse team, CLQ is the journal for you! Students from backgrounds that are underrepresented in the legal field, like members of the Legal Education Opportunity Program, will be given additional, but not automatic, admissions consideration.

All applicants to CLQ must complete the inter-journal write-on technical edit and writing assignment. CLQ will grade the components according to the established rubric and will pay particularly close attention to the persuasive use of legal authority, organization, flow, and clarity.

Applicants are required to submit a 300-word personal statement and encouraged to submit a statement of interest. Applicants should succinctly describe their interest in constitutional law (based on lived experience, curiosity/passion for a topic, work experience, etc.) and the diversity the applicant will bring to the journal. The statements will be graded separate from the write-on requirements and points earned from the statement will be added to your composite score.

CLQ considers applications comprehensively and holistically. CLQ strongly values applicant’s passion for Constitutional Law and fulfilling its promise to protect the most vulnerable and the applicant’s desire to view the Constitution in refreshing ways.

JOURNAL’S GENERAL STATEMENT

CLQ is the country’s oldest scholarly publication devoted exclusively to constitutional law and is consistently ranked in the top ten for constitutional law journals in the United States. CLQ publishes four issues a year, with the primary goal of publishing innovative and timely articles exploring issues arising under federal and state constitutions. Associate Justice Stevens has cited to pieces of scholarship from CLQ on numerous occasions, including his partial dissent in Citizens United v. Federal Elections Commission, 558 U.S. 310 (2010).

In 2020–2021, CLQ endeavors to lead public and scholarly discourse in the constitutional concepts that have the potential to affect everyone in America in light of the corrosion of the U.S. Constitution during the Trump presidency. CLQ plans to hold events on presidential powers, the right to freedom of speech, immigration reform, healthcare, and states’ rights, to name a few. CLQ will also seek to raise student voices, such as through blog posts on Medium.com or by organizing cross dialogue with members from multiple student groups, such as the American Constitution Society, Federalist Society, and National Lawyers Guild.

Second-year members will primarily serve as Staff Editors, contributing to the vital function of editing pieces of scholarship for each issue of the journal. Staff Editors will also be mentored by a 3L Senior Editor as they draft a law review note, presenting a novel legal argument on a constitutional topic of their choosing. Second-year members will also have opportunities to be a part of affinity groups on current topics of interest in the public sphere (e.g., Immigration, Freedom of the Press, etc.), attend CLQ talks and panel discussions, and social events with alumni and community leaders.

CLQ does charge member dues, but we offer payment plans for those who can demonstrate need for it.

We look forward to welcoming you to the CLQ family!

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https://www.hastingsconstitutionallawquarterly.org/cited-articles


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Hastings Environmental Law JournalINTER-JOURNAL WRITING COMPETITION ENTRY INSTRUCTIONSHastings Environmental Law Journal (HELJ) has two options for students applying:

1) Email your Writing Competition Entry and your Mandatory Personal Statement as per the IJWC Rules.2) Email a writing sample, the technical edit portion of the Writing Competition Entry, and the Mandatory Personal Statement as per the IJWC Rules. The writing sample may be an LWR memo or previous research paper.For both options, do not write your name anywhere on your entry or personal statement.

HELJ will grant a 7-day extension of the Competition deadline for good cause; email such requests to [email protected] in advance of the IJWC deadline May 24, 2020.

MANDATORY PERSONAL STATEMENTThe personal statement should describe why you are interested in joining an environmental law journal, any experience you may have had with environmental issues, and any work done on scholarly publications in the past. Experience with environmental issues can only help in the selection process but is not required. All that is necessary is strong interest and dedication. Maximum length is one to two pages.

HELJ actively seeks to maintain a high level of diversity in its membership. Candidates who have overcome significant disadvantage may also describe the nature of that disadvantage and relevant experience or perspective gained thereby.

SELECTION PROCESSGPA is given minimal consideration beyond the 2.2 minimum. Quality of writing and degree of interest demonstrated in the personal statement will be important selection criteria. However, serious effort and quality in the completion of the memorandum portion of the writing competition is required. The two primary selection criteria for HELJ members are writing ability (including composition, editing and Bluebooking skills) and an interest in the broad topical area of environmental law. The required personal statement is an opportunity to express your reasons for wanting to be a HELJ member and is given considerable weight. Beyond a 2.2 minimum GPA requirement, HELJ does not take grades into account. The environmental statutory class is not a prerequisite for joining our journal. All those who have any interest in HELJ are encouraged to apply.

JOURNAL’S GENERAL STATEMENTHELJ continue the Hastings traditions of creating a legal forum for both academics and practitioners in areas of environmental law and policy. With a broader focus, HELJ will be home to all aspects of environmental policy and legal issues, and will focus on scholarship regarding the most current issues from across the private, public, and nonprofit sectors. This journal will focus on creating a community of environmental scholars here at Hastings, and connecting them with the greater environmental community beyond. With articles and essays from a range of authors, including practicing attorneys, policy-makers, law students and professors, resource managers, scientists, citizen groups, and activists, HELJ will lead the way in identifying the most problematic issues in environmental law and policy and creating innovative solutions.

EVENTSHELJ will host events periodically through the year. Past events have included several symposiums: “Surviving Climate Change: Adaptation and Innovation,” “Smart Growth: How Smart Is It?,” “Environmental Audits: Privileged Information or Privileged Violations?,” “Beyond Takings: Pragmatic Solutions for Resolving the Conflicts Between Property Rights,” and “Environmental Regulations and Adaptive Management and Market Incentives: Tools for the Next Millennium.” The coming year will focus more on creating and implementing smaller, more frequent events that connect Hastings students with the greater environment community to provide for targeted networking opportunities.

The HELJ Editorial Board wishes you the best of luck in the Inter-Journal Writing Competition.Please feel free to contact us if you have any questions about joining HELJ.

Best,

Abby Gasser, Co-Editor in Chief | [email protected]



Michael Gasbarro, Co-Editor in Chief | [email protected] Gillespie McComb, Executive Managing Editor | [email protected]

Hastings International and Comparative Law ReviewPERSONAL STATEMENT [OPTIONAL]

Because Hastings International and Comparative Law Review (HICLR) has a particular focus, we seek candidates with an inter-national interest or background. While international experience is not required, we do consider whether a candidate has an interest in international issues and concerns. You may choose to submit a personal statement describing those experiences that are relevant to your international interests and/or what you hope to contribute to HICLR. Please write a minimum of 1 double spaced page, and submit your personal statement with your Writing Competition Number only.

SELECTION PROCESS

HICLR selects new members based on: (1) Tech Edit section of the Inter-Journal Writing Competition, (2) one writing sample from LW&R or Moot Court, and (3) a “statement of purpose” on why you want to join HICLR.

Note: HICLR does not require any international course or work experience, nor does it require members to take any international or comparative courses.


Founded in 1976, HICLR is one of the few law reviews devoted exclusively to the discussion of contemporary original ideas pertaining to international and comparative law.

International law transcends national boundaries and governs relations among public and private international actors. Comparative law is the comparison of legal systems. These fields include: international trade and business transactions; international litigation; politics; treaties; international institutions such as the UN and WTO; intellectual property; immigration; human rights; environment; criminal law and procedure; tax policies; ethics and labor relations.

HICLR staff members will receive significant training and gain experience in all areas of the journal — selecting and editing articles, essays, and notes for publication; technical production and work with the authors and publishers; and planning and execution of our annual Symposium. Networking with HICLR alumni, international scholars and practitioners will also be available.

HICLR seeks members who will bring unique perspectives based upon experiences abroad or strong interests in international issues. HICLR members will learn from the editors and from one another throughout the year. In addition to publishing a high quality law review, and all the hard work and creativity attendant thereto, members will have fun and make career connections. With social and networking events throughout the year, being a HICLR member will mean a well-rounded journal experience that includes training, teambuilding, and professional development through Hastings alumni.

Members will also write a note of publishable quality on an international or comparative law topic, under the guidance of a 3L mentor. One advantage to writing a note in comparative law is that it can concern any substantive field of law. The journal is committed to working with every member to produce excellent, relevant, publishable articles; HICLR publishes as many eligible member notes as possible, giving HICLR staff the highest probability of publication. This is an excellent opportunity to hone one’s writing skills and publish work in an internationally circulated and cited journal.

The HICLR Editorial Board wishes you the best of luck in the Inter-Journal Writing Competition.

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Hastings Journal of Crime and PunishmentSELECTION PROCESS

GPA is given minimal consideration beyond the 2.2 minimum requirement. Your degree of interest as articulated in the Personal Statement is our primary consideration for selection to the Hastings Journal of Crime and Punishment. Please include a Personal Statement. Finally, we weigh the quality of your writing as exhibited in the writing competition memorandum and your completion of the editing assignment.

In addition to completing the edit assignment and personal statement, please answer this question in 250 words or less. What does criminal justice reform mean to you?


Hastings Journal of Crime and Punishment (HJCP) is a forum in which meaningful discussion can occur on issues of criminal law, incarceration and the criminal justice system. Our intention is to establish a cross-disciplinary platform in which scholars and practitioners analyze criminal law and procedure as well as the different institutions of incarceration. From the pervasiveness of racial profiling to the shackles of collateral consequences, the criminal system disparately impacts the poor and people of color. A thorough examination of the various ways in which individuals are impacted by the criminal system is only possible with a diversity of perspectives. Therefore, we warmly invite the written analysis of those who traditionally have been excluded from legal scholarship, including incarcerated and formerly incarcerated people, as well as others who have been most affected by the criminal justice system. Ultimately, we believe that through the exploration of criminal law and its greater context in American society, HJCP can contribute to a critical discourse on punishment, justice and human dignity.

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Hastings Law JournalGENERAL STATEMENT Since 1949, Hastings Law Journal (HLJ) has published scholarly articles, essays, and student notes on a broad range of legal topics. With close to one hundred members, HLJ publishes six issues each year, reaching a large domestic and international audience. HLJ also hosts two symposia each year focused on cutting-edge legal issues, which has historically brought prominent speakers to UC Hastings, including former Justice Anthony Kennedy. We attribute our success to the endeavors of prior generations of editors who have continued to flourish in their legal careers as California Supreme Court Justices, federal district court judges, U.S. attorneys, ambassadors, managing partners, and non-profit founders. In 2019, 75% of our membership received job offers at OCI. Following graduation, seven of our members will clerk for federal and state judges throughout the country.

Second-year members contribute to the Journal by editing articles, notes, and the SCOCA blog, volunteering at the yearly symposia, and participating at our various events. Additional benefits include:

Networking opportunities with decades of HLJ alumni Assistance with job search & clerkship application process Resources for coursework and bar preparation Social events (past events include Taco Tuesday, Mixer with Cal Law Review & Stanford Law Review)

SELECTION PROCESS

To be eligible to join HLJ, all students must submit a writing competition application. HLJ considers applicants’ first-year grades and the submission of all portions of the writing competition. This should not dissuade applicants from applying; first-year grades are only a part of the evaluation process.

Invitations will be extended according to the following allocation estimates:1) The top five students from each section are invited to join on the basis of their GPA. *2) Twenty students are invited on the basis of their writing competition scores.3) Sixteen students are invited on the basis of a composite of their writing competition scores and their GPA.4) Students may be invited through the Intellectual Diversity Program, described below.

*Please note that a student invited based on GPA must still submit a writing competition application

INTELLECTUAL DIVERSITY PROGRAM

HLJ welcomes diverse candidates to apply through the HLJ Intellectual Diversity Program. The Intellectual Diversity Program is 100% optional. To apply, you must submit an Intellectual Diversity Essay in addition to completing the writing competition. The HLJ Admissions Committee weighs the quality of an Intellectual Diversity Essay separate from the applicant’s GPA and writing competition submission.

If you would like more information about the benefits of journal, please feel free to contact any of the folks listed below. Thank you for your interest; best of luck in the Inter-Journal Writing Competition!

Lauren Trambley, Editor in [email protected]

Tori Timmons, Executive Managing [email protected]

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Hastings Law Journal — Intellectual Diversity ProgramPURPOSE OF THE INTELLECTUAL DIVERSITY PROGRAM The HLJ Intellectual Diversity Program recognizes the great individual effort required to overcome economic and social disadvantage. The purpose of the Intellectual Diversity Program is to increase interest in HLJ among those who have effectively been denied participation in the past. HLJ also seeks to diversify the membership of the Journal and broaden its spectrum of perspectives on legal scholarship through the program.

INSTRUCTIONS

To be considered for HLJ membership through its Intellectual Diversity Program, please type your answers in Microsoft Word, and limit your answers to three (3) double-spaced, typed pages or 750 words, whichever is longer. Then save the document as IDP_HLJ_COMP#XXX, replacing the Xs with your Assigned Competition Number, and attach the document in addition to your Technical Edit and your Memorandum in your email submission for HLJ.

Note: Intellectual Diversity Program applications are separate and distinct from the general Competition; you are required to fulfill each of the general Competition and the Intellectual Diversity Program applications separately. Include the Intellectual Diversity Application with your submission to HLJ in a single email, but do not include the Intellectual Diversity Application in the same document as any of your Competition assignments. They should each be their own, distinct Microsoft Word document.

INTELLECTUAL DIVERSITY ESSAY The purpose of this essay is to give you the opportunity to describe how your diverse background and experiences will contribute to HLJ’s community and caliber of legal scholarship. In an essay format, explain why you are a diverse candidate and why your particular set of experiences makes you an excellent candidate for a staff editor position with HLJ.

The following eleven (11) questions can be used as guidelines. You do not need to include an answer to every question in your answer.

1. Identify and describe the community(ies) in which you resided from birth to age of college entry.2. What was (were) the occupation(s) of the person(s) who raised you? Please provide description if

necessary.3. What was (were) the educational background(s) of the person(s) who raised you?4. Who were the members of your household from the time of your birth to age of college entry? Please

include extended family and others.5. Describe your early education experiences. Please include elementary and junior high school.6. Describe the financial situation of the family in which you were raised, from birth to age of college entry.

Please include sources of income, income estimates, number of wage earners and number of dependents, and any unusual expenses.

7. Were you employed prior to college? Please indicate where, how, and the number of hours worked.8. Were you employed during college? Please indicate where, how, and the number of hours worked.9. Please list your source(s) of financial support in college by approximate percentage:

Family_______ Employment _______ Loans _______ Grants / Scholarships ________ Other Assistance ________

10. Did you have to work during your first year of law school?11. What was your occupation before entering law school?

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Hastings Race and Poverty Law JournalSUBMISSION REQUIREMENTS AND SELECTION PROCESS

Hastings Race and Poverty Law Journal (HRPLJ) selects new members based on:1) Technical Edits of the Inter-Journal Writing Competition2) Memo Assignment of the Inter-Journal Writing Competition OR a writing sample from LRW I/II

(maximum 10 pgs./ double-spaced)3) Personal Statement (plus optional Statement of Interest)

GPA beyond the 2.2 requirement will be given minimal consideration.

When selecting future journal members, HRPLJ gives equal weight to the separate components of the Inter-Journal Writing Competition, including the technical edits, the personal statement, and the writing sample (memo or otherwise).

PERSONAL STATEMENT PROMPT

In a short essay of 250 words or less, please explain some experiences that inform your ideas of social justice, equity, and access. The goal of this statement is to provide us with a clear understanding of your values and who you are as a person. These experiences do not have to be confined to the arena of law school—please draw on your personal as well as professional life. You may speak to any past jobs, internships, or volunteer experiences, but please try to focus your discussion on your personal understanding of social justice, equity, and access.

Additionally (and optionally) you may include a short 250-word Statement of Interest discussing why you want to be a part of HRPLJ.


On a practical level, our journal is interested in fostering a community of students who understand the importance of progressive lawyering, while all the while producing an excellent publication. HRPLJ publishes twice a year, focusing on critical legal discussion at the intersection of race, poverty, and social justice. We aim to create a space for ongoing discourse of these legal disparities and hope to provide a small, but powerful, tool in remedying these inequalities.

As a final note, HRPLJ embraces diversity in its various forms, including race, socioeconomic status, gender, sexual orientation, ability, and religion.

If you would like more information about HRPLJ, please reach out to Sharon or Becky, listed below, prior to the start of the Inter-Journal Writing Competition.

HRPLJ thanks you for your interest and wishes you the best of luck in the Inter-Journal Writing Competition!

Sharon Liu-Bettencourt, Community [email protected]

Becky Odelson, Publication Editor-in-Chief [email protected]

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Hastings Science and Technology Law JournalGENERAL STATEMENT

The Hastings Science & Technology Law Journal (STLJ) is a multidisciplinary journal created to enrich the discourse at the nexus of science, technology, and the law. Specifically, STLJ focuses on the exciting legal issues surrounding startups, intellectual property, data privacy, biotechnology, clean technology, and health policy, while exploring the implications of technological advances on traditional legal fields, such as contracts, antitrust, and tax.

