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I want to sue a government entity (California state university).
Can I send a "case questionnaire" to an employee (professor)
of the university, without naming the employee as a defendant?
TIA...
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On Wed, 24 Mar 2004, "z" <z@y.x.invalid> wrote:
I want to sue a government entity (California state university).
Can I send a "case questionnaire" to an employee (professor)
of the university, without naming the employee as a defendant?
It is obvious that you "can" do this at least in the mechanical sense
of that term.
But if you mean to ask by "can?" whether, if you do this (especially
if in a manner as a result of which it would be reasonable for the
form's non-party recipient to conclude that you have attempted to
convey to that person that that recipient has some sort of law-imposed
duty to complete and return the form with substantively responsive
answers),you might be sued and perhaps subject to liability, the
answer to _that_ question will be that there might be any number of
theories resulting in a "yes" anywer
_ALL_ your numerous so far mostly confused questions you have been
posting to law related newsgroups about your contemplated lawsuit
suggest that you are playing with fire if you proceed further without
at least the carefully considered advice from a knowledgable and
experienced Calif. attorney and that, if the defendants you sue (and
maybe the the professor to whom you refer above if you don't sue him
or her) are well-represented, as you suggest you have reason to
believe is highly probable, and if they believe it in their own
(self-defined) self-interest to do so, defendants might try, and if so
probably will then be able, to make life perhaps very miserable (and
also very expensive) for you.
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"z" <z@y.x.invalid> wrote in message news:<hFb8c.42037$5R2.13395@newssvr25.news.prodigy.com>...
I want to sue a government entity (California state university).
Can I send a "case questionnaire" to an employee (professor)
of the university, without naming the employee as a defendant?
TIA...
The language on case questionnaires (CCP 93) seems to indicate that
only a defendant is required to respond; so if you didn't name the
prof, but served a case questionnaire on him anyway, you couldn't
compel him to respond; he'd be free to ignore you.
--
Not a lawyer,
Chris Green
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I am trying to do that. However, so far, no one has responded
to my inquiries on a couple of county bar referral services.
On this particular question, I am inclined to be conservative
and not send anyone anything that projected a false sense
of responsibility to answer. I would rather assume that the other
parties are well represented (in this case, my guess is that
the individual involved would be at minimum represented by
some kind of teachers' association lawyer, if not a university lawyer).
So I am looking for reasons NOT to do something, and you
have given me at a minimum something to think about (even if
I am not sure she would have anything to sue me for
in the case I sent her something she was not actually required
to fill out and return. Have you ever gotten a bill for lousy
services rendered?)
As to whether or not the professor would come after me even
if I do not sue her and just sue the university, that is another issue.
Everything
I would intend to state in writing would be true, to the best of
my ability to determine.
I think a professor countersuing a plaintiff over a lawsuit against
the *university only* for an unprofessional remark that she made
sounds rather over the brink, especially if the remark made was
witnessed by other students in class. I think the university itself
might have a say in whether it would be appropriate for a professor
to come after a student in such a way (she's already maxed out
the academic-level retaliation).
What's so unclear about trying to protect one's reputation
when no lawyers in the area will step up to my referral requests and help?
It is not as if I have three years and $120K to get a law degree
with a six-month limitation ticking.
How can I get a lawyer when they don't respond to my referral requests?
Do professors have some kind of unlimited protection against
slander lawsuits?????????? Is that what you are really trying to say???????
Academic freedom is absolute, even if it includes slander per se,
and no lawyer in sight has enough guts to go after a professor??????
On Wed, 24 Mar 2004, "z" <z@y.x.invalid> wrote:
It is obvious that you "can" do this at least in the mechanical sense
of that term.
But if you mean to ask by "can?" whether, if you do this (especially
if in a manner as a result of which it would be reasonable for the
form's non-party recipient to conclude that you have attempted to
convey to that person that that recipient has some sort of law-imposed
duty to complete and return the form with substantively responsive
answers),you might be sued and perhaps subject to liability, the
answer to _that_ question will be that there might be any number of
theories resulting in a "yes" anywer
_ALL_ your numerous so far mostly confused questions you have been
posting to law related newsgroups about your contemplated lawsuit
suggest that you are playing with fire if you proceed further without
at least the carefully considered advice from a knowledgable and
experienced Calif. attorney and that, if the defendants you sue (and
maybe the the professor to whom you refer above if you don't sue him
or her) are well-represented, as you suggest you have reason to
believe is highly probable, and if they believe it in their own
(self-defined) self-interest to do so, defendants might try, and if so
probably will then be able, to make life perhaps very miserable (and
also very expensive) for you.
