Harnessing Ambiguity

Song
LRW Fall 2018

1
 TOPICS COVERED
§ Synthesizing Cases and Rule Development
§ Applying Facts to Law (Application or
Analysis)
§ Argument

2
 RULES
§ Statement of law that the court uses to resolve
the case
§ Identifying Rule:
§ Constitutional provision
§ Statutory provision
§ Administrative regulation
§ Definition or explanation of a term in a broader rule
§ Holding from precedent

3
4
 U.S. Supreme Court

Highest State Court)

U.S. Courts of Appeal

[Intermediate State
Appellate Court]

U.S. District Courts

State Trial Court

Binding and Persuasive Authority

5
 HOLDINGS
Burwell v. Hobby Lobby
§ Ginsburg, Dissenting: “In a decision of startling breadth,
the Court holds that commercial enterprises…can opt
out of any law…they judge incompatible with their
sincerely held religious beliefs.”
§ Majority Opinion: “[O]ur holding is very specific. We
do not hold, as the principal dissent alleges…”
§ Kennedy, Concurring: “At the outset, it should be said
that the Court’s opinion does not have the breadth and
sweep ascribed to it by the respectful and powerful
dissent.”

6
 Fermino v. Fedco, Inc.
§ Court: Supreme Court of California
§ Date: May 12, 1994
§ Procedural History: Plaintiffs brought tort action of false
imprisonment; trial court sustained defendant’s demurrer; Court of
Appeal upheld trial court
§ Issue: Can plaintiff, an employee of defendant, state a claim for
false imprisonment when (1) her employer kept her in an room for
over an hour; (2) interrogated her; and (3) prohibited her from
leaving and contacting her mother.
§ Rule: ?
§ Holding: ?
§ Disposition: Reversed

7
 Fermino Rule RECAP
§ In the context of a demurrer, all well-pleaded allegations of the complaint will be
taken as true. Livitsanos
§ False imprisonment is the unlawful violation of the personal liberty of another. PC
236
§ Tort of false imprisonment is identical to the criminal offense. Molko
§ FI is the nonconsensual, intentional confinement of a person, without lawful
privilege, for an appreciable length of time, however short. Molko (binding)
§ FI is by definition an unreasonable and criminal confinement. Collyer (binding)
§ Mental state required is the intent to confine, [or the intent to create] a similar
intrusion. Weaver (binding)
§ Intent does not entail intent or motive to cause harm; FI often appear to arise from
initially legitimate motives. Shanafelt (persuasive)
§ Merchants who detain individuals based upon PC that they are about to injure their
property are privileged against a FI action. Collyer (binding)
§ Detention must be carried out for a reasonable time and in a reasonable manner. Collyer
§ Reasonable interrogation of voluntary confinement cannot be regarded as FI. Collyer
§ Merchant’s privilege can’t be claimed when alleged offense has been completed and
manner of detention was unreasonable. Moffatt
8
 Holdings of a Case: Fermino
§ What are potential Fermino holdings?

TEMPLATE:
LEGAL RULE + FACTS
“In Fermino, the court held X because of Y.”

9
 Potential Holdings From Fermino
§ Restraining another through the use of menacing words that induce
fear involves sufficient duress to support a complaint of false
imprisonment.
§ Plaintiff may have a claim for false imprisonment if she was
physically confined to a windowless room by multiple security
agents who blocked the door when she tried to leave.
§ There is a claim for false imprisonment, and the merchant’s
privilege does not apply, if an employer physically compels an
employee to remain in a room for over an hour for the purpose of
securing a confession to the theft of money at a prior time.
§ The restraint necessary for false imprisonment may be effectuated
by any form of “unreasonable duress” for any “appreciable time,
however short.”

