Torts

Legal Memorandum

Adalberto Santiago Valle

Kaplan University

Tort Law

PA 310-01

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memorandum

to: janet jones, attorney

from: Adalberto Santiago, Paralegal

RE: Rob Sherman Jr., Rob Sherman Sr. and Bunny Sherman individually and as next parents of Rob Sherman Jr., Plaintiffs, v. Church of the Divine Light, Defendant.

date: 1/24/2014

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ISSUE

Under the California Penal Code § 236.1 (d)(1), Restatement (2nd) Torts, § 31, and Restatement (2nd), Torts § 45, can a reasonable argument be made that, more likely than not, Rob Jr. was a victim of false imprisonment by Tom Marsden and/or the Church?

RULE

“Any unlawful exercise of force, or express or implied threat of force, by which in fact any person is deprived of his liberty and compelled to remain where he does not wish to remain is a false imprisonment.” Moffatt v. Buffums' Inc., 21 Cal. App. 2d 371, 375 [69 P.2d 424].

“Except to increase or mitigate the damages, the existence or nonexistence of malice in fact is ordinarily immaterial.” Reilly v. United States Fidelity & Guaranty Co., (CA9 Cal) 15 F2d 314 (1994).

“The good or evil intention or purpose of the defendant neither creates nor excuses the tort.” Stubbs v Abercrombie, 42 Cal. App. 170, 183 P. 458 (1919).

Under California law, false imprisonment is the “nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.” Molko v. Holy Spirit Assn., 46 C3d 1092 (1988).

The California Penal Code § 236.1(d)(1) reads:

(d) (1) For purposes of this section, unlawful deprivation or violation of the personal liberty of another includes substantial and sustained restriction of another s liberty accomplished through fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, under circumstances where the person...