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I took a look at the case questionnaire (California judicial form
982(a)(21)--
it looked to be completely form driven (i.e., no chance to insert questions
drafted by the plaintiff's side).
Form is located here:
http://www.courtinfo.ca.gov/forms/fillable/982a21.pdf
Here is the guts of the form:
Question 1
c. Describe in detail your claims or defenses and the facts on which they
are based, giving relevant dates.
d. State the name, street address, and telephone number of each person who
has knowledge of facts relating to this lawsuit, and
specify his or her area of knowledge.
e. Describe each document or photograph that relates to the issues or facts.
You are encouraged to attach a copy of each. For
each that you have described but not attached, state the name, street
address, and telephone number of each person who
has it.
and the only things it seemed to afford the plaintiff would be:
(1) an early view of the defense strategy, prior to the trial stage;
(2) a chance to get a list of the subset of students attending the class
actually present at some time on that date, along with phone numbers
and addresses-- however, they might
argue that this is privacy protected info under some act such as
the Family Privacy Act as it pertains to educational institutions.
At this point a strategy for the plaintiff is to use a short list
of students who were known to be present and who seemed
to be openminded, and use a process delivery service or equivalent
to track down addresses. This would avoid the need for (2).
As for (1), the value is debatable, perhaps even more so, if
sending the questionnaire requires explicitly naming the prof
as a defendant and opening the gates to a (further) "personalization"
of the proceeding, including (small?) risk of countersuit by the prof.
(hopefully not the university ;-).
It is not looking good at this point for naming the prof. Too bad,
since it would seem to make a nice wedge to use. In either case,
though, it seems to me, if the plaintiff is persistent, that the university
will be forced to approach the prof and ask her point blank if
she made the statements or not (to date, I have no information that
this has actually been done, despite notification to the university
of the incident in a couple of administrative ways).
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On Wed, 24 Mar 2004, "z" <z@y.x.invalid> wrote:
I took a look at the case questionnaire
(California judicial form 982(a)(21)--
www.courtinfo.ca.gov/forms/fillable/982a21.pdf
[ S N I P P E D ]
I, like your so far other publicly posting respondent, am familiar
with that form.
Form is located here:
[It asks a defendant to d]escribe in detail your
claims or defenses and the facts on which they
are based, giving relevant dates [petc., etc.]
You said you contemplate giving the form to a person who would not be
a party defendant under the pretense (you implied) that that person is
obliged to respond to you.
[T]he only things it seemed to afford the plaintiff would
be . . .
. . . an opportunity to evalute whehter a settlement is desirable
and, if so, likely.
[I would like] an early view of defense stragegy,
prior to the trial stage.
The perhaps most sensible way to do this is to ask before suing then,
if you don't like the response, to sue (or not) and, if you decide to
sue and then do so, evaluate the nature of defendant's response.
[I'd like] a chance to get a list of the . . . students
attending the clase [on the day defendant made the
statements that would be complained of].
You've earlier suggested that you know already who those students are
and that, to the extent you don't yet know, that you know whom to ask.
If you sue and if your lawsuit survives a motion to dismiss for
failure to state a claim or on like ground or survives a motion for
summary judgment in defendant's favor (on the basis of what you've so
far said, not likely eventualities), you will be able to use the
court's discovery processes to obtain this information.
[I'd like] an early view of the defense
strategy, prior to the trial stage.
There will be many opportuties to achive this goal.
As for as the "early" element, you already have more than ample
information -- namely, that defendant either will offer to settle (or
won't) and, if not, will deny that the statement was made as you
allege and claim that any statement s/he made dealing with the general
subject was not "slanderous" for a host of reasons (e.g., that it was
one of "opinion" and not of "fact" and, anyway, was not false and,
even if false, was "privleged" for any number of reasons and yet not
maliciously said, and, anyway, it did not damage plaintiff's
reputation/standing in the community, even if one were to assume
plaintiff may sue, but, because of this-or-that provision in the
student handbook and other agreements to which plaintiff agreed to be
bound, plaintiff may sue, etc., etc., etc.).
[ related apparent fantasies: S N I P P E D ]
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On Wed, 24 Mar 2004, "z" <z@y.x.invalid> wrote:
I, like your so far other publicly posting respondent, am familiar
with that form.
Glad to hear it. IANAL and it's my first time out with this.
I think to some extent all forms have inherent ambiguities
in the details. Hope folks will bear with my questions, which
(I certainly will not dispute) will appear uninformed to a lawyer.