Partnered with the Institute for Innovation Law, STLJ publishes twice a year. Recent articles have discussed the publicity rights of American astronauts, new approaches to worker classification in an on-demand economy, ANDA reverse payments and the post-Actavis landscape, and software innovation in a patent assertion entity world.

This year, STLJ co-hosted a symposium entitled, “Programming the Law: Privacy, Security, and Innovation” featuring panelists from LinkedIn, Facebook, and the Federal Trade Commission. STLJ also regularly collaborates with on-campus organizations such as the Startup Legal Garage, and the Hastings Intellectual Property Association.

DUTIES AND RESPONSIBILITIES OF STLJ 2L MEMBERS

2L members are an important part of our team. As a Staff Editor, 2Ls will have the opportunity to participate in all aspects of production including: Planning our annual symposium, editing articles, planning social events, and assisting in the acquisition of new articles. 2Ls will also have the opportunity to write a “Note,” which may be selected for publication.

INTER-JOURNAL WRITING COMPETITION ENTRY INSTRUCTIONS

Applicants to STLJ must submit the following:

1. Inter-Journal Writing Competition Memo2. Inter-Journal Writing Competition Edits3. OPTIONAL Personal Statement

· Format: Times New Roman, double-spaced, one-inch margins, two pages maximum or 500 words. Include your writing competition number on the upper right corner of all pages.

· Instructions: Please describe why you want to be on STLJ. Appropriate topics include educational background, work experience, personal interests, or career goals related to the fields of science or technology.

Please note that a science background is NOT required for selection. We are interested in applicants who demonstrate sound writing skills and a keen interest in our journal’s subject matter. You are encouraged to convey such interests in a personal statement.

Hastings Science & Technology Law Journal looks forward to reviewing your entry! We wish you the best of luck.

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Hastings Women’s Law JournalINTER-JOURNAL WRITING COMPETITION ENTRY INSTRUCTIONSHastings Women’s Law Journal (HWLJ) has two options for applying:

1. Submit your competition entry (i.e., competition memo and technical editing assignment) and (optional) a short personal statement on why you wish to join HWLJ. The personal statement is to be no more than one paragraph (250 words).

2. Submit a writing sample of your choice, technical editing assignment, and (optional) a short personal statement on why you wish to join HWLJ (i.e., one paragraph, no more than 250 words). The writing sample may be an LRW memo or LRW 2 brief.

Please note that no matter which option you choose your name may not appear on your application entry. All application entries must be in sent in single MS Word document attached to an email sent to [email protected].

HWLJ MISSION STATEMENT

Since 1989, the Hastings Women’s Law Journal has provided a forum for voices outside the traditional scope of legal academic scholarship. We offer and maintain an inclusive space for feminism, race theory, queer theory, multiculturalism, animal rights, disability rights, language rights, international human rights, children’s rights, criminal defendants’ rights, victims' rights, criminal justice reform, among others.

This perspective embraces difference and celebrates diversity. HWLJ enhances the school’s academic diversity and contributes to scholarly thought by publishing articles and student notes that present a critical perspective of traditional legal discourse. We strongly believe that the law is a solution for the ills of the human condition, not merely a means of gaining and preserving privilege and position. To that end, HWLJ is a progressive law journal that offers women and men the opportunity to work on provocative legal issues through a “traditional” journal experience.

COMMITTEES:

Ranked No. 12 in United States among Gender, Women, and Sexuality Law Journals, HWLJ is comprised of various committees on which members serve in order to maintain the tradition of publishing high-quality, novel legal scholarship. This helps members get more involved with the day-to-day running of the journal and allows for more interaction with the various members within the journal. The hands-on experience and community involvement cultivate leadership skills and helps members determine what editorial board roles they will take on the following year.

COMMUNITY:

HWLJ hosts a variety of informal get-togethers and events throughout the year, providing opportunities for the exchange of thoughts and ideas. In addition to our social events, we also provide our members with ample networking opportunities by holding special panels and giving them an opportunity to participate in local community activities and volunteer work. HWLJ is an active organization on campus, supporting various groups who share the mission of uplifting and encouraging progressive legal thought. HWLJ seeks to be an active group in the community by staying involved with organizations on and off campus who promote gender equality and female empowerment. HWLJ seeks to provide its members support throughout their time in law school and beyond, both in individual and professional capacities. We welcome new members of all backgrounds to participate on this high-caliber journal, used by academics and practitioners alike, to advance provocative and contemporary legal scholarship.

Hastings Women’s Law Journal wishes you the best of luck in the Inter-Journal Writing Competition.22


Technical Edit Assignment

Technical Edit — InstructionsWelcome to the editing portion of the Inter-Journal Writing Competition. You will edit a section from a hypothetical law review article. Please read these instructions very carefully. Failure to comply may make you ineligible for consideration.

You are required to make both substantive edits (spelling and grammar edits within the body of the article and the text within footnotes) and technical edits (Bluebook edits of the footnotes).

The Bluebook edits must be in accordance with the Bluebook’s White Pages (not the Blue Pages at the front of the Bluebook).

The only permissible source you may use is the Bluebook. Do not rely on the sources from the Assignment for citation help. These sources were intentionally altered to test your citation skills.

To change the font to small caps, select the text you wish to alter, go to “Format” > “Font” > “Effects” and select “Small Caps.”

You may either complete the Technical Edit Assignment in Microsoft Word using track changes or you may handwrite all edits. Regardless, you must ensure that your identity remains anonymous and you must complete a Technical Edit Report.

o If you choose to complete the Technical Edit Assignment in Microsoft Word, make sure to remove your name from the comment bubbles. By default, the track changes will display your name.

Please see the instructions on the following page on “Instructions to Track Changes Anonymously” for further guidance. Failure to remain anonymously may make you ineligible for consideration.

o If you choose to handwrite the editing assignment, you must scan and convert the handwritten document into a PDF when you are finished editing. Your handwriting must be legible to be considered.

Save the Technical Edit Excerpt (the body of the article plus the corresponding footnotes), with your tracked changes, and the Technical Edit Report as a single document titled EDITING_COMP#XXX, replacing the Xs with your Assigned Competition Number (i.e. EDITING_COMP#123 if your Assigned Competition Number is 123).

DO NOT include your name in any part of your Technical Edit Assignment.

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Instructions to Track Changes AnonymouslyHow to remove personal information from track changes and anonymously track changes in Microsoft Word: Please replace your name with your Assigned Competition Number or the name “Author.”

Mac — Microsoft Word Versions 2019, 2016, 2011, and 2008 Click on “Word” next to the Apple symbol in the top left of the menu bar of your computer. Open “Preferences.” Under “Personal Settings,” select “User Information.” Change both the “Username” and “Initials” to your Assigned Competition Number or “Author.” Select the option to “Always use this name regardless of how I’m signed into Office.” There is no save button. Simple close the pop-up window and create a comment to test that the change was

successful.

Alternatively, you can select Microsoft Word “Tools” in the menu bar of your computer. Select “Protect Document.” Under “Privacy,” select the option “Remove all personal information from this file on save.” Click “OK.” Save your document. Create a comment to test that the change was successful. The name should now say

“Author” on any track changes bubbles.

PC — Microsoft Word Versions 2019, 2016, 2013, 2010, 2007 Click on “File” in the menu bar of Microsoft Word. Select “Options” (sometimes called “Word Options”). Under the “General” or “Popular” tab, in the section titled “Personalize your copy of Microsoft Office,”

change both the “Username” and “Initials” to your Assigned Competition Number or “Author.” If possible, select the option to “Always use these values regardless of signing in to Office.” Click “OK.”

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Technical Edit — ReportPlease use the chart below to list your changes to each footnote and which Bluebook rule you used to do so. Be specific when listing the Bluebook rule. Please list only ONE (1) error/mistake and its subsequent change in any given row of the table. As a result, any given footnote may span multiple rows. Feel free to add as many rows as necessary to complete the assignment. If you use multiple rows per footnote, each “altered” footnote may use the previous “altered” footnote to begin with.

We have provided two sample footnote entries to guide you in how this form is ideally filled out. Please note that these footnotes may not be accurate in any sense.

FN# Original Altered Bluebook Rule

0 Bob Wu, This is Just a Sample, 10 Hastings Law Journal 14 (2020).

Bob Wu, THIS IS JUST A SAMPLE, 10 Hastings Law Journal 14 (2020).

0.0(d)

0 Bob Wu, This is Just a Sample, 10 Hastings Law Journal 14 (2020).

Bob Wu, THIS IS JUST A SAMPLE, 10 Hastings Law Journal 14 (2020).

0.0(e)

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Technical Edit — ExcerptA Call for Greater Humanity in Police Practices

I. A Introduction

The humanity of individual’s in the communalty must be stressed through out police

training so that officers can understand the gravity of there work and the lives that they is

impacting. 1 The humanity involved in police work is momumental because police and civilian’s

are in constant interaction with one another. The tragedy of power is a conception that “people

rule over other people. This relationship is based on the legitimate use of force”.2 Not only’s the

trajedy of power a true concern with regarding to police using of force, but Max Weber claims

that its necessity in order for society to function.3 Furthermore Robert Cover baldly claims that

in situations which often involve interpretation of the law, suchas police interactions with

citizens, “legal interpretation takes palace in a field of pain and death”.4 This power full statment

really emphatic that when actions take place in the criminal justice system, individuals loose

their liberty property rights family or even they’re live. Emphasize in police academy must shift

from physicall training too educational training two inform police officers about these customs

of violent that are build into our society and taught them to re-cognize the steaks of their

powerful actions. 5 The courses that pertain to these issue include a psychology of anger and

aggression course a course about negotiation strategies, a diversity courses, and philosophy

courses about power and violence.6 These disciples will aid officer’s in their understanding off 1 U.S. v. Baker, One F. 3d, 104 at 106 (PER CURIAM 2018).

2 Interview with Weber, Max, Smith & Smith, LLP, Senior partner in boston, MA (February, 24, 1996)

3 (@TheRealMaxWeber), Max Weber, Twitter (Sep. 10th, 2019, 6:30am); (https://twitter.com/TheRealMaxWeber/status/100009990)

4 Cover, Robert, Police And The People: A Mix To Die For, Jan 26th, 2002, (Unpublished BA thesis, Stanford University) (on file with the Stanford University Libraries, Stanford University.)

5 U.S. v. Baker., One F. 3d, 104 at 110 (PER CURIAM 2018). (Citing Peters v. The People of California 32 F. 3d. 110 at 134-135 (2015).)

6 id, 113.26


their own aggression’ discovery of alternate ways to interact with civilians that due not involve

force, and exposure too diversity. 7

Another pits fall of police training is that it lucks the programs that are necessity to help

officers understand profiling and prejuices. Richard Bloom argues that irregardless of our

attempts, profiling is evitable; “profiling is how we live”.8 Scholars around the country defines

profiling as attempts to predict events of interest and what other events may be associated with

the event of interest becoming more or less likely.9 Profiling became complicated when an

individual’s internal and external events overlap or conflict, effecting the ultimate event of

interest. Internal ‘events include thoughts, images, emotions, intentions, desires, and motives…

{or}…maybe physical or biological in nature”.10 These are prejudices; preconceived opinions

and implicit biases that result in fast, and firm, decisions, used to reduce ambiguity.11 Prejudices

come from many different source but often there unconcious attitudes that develop through

culture, circumstances, and exposure.12

Profiling cannot be ignored because it is not always negative; police requires free reign to

profile. Because it is unnecessary for exercising discretion and is a crucial part of policing.13 7 Palmerin, Christopher & Lowes, Ann, Peace and Police, p. 218 (Catrina Robinson et al eds,) 18th edition, (2000.)

8 Bloom, Richard, Police and Prejudice, pgs. 312-319 (Wublick, Gina, 2011) (citing Donald Mac, Noe Regan, Cecil Chan, The History of Profiling in America, 2004, at pp. 1362-5.). See also, Robinson, et. Al. v. K.M.S. Pacific California Police Cooperative, 897 F.Supp.7th 490 (2019 N.D.Cal.) (J. Simmins concurring).

9 E.G. Richard Bloom, supra, at note 7, at p. 324; but see "A Vision for Police." DAVID C. COUPER. Blog post. Web. 24 May 2015, <http://www.davidccouper.com/a-vision-for-police.html>;

10 “Prejudice,” BLACKS’ LAW DICTIONARY, 2018 tenth eds.; See also Police Trust is at a Low Ebb – Here’s How We Fix It, p. 13, THE GLOBE AND MAIL, 23 Jul. 2016, ALICE DAWSON; Marcel Geller, CAN WE TRUST A PREJUDICED POLICE FORCE?, RACHEL PIVOT AND MONICA BING ED., (2011).

11 Compare HANNA WYATT, Is There A Place For Prejudice In The Law?, CAL. LAW REV., Vol. 92, Page 617, 628, 632 (2017), with TINA LINH SUI, The Law Makes it Harder to Be Different in America, U.PA.L.Rev., Vol, 66 p. 801, 801-814, (2018).

12 Manuel Julo, Bélu Plaité, Michael Jones, THE BLACK LIVES MATTER MOVEMENT AND THE LAW, 8 Hastings Journal for Justice 365, 2017. See also, Ivory Malik, What Happens When We Have Unconscious Attitudes Towards One Another (NY Times), Jun. 26, 2012, <https://www.nyt.org/op-ed/what-happens-when-we-have-unconscious-attitudes.html>, also available at https://www3.scripted.com/opinion_writing/unconscious+attitudes+Malik+Ivory.

13 Sage County Sheriffs’ Depts. v. Assoc’n Against Police Profiling, 234 P.3rd 9182, 9182, 9189 (East. Dist. of NY, 2016); <https://www.ca.gov.SFPD/lateral-entrance-reqs>, San Francisco Police Department Official Website, Lateral Entrance Requirements, last visited 18 August 2019. 27


Individuals cannot control or avoid having prejudicing and profiling when one meets new

people.14 Wherefore, it is necesary to incorrect for the negativity and judgement in ways that

individuals can control, such as recognizing personal daises and using that understanding to

active reflection on stereo, typing, and viscereal reactions immediately after they happening.15

Police officers who are trained to understand that they have, and actively work on techniques to

overcome them, will progressed towards a more aware system, giving civilians piece of mind.

— END TECHNICAL EDIT ASSIGNMENT —

14 id at 9193-200. See generally BENJAMIN A. MAGHOUD, Is There Police Prot.of the Pub. When They’re Prejudiced?, Los Angeles Univ. Journ. of Crime and Punishment, Vol. 59, pg. 316, 2015 (citing California Health and Safety Code § 192. Subd. f. and § 253(a), 2013.).

15 Robinson, supra note 8, 897 F.Supp.7th at 513 (2019.). Podcast, “The Functions of the Police in Modern Society,” The Hot Take (31 March 2017, www.thehottake.com/listen/ep_51).

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Memo Assignment

Memo — InstructionsWelcome to the legal analysis and writing portion of the Inter-Journal Writing Competition. You will read a fact pattern and use the enclosed Research Materials to analyze the legal issues. Please read these instructions very carefully. Failure to comply may make you ineligible for consideration.

To complete the Memo Assignment, write an objective memorandum of law addressing the issues raised by the Facts and Research Materials. Do not discuss any other issues. Explore the Memo Assignment objectively. You must also resolve each issue definitively, to the extent possible under the fact of this case. Consider the reader of your Memo to be very familiar with the enclosed Facts, so DO NOT INCLUDE a statement of facts in your Memo.

Permitted MaterialsUse ONLY the Facts and Research Materials provided in this packet and your Bluebook. While you are not required to use all of the enclosed sources in your Memo, you are not permitted to rely on any outside sources.

DO NOT look up any of the cases on Lexis, Westlaw, or any other online or hardcopy source. DO NOT work with anyone else, student or non-student, on the composition, proofreading, or completion

of the Memo or the emailing of your entries. DO NOT reveal to anyone, student or non-student, your Assigned Competition Number. DO NOT reveal in any Personal Statement or any other materials your participation on or affinity with any

personal or scholastic activity or information that may identify you. DO NOT contact the journals directly. If you have questions or concerns, email only

[email protected].

You may NOT cite or otherwise make reference to any sources not contained in this packet. If a source in this packet (a “primary source”) makes reference to another source (a “secondary source”), you may NOT make direct reference to the secondary source unless the secondary source is also contained in this packet. You may make reference to the primary source and parenthetically indicated the secondary source, provided that you are in full compliance with Bluebook rules.

You may NOT use, adopt, or rely on the reasoning, conclusion, or mode of analysis of any source not contained in this packet. This includes, but is not limited to, any knowledge you may have of this area of law. You may rely ONLY on the enclosed materials for your reasoning and analysis.

You must read all of the enclosed Facts and Research Materials even if they seem familiar to you, or you are familiar with one of the issues involved. The materials have been specifically modified for the purposes of this Competition and may or may not reflect the actual state of the law.

DO NOT assume that a case stands for a certain proposition just because it appears similar to another case you have encountered.

