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Thursday, August 16, 2018 - 9:05am
California’s Business and Professions Code requires that Physician Assistants report only (1) the bringing of an indictment or information that charges the Physician Assistant with a felony and/or (2) the conviction of the Physician Assistant, including any verdict of guilty or plea of no contest, of any felony or misdemeanor.  While that should seem simple enough, there is a regulation that requires a Physician Assistant to report any arrest within 30 days, whether there is ultimately a conviction or not.  Any failure to report to California’s Physician Assistant Board results in unprofessional conduct under the Medical Practice Act and is grounds for discipline.  Reporting requirements are fraught with repercussions for any Physician Assistant, and any person having to make a report should consult an experienced attorney before taking any action.
Friday, July 27, 2018 - 6:33am
On July 13, 2018, the California Department of Food and Agriculture (CDFA) published its proposed regulations in the California Regulatory Notice Register, the first step toward adopting non-emergency regulations. The publication begins the formal rulemaking process and marks the opening of the 45-day public comment period.
 
An important change in the proposed rules is the definition of mixed light. Under the current emergency regulations, adopted in December of 2017 and readopted June 2018, the definition of mixed light cultivation is:
 “(s) ‘Mixed-light cultivation’ means the cultivation of mature cannabis in a greenhouse, hoop-house, glasshouse, conservatory, hothouse, or other similar structure using light deprivation and/or one of the artificial lighting models described below:
  1. ‘Mixed-light Tier 1’ the use of artificial light at a rate of six watts per square foot or less;
  2. ‘Mixed-light Tier 2’ the use of artificial light at a rate above six and below or equal to twenty-five watts per square foot.”
This definition implies that if you are (1) cultivating in any structure; and (2) are using light deprivation techniques, your cultivation will be considered mixed light cultivation. The conflict between CDFA’s definition of mixed light, which includes “light deprivation,” and Humboldt County’s definition of mixed light cultivation, which excludes “light deprivation,” was the topic of a recent blog post .
 
CDFA’s proposed regulatory text for the definition of “mixed-light” is:
 
“(t) ‘Mixed-light cultivation’ means the cultivation of mature cannabis in a greenhouse, hoop-house, glasshouse, conservatory, hothouse, or other similar structure using a combination of:
  1. Natural light and light deprivation and one of the artificial lighting models listed below:
    1. ‘Mixed-light Tier 1’ without the use of artificial light or the use of artificial light at a rate above zero, but no more than six watts per square foot.
    2. ‘Mixed-light Tier 2’ the use of artificial light at a rate above six and below or equal to twenty-five watts per square foot; or
  2. Natural light and one of the artificial lighting models listed below:
    1. ‘Mixed-light Tier 1’ the use of artificial light at a rate above zero, but no more than six watts per square foot;
    2. ‘Mixed-light Tier 2’ the use of artificial light at a rate above six and below or equal to twenty-five watts per square foot.” (Emphasis added).
Under the proposed regulatory text definition of “mixed-light,” for a growing operation to be considered mixed light it must necessarily include the use of artificial lighting, whereas the emergency regulation text included either light deprivation or the use of artificial lighting within the definition of “mixed light.” This proposed change brings CDFA’s definition of “mixed light” in line with the County’s definition of mixed light which encompasses only those operations that use artificial lighting.
 
Be aware of this change when filling out your state license applications as the difference between mixed light and outdoor cannabis application fees vary.
Monday, July 23, 2018 - 9:19am
A claim or defense that is frequently raised in litigation involving easements is that an easement either was created or terminated (“extinguished” is the term most often used by the courts) because a party adversely possessed that easement. Code of Civil Procedure section 325 specifies the requirements for proving adverse possession: a hostile claim of right made continuously for a period of at least five years by substantially enclosing, cultivating, or improving the land, and timely paying all taxes on that land. A recent case from our state Appellate Court, the First District Court of Appeal, stands as a word of caution against any litigant who would try to have a trial court ignore any of these requirements.
 
In McLear-Gary v. Scott, No. A146719, the First District reversed the judgment of the trial court in Mendocino County. Deborah McLear-Gary had crossed her neighbors’ property on foot for many years, until in 2006 when her neighbors the Scotts replaced a wooden gate with a metal one that cut off her access to the pedestrian trail in dispute. The trial court found that although Ms. McLear-Gary had, prior to 2011, enjoyed the easement rights she claimed in her suit, the Scotts had met all the elements for adverse possession, including that the Scotts paid their property taxes, and therefore had extinguished McLear-Gary’s easement over their property.
 
