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Revenge Porn Civil Lawsuits in California (CA Civil Code section 1708.85)

Nowadays, it is quite common for individuals to take photographs and/or videos of a sexual nature and share them with their current relationship partner. Unfortunately, sometimes the relationship ends in an acrimonious way and the recipient of said photographs and/or videos decides — who might feel wronged or slighted — decides to share them with others as a way of getting even. The term “Revenge Porn” is often used to describe this situation. In California, perpetrators of Revenge Porn (i.e. those who share sexual photos and videos of others) can be punished in a variety of ways. For example, there’s criminal prosecution under California Penal Code section 647(j)(4), which I will cover in a later post. One key thing I’ll point out now, though, is that if the victim in a Revenge Porn case is a minor (e.g. 16 or 17 years old), additional charges related to, for instance, child pornography may be on the table also. Many criminal sentences (e.g. jail time) are also increased for Revenge Porn cases involving a victim who is a minor. In this post, I’ll briefly go over the civil suit liability under California Civil Code section 1708.85(a), which provides: “A private cause of action lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the other’s consent, if (1) the person knew that the other person had a reasonable expectation that the material would remain private, (2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse,...

New York Civil Battery

A while back, I wrote a post about what civil battery under California law. This post is going to be the comparable post for New York law. Law school in the US is somewhat generic in that you learn what a given offense (e.g. civil battery) is in the abstract, even though the actual criteria for the offense in the real world will dependent on the state. When I learned about civil battery, for example, I learned it as “a harmful or offense touching either done with subjective desire or knowledge to a substantial certainty”. If you’re thinking that that rolls off the tongue, you’re correct. When you actually want to sue someone for civil battery in the real world, however, you need more specific criteria than that. In California — as I described in my previous post linked above — the criteria for civil battery can be found in the So v. Shin case (cite: So v. Shin (2013) 212 Cal.Appl.4th 652, 669) as: defendant touched plaintiff, or caused plaintiff to be touched with the intent to harm or offend plaintiff, plaintiff did not consent to the touching, plaintiff was harmed or offended by defendant’s conduct, and a reasonable person in plaintiff’s position would have been offended by the touching. Under New York law, the comparable criteria for civil battery are: defendant intentionally made bodily contact against the plaintiff, that this contact was harmful or offensive to the plaintiff, that plaintiff did not consent to the contact, and These criteria are recited in a number of New York state cases including (1) Wende C. v. United Methodist Church...

New York Statute of Limitations – Fraud

In this post, I’m continuing with my series on Statutes of Limitation in both California and New York. In a prior post, I described the statute of limitations that applies to a civil fraud lawsuit under California. This post will be the New York counterpart to that post. The New York answer is a bit more complicated. Instead of a flat figure (e.g. 3 years, 5 years, etc), New York’s statute of limitations for civil fraud is the greater of: six years starting from when the fraud is actually committed, or two years from the time when the fraud was actually discovered or when it could have been discovered with plaintiff’s reasonable diligence. All of this is in section 213(8) of New York’s Civil Practice Law and Rules (CPLR 213(8)). It’s quite important, I think, that CPLR 213(8) provides for the “greater of” as opposed to the “lesser of”. For instance, suppose that CPLR 213(8) said the statute of limitations was the lesser of six years from the fraud is committed or two years from the time the fraud was or could have been discovered. If the fraud is discovered soon after (say, a few months) of it being committed, then the plaintiff only has the two years from the date of discovery to file suit. If the fraud isn’t discovered right away (e.g. say it goes undiscovered for several years), then the defendant is in the clear as soon as they hit the six year mark. Because CPLR 213(8) instead says “greater of”, though, it goes in the plaintiff’s (i.e. fraud victim’s) favor. For a fraud that is...

California Statute of Limitations – Fraud

I recently put out a post about the statute of limitations that applies to a breach of contract case in California. In that post, I explained that a “statute of limitations” is the time period within which a plaintiff has to file their lawsuit. If they miss it — and can’t come up with a good tolling argument — then they will lose their case. Their evidence could be rock solid (e.g. the proverbial smoking gun), but they will lose simply because they waited too long. In this post, I’m going to continue that theme and discuss another statute of limitations. We’re talking about California again, but this time it’s the statute of limitations for a civil fraud suit. As an aside, my experience has been that fraud is alleged in cases way more often than it actually happens. Fraud — at least in California — has a very, very, very specific definition. If you’re going to allege it in a lawsuit, I would highly recommend that you look up that definition and know it back to front. Anyway, aside over. The statute of limitations for a civil fraud suit is 3 years. That’s section 338(d) of the California Code of Civil Procedure. As before, knowing that the proverbial clock is 3 years is only part of the solution. The other part is that you need to know when this 3 years starts. The answer to that is when the plaintiff discovers the fraud. That’s also in section 338(d) which provides: “The cause of action… is not deemed to have accrued until the discovery, by the aggrieved party, of...

False Imprisonment in New York

A while back, I put out a video on my Youtube channel about the Shopkeeper’s Privilege in California. In short, this is a justification that the proprietor of a business (e.g. a store) can use to detain someone they believe is committing a theft (e.g. shoplifting). Normally, detaining someone could be considered False Imprisonment and is something that the person who has been falsely imprisoned could be sued for. I learned about the Shopkeeper’s Privilege in law school in California, but the concept exists in other states also. I wrote about the New York Shopkeeper’s Privilege in a recent post and how it’s codified in statute, specifically n New York, for example, it’s Section 218 of the New York General Business Law. In this post, I’m going to describe the antecedent tort to Shopkeeper’s Privilege, namely what False Imprisonment involves. This post will specifically be about the False Imprisonment in New York. I’ll put out a subsequent post about how the tort of False Imprisonment is defined in California law. As with most things in law — I’m speaking generally and not specifically about California or New York — the tort of False Imprisonment has various criteria. If you are the plaintiff and you satisfy those criteria (e.g. your witnesses, evidence, etc are sufficient), you win. Keep in mind, however, that the defendant in your case will do everything in his/her power to show that your evidence not only doesn’t meet the criteria, but that the evidence shows precisely the opposite. In other words, you as the plaintiff haven’t come even remotely close to satisfying the criteria required to...

Shopkeeper’s Privilege in New York

A few years ago — 2016, it appears — I put out a video on my Youtube channel about the Shopkeeper’s Privilege in California. Here’s the video. This post will go over the Shopkeeper’s Privilege as it exists in New York. Like California, New York’s Shopkeeper’s Privilege is also statutory. The governing New York statute is Section 218 of the New York General Business Law. Section 218 provides that if a defendant is sued for “false arrest, false imprisonment, unlawful detention, defamation of character, assault, trespass, or invasion of civil rights” by a person detained at a retail establishment, the defendant may raise as a defense that the plaintiff was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a police officer or an owner or employee of the retail establishment and that there were reasonable grounds to believe that the plaintiff being detained had committed a theft. (Note: I am paraphrasing this somewhat due to length. If you’re going to actually use the statute (e.g. in court), do always take a look at the section’s actual text first). If you compare this to how California’s Shopkeeper’s Privilege works (see California Penal Code section 490.5(f)), you should see similarities. As always, this post is meant to only briefly go over a singular topic. If the Shopkeeper’s Privilege — either the California or New York one — please do additional research before proceeding and do not rely on just this blog post. Lastly, I’ll repeat again as I do at the end of every post related to New York...