DO NOT make presumptions about the facts or holding of a case. Assume the cases are presented in their entirety and were decided in the jurisdiction indicated. DO NOT assume any facts not given to you. If you believe there is an ambiguity in the Facts and Research Materials that would affect your conclusion,

discuss how your conclusion depends on the ambiguity. DO NOT attempt to resolve the ambiguity by fabricating additional facts.

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Formatting You must submit a minimum of six (6) pages and a maximum of ten (10) pages. No footnotes or endnotes are permitted. Typeface must be 12-point Times New Roman font and Underlined. All type must be double-spaced, with

the exception of headings (single-spaced, if you choose to use them). 8½ x 11-inch (standard letter size) pages for your document file. One (1) inch margins on all sides (left, right, top, and bottom), left justification. Your Assigned Competition Number must be at the top right corner of the first page of your Memo, and

nowhere else. For any other formatting questions for the Memo, please consult the Bluebook’s Blue Pages for

practitioners and law clerks.

Citations The Bluebook is the only permissible outside source. DO NOT use any other source for citation format, including any citation references that may be contained

in the enclosed materials. DO NOT rely on the citations as they appear in the sources (or even within cases) for accuracy. The

citation formats in this packet were intentionally altered to test your citation skills.

Honor Code

You are NOT PERMITTED to communicate with any other person, student or non-student, about any aspect of the Competition, the completion of the Memo or Technical Edit, or the submission of entries, until 5:00 PM PDT on May 23, 2020 — including, but not limited to, the substance, organization, style, or form of the Memo or Technical Edit Assignments or your corresponding answers. The ONLY exception to this rule is that you may email Tom McCarthy, Director of the O’Brien Center for Scholarly Publications, at [email protected] if you have any questions or concerns.

Your entry must be entirely your own work product. No other person, student or non-student, may review or revise your Memo or Technical Edit. Violation of this rule is as serious as cheating on an examination and will subject a student to disciplinary action by the University. Revealing your Assigned Competition Number to any person, student or non-student, will be treated likewise. Please see the Honor Code Memorandum on page 5 from the Assistant Dean of Students for more information.

Academic EligibilityIn order to participate on a UC Hastings’ Law Journal, the Academic Regulations require that 2Ls have a minimum cumulative GPA of 2.20. LRW I and LRW II are prerequisites.

Please respond to ALL the membership offers you may receive, yes or no, by 5:00 PM PDT on August 10, 2020. You may join only one (1) journal.

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Memo — FactsIn 2000, Willy Wonka, an acclaimed confectioner, moved to the town of Dahl. Wonka

built a majestic, privately-owned factory in Dahl’s town square and produced abundant quantities of chocolate. Wonka hired Oompa-Loompas, small humans skilled in candy making, to work and live in the factory. Other than Wonka and the Oompa-Loompas, who all lived on site, no one ever set foot in the factory.

In 2010, after a decade of working at the factory, Wonka decided to retire from the chocolate-making profession. The Oompa-Loompas protested, afraid they would lose their home. “Don’t worry,” Wonka reassured, “you can live here so long as you keep producing chocolate. Only chocolate, and nothing else. And don’t change our production process. If it’s not broken, don’t add or fix anything.” Confident that his workers would fulfill his wishes, Wonka quietly left Dahl for a life of relaxation.

Immediately after Wonka’s departure, the Oompa-Loompas held a meeting to discuss factory operations. While the workers wished to fulfill Wonka’s wishes, the chocolate industry was becoming more competitive, and profits were rapidly dropping. To improve their chances of economic success, the Oompa-Loompas overhauled the factory’s chocolate production process and expanded its products to include jujubes, fizzy drinks, chewing gum, and other candies. The Oompa-Loompas mailed a letter detailing these changes to Wonka. Wonka disliked the changes, but he did not care enough as to intervene or voice any disapproval.

As a result of the Oompa-Loompa’s improvements, the factory profited and recaptured its status as the top candy factory in the world. The Oompa-Loompas hoped to further incentivize interest in the factory’s products. In January 2020, they devised a contest awarding a factory tour to civilians who found a “Golden Ticket.” Just two Golden Tickets were printed and hidden within the millions of chocolate bars that the factory produced.

One person hoping to win the tour was Charlie Bucket, a student at Hastings College of the Law. However, Charlie could not afford to buy copious amounts of chocolate; he not only had student loan debt, but also needed money to take care of his grandpa, Joe, with whom he lived. The earnings Charlie made from his part-time job, delivering newspapers, was barely enough to make ends meet; he and Grandpa Joe often ate cabbage soup to cut costs.

One evening, Charlie stepped onto a BART train to head home. As Charlie slumped into a seat, he felt something move on the cushion underneath him. He reached beneath and pulled out the distracting object – a Wonka chocolate bar. “Finally, Grandpa Joe can eat something besides cabbage soup,” thought Charlie. Without hesitation, he placed the bar in his book bag.

That evening, Charlie presented the chocolate bar to Grandpa Joe. “Open it!” exclaimed the elderly man. Charlie tore slowly and suddenly, from underneath the wrapper, there came a brilliant flash of gold. Charlie’s heart stood still. “It’s a Golden Ticket! You’ve found a Golden Ticket!” screamed Grandpa Joe.

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“But Grandpa,” Charlie stammered, “the bar isn’t mine. I found it on a BART train, underneath the cushion. And—,” he paused, reading the ticket, “—the tour is scheduled for tomorrow morning. I have Contracts and we’re learning about liquidated damages. I can’t go!”

“Nonsense!” replied Grandpa Joe. “Finders, keepers! Who cares about liquidated damages? I hear Wonka built a liquid chocolate river! Liquidate that loss if you miss out.”

The next morning, Charlie arrived at the factory. Outside the gates, enormous crowds of people gathered to watch the two ticket holders go in. Suddenly, a young lady emerged from the mob. “Robber!” the lady exclaimed. “You stole my Golden Ticket!”

“I didn’t steal anything! Who are you?” replied Charlie.

“I’m Matilda Wormwood. I was on a BART train last night and my Wonka chocolate bar slipped from my book bag when I got up from my seat. My friend, Miss Honey, saw you take the bar,” Matilda shouted. Before Matilda could continue, a group of media reporters swarmed her, drowning out her protests. Somewhere in the distance, a clock began striking ten, and a group of Oompa-Loompas emerged from the factory. Together, they chanted:

Lucky winners, welcome to our factory! There are plenty of sweets and treats to see.So follow us, come on in. There’s plenty of delight within.

Charlie and the other winner, a portly nineteen-year-old named Augustus Gloop, entered the factory. As they followed the Oompa-Loompas through a series of winding tunnels, Charlie extended an open hand. “Hi, I’m Charlie Bucket, a law student. It’s a pleasure to meet you.”

“Law student? What a nerd,” dismissed Augustus. “I’m Augustus Gloop, a social media influencer. My followers love my videos about candy.”

Finally, Augustus and Charlie walked into a massive room. It was so expansive that it looked like they had just walked outside. There was a lovely valley with green meadows on either side and a steep cliff over which a stream of chocolate curled and rolled into a chocolate river below. The Oompa-Loompas rhymed in unison:

Amazing, right? We know our chocolate river is quite a sight.We created it, we must admit; we built it ten years ago, after Wonka quit.We installed it all ourselves, such a pain; the permit process drove us insane,but this is what makes our sweets better than all – our real (not fake) chocolate waterfall!

By the way, you’re all wondering – where is Wonka? Our famed chocolate magician?Well, he retired! We decided to keep the factory going, maintaining his tradition. But don’t worry, he said he’d come and bring a prize – just that he’d be a bit late,according to our security system, he just passed through our front gate.

“Wonka’s not a big deal,” dismissed Augustus. “Look at this chocolate waterfall! I MUST get some selfies with it for my followers!” Brandishing a selfie stick, Augustus raced to the edge of the river, and began to snap photos with the waterfall. Charlie and the Oompa-Loompas followed. “Careful!” exclaimed Charlie. “You could slip and fall!” 32


At the same time, Wonka was making his way through the factory. “Those darned Oompa-Loompas,” he mumbled to himself, “they charged me for parking! And made me wear a guest pass!” Peering ahead, he saw the group of folks gathered by the river. “There they are! I’ll just scare them!” he thought. Slowly, he tiptoed his way toward the chocolate river, and then suddenly, leapt out of the bushes onto the path next to the group, making contact with absolutely no one. “SURPRISE!” he yelled.

There was a shriek, and then a splash, and into the river went Augustus Gloop. “Save him!” yelled Charlie. But the river flowed rapidly, and Augustus quickly was shifted towards the pipes that funneled the chocolate to other parts of the factory. Then, the powerful suction took hold of Augustus completely, and he shot upward like a torpedo.

Augustus Gloop, chanted the Oompa-Loompas, that great, big, greedy nincompoop!He wanted to get the perfect picture, and instead falls into our chocolate elixir! How could he fall in, without a single person making contact with him? True, the river has no barriers, but that’s not important: he isn’t the least bit slim.Oh well, what a tragedy! Sadly, our tour’s over – we must now fix the pipe.Wonka can lead you out – apologies, we hope our shortened tour lived up to the hype.Even if not, don’t you worry! Wonka promised a prize!He wouldn’t even tell us what it was – he said it was a surprise.”

“Follow me,” said Wonka. “Those Oompa-Loompas have done a terrible job. I leave this place to them, and they build a stupid river and produce candies. I’ve decided to gift you the factory.” Wonka pressed a deed for the factory into Charlie’s hands. “As soon as you process this deed, the factory will become yours.” Stunned, Charlie took the deed and walked home.

Grandpa Joe greeted Charlie at the door, waving his cell phone. “Did everything go okay? Gloop went CRAZY on Twitter! Sounds horrible!” Confused, Charlie took the phone from Grandpa Joe. The screen displayed the following tweet:

“Wonka’s factory is one of the worst chocolate manufacturers in the world! They don’t even use real chocolate, it’s all fake sugar! It’s all a hoax! DO NOT BUY.”

Augustus’ tweet quickly gained notoriety. By morning, it had set a record for the greatest number of retweets. Economists estimated that the Wonka corporation would lose 75% of its profits in its next earnings report.

A few months later, after completing his spring semester, Charlie went to City Hall to execute the deed. “Sorry,” the clerk informed him, “there are some legal holds that require resolution before the factory becomes yours.” She handed a packet to Charlie with the following documents enclosed:

(1) A civil lawsuit, naming Matilda Wormwood as Plaintiff and Charlie Bucket as Defendant, for the theft of a golden Wonka chocolate bar;

(2) A claim of adverse possession, naming the Oompa-Loompas as Plaintiff and Wonka and Charlie as Defendants, for ownership of the factory.

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Memo – The AssignmentYou are a summer law clerk at Owen, Murphy, and Moscato (OMM). Charlie Bucket,

your client, has just detailed all the events above to you. Write an honest legal memo to Charlie addressing the following concerns and possible defenses. Address each issue separately; do not mask one issue with any other. Do not consider the damages or other remedies.

(1) Is Charlie the rightful owner of the chocolate bar?

(2) Do the Oompa-Loompas have a successful cause of action for adverse possession of the entire factory?

(3) Suppose Charlie is the rightful owner of the factory. Does Charlie (in his status as the supposed owner of the factory) have a viable defamation action against Augustus?

(4) Charlie is also worried about Wonka. Does Augustus have a viable claim of assault against Wonka?

OMM has provided you with the enclosed packet of applicable laws related to Dahl. Assume all statutes and cases provided are binding. Dahl’s jurisdiction is incredibly unique, and so ‘traditional’ doctrinal theories of law may not apply; do not apply any outside knowledge to your argument.

Charlie has asked you to synthesize your argument into a memo, omitting the summary of facts, that is at minimum six pages, maximum ten double-spaced pages, Times New Roman 12-point font, one-inch margins on all sides.

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Memo — Research MaterialsThe following pages are the packet of materials provided to you by Owen, Moscato, and Murphy (OMM). The statutes and cases are the only sources you should reference within your memo. In addition, please read the following guidelines and pointers:

As stated previously: OMM wants a 6 to 10 page memorandum, double spaced, Times New Roman font, 12 size, one-inch margins on all sides. You may omit the traditional statement of facts in your memo and address the issues immediately. Please consider, if applicable, pleading in the alternative on different elements of an issue; most lawyers do not place all their eggs in one basket unless only one basket exists.

This is a closed universe memorandum. The cases and the statutes draw upon concepts of law you have all interacted with before. Do not rely on that familiarity in this memo. We have intentionally written statutes and edited cases that may deviate substantially from what you are familiar with. Instead, read the statutes, read the cases, consider the fact pattern, and write about how they all interact.

You are not required to use every statute and case contained in the packet. Use what you need. You are not to raise issues beyond the calls of the question on the previous page. Do not consider any issues concerning statutory interpretation.

For consistency, please begin your memo with the following header, replacing the “XXX” with your Assigned Competition Number.

CONFIDENTIAL MEMORANDUM - ATTORNEY WORK PRODUCT

TO: Charlie BucketFROM: COMP#XXX, Owen, Murphy, and Moscato (OMM), Summer Law ClerkRE: Legal Issues

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Dahl Civil Code Citations to the Dahl Civil Code should be formatted the same way as citations to the United States Code, in compliance with Rule 12 of the Bluebook, 20th Edition. The abbreviation for the Dahl Civil Code is: “D.C.C.”

2 Dahl Civil Code § 240: Civil AssaultA civil action for assault is based on an invasion of the right of any person to live without being put in fear of personal harm. Except under a just cause exception, every person who commits an action against another person that meets the following three elements is guilty of tortious assault:

(1) The act committed is intentional and wrongful.(2) The act was intended to cause the apprehension of harmful or offensive contact. (3) The act did create an apprehension of harm to the victim.

4 Dahl Civil Code § 810: DefamationDefamation is a false and unprivileged publication, online or physical; by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person or corporation to hatred, contempt, or ridicule, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. The elements of a defamation claim are:

(1) A publication is the source of the matter in concern.(2) The publication is false;(3) The publication is defamatory;(4) The publication is unprivileged (privileged statements are those made in trials);(5) The publication has a natural tendency to injure or cause special damage.

5 Dahl Civil Code § 16: Missing and Found ItemsThere are three categories of missing and found items: (1) abandoned property, (2) lost property, and (3) mislaid property. The definitions and parameters of these terms are to be guided by Dahl’s caselaw. The requisite actions a finder must take are as follows:

(a) Abandoned Property: abandoned property belongs to the finder of the property against all others, including the former owner.

(b) Lost Property: Lost property becomes the property of the finder if the true owner makes no claim within seven days of the discovery of the lost property. The finder must make reasonable efforts within those seven days to find the true owner.

(c) Mislaid Property: Mislaid property becomes the property of that of the owners whose land it was found upon, if the true owner does not make a claim within fourteen days. The owner of the property from which the land was found on must make reasonable efforts to find the true owner.

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7 Dahl Civil Code § 92: Adverse Possession of Property No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question, within five years before the commencement of the action.

(a) For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree; land is deemed to have been possessed and occupied if such ownership was open and notorious, exclusive, continuous, adverse (nonpermissive), and actual, for the statutory period.

In no case shall adverse possession be considered established under the provision of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously.

19 Dahl Civil Code § 24: Anti-SLAPP Motion to Strike for Strategic Lawsuits Against Public Participation

(a) The Dahl Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

(b) (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the Dahl Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.

(c) and (d): repealed and removed.

(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the Dahl Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech

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in connection with a public issue or an issue of public interest.

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Dahl Caselaw

Woo v. Yoo139 Cal.App.4th 1007

Court of Appeal, Sixth District, California.

EMILY WOO, Plaintiff and Respondent,

v.

NATHAN YOO, et al., Defendants and Appellants.

May 9, 2010.

*1007

Chief Justice Keitner submitted the decision of the Court, to which Justice Dodson, Justice Sylvester, Justice Weithorn, and Justice McCarthy concurred.

I. STATEMENT OF THE CASE

Plaintiff Emily Woo (Woo), a pediatric dentist, filed an action against defendant Nathan Yoo (Yoo) based on allegedly false assertions contained in a review posted on Yelp that criticized the dental services Woo had provided to Yoo’s young son. The defendant responded by filing an anti-SLAPP motion to strike Woo’s claims. The trial court denied defendant’s motion, and defendant now appeals from that order. We affirm.

II. ANTI–SLAPP MOTION OVERVIEW AND PROCEDURE

An anti-SLAPP (strategic lawsuit against public participation) statute allows a defendant to gain early dismissal of causes of action that are designed primarily to chill the exercise of First Amendment rights. In pertinent part, the statute provides, “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike ....” Acts “‘in furtherance of’” these rights include “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral *1008 statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

In ruling on an anti-SLAPP motion, the trial court engages in a two-step process. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’ s right of petition or free speech under the United States or California Constitution in connection with a public issue,” as defined in the statute. If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Both the defendant moving party and the plaintiff must make a prima facie showing to satisfy their respective burdens. If the plaintiff demonstrates a prima facie showing of probable cause on her cause of action, then plaintiff has overcome the anti-SLAPP motion. However, if a defendant is able to override that showing, the anti-SLAPP motion proceeds onwards for further consideration and review.