10
 False Imprisonment Rule
§ The unlawful violation of the personal liberty of
another
§ PC/Tort definitions are the same
§ Court considers three things: (1) whether the
defendant intended the confinement; (2) the
nature of the confinement; and (3) whether a
lawful privilege for the confinement existed.
§ Generally a question of fact

11
 False Imprisonment Rule incorporating Fermino
False Imprisonment: the unlawful violation of the personal liberty of another
§ Nonconsensual
§ Intentional confinement
§ Intent to confine, or intent to create similar intrusion
§ Not necessary to show intent or motive to cause/may have legitimate
motives.
§ Nature of confinement
§ Appreciable Length of Time
§ Without lawful privilege
§ Merchants have lawful privilege when they detain someone based
upon PC that the individual is about to injure their property
§ Must be reasonable detention
§ Employer’s investigation of possible employee theft must be
reasonable

12
 What does Wilson add?
§ Intent to confine:
§ No good faith defense to false imprisonment
§ Nature of confinement:
§ Express use of force or implied threat of force
§ Whether defendant subject plaintiff to unreasonable
duress; and the length of time of the confinement

13
 SYNTHESIZING CASES
§ Rule Development
§ Broad to Narrow
§ Refining Factors
§ Defining Terms

14
 Wilson Rules
§ False imprisonment is a willful and wrongful interference with the
freedom of movement of another against his will. PC 236/Parrott
§ Tort of FI is the nonconsensual, intentional confinement of a person,
without lawful privilege, for an appreciable length of time, however short.
Molko
§ Confinement is any exercise of force, or express or implied threat of force,
by which in fact the other person is deprived of his liberty or is compelled
to remain where he does not wish to remain, or go where he does not wish
to go. Agnew
§ 15 minute is an appreciable length of time to establish false imprisonment.
Alterauge
§ Motive and good faith of defendant are irrelevant to pleading a cause of
action for false imprisonment. Collins

15
 False Imprisonment Rule incorporating Wilson
False Imprisonment: the unlawful violation of the personal liberty of another
§ Nonconsensual
§ Intentional confinement
§ Intent to confine, or intent to create similar intrusion
§ Not necessary to show intent or motive to cause/may have legitimate motives.
§ No good faith defense to false imprisonment WILSON
§ Nature of confinement
§ Exercise of force: express or implied threat of force WILSON
§ In considering implied threat of force, court will consider whether person under
undue duress and length of time of confinement WILSON
§ Appreciable Length of Time
§ Can be a short length of time WILSON
§ Without lawful privilege
§ Merchants have lawful privilege when they detain someone based upon PC that the
individual is about to injure their property
§ Must be reasonable detention
§ Employer’s investigation of possible employee theft must be reasonable WILSON

16
 Artie and False Imprisonment
ADDITIONAL FACTS: 10 minutes confined; not
in facts that door is locked

What are Artie’s best arguments that he was

falsely imprisoned?

What are Dunder Mifflin’s best arguments that

Artie was not falsely imprisoned?

17
 Example Rule Paragraph
Duress can constitute “[t]he restraint necessary for false imprisonment,” but
only if the duress is “unreasonable.” Fermino, 7 Cal. 4th at 715. In the absence of
physical compulsion, the plaintiff must allege facts to show duress that would
reasonably overcome his or her free will. See Roberson, 216 Cal. App. 3d at 304 (quoting
Parrott v. Bank of America, 97 Cal. App. 2d 14, 22 (1950)) (“[F]alse imprisonment can be
accomplished by threats that ‘interfere with the freedom of movement of another
against his will.’”). In Wilson, for example, a funeral home director ordered his
limousine driver to take the widow and daughter of a deceased man to a bank, instead
of to the deceased man’s burial service. Id. at 1130. When the plaintiffs were at the bank,
the owner shouted at the widow to pay him with a $5,000 check, saying “[a]in’t nobody
going nowhere until I get paid.” Id. The court held that the plaintiffs had stated a cause
of action for false imprisonment based both on the drive to the bank, in which they were
physically confined, and the stay in the bank, in which the plaintiffs were not physically
confined. Id. at 1134-35. The plaintiffs’ stay in the bank supported their claim because a
jury could find that the plaintiffs only remained at the bank under unreasonable duress.
Id. at 1135. In particular, walking out of the bank would have been to “abandon the
remains of . . . [the plaintiffs’] loved one to an uncertain fate.” Id.