Form is located here:
[It asks a defendant to d]escribe in detail your
claims or defenses and the facts on which they
are based, giving relevant dates [petc., etc.]
You said you contemplate giving the form to a person who would not be
a party defendant under the pretense (you implied) that that person is
obliged to respond to you.
Not any more, probably, given the flak I've taken in this and other base
notes...
. . . an opportunity to evalute whehter a settlement is desirable
and, if so, likely.
The perhaps most sensible way to do this is to ask before suing then,
if you don't like the response, to sue (or not) and, if you decide to
sue and then do so, evaluate the nature of defendant's response.
You mean, a "demand letter," or a settlement negotiation initiative?
I've drafted one which is more towards the latter than the former.
However, it is not (yet) clear to me that there is much advantage
to doing so, other than to give the other side a heads-up advance warning
to shred documents, based on the past experience I have had with
their hard-line responses to administrative negotiations to date.
Am I required to send a "demand letter"?
I am dimly aware that the university is not compelled to use an
outside mediator, by its own administrative decree. They've certainly
discarded my attempts at suggesting such an alternative. I imagine
a judge might at some point request both sides to negotiate prior
to trial. I'm not inclined to settle for anything less than something
tangible
and substantial, ie, at minimum, a formal letter of apology given
to me and mailed to all the students in the class, and some monetary
compensation for the incidental damage to my reputation among my
peers and the emotional hardship of receiving the unprofessional
and unjustified verbal flogging.
[I'd like] a chance to get a list of the . . . students
attending the clase [on the day defendant made the
statements that would be complained of].
You've earlier suggested that you know already who those students are
and that, to the extent you don't yet know, that you know whom to ask.
I am not sure of the complete list of students present at that day.
I do already have a complete list of students enrolled in the class.
Each class, the prof sent out a signup roster sheet. I could utilize
that to whittle down the prospective witness list to only those
who did sign the roster sheet. I'm not settled as to whether to call
each and every student, since it was clear to me that at least a subset
of students disagreed with me strongly on the opinions that I expressed
in the class and thus would constitute hostile witnesses. I do not
know exactly who each of these are by name, and the only way
I could see to find out is to screen them in advance, which in itself
could be construed as harassment of some sort by the Ed School
and those students who disliked my opinions to begin with.
I would much have preferred the university to conduct an investigation
by interviewing students. Then I could have cherrypicked those
who were sympathetic to my side of events as they occurred.
Alas, the university is apparently smarter than that, and to date so far
I have received no indication that the university is inclined to investigate
its own in any serious manner. (They did accept my complaint
on the incident, significant only in the light that they rejected two other
complaints I made of a somewhat less serious nature. However,
at the time they accepted the complaint, they also told me that
it would be regarded as a personnel issue and thus they would never
be able to share with me any results of any investigation. To date,
I have never heard from any student that any student had been asked
for their version of events from the university, and the prof continues
to teach this semester, in a manner which does not suggest that she
is particularly concerned about any investigation on my behalf.)
If you sue and if your lawsuit survives a motion to dismiss for
failure to state a claim or on like ground or survives a motion for
summary judgment in defendant's favor (on the basis of what you've so
far said, not likely eventualities), you will be able to use the
court's discovery processes to obtain this information.
There will be many opportuties to achive this goal.
As for as the "early" element, you already have more than ample
information -- namely, that defendant either will offer to settle (or
won't) and, if not, will deny that the statement was made as you
allege and claim that any statement s/he made dealing with the general
subject was not "slanderous" for a host of reasons (e.g., that it was
one of "opinion" and not of "fact"
Counter-response: the intent was clear (I would prefer a jury trial
rather than trust a judge to come up with an unbiased judgement
of the facts)
and, anyway, was not false and,
I think the onus, in practice, is on the university and/or prof to come up
with why an invited opinion which did not attack any person, race, or
culture
qualified the giver of the opinion to be categorized as "unfit to teach."
even if false, was "privleged" for any number of reasons
The principle of academic freedom and the First Amendment
does not cover slander-per-se statements made by a prof in class.
First Amendment right is not absolute.
and yet not maliciously said,
The instructor had previously told me in the first class not to ask hard
questions
because it might cause me to be ostracized from other members of the class.
This had not been occuring with any degree of certainty prior to the remark
she made displaying her regard for me, so the motivation is clear (to me
and I believe to others) that she felt a need to ostracize me herself
when my own comments did not sufficiently do so. At that time the prof
stated that one objective of the class was to "put students outside of their
c
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