III. THE PLEADINGS AND THE ANTI–SLAPP MOTION

A. The Complaint

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In her complaint, Woo asserted a cause of action for defamation per se. In support of those claims, Woo alleged that in 2006, she filled a cavity in Yoo’s son’s *1009 tooth, and before doing so, she advised them that the silver amalgam contained mercury. Woo further alleged that in 2008, after examining the boy again, she discovered cavities on the right side of his mouth and scheduled another appointment because she thought he might have a few more cavities. However, Yoo consulted a different dentist. Woo alleged that, Yoo published “slanderous complaints” about her on Web sites, including Yelp, complaining that Woo had not warned them about the mercury, had misdiagnosed his son’s case, and had improperly used a general anesthetic “that is outside her scope of practice” and for which she could “lose her license.” Woo alleged that Yoo knew that the statements on the Web site were false and had no legal excuse for making them.Woo attached a copy of the Yelp review. It read as follows: “1 star rating.... Let me first say I wish there is ‘0’ star in Yelp rating. Avoid her like a disease! My son went there for two years. She treated two cavities plus the usual cleaning. She was fast, I mean really fast. I won’t necessarily say that is a bad thing, but my son was light headed for several hours after the filling. So we decided to try another dentist after half a year. I wish I had gone there earlier. First the new dentist discovered seven cavities. All of those appeared during the last half a year. Second, she would never use the laughing gas on kids, which was the cause for my son’s dizziness. To apply laughing gas is the easiest to the dentist. There is no waiting, no needles. But it is general anesthetic, not local. And general anesthetic harms a kid’s nerve system. Heck, it harms mine too. Third, the filling Emily Woo used is a metallic silver color. The new dentist would only use the newer, white color filling. Why does the color matter? Here is the part that made me really, really angry. The color tells the material being used. The metallic filing, called silver amalgams [sic ], has a small trace of mercury in it. The newer composite filling, while costing the dentist more, does not. In addition, it uses a newer technology to embed fluoride to clean the teeth for you. I regret ever going to her office. P.S. Just want to add one more thing. Dr. Nelson, who shares the same office with Emily Woo is actually decent.”

B. The Anti–SLAPP Motion, Opposition, and ReplyIn his anti-SLAPP motion, defendant claims that posting the review was protected conduct because the review concerned an issue of public *1010 interest and was made in a public forum. Defendant further claimed that Woo could not show a probability of success on her claims. Defendant submitted, among other things, copies of various Web site pages to show that the Internet is an important source of public information about oral hygiene, dentists, and dentistry. Defendant also submitted Web site pages concerning the use of silver amalgam to fill cavities and whether it is safe because it contains mercury. In opposing the motion, Woo claimed that posting the review was not protected conduct. She argued that the review reflected only “a dispute between private parties about the manner in which private services were rendered.” Woo further argued that she would probably succeed on her claims. In her declaration, Woo stated that in 2006, she advised Yoo that his son needed a filing, advised them that she would use silver amalgam containing mercury, provided a data sheet concerning the use of amalgam, and obtained written consent. Thereafter, she conducted the procedure using nitrous oxide because the boy resisted needles. Woo stated that the boy exhibited no ill effects from the gas, and his parents never complained about its use. According to Woo, the use of both the gas and amalgam are approved by the American Dental Association (ADA). Woo further declared that in April 2008, Yoo cancelled a scheduled appointment without sufficient notice and were charged for it. In May, she took x-rays of the boy, found cavities, and recommended fillings and additional x-rays. Yoo asked for a Saturday appointment, but she declined because she reserves that day for simpler procedures due to staffing difficulties. When Yoo complained, Woo waived the missed-appointment fee. Nevertheless, Yoo terminated his service, demanded dental files, and went to another dentist. Thereafter, Yoo published his negative review.

In reply, defendants submitted the declarations of Yoo. Yoo stated that he wrote and posted the review on Yelp. Yoo further stated that after his son’s cavity was filled in 2006, his son was pale and vomited and **757 felt light-headed for hours. In 2008, after learning from Woo that his son had more cavities and being concerned about the boy’s reaction to the nitrous oxide, Yoo took him to a different dentist, who found several more cavities and filled them with white composite after they discussed the pros and cons of silver amalgam. The new dentist also did not use nitrous oxide. Thereafter, Yoo researched the use of silver amalgam and nitrous oxide on the Internet. He then shared his views on both and his experience with Woo with others in his posting.

IV. ANALYSIS OF THE ANTI–SLAPP MOTION

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A. Defendant’s Burden to show Protected Conduct

Defendants bore the burden to establish that posting the review was protected conduct. As noted, the anti-SLAPP statute is designed to protect, among other acts, “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.” It is settled that web sites accessible to the public are public forums for purposes of the anti-SLAPP statute. *1011 Second, although “not every Web site post involves a public issue” (D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226, 106 Cal.Rptr.3d 399), consumer information that goes beyond a particular interaction between the parties and implicates matters of public concern that can affect many people is generally deemed to involve an issue of public interest for purposes of the anti-SLAPP statute. Here, the court found, and we agree, that defendants made a prima facie showing that the posted review involved a public issue, namely public concern, discussion, and controversy about the use of silver amalgam because it contains mercury. Woo’s own documentary submissions lend further support. The data sheet concerning amalgam that Woo provides to her patients advises that mercury can be harmful and has caused “discussion about the risks of mercury in dental amalgam” and a “diversity of opinion[ ] ... regarding the safety of dental amalgams.” Woo also submitted an ADA Journal article that acknowledges the existence of a controversy concerning the potential adverse health effects of exposure to mercury in amalgam.

B. Defamation

Before determining whether Woo showed a probability of success on her defamation claim, we set forth the general legal principles that govern an action for defamation. The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720). The Civil Code provides: “Defamation is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” “Statements that contain such a charge directly, and without the need for explanatory matter, are defamatory per se. A statement can also be defamatory per se if it contains a charge by implication from the language employed by the speaker and a listener could understand the defamatory meaning without the necessity of knowing extrinsic explanatory matter.” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112). *1012 “‘The sine qua non of recovery for defamation ... is the existence of falsehood.’ Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as defamation, statements of opinion are constitutionally protected.” (McGarry, supra, 154 Cal.App.4th at p. 112.) That does not mean that statements of opinion enjoy blanket protection. ( Ibid.) On the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18–19.) The critical question is not whether a statement is fact or opinion, but “‘whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.’” (McGarry, supra, 154 Cal.App.4th at p. 113.) “To determine whether a statement is actionable fact or nonactionable opinion, courts use a totality of the circumstances test of whether the statement in question communicates or implies a provably false statement of fact. Under the totality of the circumstances test, ‘[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense.... Next, the context in which the statement was made must be considered.;” (McGarry, supra, 154 Cal.App.4th at p. 113.) In her complaint, Woo alleged that the review was defamatory per se because it falsely implied the following facts: (1) Woo “had failed to tell [Yoo that his] sons filling contained mercury;” (2) Woo “mis-diagnosed the case;” (3) Woo “used a General Anesthetic.” Concerning the last allegation, Woo alleged that the use of a general anesthetic is outside the scope of her practice, and she could lose her license for putting a patient under a general anesthetic. Woo alleged that during the last visit, Yoo’s child struggled, making it difficult to take x-rays of his teeth. She was able to get pictures of only the right side. She advised Yoo that he had at least two cavities there. She suggested a return visit to x-ray the left side because she suspected the boy had more cavities. Woo further alleged that she does not use general anesthesia, using

41


it is outside the scope of her practice, and she could lose her license for using it. *1013 On appeal, Woo argues, as she did below, that the review implied that she was negligent and incompetent in failing to warn Yoo that silver amalgam contains mercury and advise them of alternatives; in failing to find the boys cavities and thereby misdiagnosing him; and in filling the boys cavities under a general anesthetic and thereby exposing him to an unreasonable risk of harm.

V. ANALYSIS OF IMPLIED CLAIMS IN THE REVIEW

A. Failure to Warn and Advise

The review stated that Woo used a silver-colored material called amalgam to fill the boy’s cavities, but later, the new dentist used a different, white-colored filling material. The review explained that color indicates what the filling material contains. The review states that what made Yoo “really, really angry” was that silver amalgam contains mercury. The white material used by the new dentist does not contain mercury and is better because it also contains a “fluoride to clean teeth.” A reasonable person could understand Yoo’s statement that he was “really, really mad” about the fact that silver amalgam contains mercury and his statement that he regretted bringing his son to Woo to mean that mercury is bad and should be avoided and that he did not know that Woo had used amalgam or consent to its use and did not know that there were alternatives that did not contain mercury until later when he brought his son to the new dentist. Furthermore, a reasonable person could well infer that Yoo would not have consented to the use of amalgam and would have insisted that Woo use an alternative. However, Woo submitted evidence showing that before filling the boy’s cavities, she provided Yoo with a data sheet concerning filling material which not only disclosed that amalgam contains mercury but also revealed an alternative, composite resin filling material and then compared the pros and cons of each. Woo also submitted evidence that Yoo acknowledged receiving the sheet and consented to the procedure that Woo ultimately employed. In addition, Woo submitted documentary evidence and the declaration of a dental professional indicating that when properly used, silver amalgam is safe and that within the dental profession there is no genuine controversy about its safety and use. Given (1) Yoo’s introductory remarks that Woo deserves a zero rating and should be avoided “like a disease” and that he regretted ever bringing his son to see her, (2) his rage at Woo’s use of amalgam because it contains mercury, and (3) Woo’s evidence that Yoo was advised and consented to the *1014 use of amalgam, a jury reasonably could find that the review falsely implied that Woo had failed to warn and advise about silver amalgam and arguably better alternatives to its use. Moreover, a jury could also find that such a false implication was defamatory, in that it could subject Woo to contempt and cause her to be avoided and thereby injure her professional career as a dentist. Defendants argue that the review does not expressly accuse Woo of failing to warn and advise. Indeed, in his declaration, Yoo concedes that he received the data sheet about filling materials. However, defendants propose a different, more innocent interpretation of the review. They argue that it was not the potential danger from mercury and the lack of warning that amalgam contains mercury that made Yoo “really, really mad”; rather, Yoo was mad because he did not fully understand that other dentists use arguably safer and better alternatives to amalgam that do not contain mercury until he took his son to another dentist. First, that the review did not expressly state that Woo failed to warn or advise is irrelevant. “A defendant is liable for what is insinuated, as well as for what is stated explicitly.” (Bates v. Campbell (1931) 213 Cal. 438, 442.) Thus, as noted, a writing can be defamatory if it implies a false assertion of fact. (McGarry, supra, 154 Cal.App.4th at p. 112.) The way the review was written reasonably implies a lack of warning and advice. Moreover, the review does not preclude such an implication by, for example, suggesting that Yoo knew that amalgam contains mercury before Woo used it. Even if defendants’ reading of the review were reasonable, statements can be defamatory despite the possibility of an innocent, nondefamatory interpretation. However, we find his reading to be strained and it is undermined by the data sheet which discloses that amalgam contains mercury and reveals an alternative resin filling material that does not contain mercury. Finally, the suggestion that Yoo was not mad because amalgam contains mercury is particularly unpersuasive in light of defendants’ strenuous effort to show that the review involved a public issue concerning the safety issues related to the use of

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amalgam because it contains mercury. *1015 Citing Forsher v. Bugliosi (1980) 26 Cal.3d 792, defendants argue that Woo could not oppose the anti-SLAPP motion on the ground that the review was defamatory by implication because the complaint does not expressly allege defamation by implication or the facts necessary to draw a defamatory implication. In Forsher v. Bugliosi, 26 Cal.3d 792, the court reaffirmed settled principles. “[T]he definition of defamation has been held to include almost any language which, upon its face, has a natural tendency to injure a person’s reputation.” In determining whether a statement is defamatory we look to what is explicitly stated as well as what insinuation and implication can be reasonably drawn from the communication. “To constitute a defamation it is not necessary that there be a direct and specific allegation of improper conduct, as in a pleading. The charge may be either expressly stated or implied; and in the latter case the implication may be either apparent from the language used, or of such a character as to require the statement and proof of extrinsic facts, (inducement, colloquium, and innuendo) to show its meaning. In the last case, proper allegations and proofs of the facts necessary to make the meaning of the language apparent will be required.” In this connection the expression used as well as the ‘whole scope and apparent object of the writer’ must be considered.” (Id.) Here, the implied, allegedly defamatory accusation that Woo failed to warn or advise can reasonably and readily be inferred directly from the review without additional facts or explanation. Under such circumstances, further pleading and proof was unnecessary. In sum, the review falsely implies that Woo failed to warn and advise, and defendants’ showing does not conclusively negate that implication or preclude a finding that it was false and defamatory.

B. Misdiagnosis of Cavities

The review stated that Woo treated Yoo’s son for two years; she worked very fast; and she found only two cavities. However, when Yoo brought his son to another dentist, he discovered seven more cavities. Concerning that discovery, Yoo stated, “All right all of those appeared during the last half of the year.” Viewed in light of Yoo’s introductory and closing remarks, a reasonable person could probably understand these statements to be criticism of Woo for working hastily, failing to find all of the cavities **765 that the boy had, and *1016 thereby substantially mis or underdiagnosing the condition of the boys teeth. Yoo’s statement, quoted above, does not necessarily or unequivocally represent an honest concession that his sons seven cavities developed only after Woo stopped treating him. Rather, given its context and the tone of the entire review, the statement would more reasonably be understood as a sarcastic remark implying just the opposite: those seven cavities did not just suddenly appear in such a short time after Woo’s services were terminated. In her declaration, Woo stated that in February 2006, she took an x-ray of Yoo’s son’s teeth, discovered a cavity, and later filled it. Over the next two years, she saw the boy, took additional x-rays, and cleaned his teeth. In April 2008, Yoo cancelled a scheduled appointment without advance notice, and she billed them for it but later waived the fee. In May, she took two x-rays of the boy and found “multiple ... cavities,” and recommended fillings and additional x-rays because the boy had made it difficult to get clear pictures. Yoo sought a weekend appointment, but Woo could not accommodate them because she has limited staff on weekends and reserves that time for simple procedures. Thereafter, Yoo terminated her services and demanded the sons file.

If believed, Woo’s statement would refute the implied assertion that she worked so fast that she failed to find several cavities thus had mis- or under-diagnosed the condition of boy’s teeth. Moreover, a jury reasonably could conclude that such a false implication was defamatory. Defendant’s showing does not conclusively negate or preclude such a conclusion.

C. Use of General Anesthesia

The review asserted that laughing gas (nitrous oxide) is a general anesthetic and that it is easy for dentists to use. The review further stated that using a general anesthetic harms a child’s nervous system, and Woo’s use of the gas had harmed the boy by causing him to be dizzy for hours after the appointment.

Again, given Yoo’s introductory and closing remarks, especially about how fast Woo worked, a reasonable person would probably infer that Woo put Yoo’s son under general anesthesia to make her job quicker and easier, *1017 exposed the boy’s

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nervous system to potential injury, and had, in fact, harmed him by causing prolonged dizziness.

However, in her declaration, Woo stated that the use of nitrous oxide has long been approved by the ADA. She explained that she used it for a 10–minute procedure because the boy had exhibited resistance to needles. Moreover, she did so with the oral consent of Ma, who watched the entire procedure. Woo said that she did not observe any negative side effects during or after the procedure, and the boy’s parents never complained or even mentioned that he had experienced some problems.

Woo further explained that as applied in dental procedures, nitrous oxide is not considered a general anesthetic because the patient does not lose consciousness; rather it is an analgesic. Moreover, she opined that there is no real controversy over the use of the gas on children when it is used as she uses it, and this is especially so when a child is resistant to the use of needles, which can break and cause harm. Woo submitted additional documentary evidence to this effect.

Woo also submitted the declaration of a dental professional. He stated that when used briefly and sporadically on children to perform dental procedures, nitrous oxide is not a general anesthetic but a “conscious analgesic” akin to the medications injected with needles, and such a brief use of the gas does not harm or pose a risk of harm to their nervous system. He stated that its use in this way is accepted within the dental profession and is, from a medical standpoint, preferable for young children who are resistant to and/or fearful of needles, which can cause physical and emotional trauma. He explained that only the severe and prolonged administration of the gas could conceivably pose a neurological or psycho-neurological risk of harm, but that situation is distinguishable from using the gas for 10–20 minutes to perform a dental procedure.

Given Woo’s evidence, a jury reasonably could find that the implied assertion that to make her job easier and quicker, Woo put defendant’s son under general anesthesia to fill his cavities, exposed the boy’s nervous system to potential harm and harmed him was false and defamatory. Again, defendants’ showing does not conclusively negate or preclude such findings.