18
 Example Rule Paragraph
Duress can constitute “[t]he restraint necessary for false imprisonment,” but
only if the duress is “unreasonable.” Fermino, 7 Cal. 4th at 715. In the absence of
physical compulsion, the plaintiff must allege facts to show duress that would
reasonably overcome his or her free will. See Roberson, 216 Cal. App. 3d at 304 (quoting
Parrott v. Bank of America, 97 Cal. App. 2d 14, 22 (1950)) (“[F]alse imprisonment can be
accomplished by threats that ‘interfere with the freedom of movement of another
against his will.’”). In Wilson, for example, a funeral home director ordered his
limousine driver to take the widow and daughter of a deceased man to a bank, instead
of to the deceased man’s burial service. Id. at 1130. When the plaintiffs were at the bank,
the owner shouted at the widow to pay him with a $5,000 check, saying “[a]in’t nobody
going nowhere until I get paid.” Id. The court held that the plaintiffs had stated a cause
of action for false imprisonment based both on the drive to the bank, in which they were
physically confined, and the stay in the bank, in which the plaintiffs were not physically
confined. Id. at 1134-35. The plaintiffs’ stay in the bank supported their claim because a
jury could find that the plaintiffs only remained at the bank under unreasonable duress.
Id. at 1135. In particular, walking out of the bank would have been to “abandon the
remains of . . . [the plaintiffs’] loved one to an uncertain fate.” Id.

19
 Example Rule Paragraph
Duress can constitute “[t]he restraint necessary for false imprisonment,” but
only if the duress is “unreasonable.” Fermino, 7 Cal. 4th at 715. In the absence of
physical compulsion, the plaintiff must allege facts to show duress that would
reasonably overcome his or her free will. In Wilson, for example, a funeral home director
ordered his limousine driver to take the widow and daughter of a deceased man to a
bank, instead of to the deceased man’s burial service. Id. at 1130. When the plaintiffs
were at the bank, the owner shouted at the widow to pay him with a $5,000 check,
saying “[a]in’t nobody going nowhere until I get paid.” Id. The court held that the
plaintiffs had stated a cause of action for false imprisonment based both on the drive to
the bank, in which they were physically confined, and the stay in the bank, in which the
plaintiffs were not physically confined. Id. at 1134-35. The plaintiffs’ stay in the bank
supported their claim because a jury could find that the plaintiffs only remained at the
bank under unreasonable duress. Id. at 1135. In particular, walking out of the bank
would have been to “abandon the remains of . . . [the plaintiffs’] loved one to an
uncertain fate.” Id.

20
 Example Application Paragraph
No jury could find that the Plaintiff’s allegations support a finding of
unreasonable duress because Mr. Scott’s statements did not suggest that any serious
consequence would follow if the Plaintiff did not do what Mr. Scott wanted him to do.
Unlike Wilson, in which not complying with the defendant’s order to pay could have
jeopardized burying a family member, the only consequence of Mr. Scott’s demand for a
discount, and better treatment as a customer, was that the Plaintiff might have had to
leave without collecting payment for the pizzas. Although the Plaintiff was a high
school junior, the complaint does not allege that the Plaintiff was in any way fearful or
even bothered by Mr. Scott’s statements. The Plaintiff merely walked with Mr. Schrute
to the conference room, as requested, and then walked out of the room ten minutes later
after he decided to leave.

21
 TAKE HOME POINTS
§ Rules as Statements of Law That Develop Over
Time – Broad to Narrow
§ Holdings – Broad and Narrow
§ Case Synthesis
§ Application

22
 TO DO:
§ Next week:
§ Library tours
§ Westlaw and Lexis trainings
§ Wednesday:
§ Introducing Simulation
§ Reading: Burglary File, SLS Text
§ Reminder: Thursday 2:15-3:45pm makeup class

23