D. Conclusion

Our discussion of Woo’s burden leads us to find that she made a prima facie showing of probable success on her cause of action for defamation. Thus, the court properly denied the anti-SLAPP motion as it applied to that claim.

Judgment affirmed.

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Boehm v. Nevada Automobile Insurance Fund131 Nev. 261

Court of Appeals of Nevada.

Lucy M. BOEHMv.

NEVADA AUTOMOBILE INSURANCE FUND

No. 123.|

June 10, 1976.

*261 ROHT-ARRIAZA, Judge. (concurring: COLES, J.; DEPOORTER, J.)

We are here again confronted with determining whether a motorist, Lucy M. Boehm, the appellant, used ‘all reasonable efforts’ to ascertain the identity of the owner and operator of a motor vehicle which allegedly caused her *262 to run off a public street and collide with a utility pole with resultant substantial bodily injuries and property damage. The appellee, Nevada Automobile Insurance Fund, the legal successor to the Unsatisfied Claim and Judgment Fund Board, ‘standing in the shoes’ of the unidentified motorist alleged to have caused the harm, contended that all such ‘reasonable efforts’ had not been pursued by Miss Boehm and prevailed in a hearing in the Circuit Court upon Miss Boehm’s petition to sue the Fund. Aggrieved at that result she urges a reversal.

Miss Boehm testified that at approximately 1 a. m. on April 9, 1973 she left her sister’s apartment in North Las Vegas, where she had spent the evening, to return to her home located on Southway in Las Vegas; as she drove her Datsun automobile southward, in the lane adjacent to the center line of the Las Vegas Strip Road, at about 2:45 a. m. and as she was at ‘about 42nd Street’ she noticed a northbound vehicle described by her only as ‘a large white car’ close to the center line and ‘coming toward her at an angle.’ Travelling then at about 30 m.p.h. she accelerated to avoid the oncoming vehicle, pulled her steering wheel to the right and struck the pole. Although she had moments of unconsciousness as a result of her injuries, Miss Boehm, in her testimony, acknowledged that she had told an unidentified police sergeant who had come upon the scene immediately following the collision that ‘someone else was driving’ when inquiry was made by him as to whether anyone else accompanied her. She classified this statement as ‘ridiculous’ since she alone was driving the car and ‘had the steering wheel wrapped around her arm.’

The appellant acknowledged that when interviewed at the Memorial Hospital where she was attended for her injuries she made no statement to the investigating police officer with regard to any other vehicle being involved in the incident.

*263 When asked during her testimony what she had personally done to locate the unidentified owner or operator of the ‘large white car’ Miss Boehm replied: ‘I didn’t make any efforts, the only thing I know an ad was put in the paper for a week if anyone one had seen the accident.’

Placed in evidence in the hearing was a copy of an advertisement prepared by the appellant’s attorney which was published on the back page of the Las Vegas ‘Review-Journal’ on both May 15 and 19, 1973, and which read:

‘Anyone witnessing an accident which occurred on Monday, 4/9/‘73 at 2 A.M. at Las Vegas Strip Rd. & 39th St. involving a ‘72 Datsun license LY 5510 and a large car please call . . ..’ The advertisement listed the name and telephone number of her former attorney.

Officer Marter of the Las Vegas Police Department, who was summoned by his sergeant to take over the investigation, testified that he arrived at the scene at 2:50 a. m. and pinpointed the place of the collision as ‘in front of the premises known as 4324 Las Vegas Strip Road.’ When he arrived, Miss Boehm was being removed from her vehicle by an ambulance crew; there were several persons on the scene who had stopped to render her aid, but none of those persons present had actually witnessed the accident. The officer interviewed Miss Boehm in the examination room at the Union Memorial Hospital where she was being treated for her injuries about an hour or an

45


hour and one-half later. He testified that she was extremely emotional, stated that she was ‘very tired’ and ‘did not know how the accident occurred’; she made no statement to him then-or later-with regard to any other vehicle being involved in the incident.

Since the police were never notified of the existence of any other vehicle having been involved in the accident, or having caused it, no investigation was carried on by them to *264 ascertain the identity of the motorist who purportedly precipitated Miss Boehm’s plight. Upon the hearing of the petition to sue the sole evidence thus submitted in the trial court as to whether ‘reasonable efforts’ had been taken by the appellant was the published advertisement.

The relevant statute provides in pertinent part that a claim such as Miss Boehm’s may be made against the Fund ‘where the identity of the motor vehicle and the operator and owner thereof cannot be ascertained.’ The remedy, however, is subject to certain statutory conditions, the one here involved providing that: ‘All reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator thereof and either the identity of the motor vehicle and the owner and operator thereof cannot be established, or the identity of the operator who was operating the motor vehicle without the owner’s consent cannot be established.’ A number of our prior decisions have considered the requirement of “all reasonable efforts.” We find them controlling.

In Hickman v. Unsatisfied Claim and Judgment Fund Board, 255 Nev. 267 (1969), Hickman testified that in his conversation with the investigating police officer *265 he made no reference to another car being involved in the accident and his counsel, having obtained the police report, which was void of information regarding the identity of the other vehicle, believing that any investigative efforts would have been fruitless, did not pursue the matter further, other than to accept Hickman’s version that an unidentified vehicle had forced him to run off the road. After pointing out that ‘it would have been most natural for him to have immediately vented his resentment at one who had injured him,’ in discussing the case with the police officer, Chief Judge Hammond, for the Court, stated:

‘It ((the statute)) does not permit the injured person to be the judge of the need to investigate or of the probability of success. The statute does not grant the right to sue in a ‘hit and run’ case to one who, when faced with the need to seek the facts, becomes fainthearted or completely indolent. At the least, it cannot be assumed that if the investigating officer had been told of the other car at the time of the accident or later, relevant information would not have resulted. Admittedly here the appellant made no identifying effort and we cannot equate ‘no’ with ‘all reasonable.“ 255 Nev. at 270, 257 A.2d at 428.

In Grady v. Unsat. C. & J. Fund Bd., 259 Nev. 501 (1970), Grady was a passenger in an automobile which allegedly was forced off the road by an oncoming ‘phantom motor vehicle.’ A State Policeman summoned to the scene there conducted an investigation to ascertain the identity of any witnesses. None of those questioned at the scene could supply the trooper with any information and his report so stated. Grady contended that since the State Trooper had made ‘reasonable efforts’ in his investigation, which were unsuccessful, to require him to do anything after a nonproductive police investigation would be a ‘subservience to technicality.’

In finding that Grady had made no ‘reasonable efforts’ to *266 identify the ‘phantom motorist,’ Judge Finan, for the Court, stated: ‘In our opinion, to allow Grady to equate ‘reasonable efforts,’ as required by the statute, with a pro forma negative police report about which he had made no inquiry and with which he was unfamiliar until the day of the hearing some three months after the accident, would be playing fast and loose with the intent of the statute.’ 259 Nev. at 505-06,.

After pointing out from Grady’s testimony that he had ‘never talked to any police officer about this accident,’ and citing the holdings in Hickman, supra, he continued for the Court:

‘Reasonable efforts’ will differ according to the facts and circumstances of each case, and it is not a term which is easily defined or delineated. Whether it would have been reasonable under the circumstances of this case to require the appellant to place an advertisement in a newspaper

46


in an effort to locate potential witnesses or to personally interview the residents of the homes in the area need not be decided here. At the very least, reasonable efforts in the case at bar would require the appellant to communicate with the State Police to determine whether or not they had even conducted any investigation, and that was not done. In view of the fact that the appellant failed to take even this initial step, we need not decide whether he should have gone further. As in Hickman, we are not prepared to accept a total absence of any action by the claimant as ‘reasonable efforts.’ 259 Nev. at 506-07.

We decided, however, in Jones v. Unsat. C. & J. Fund Bd., 261 Nev. 62 (1971), that the petitioner had complied with the statutory requirement of making ‘all reasonable efforts’ and was entitled to sue the Board. In Jones the driver of a blue Oldsmobile Cutlass ran over him on Independence Day while he was taking an afternoon nap *267 on the grass, about 15-20 feet off the roadway in Druid Hill Park. Although the driver took him to a hospital for emergency treatment he disappeared without identifying himself or furnishing any information to the hospital authorities. Jones reported the incident to the police ‘sometime between one and three days after the accident,’ and attributed his inaction to his ‘great pain.’ His attorney interviewed hospital personnel, checked the hospital records and then caused to be published in the Afro-American newspaper two advertisements seeking the identity of anyone who ‘saw (a) car hit man on grass in Druid Hill Park July 4, 1969.’

Judge Digges, who wrote the opinion for the Court, after observing that in Grady, supra, ‘it was suggested that newspaper advertisements or a door to door canvass of the few homes in the immediate vicinity of the accident would have constituted at least some phase of a reasonable investigation,’ stated:

‘The (police) report that was taken offered no help at all, except to make it clear that it would be unreasonable to expect the police to assist in a metropolitan-wide hunt for a blue Oldsmobile Cutlass. Jones’ most logical and promising point of inquiry was to find a witness either at the hospital or among the members of the black community who frequented Druid Hill Park. His attorney, who was contacted promptly, went to work on these clues immediately, inquiring at the hospital and placing two ads in the black community newspaper.

Concluding that ‘both the appellant and his attorney may well have been convinced of the improbability of success, but in spite of this they have made, in our opinion, ‘all reasonable efforts’ to find a needle in a haystack,’ Judge *268 Digges for the Court, set forth a test of ‘reasonableness’ in such cases when he said:‘We think it fair to say that, at a minimum, vigorous good faith efforts are required to identify the tortfeasor, the same efforts one would expect an injured party to exert if he knew there would be no recovery unless he actually located the driver. In ruling on investigative efforts the trial judge must exercise discriminating judgment, giving due regard to such variable and interrelated factors as credibility, practicality, the law of diminishing returns, a sensible balancing of the anticipated amount of recovery against the cost of particular modes of inquiry, access to investigative resources, the fresh pursuit of promising clues, and, in the long run, the claimant’s application of good common horse sense.’ It is clear from our decisions that what are ‘reasonable efforts’ will differ ‘according to the facts and circumstances in each case, and it is not a term which is easily defined or delineated.’ See Grady, supra, 259 Nev. at 506. Each case has been decided on its own facts, and has been ‘evaluated against an unarticulated general standard that has been evolving on a case by case basis.’ Although, as pointed out in Brown, supra, we have continued ‘to avoid *269 the adoption of a checklist in these cases,’ ‘at a minimum, vigorous good faith efforts are required to identify the tortfeasor, the same efforts one would expect an injured party to exert if he knew there would be no recovery unless he actually located the driver.’

Our holdings in Hickman, supra, and in Grady, supra, seem here particularly apposite insofar as they relate to the efforts personally made by Miss Boehm to identify the ‘phantom vehicle.’ Like the claimant in Hickman, she never told the investigating officer when interviewed by him that any other vehicle had caused her accident, nor did she, subsequent to that interview, ever report such fact to the police. As we noted in Hickman, ‘if the investigating officer had been told of the other car at the time of the accident’ relevant information might have resulted from such disclosure. At the very least, reasonable efforts in the case would have required the appellant to communicate with

47


the Las Vegas City Police to determine whether or not they had ever conducted and investigation to ascertain the identity of the errant motorist. See Grady, supra, 259 Nev. at 507, 270 A.2d at 485.

Nor does it appear that her attorney even minimally relied on a ‘negative police report’ as was done in Grady, since the advertisement caused to be published by her attorney factually does not coincide with either the time of the happening of the accident nor its locale, as set forth in the police report.

Concededly, no attempts were made, as suggested in Grady, and in Jones, to attempt by door to door canvass to interview the residents of the 4300 block of Las Vegas Strip Road to ascertain if any of them might personally be able to supply even a clue in identifying the fugitive motorist.

Although in Jones, a more precise newspaper advertisement had been used in an attempt to locate witnesses who may have been in Druid Hill Park at the time Jones was run over by the unidentified motorist, his ‘reasonable efforts’ were based additionally on the fact that his attorney went to work immediately on the clues, visited *270 the hospital to which the motorist had taken Jones, interviewed the personnel who were then on duty and checked its records. In this case nothing was apparently done other than the publication of an inaccurate newspaper advertisement.

When Judge Proctor denied the appellant leave to sue he pointed out that the subject accident occurred in the 4300 block of the Las Vegas Strip Road, that the advertisement made reference to an accident some four blocks away, at Las Vegas Strip Road and 39th Street, and that anyone who may have witnessed the accident in which the appellant had been involved certainly would not construe the advertisement as a solicitation to come forth with information about her accident.

Assuming, without deciding, that an accurate newspaper advertisement, when considered with all the other facts and circumstances in the case, might, in a proper case, supply evidence of such ‘reasonable efforts’ to identify the alleged tortfeasor, we do not think that the advertisement here used by appellant’s attorney, directing potential witnesses to a busy east-west intersection, at Greenmount Avenue and 39th Street, at least four blocks distant, and purporting to have occurred 45 minutes before Miss Boehm’s untoward incident, resulted in any ‘reasonable effort’ to ascertain the identity of the motor vehicle, or of the owner and operator thereof which allegedly caused her to collide with the utility pole. We agree, under the test laid down in Jones, supra, that in ruling on the claimant’s investigative effort, the trial judge used discriminating judgment, giving due regard to such variable and interrelated factors as the modes of inquiry invoked, access to investigative resources, the fresh pursuit of any promising clues and the claimant’s application ‘of good common horse sense.’ As pointed out in Jones, supra, although ‘we do not think *271 that the claimants before the Fund ought to be subjected to the labors of Sisyphus in measuring their attempts to exhaust all reasonable efforts to identify and locate an elusive defendant,’ we conclude on the facts here that the petitioner’s inefficacious efforts did not constitute and effort, much less establish ‘all reasonable efforts,’ as a condition precedent to making a claim upon a Fund preserved for claimants who have exhausted all other sources of recovery.

Order of the Circuit Court for Las Vegas County affirmed; appellant to pay costs.

48


Delicious Dumplings Corporation v. Mormon Sanctuary Church 134 A.D.3d 626

Supreme Court, Appellate Division, First Department, New York.

DELICIOUS DUMPLINGS CORPORATION, et al., Plaintiffs–Appellants,v.

MORMON SANCTUARY CHURCH, Defendant–Respondent.

Aug. 10, 2009.

Opinion *626 Jennifer Wong is the sole owner of adjoining properties located at 4366 and 4370 Park Avenue in Bronx County, which are leased to the family business, plaintiff Delicious Dumplings, for use as a factory. At issue is the ownership of a 25–foot square parcel, which adjoins the north side of the 4370 Park Avenue property and which is improved by a building extending to its boundary lines. The disputed parcel was formerly used by Hunter Paper Company, which leased the 4370 property from its former owner, Can–Kap Realty Corp. until its sale to the Weishaus family in 1979. Though the disputed parcel is located on property that has been owned by defendant church since 1976, it has been used exclusively by the factory for storage of dumplings in large industrial freezers since 1979. Defendant argued that plaintiffs’ general access to of the disputed parcel was permissive. The affidavit of the church’s bishop states that he orally granted permission to Delicious Dumpling to use the disputed parcel to unload trucks. *627 The affidavit asserts that plaintiffs “enter[ed] onto the land under which defendant’s [sic] owned without the permission of defendant” and “trespassed by the unauthorized entry on the land without permission of, or payment to, defendant, and their conduct of operations on the land destroyed the market value of defendant’s ... property.” Plaintiff submitted with her moving papers deeds, surveys of the properties (including the disputed parcel), photographs and the affidavit of Delicious Dumpling’s owner, which recites the history of the disputed parcel. It avers that while under the factory’s exclusive possession and control since the 4370 property was acquired in 1979, defendant made no claim to be the rightful owner until 1997, when the Bishop orally related his belief that the 25–foot square parcel belonged to the church. The affidavit concludes that the intervening period of its exclusive and unchallenged use as a storeroom by the factory establishes plaintiffs’ claim of adverse possession. *628 To prevail on an adverse possession claim: it must be nonpermissive, it must be actual, it must be open and notorious, it must be exclusive and it must be continuous” (Nazarian v. Pascale, 225 A.D.2d 381, 382, [1996]) throughout the 10–year statutory period). Possession is not permissive when it “constitutes an actual invasion of or infringement upon the owner’s rights” (Katona v. Low, 226 A.D.2d 433, 434 [1996] ). Here, the disputed parcel is “protected by a substantial enclosure” and improved by a structure, extending to its boundaries, walled off and accessible only from plaintiffs’ property. Thus, their use has been actual, exclusive, open and notorious and continuous for a period of at least 10 years (see Guardino v. Colangelo, 262 A.D.2d 777, 778 [1999]). The parcel is included as part or plaintiffs’ property in a 1940 survey, and there is no evidence that the church advanced any claim to be the rightful owner of the property from 1979 to 1997.

That the bishop may have given plaintiff factory permission to use the parcel does not negate the nonpermissive nature of plaintiff’s use. The bishop specified that the parcel could be used for unloading trucks; the Plaintiff instead used it as a dumpling storage storeroom. Mere permission for use by the owner does not negate nonpermissive use when the conditions underlying permission are completely ignored. The church concedes that plaintiffs’ specific use was “without the permission of defendant” and that the church was aware of this incorrect use. Even so, the church did nothing. Thus, plaintiffs have satisfied the statutory and common-law criteria for acquisition of title by adverse possession. *629 Plaintiff Jennifer Wong is declared the owner of the disputed parcel.

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It is so ordered.

50


Scherzer v. Virgin America Aviation, Incorporated 73 Haw. 420

Supreme Court of Hawai'i.

Maxwell SCHERZER, Appellant,v.

VIRGIN AMERICA AVIATION, INCORPORATED, Appellee,July 19, 1995.

*420 OpinionPrice, J. (concurred by Crawford, J.; Lefstin, J.; Knapp, J.; Faigman, J.)

Appellant, Maxwell Scherzer, found over $18,000 in currency inside the wing of an airplane. At the time of this discovery, appellee, Virgin America Aviation, Inc., owned and serviced the plane. Both parties claimed the money as against the true owner. After a bench trial, the district court held that the currency was mislaid property and belonged to the owner of the plane. Scherzer appealed and Virgin America Aviation cross-appealed. I. Background Facts and Proceedings.In April of 1992, Virgin America Aviation Inc. became the owner of an airplane. As part of the airline’s standard procedure, the plane was brought in for a routine annual inspection. Scherzer was a local engineer in the area, and did the inspection. As part of the inspection, Scherzer removed panels from the underside of the wings. Although these panels were to be removed annually as part of the routine inspection, a couple of the screws holding the panel on the left wing were so rusty that Scherzer had to use a drill to remove them. Scherzer testified that the panel probably had not been removed for several years. Inside the left wing Scherzer discovered two packets approximately four inches high and wrapped in aluminum foil. He removed the packets from the wing and took off the foil wrapping. Inside the foil was paper currency, tied in string and wrapped in handkerchiefs. The currency was predominately twenty-dollar bills with mint dates before the 1960s. Two days later, Scherzer filed an affidavit with the county auditor claiming that he was the finder of the currency. Virgin America Aviation also filed a claim to the money. The notices required under state law were published and posted. No one came forward within twelve months claiming to be the true owner of the money. See id. § 644.11 (if true owner does not claim property within twelve months, the right to the property vests in the finder). *421 Scherzer filed this declaratory judgment action against Virgin America Aviation to establish his right to the property. The parties tried the case to the court. The district court held that chapter 644 applies only to “lost” property and the money here was mislaid property. The court awarded the money to the bank, holding that it was entitled to possession of the money to the exclusion of all but the true owner. The court also held that Scherzer was a “finder” within the meaning of chapter 644 and awarded him a ten percent finder’s fee. See id. § 644.13 (a finder of lost property is entitled to ten percent of the value of the lost property as a reward). Scherzer appealed. He asserts alternatively that even under the common law classes of found property, he is entitled to the money he discovered. He claims that the trial court should have found that the property was lost or abandoned rather than mislaid, thereby entitling the finder to the property.

Virgin America Aviation cross-appealed. Virgin America Aviation claims that if the money is mislaid property, it is entitled to the money as the owner of the plane.

*422 II. Classification of Found Property.Under the common law, there are three categories of found property: (1) abandoned property, (2) lost property, and (3) mislaid property. The rights of a finder of property depend on how the found property is classified.

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A. Abandoned property. Property is abandoned when the owner no longer wants to possess it. Abandonment is shown by proof that the owner intends to abandon the property and has voluntarily relinquished all right, title and interest in the property. Abandoned property belongs to the finder of the property against all others, including the former owner.

B. Lost property. “Property is lost when the owner unintentionally and involuntarily parts with its possession.”

C. Under chapter 644, lost property becomes the property of the finder once the statutory procedures are followed and the owner makes no claim within twelve months. Hawai’i Code § 644.11 (1991).

D. Mislaid property. Mislaid property is voluntarily put in a certain place by the owner who then overlooks or forgets where the property is. It differs from lost property in that the owner voluntarily and intentionally places mislaid property in the location where it is eventually found by another. In contrast, property is not considered lost unless the owner parts with it involuntarily.

III. Is There Substantial Evidence to Support the Finding That the Money Found by Scherzer Was Mislaid?We think there was substantial evidence to find that the currency discovered by Scherzer was mislaid property. In the Eldridge case, we examined the location where the money was found as a factor in determining whether the money was lost property. Eldridge, 291 N.W.2d at 323 (The place where money or property claimed as lost is found is an important factor in the determination of the question of whether it was lost or only mislaid.”). The place where Scherzer found the money and the manner in which it was hidden are also important here. The bills were carefully tied and wrapped and then concealed in a location that was accessible only by removing screws and a panel. These circumstances support an inference that the money was placed there intentionally. This *423 inference supports the conclusion that the money was mislaid. Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376, 378 (1948) (fact that $800 in currency was found concealed beneath the paper lining of a dresser indicates that money was intentionally concealed with intention of reclaiming it; therefore, property was mislaid, not lost). The same facts that support the trial court’s conclusion that the money was mislaid prevent us from ruling as a matter of law that the property was lost. Property is not considered lost unless considering the place where and the conditions under which the property is found, there is an inference that the property was left there unintentionally. 1 Am.Jur.2d Abandoned Property § 6, at 12; see Sovern, 20 P. at 105 (holding that coins found in a jar under a wooden floor of a barn were not lost property because the circumstances showed that the money was hidden there intentionally); see Farrare v. City of Pasco, 68 Wash.App. 459, 843 P.2d 1082, 1084 (1993) (where currency was deliberately concealed, it cannot be characterized as lost property). Contrary to Scherzer’s position the circumstances here do not support a conclusion that the money was placed in the wing of the airplane unintentionally. Additionally, as the trial court concluded, there was no evidence suggesting that the money was placed in the wing by someone other than the owner of the money and that its location was unknown to the owner. For these reasons, we reject Scherzer’s argument that the trial court was obligated to find that the currency Scherzer discovered was lost property. We also reject Scherzer’s assertion that as a matter of law this money was abandoned property. Both logic and common sense suggest that it is unlikely someone would voluntarily part with over $18,000 with the intention of terminating his ownership. The location where this money was found is much more consistent with the conclusion that the owner of the property was placing the money there for safekeeping. See Ritz, 467 N.W.2d at 269 (property not abandoned where money was buried in jars and tin cans, indicating a desire by the owner to preserve it); Jackson, 200 P.2d at 378 (because currency was concealed intentionally and deliberately, the bills could not be regarded as abandoned property); 1 Am.Jur.2d Abandoned Property § 13, at 17 (where property is concealed in such a way that the concealment appears intentional and deliberate, there can be no abandonment). We will not presume that an owner has abandoned his property when his conduct is consistent with a continued claim to the property. Linscomb v. Goodyear Tire & Rubber Co., 199 F.2d 431, 435 (8th Cir.1952) (applying Missouri law); Hoffman Management Corp. v. S.L.C. of N. Am., Inc., 800 S.W.2d 755, 762 (Mo.Ct.App.1990) (stating that there is no presumption that real property is abandoned). Therefore, we cannot rule that the district court erred in failing to find that the currency discovered by Scherzer was abandoned property.

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IV. Summary.We conclude that the district court’s finding that the money discovered by Scherzer was mislaid property is supported by substantial evidence. Therefore, we affirm the district court’s judgment that Virgin America Aviation has the right to the money as against all but the true owner.

53


Probst v. Keoghan

806 F.Supp. 1846United States District Court,

N.D. West Virginia.

Jeffrey PROBST, Plaintiffv.

Phillip KEOGHAN, Defendant.Civ. A. No. 91–0870–C(S).

Sept. 26, 1992

**1846 Opinion

BLUM, J., District Judge.

The matter before the Court is a Complaint filed by Jeffrey Probst, Plaintiff, against Phillip Keoghan, Debtor, seeking a determination that a debt owed by Debtor be determined nondischargeable (nondischargeable debt cannot be eliminated in a bankruptcy proceeding) due to an assault. The Plaintiff, 26 years old at time of Trial, has been a farmer since 1977. Through a mutual friend, he was introduced to the Debtor in January, 1978. The Plaintiff and the Debtor became good friends, and developed an amicable relationship. However, in July 1978, Plaintiff indicated he desired to terminate the friendship, citing irreconcilable political preferences between the two. That termination, however, appeared to be unilateral, as Debtor continued to visit the Plaintiff.

During the Fall of 1978, the Debtor grew angry that Plaintiff wished to terminate their friendship over “politics.” In an attempt to convince Plaintiff to reinstate their friendship, Debtor drove out to Plaintiff’s farm shortly after midnight on February 10, 1979. Plaintiff greeted Debtor at the gate of the farm. After a few words, Plaintiff directed the Debtor to leave. At that time, the Debtor threw his keychains at the Plaintiff through the truck’s half-opened window. While Plaintiff ducked and was not hit by Debtor’s keys, Plaintiff’s reaction was so sudden that he struck his head against his mailbox, fracturing the zygomatic bone in his right eye. After multiple surgeries, it was determined that Plaintiff has permanently lost sight in his right eye. Plaintiff’s costs were attributed to Debtor; debtor did not contest the charges.

Two years later, in the Fall of 1980, Debtor declared bankruptcy. As part of his declaration, Debtor declared his inability to pay off Plaintiff’s fees and requested they be discharged. Plaintiff brought this action under the relevant governing statutory provision, stated below:

Bankruptcy Proceedings:(a) A discharge under this title does not discharge an individual debtor from any debt—(6) for assault by the debtor to another entity or to the property of another entity...

Assault in this jurisdiction is defined by: (1) a wrongful act, (2) that is intentional, (3) that was intended to cause apprehension of harmful or offensive contact, (4) actually did create an apprehension of harm to the victim.

*1847 Applying the above factors to the case at bar, this Court concludes that, for the purpose of the statute, the Debtor has assaulted the Plaintiff. First, the act of throwing keys at another person was “wrongful.” Cf. Singer v. Marx, 144 Cal.App.2d 637, 301 P.2d 440, 443 (1956) (“while throwing rocks at trees or into the street ordinarily is an innocent and lawful pastime, the same act when directed at another person is wrongful.”) Second, this Court finds that the Debtor intentionally threw the keys at the Plaintiff. Cf. In re Greenwell, 21 B.R. 419, 421 (D.C.S.D.Ohio 1982) (voluntary drinking constituted intentional act). While the Debtor testified that he did not intend to injure Plaintiff’s eye, such lack of intent is not an essential element in a common-law assault action. W. 54


Prosser, Law of Torts § 9 (4th ed. 1971) (intent to injure is not required for a plaintiff to recover on an assault and battery theory); Restatement 2d of Torts § 16 (1965); id § 435; accord Lambertson v. United States, 528 F.2d 441, 444 (2d Cir.1976) (intent to make contact, not to do injury, is essential element of assault and battery) (Applying New York law); Whitley v. Andersen, 37 Colo.App. 486, 551 P.2d 1083 (1976) (an intent to cause physical injury is not a prerequisite for liability on battery); cf. 6 Am.Jur.2d Assault & Battery § 117 (1963) (“the fact that an act was done with good intentions does *1848 not excuse the actor from civil liability for damage resulting therefrom”); 6A C.J.S. Assault & Battery § 7, at 325 (1975) (“absence of injury affects the measure of damages rather than the right of action”). See generally Rankin v. Farmers Elevator Mutual Insurance Co., 393 F.2d 718, 720 (10th Cir.1968) (“Where an intentional act results in injuries which are the natural and probable consequences of the act, the injuries as well as the act are intentional.”). By throwing her keys through a half-opened window at another person located a short distance away, Debtor manifested “an act [that was] ... done intentionally.” Third, the act of throwing keys at another person is one that “necessarily produce[s] harm.” The Debtor should have known that metal objects such as keys when struck against the human body would be harmful. Indeed, the loss of sight could hardly not be harmful. As stated by the court in In re Cooney, 18 B.R. 1011, 1014 (Bkrtcy.W.D.Ky.1982), a case involving injuries inflicted by a debtor while intoxicated:

His actions toward her ... hardly flowed from a compassionate tranquility, nor was it the milk of human kindness that filled him. The incident may have begun as one of those points of inebriant social friction to which the defendant, according to his own testimony, was occasionally a party. But the difference between violent mischief and actual hatred, when reflected upon from a hospital bed for nineteen days, is not much of a difference.

One additional point is that is no showing that the Debtor acted with “just cause or excuse.” It might well have been annoying to the Debtor that Plaintiff repeatedly refused to discuss politics with him. Indeed, Debtor testified that he was at the point of being “frustrated.” Such annoyance and frustration does not, however, rise to the level of justification. See 6 Am.Jur.2d Assault & Batter § 151 (1963) (“mere words or acts that do not amount to an assault ... are no defense to civil action on the ground of assault”). In sum, this Court concludes that Plaintiff has satisfied his burden to prove an assault. The Plaintiff’s Complaint seeking a determination that the debt be held nondischargeable is therefore sustained.

IT IS SO ORDERED.

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Flintstone Cave Company v. Jetson662 P.2d 882

Supreme Court of Wyoming.

FLINTSTONE CAVE COMPANY

v.JETSON

No. 5764.April 19, 1953.

Opinion

MYERS, Judge.

*882 Appellee and appellant were the owners of adjoining land in Crawford County, Wyoming. On appellant’s land was located the opening to a subterranean cavity known as ‘Flintstone Cave.’ This cave extended under a considerable portion of appellant’s land, and the southeastern portion thereof extended under lands owned by appellee. This action arose out of a dispute as to the ownership of that part of the cave that extended under appellee’s land. Appellant was claiming title to all the cave, including that portion underlying appellee’s land. Appellee instituted this action to quiet his title as by a general denial and appellant filed a cross-complaint by a general denial and appellee filed a cross-complaint wherein he sought to quiet his title to all the cave, including that portion underlying appellee’s land. There was a trial by jury which returned a verdict for the appellee. Appellant filed its motion for a new trial which was overruled by the court, and this the only *883 error assigned on appeal.

The facts as shown by the record are as follows: In 1873, a fellow named Stewart owned the real estate now owned by appellant, and in September of that year some young people who were upon that land discovered what afterwards proved to be the entrance to the cavern since known as Flintstone Cave, this entrance being approximately 700 feet from the boundary line between the lands now owned by appellant and appellee, and the only entrance to said cave. Within a week after discovery of the cave, it was explored, and the fact of its existence received wide publicity through newspaper articles. Shortly thereafter the then-owner of the real estate upon which the entrance was located took complete possession of the entire cave (now occupied by appellant) and used for exhibition purposes, and began to charge an admission fee to those who desired to enter and view the cave, and to exclude therefrom those who were unwilling to pay for admission. This practice continued from 1883 onwards. During the following years the successive owners of the land upon which the entrance to the cave was located, advertised the existence of said cave through newspapers, magazines, posters, and otherwise, in order to attract visitors thereto; also made improvements within the cave, including the building of concrete walks, widened and heightened portions of passageways; had available and furnished guides, all in order *884 to make the cave more easily accessible to visitors desiring to view. Appellant and predecessors, without asking or obtaining consent from any one, but claiming a right so to do, held and possessed said subterranean passages constituting said cave, excluding therefrom the ‘whole world,’ except such persons as entered after paying admission for the privilege of so doing, or by permission.

Appellee has lived in the vicinity of said cave since 1903, and purchased the real estate which he now owns in 1908. He first visited the cave in 1895, paying an admission fee for the privilege, and has visited said cave several times since. He has never, at any time, occupied or been in possession of any of the subterranean passages or cavities of which the cave consists, and the possession and use of the cave by those who have done so has never interfered with his use and enjoyment of the lands owned by him. For a period of approximately 25 years prior to the time appellee purchased his land, and for a period of 21 years afterwards, exclusive possession of the cave has been held by appellant, its immediate and remote grantors.

A part of said cave at the time of its discovery and exploration extended beneath real estate now owned by appellee,

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but this fact was not ascertained until the year 1932, when the boundary line between the respective tracts through the cave was established by means of a survey made by a civil engineer pursuant to an order of court entered in this cause. Previous to this survey neither of the parties to this appeal, nor any of their predecessors in title, knew that any part of the *885 cave was in fact beneath the surface of a portion of the land now owned by appellee. Possession of the cave was taken and held by appellant’s remote and immediate grantors, improvements made, and control exercised, with the belief on the part of such grantors that the entire cave as it was explored and held was under the surface of lands owned by them. There is no evidence of and dispute as to ownership of the cave, or any portion thereof, prior to the time when in 1929 appellee requested a survey, which was approximately 46 years after discovery of the cave and the exercise of complete dominion thereover by appellant and its predecessors in title. It is appellant’s contention that it owns that part underlying appellee’s land by adverse possession.

A title to land may be defeated by adverse possession. All the authorities agree that, before the owner of the legal title can be deprived of his land by another’s possession, through the operation of the statute of limitation, the possession must have been actual, open and notorious, exclusive, and continuous, for the full period prescribed by the statute. Let us examine the various elements that are essential to establish title by adverse possession and apply them to the facts that are established by the undisputed facts in this case.

(1) The possession must be actual. We have held that to establish “actual” possession, evidence must be presented which shows that possession of disputed property was used for enjoyment, cultivation, residence or improvements for the entire requisite ten-year period. It must be conceded that appellant in the operation of the ‘Flintstone Cave’ used not only the cavern under its own land but also that part of the cavern that underlaid appellee’s land, and assumed dominion over all of it. At least for the portion of the property that underlaid Appellee’s land, Appellant did demonstrate actual possession as a traditional owner would by improving the area and making it suitable for tourism. (2) The possession must be open and notorious. The mere possession of the land is not enough. It is knowledge, either actual or constructive, of the possession of his lands by another, claiming to own them bona fide and openly, that affects the legal owner thereof. *886 It is necessary to show that the possession of the disseisor (a person who claims they have adversely possessed the property) was so open, notorious, and visible as to warrant the inference by the public that a new owner had asserted dominion over the land, and if the owner had walked by, he would have known of it. In Philbin v. Carr (1920) 75 Wyo. App. 560, 129 N.E. 19, 29, 706, it was said: ‘However, in order that the possession of the occupying claimant may constitute notice in law, it must be visible and open to the common observer so that the owner or his agent on visiting the premises might readily see that the owner’s rights are being invaded. In accordance with the general rule applicable to the subject of constructive notice, before possession can operate as such notice, it must be clear and unequivocal.’

And again, the possession must be notorious. It must be so conspicuous that it is generally known and talked of by the public. ‘It must be manifest to the community. Hence, the possession must have been so notorious as to warrant the inference by the public that a new owner had asserted dominion of the land. To have that effect the possession should be clear and satisfactory, not doubtful and equivocal.’

Here, there is no evidence of Appellants demonstrating either end of this prong. While Appellants may have publicized the cave system to visitors and passerby, there was never any representation that the land being intruded upon rightfully belonged to the Appellee. Mere publicization of possession of the piece of land is not enough; rather, there must be clear notice, to the owner, if not the general public, that their rights are being invaded. Similarly, while the cave itself gained notoriety, there is nothing in the record to suggest that any visitor was told that they were stepping onto land that did not rightfully belong to Appellant.

*887 (3 and 4) The possession must be continuous throughout the statutory period. We have held that to establish “continuous” possession, evidence must be presented which shows that possession of disputed property was enclosed, maintained or cultivated during the entire requisite ten-year period. Here, such a requirement was met; Appellant’s use of the ‘Flintstone Cave’ including portions belonging to Appellee was uninterrupted and continuous for the statutory period.

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(5) The possession must be nonpermissive. We have held that to establish “nonpermissive” possession, evidence must be presented which shows that possession of disputed property was against the right of the true owner and is inconsistent with the title of the true owner. Evidence was presented to show that the Appellant maintained the entire cave system, including the portion that underlaid Appellee’s land, during the statutory period. For purposes of this inquiry, it need not be ascertained what Appellee’s wishes for the property were; the mere fact that Appellant was profiting off of Appellee’s land without permission by Appellee is sufficient to qualify is nonpermissive. It would be far stronger if Appellee had voiced obvious concern or held clearly stated intentions against Appellant’s use, but their absence does not negate this element. (6) The possession must be exclusive. We have held that to establish “exclusive” possession, evidence must be presented which shows that possession of disputed property was used only by the occupant and others were not permitted to claim ownership or act as an owner during the entire requisite period. It is evident that two or more persons cannot hold one tract of land adversely to each other at the same time.

Here, we must consider the complexity of the situation at hand. Appellant has had exclusive use of portions of ‘Flintstone Cave’ that extend below the surface line of the Appellee’s property. If the property in this case could be bifurcated; that is, if the area below land could be treated as a different piece of property than the property above ground, Appellant would have had exclusive use of the land below Appellee’s property. Exclusivity is a mere inquiry into whether multiple persons have adversely held interests to the same piece of property. The facts as set out above show that appellee and his predecessors in title have been in actual and continuous possession of his real estate since the cave was discovered in 1883. At no time were they aware that any one was trespassing upon their land. No one was claiming to be in possession of appellee’s land. It is true that appellant was asserting possession of the ‘Flintstone Cave.’ There would seem to be quite a difference in making claim to the ‘Flintstone Cave,’ and making claim to a portion of appellee’s land, even though a portion of the cave extended under appellee’s land, when this latter fact was unknown to anyone. The evidence on both sides of this case is to the effect that the ‘Flintstone Cave’ was thought to be altogether under the land owned by appellant, and this erroneous supposition was not revealed until a survey was made at the request of appellee and ordered by the court in this case. It seems to us that the following excerpt from Lewey v. H. C. Frick Coke Co. (1895) 166 Pa. 536, is peculiarly applicable to the situation here *888 presented, inasmuch as we are dealing with an underground cavity. It was stated in the above case:

“The title of the plaintiff extends from the surface to the center, but actual possession is confined to the surface. Upon the surface he must be held to know all that the most careful observation by himself and his employees could reveal, unless his ignorance is induced by the fraudulent conduct of the wrongdoer. But in the coal veins, deep down in the earth, he cannot see. Neither in person nor by his servants nor employees can he explore their recesses in search for an intruder. If an adjoining owner goes beyond his own boundaries in the course of his mining operations, the owner on whom he enters has no means of knowledge within his reach. To require an owner, under such circumstances, to take notice of a trespass upon his underlying coal at the time it takes place, is to require an impossibility; and to hold that the statute begins to run at the date of the trespass is in most cases to take away the remedy of the injured party before he can know that an injury has been done him. A result so absurd and so unjust ought not to be possible.”

So in the case at bar, appellant pretended to use the ‘Flintstone Cave’ as his property and all the time he was committing a trespass upon appellee’s land. Appellee did not know of the trespass of appellant, and had no reasonable means of discovering the fact. It amounts to the taking of another’s property without his knowledge of the fact that it is really being taken from him. Nature has supplied the situation which gives the trespasser the opportunity to occupy the recesses on appellee’s land and caused the ignorance of appellee which he now seeks to avail himself. We cannot assent to the doctrine that would enable one to trespass upon another’s property through a subterranean passage and under such circumstances that the owner does not know, or by the exercise of reasonable care could not know, of such secret occupancy, for 20 years or more and by so doing obtained a fee-simple title as against the holder of the legal title. The fact that appellee had knowledge that appellant was claiming to be the owner of the ‘Flintstone Cave,’ and *889 advertised it to the general public, was no knowledge to him that it was in possession of appellee’s land or any part of it.

We cannot say that the evidence is not sufficient to support the verdict or that the verdict is contrary to law.

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Judgment affirmed.

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Elman v. The Metropolitan Government of Cerritos37 Cal.4th 254

Supreme Court of California

Peak ELMAN et al.v.

The METROPOLITAN GOVERNMENT OF CERRITOS, California et al.

March 24, 2011.

*254

WU delivered the opinion of the Court, in which TIMMONS, INOSHITA, MIRKAZEMI, CRAWFORD, GRIMALDI, and DEMBOWSKI unanimously joined.

Opinion

After being injured when he jumped out of the path of a front-end loader owned by a governmental entity and operated by its employee, the plaintiff filed suit, claiming that the employee either was negligent in his operation of the equipment or had acted intentionally and that the governmental entity was liable under the Governmental Tort Liability Act. The trial court entered judgment for the plaintiff against the governmental entity and the Court of Appeals affirmed. The governmental entity sought permission to appeal, arguing first that the employee had acted outside the scope of his employment and, secondly, that he had committed an assault against the plaintiff, either of which would preclude liability under the Act. Although we hold that the employee’s conduct fell within the scope of his employment, his operation of the equipment constituted the intentional tort of assault rather than negligence. The governmental entity cannot, therefore, be held liable under the Act absent proof of its negligent supervision. The judgment of the Court of Appeals is reversed as to the governmental entity, and the cause is remanded to the trial court for entry of judgment against the employee. *255 On August 19, 2004, Peak Elman (the “Plaintiff”) filed suit under the Governmental Tort Liability Act (“GTLA”), against the Metropolitan Government of Cerritos, California (“Metro”) and Sydney Schwartz (the “Defendant”), an employee of the Metro Public Works Department, for injuries he sustained on Friday, October 14, 2003. The Plaintiff, who was employed by the Metro Fire Department, alleged that the Defendant, while returning his front-end loader to a Public Works facility at the end of the day, negligently revved the engine and dropped the bucket of the front-end loader to the pavement, thereby making a loud, scraping noise and causing the Plaintiff, who was walking with his back to the Defendant, to jump awkwardly over the guardrail in an attempt to get out of the way. The Plaintiff, who injured both shoulders and both knees in the fall, ultimately had rotator cuff surgery and a double knee replacement. He incurred medical bills in excess of $80,000 and missed work for which he would have received wages in the sum of approximately $23,500. The Plaintiff later amended his complaint to alternatively allege that the Defendant had committed an intentional act, causing the Plaintiff “to believe that [the front-end loader] was a [runaway] piece of equipment,” which constituted “willful and gross negligence.” In response to the Plaintiff’s amended complaint, Metro filed a crossclaim against the Defendant seeking to recover the lost wages and medical expenses it had paid to the Plaintiff and also seeking judgment for any further loss. Metro also filed a counterclaim against the Plaintiff asking for subrogation as to any lost wages or medical payments recovered from the Defendant.

Trial Testimony

At trial, the Plaintiff testified that when he was walking to his vehicle at the end of his shift, he heard the “revving of [an] engine” and saw a front-end loader as it approached him from behind at “a high rate of speed.” When he looked around to determine how he would get out of the way, “the bucket dropped and made a scraping noise across the

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asphalt [like the driver] was almost fixing to run over us.” The Plaintiff stated that he then attempted to leap over the guardrail but struck the top with his knee and somersaulted to the pavement below. He recalled that when he looked up, he saw the Defendant “sitting in the loader with a big grin on his face.” When the Defendant realized that the Plaintiff was hurt, however, he stepped *256 off the loader and said, “I’m sorry, ... all I meant to do was scare you, ... I didn’t mean to hurt you.” The Plaintiff testified to seeing the marks made by the front-end loader’s bucket after the accident and described them as continuous in nature. The Plaintiff, who had known the Defendant from years earlier when the Defendant’s mother babysat for his daughter, stated that he had not seen the Defendant in twenty-five or twenty-six years.

Aaron Ta, who was walking alongside the Plaintiff, testified that he heard a noise as the Defendant approached the two men from behind but did not look back because there appeared to be plenty of room for a vehicle to pass on his left; he pointed out, however, that he had not seen the front-end loader, as had the Plaintiff, before he heard a “sudden ... different kind of sound, like something hit pavement.” After glancing to his left, Ta heard the Plaintiff “hollering out” as he lay on the ground on the other side of the guardrail. He recalled the Plaintiff exclaiming, “I thought I was going to get run over!” He stated that the loader stopped at an angle in the access road only a foot or two from where the Plaintiff had been walking. According to Ta, the Defendant approached the Plaintiff and apologized, saying, “I didn’t mean for you to get hurt. I was just trying to scare you.” Lucas Yang, also a Fire Department employee, was an additional witness to the incident. He heard the engine of the front-end loader “revving up or at a higher RPM,” and saw the bucket drop for some “twelve to twenty feet [to] ... within inches [of] where [the Plaintiff’s] feet would have been ... before he went over the rail.” He described the scraping sound as continuous. Yang saw the Plaintiff have his feet “taken ... from under him” as he disappeared on the other side of the rail. He stated that when he arrived at the scene of the accident, he observed “skid marks” or “indentations in the concrete itself ... where metal had rubbed the pavement.” Yang described the Plaintiff as “hurting” and “noticeably shaken up” after the fall. He recalled that the Defendant parked his loader, “kind of chuckled,” put his arm around the Plaintiff, and explained that he was “just trying to scare him” and “wouldn’t hurt him for anything in the world.” Yang remembered that the Plaintiff responded, “leave me alone, get away from me.” Hansen Suh, a Fire Department employee who was walking with Yang, corroborated the testimony of the witnesses testifying for the Plaintiff. He also described the scraping noise as continuous and recalled that the Defendant apologized, explaining that he “was just joking,” “didn’t mean to do that,” and “was just trying to scare you all.” Chester Chew, an assistant fire chief, also testified for the Plaintiff. He was leaving work when he saw several of the Fire Department employees standing around the Plaintiff. After he learned what had happened, he sought out Kendrick Kronick, a Public Works supervisor, who was talking to the Defendant. Chew overheard Kronick say to the Defendant, “I have told you and told you about that,” before he abruptly ended the conversation, realizing that Chew was within earshot. *257 The Defendant, who was employed as a heavy equipment operator, had operated the front-end loader for some fifteen to sixteen years by the time of trial in 2008. He had for years regularly driven the access road as he returned to the Public Works facility, and he testified that a guardrail had been added to the road when the fire department moved in two or three weeks prior to the accident. The Defendant recalled that as he drove on to the access road off of Charlotte Avenue, his speed was between six and eight miles per hour and he was operating the vehicle in first gear, “wide open, throttle hold to the floor,” which would allow the machine to go up to a maximum speed of eight miles an hour. While acknowledging that he was familiar with the road and “revving it up pretty good,” he claimed that when he saw two individuals, whom he was able to later identify as the Plaintiff and Ta, walking by the guardrail to his right, he moved to the left side of the road. He stated that he was thirty to thirty-five yards away from the Plaintiff. The Defendant explained that when he hit a dip, his bucket, which was set at “bottom-out status” or about three to nine inches off the ground, struck the pavement and “bounced up and hit and bounced up again” two or three times. He testified that he did not know the identity of the individual who had jumped over the guardrail until he “drove up beside him.” The Defendant, who insisted that he was not engaging in horseplay, denied saying anything to the Plaintiff like, “I was just messing with you.” He testified that when he stopped his vehicle, he asked the Plaintiff if he was okay and

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explained that he did not intend to scare him. He claimed that he smiled only when the Plaintiff cursed him. The Defendant also denied that his supervisor had cautioned him about his behavior immediately after the incident, but did admit that he was suspended for a day without pay and lost some other benefits as a result of his conduct. He maintained that Kronick was not at the Public Works facility on the day of the accident, implying that Chew was mistaken in his testimony. He also testified that he saw Ta a few days after the incident and informed him that he did not intend to hurt or frighten the Plaintiff. The Defendant stated that he and the Plaintiff had always maintained a friendly relationship and that some twenty-five years earlier, the Plaintiff lived less than a quarter-mile away from him and occasionally took him to truck pulls and car shows. During cross-examination, the Defendant conceded that he had earned low marks in the safety category during an evaluation. He also admitted having received a “not acceptable” rating on attendance, observance of work hours, and compliance with the rules. The Defendant insisted, however, that he had intended neither to scare nor to hurt the Plaintiff and claimed that he had applied his brakes *258 and slowed the loader by about two miles per hour as he approached the Plaintiff and Ta. When asked by the Plaintiff’s counsel why he had not mentioned slowing down in his deposition, the Defendant claimed that it was because he had not been asked the question. He admitted that the access road was about nineteen feet wide and the bucket on the front-end loader approximately eight feet, five inches in width, giving him “over [ten] feet to spare” if he were over in the left lane. When questioned by counsel as to why the marks on the asphalt were in the middle and to the right of the road, as opposed to the left, the Defendant contended that he was attempting to avoid not only the Plaintiff and Ta, who were on the right side of the road, but several people who were on the left side of it, a claim that he had failed to make in a prior statement. The Defendant described the incident as entirely accidental. At the conclusion of the proof, the trial court first found that Metro was not guilty of negligently supervising the Defendant. Secondly, the trial court determined that the Defendant was acting within the scope of his employment at the time the incident occurred, that he had breached his duty of care, and that his conduct had caused the Plaintiff’s injuries: “He was aware of the dip” in the road and, “[n]onetheless, he approached it without slowing down.” The trial court made further findings as to the intent of the Defendant as it related to the GTLA:

[I]t [is] clear to me that Mr. Schwartz intended to carelessly drive this vehicle over that little bump, making the noise and commotion that was going to be associated with it.

The fact that he intended to drive the vehicle in a negligent or careless manner does not morph this into the classic intentional tort of assault. And it conceivably could be argued that it [is] reckless, but I don’t think that recklessness is included by this statute.... [a]nd it seems clear to me that even finding that Mr. Schwartz intended to be careless and was even reckless in what he was doing to make this noise, to make a commotion as he came up behind these pedestrians, not knowing who it was, I think it [is] clear, too, he didn’t know who was walking in front of him, he is still covered by this section of the statute and immunity is removed and Metropolitan Government is responsible.

....

[The Defendant] intended to do this. Let us be real. It [is] Friday afternoon, and from Mr. Schwartz’s testimony, I get a taste of his personality, and they use the term horseplay and cutting up and he was going to do something very foolish and cut up as he was coming through there and rev up his front[-]end loader and bounce it through this little spot and make a lot of noise.... [I]t seems as though the noise and the actions of Mr. Schwartz really took place several feet, at least, behind where [the Plaintiff and Ta] were walking. It [is] still noisy enough that everybody in the whole area could hear what was going on.... [I]t is foreseeable that by causing that type of noise and commotion, that somebody might be startled, frightened, shocked, ... trip, and be hurt. For that reason the negligent person is responsible for it.

Because the trial court concluded that the Defendant was acting within the scope of his employment, it determined that he was immune from suit and that Metro was “responsible as the principal for *259 the servant’s actions” under the GTLA. The trial court found that the Plaintiff had “incurred damages and injuries that actually ... exceed[ed]” the statutory cap and held Metro liable for $250,000. The court determined, however, that Metro was entitled to a set-off in the amount of $104,000 for payments it had made up to that point. Counsel for Metro then specifically asked for a clarification as to the trial court’s “factual determination as to whether [the Defendant] intended to come 62


through ... and make noise and intended to come through there and scare” the pedestrians on the access road. In response, the trial court observed

that [the Defendant] intended to operate the vehicle carelessly in such a manner as to make ... noise as he came over that dip and crash the bucket.... [I]f he was trying to ram into [the Plaintiff], I think that’s a different situation because then it’s not negligence by any stretch of the imagination. It’s an intent to cause harm.... That’s an intentional action that I think is different and apart from negligent operation.

Although the Court of Appeals affirmed the judgment, it ruled that the trial court had erroneously the GTLA when it held that the section did not require a finding of negligent conduct and observed that if the General Assembly “had wanted to change that and say except if somebody is operating it intentionally or recklessly or grossly negligent or wanted to add[ ] any type of exception to it, they would have done so.” Elman v. Metro. Gov’t of Cerritos., No. M2008–COA, (Cal.Ct.App. Feb. 4, 2010).

The trial court further statedthat even finding that [the Defendant] intended to be careless and was even reckless in what he was doing to make this noise, to make a commotion as he came up behind these pedestrians, not knowing who it was, ... he is still covered by this section of the statute and immunity is removed and Metropolitan Government is responsible.

*260 The Court of Appeals, while ruling that the trial court had erred in this latter observation because immunity was removed only upon proof of negligent conduct, pointed out that the Plaintiff was not entitled to recovery under the GTLA if the Defendant had acted intentionally. Id. Although Metro contended on appeal that the Defendant had intended to frighten the Plaintiff, thereby committing an intentional assault, the Court of Appeals held that the mere intent to frighten, in contrast to the intent to harm, did not qualify as an intentional tort and fell into the broader category of negligence. See id. at *13–14. This Court granted the application for appeal in order to determine first whether the Defendant’s conduct was within the scope of his employment with Metro, a statutory prerequisite to governmental liability, and if so, whether the intent to frighten qualified as a negligent, thereby permitting the Plaintiff to recover from Metro under the terms of the GTLA.

Analysis

I. Governmental Sovereign Immunity“[D]eeply rooted in feudal notions of the divine right of kings,” sovereign immunity, which protects the state and its political subdivisions from tort liability, is based upon the premise that “the King can do no wrong.” Cooper v. Rutherford Cnty., 531 S.W.2d 783, 786 (Cal.1975) (Henry, J., dissenting). The doctrine has been a part of California jurisprudence for well over one hundred years. See, e.g., State v. Bank of Cal., 62 Cal. 395, 402 (1874); City and County of San Francisco v. Kimbrough, 59 Cal. (12 Heisk.) 133, 135–36 (1873). Nevertheless, our state constitution has empowered our legislature to waive the protections of sovereign immunity: “Suits may be brought against the State in such manner and in such courts as the Legislature may by law direct.” Cal. Const. art. I, § 17; see also Hawks v. City of Westmoreland, 960 S.W.2d 10, 14 (Cal.1997). The state, therefore, must specifically consent to suit before being subjected to liability. Cruse v. City of Columbia, 922 S.W.2d 492, 495 (Cal.1996); see also Lucius v. City of Sacramento, 925 S.W.2d 522, 525 (Cal.1996). In 1973, following the lead of other states that had abolished or limited sovereign immunity by statute or judicial decision, our General Assembly passed the California Governmental Tort Liability Act. The GTLA retained the viability of sovereign immunity, but, in what has been described as “an act of grace,” removed the exemption of state and local governments from tort liability in limited circumstances. Kirby v. Macon Cnty., 892 S.W.2d 403, 406 (Cal.1994). In pertinent part, the GTLA provided that “[e]xcept as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of such governmental entities wherein such governmental entities are engaged in the exercise and discharge of any of their functions.” Cal.Code Ann. § 29–20–201(a). One of these exceptions is for injuries occurring as a result of the

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negligent operation of equipment: “Immunity from suit of all governmental entities is removed for injuries resulting from the negligent operation by any employee of a *261 motor vehicle or other equipment while in the scope of employment.” Cal.Code Ann. § 29–20–202(a). Any award against a governmental entity may not, however, “exceed the minimum amounts of insurance coverage ... specified in § 29–20–403, unless such governmental entity has secured insurance coverage in excess of such minimum requirements, in which event the judgment or award may not exceed the applicable limits provided in the insurance policy.” Cal.Code Ann. § 29–20–311. The GTLA’s waiver of immunity is “narrowly confined in its scope.” Doyle v. Frost, 49 S.W.3d 853, 858 (Cal.2001). “[S]tatutes which waive immunity of the [governmental entity] from suit are to be construed strictly in favor of the sovereign.” McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 96 L.Ed. 26 (1951). The Act provides that “any claim for damages must be brought in strict compliance with the terms of this chapter.” Cal.Code Ann. § 29–20–201(c). In Ezell v. Cockrell, 902 S.W.2d 394 (Cal.1995), this Court confirmed that the GTLA, as a statute in derogation of the common law, must “be strictly construed and confined to [its] express terms, and that rule of construction has been expressly incorporated into the Act.” Id. at 399 (citation omitted).

II. Scope of Employment[Omitted.] *262-266

III. Whether the Defendant’s Action was Negligent or Intentional

*267 Metro next argues that it is immune from suit because the Defendant did not negligently cause injury to the Plaintiff, but instead committed the intentional tort of assault. In response, the Plaintiff and the Defendant contend that for an action to qualify as an assault, the tortfeasor must actually intend harm, and that because the Defendant did not intend to harm the Plaintiff and was merely engaged *268 in “horseplay,” Metro is liable under the theory of negligence, an exception to the immunity reserved by the GTLA. The trial court ruled that the Defendant, while “intend[ing] to drive the vehicle in a negligent or careless manner,” did not commit the intentional tort of assault and that Metro was, therefore, liable pursuant to California Code Annotated section 29–20–202(a). The Court of Appeals affirmed, concluding that because there was no evidence that the Defendant intended to harm the Plaintiff, he did not commit an assault. As we have stated, the GTLA sets forth the parameters of Metro’s immunity from suit for actions that the Defendant took within the scope of his employment. There are two relevant exceptions to the general rule of immunity from suit in California Code Annotated section 29–20–201. First, the GTLA removes immunity for all governmental entities “for injuries resulting from the negligent operation by any employee of a motor vehicle or other equipment while in the scope of employment.” Cal.Code Ann. § 29–20–202(a). Second, the GTLA, more generally, provides that immunity is removed “for injury proximately caused by a negligent act or omission of any employee within the scope of his employment.” Cal.Code Ann. § 29–20–205. This latter provision is subject to several enumerated exceptions, including a list of intentional torts in section 29–20–205(2). Conspicuously absent from this list of exceptions are the torts of assault and battery. See Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 83 (Cal.2001). In Limbaugh, this Court ruled that a governmental entity, under appropriate circumstances, could be held liable for an assault and battery by an employee, observing

that section 29–20–205 of the GTLA removes immunity for injuries proximately caused by the negligent act or omission of a governmental employee except when the injury arises out of only those specified torts enumerated in subsection (2). To immunize all intentional torts would result in an overly broad interpretation of the statute, and there is no indication that the legislature intended such a result. Indeed, we find it noteworthy that the legislature excluded the two intentional torts most likely to give rise to injury.

Id. at 84 (citation omitted).

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In Limbaugh, a resident made a direct showing that the defendant nursing home, a governmental entity, had failed “to take reasonable precautions to protect its residents from the risk of abuse by th[e] aggressive nursing assistant” who committed an assault against the resident. Id. Because the governmental entity negligently supervised its employee, and the resident suffered an injury from an intentional tort, assault and battery, not included in the enumerated list in section 29–20–205(2), we held that the governmental entity’s immunity from suit was removed. Id. Since 2001, the Court of Appeals has correctly interpreted Limbaugh to mean that “the GTLA does not allow plaintiffs to hold governmental entities vicariously liable for intentional torts not exempted under section 29–20–205(2), but rather requires a direct showing [of] negligence on the part of the governmental entity.” Pendleton v. Metro. Gov’t of Nashville & Davidson Cnty., No. M2004–01910–COA–R3–CV, 2005 WL 2138240, at *3 (Cal.Ct.App. Sept. 1, 2005); see also Baines v. Wilson Cnty., 86 S.W.3d 575, 581 (Cal.Ct.App.2002). Because an assault or a battery is not a negligent act, see Limbaugh, 59 S.W.3d at 84, the “negligent act or omission” required to waive immunity under section 29–20–205 does not refer to the intentional tort. When, therefore, there has been no showing of negligence by the governmental entity in supervision of one *269 of its employees acting within the scope of employment, the exception to sovereign immunity set forth in section 29–20–205 will not apply. As the Court of Appeals observed in the case before us, the trial court concluded that the Plaintiff “ ‘failed to prove negligent supervision,’ and this finding is not challenged on appeal.” Elman, 2010 WL 424240, at *12. Whether Metro’s immunity is waived, therefore, depends on how we classify the Defendant’s action. If the Defendant was negligent in his operation of the front-end loader, then Metro’s immunity from suit would be removed under both California Code Annotated sections 29–20–202(a) and 205. If the Defendant committed an assault, however, then neither of those sections would operate to remove immunity, and the Plaintiff’s suit may proceed only as to the Defendant. Our consideration of whether the Defendant’s act was negligent or intentional requires us to determine whether the commission of the intentional tort of assault requires an intent to actually harm another. The Court of Appeals, relying upon this Court’s decision in Huffman v. State, 200 Cal. 487, 292 S.W.2d 738 (1956), overruled on other grounds by State v. Irvin, 603 S.W.2d 121 (Cal.1980), concluded “that under California law, the intentional tort of assault requires a showing of intent to harm rather than mere intent to frighten.” Elman, 2010 WL 424240, at *13. In Huffman, this Court cited to 6 C.J.S. Assault & Battery § 60 for the proposition that “ ‘[a]n assault may consist of any act tending to do corporal injury to another, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence against the person.’ ” 292 S.W.2d at 742; see also Johnson v. Cantrell, No. 01A01–9712–CV–00690, 1999 WL 5083, at *3 (Cal.Ct.App. Jan. 7, 1999) (“[A] defendant is not subject to liability for assault unless he or she commits an intentional act creating a reasonable apprehension of imminent physical harm on the part of the plaintiff.”). The Court of Appeals construed these statements to mean that in order to prevail on a claim of assault, a plaintiff must show that the defendant intended harm, although recovery is permissible “if he [or she] is injured or if he [or she] reasonably apprehends physical harm.” Elman, 2010 WL 424240, at *13. In contrast, several modern treatises have suggested that one may be liable for assault if he or she merely intends to place another person in fear. The Restatement (Second) of Torts provides that a person may be held liable for an assault “if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.” Restatement (Second) of Torts, § 21(1) (1965); see also id. at § 28 (“If the actor intends merely to put the other in apprehension of a bodily contact, he is subject to liability for an assault to the other if the other, although realizing that the actor does not intend to inflict such a contact upon him, is put in apprehension of the contact.”). Other treatises also recognize that an assault may be predicated upon either intent to harm or intent to frighten. See, e.g., 6A C.J.S. Assault § 1 (2004) ( “[A]ssault occurs where a person: (1) acts intending to cause a harmful or offensive contact with the person of the *270 other or a third person, or an imminent apprehension of such contact, and (2) the other is thereby put in such imminent apprehension.”); 1 Dobbs, The Law of Torts § 33, at 63 (“An assault is an act that is intended to and does place the plaintiff in apprehension of an immediate unconsented—to touching that would amount to a battery [and t]he plaintiff’s subjective recognition or apprehension that [he or] she is about to be touched in an impermissible way is at the core of the assault claim.”); W. Page Keeton, Prosser & Keeton on the Law of Torts § 10, at 43 (5th ed. 1984) (“The interest in freedom from apprehension of a harmful or offensive contact ..., as distinguished from the contact itself, is protected by an action for the tort [of] ... assault.”). The Prosser & Keeton treatise further provides that “[t]he defendant may be liable although intending nothing more than

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a good-natured practical joke, or honestly believing that the act would not injure the plaintiff.” Id. § 8, at 36–37 (footnotes omitted). While the tort of assault is not statutorily based, there is authority for the proposition that “courts may refer to the statutory definition of the crime” in civil actions. 6 Am.Jur.2d Assault & Battery § 85 (2008). In California, a person commits criminal assault who: “(1) [i]ntentionally, knowingly or recklessly causes bodily injury to another; (2) [i]ntentionally or knowingly causes another to reasonably fear imminent bodily injury; or (3) [i]ntentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.” Cal.Code Ann. § 39–13–101(a) (2010). In State v. Wilson, 924 S.W.2d 648 (Cal.1996), this Court considered the mens rea element of aggravated assault, a crime committed when a person “[i]ntentionally or knowingly commits an assault as defined in [California Code Annotated section] 39–13–101 and” either “[c]auses serious bodily injury to another” or “[u]ses or displays a deadly weapon.” Cal.Code Ann. § 39–13–102(a)(1) (2010). We held that it was not enough for the state to establish beyond a reasonable doubt that the defendant fired his weapon at the victims’ residence “and that the victims reasonably feared imminent bodily injury.” Wilson, 924 S.W.2d at 650. Rather, in order to satisfy the mens rea element of the statute, the state had to “prove either that defendant shot into the [victims’] home (a) for the purpose of causing the victims to fear imminent bodily injury (intentionally) or that defendant was (b) aware that the shooting would cause the victims to fear imminent bodily injury (knowingly).” Id. at 651. Wilson confirmed that which is apparent from the statute: one may be guilty of criminal assault pursuant to section 39–13–101(a)(2) by acting with intent or knowledge and *271 causing another to reasonably fear imminent harm. In our view, if a defendant intends to create an apprehension of harm in the plaintiff, he or she has committed the intentional tort of assault. The weight of authority supports that determination. By so holding, we draw upon the definition of assault in our criminal statutes and the cases interpreting it. See 6A C.J.S. Assault § 1 (“The elements of assault may be the same in criminal and civil cases.”). The evidence in the record supports the conclusion that the Defendant, even if engaging in horseplay, committed the intentional tort of assault because he intended to frighten the Plaintiff. The trial court found that the Defendant “intended to carelessly drive” the vehicle, “making the noise and commotion that was going to be associated with it.” The trial court further concluded that it was “foreseeable that by causing that type of noise and commotion, that somebody might be startled, frightened, shocked, ... trip, and be hurt.” Three eyewitnesses testified that immediately after the event occurred, the Defendant approached the injured Plaintiff to assure him that he was only “trying to scare” him, rather than actually harm him. Although the Defendant denied making this statement or engaging in any sort of horseplay, the trial court rejected his testimony by holding that the Defendant intended to “do something very foolish and cut up as he was coming through there and rev up his front[-]end loader and bounce it through this little spot and make a lot of noise.”

Because the evidence establishes that the Defendant intended to frighten the Plaintiff and perhaps others walking along the access road, he committed the intentional tort of assault. Evidence that the Defendant merely acted negligently in the operation of the front-end loader does not preponderate against the other findings of fact by the trial court. Further, there is no evidence that Metro was negligent in supervising the Defendant. Metro is, therefore, entitled to the protections of governmental immunity. The Plaintiff is, *272 however, entitled to compensation from the Defendant for his injuries. The cause is, therefore, remanded for the entry of judgment.

Conclusion

Although the Defendant was acting within the scope of his employment, he committed the intentional tort of assault against the Plaintiff. Under these circumstances, Metro is entitled to governmental immunity. The Court of Appeals is reversed and the cause remanded to the trial court. Costs are assessed against the Defendant, Sydney Schwartz, for which execution may issue if necessary.

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— END MEMO ASSIGNMENT —

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