Not so fast, said the Court of Appeal. The evidence at trial showed that the Scotts had fallen four years behind on their property tax payments before bringing them current with a lump-sum payment. The appellate court rejected the Scotts’ many arguments that the lump-sum payment was “timely,” instead following the plain language and legislative history of Code of Civil Procedure section 325(b) that the late payment was untimely, and that McLear-Gary’s easement was not extinguished by adverse possession. For the Scotts, their late payment of their property taxes proved to be far more costly than any late fees or penalties from the Assessor’s Office.
 
Janssen Malloy LLP’s attorneys are well-versed in real property law and can assist you either in protecting yourself against claims of adverse possession, or in evaluating your own such claim.
 
Thursday, July 5, 2018 - 6:35am
Any plaintiff’s lawyer will tell that you that it is never a good thing when a defendant files for bankruptcy.  The conventional wisdom says the chances of ever recovering anything from the “debtor” (the defendant’s new name in the bankruptcy court) is slim to none.  But there are still arrows in the quiver of the prepared and persistent trial counsel.  For example, although a trucking company may file for bankruptcy protection from its creditors, if there is a policy of liability insurance for the company, one can seek relief from the bankruptcy filing by agreeing to limit the recovery to the limits of the company’s liability coverage.  Janssen Malloy LLP partner Michael Crowley pursued such a course in a case involving our client, a woman struck from behind by a flat bed semi while riding her bicycle home from work.  After filing a lawsuit against the driver and the trucking company that employed him, the trucking company filed for bankruptcy.  We sought relief from the bankruptcy “stay” (the bankruptcy action puts a halt to all collection efforts against the debtor who filed for bankruptcy during the pendency of that proceeding), agreeing to limit our client’s recovery to the limits of the company’s commercial liability insurance coverage.  The bankruptcy court granted our petition, since our recovery would not prejudice other creditors seeking payment from the company’s assets.  We were able to resolve our client’s case for the $500,000 limits available under that insurance policy.
 
But what if there is no applicable insurance policy, and the uninsured defendant files for bankruptcy.  Again, it ain’t over til it’s over, as Yogi Berra would say. In a case handled by Janssen Malloy LLP, a contractor defendant was carrying no worker’s compensation insurance coverage, lacked any commercial liability insurance coverage, and was operating under a suspended state contractor’s license when our client suffered severe injuries on the job site when he fell from a second story deck under construction.  While the California Labor Code allows an injured worker to directly sue the employer when the employer fails to carry worker’s compensation insurance (normally not permitted if the employer follows the law and does carry worker’s compensation coverage), that is cold comfort to the injured plaintiff when the employer files for bankruptcy.  After we filed our lawsuit against the contractor employer, he filed for bankruptcy the day before his deposition was scheduled.  We again sought relief from the Chapter 13 bankruptcy stay (the “reorganizational bankruptcy” permitted under that chapter of the federal bankruptcy code), in order to take the defendant debtor’s deposition (sworn testimony under oath) as a “fact witness,” not for the purpose of collecting money from him outside the bankruptcy action.  We also filed a timely “creditor’s claim,” stating the damages in our client’s case for which the defendant debtor was responsible.  As the debtor made payments into the bankruptcy trustee’s account for the reorganizational plan of the debtor under Chapter 13, our client got pro rata payments proportional to the amount of his creditor’s claim.  Debtors are given five years to complete their Chapter 13 reorganizational plan (a high percentage of debtors never do complete the plan, which denies them the benefit of a discharge of their remaining debts in the bankruptcy).  The defendant debtor in our client’s case did complete the plan, and while the recovery is certainly less than our client deserves, it is better than no recovery at all.
 
The attorneys at Janssen Malloy LLP are experienced in litigating complex cases, and steering them through defendants’ efforts to avoid responsibility for their misconduct.  We stand ready to assist you and your family when the need arises.
Wednesday, June 27, 2018 - 2:49pm
Departing from prior precedent, the U.S. Supreme Court decided Friday that in order for law enforcement to collect a substantial amount of information from a cell phone provider about one of its subscriber’s whereabouts by using cell phone tower location information, the government must first apply for a search warrant.
 
In Carpenter v. United States, No. 16-402, Chief Justice John Roberts, writing for the majority of the Court, wrote, “We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information.” The Court’s opinion could affect whether and how law enforcement seeks or obtains various types of personal information held by third parties, including email and text messages, internet searches, and bank and credit card records.
 
Carpenter’s attorneys were joined in arguing for privacy protections to apply to cell phone tower records by attorneys for major tech companies such as Apple and Google, who also urged the Court to modernize its Fourth Amendment jurisprudence by shielding cell tower location data, which continuously tracks and pinpoints users’ locations with increasing accuracy, from law enforcement demanding that information without first obtaining a warrant from the court.
 
As noted both by justices who joined in the Chief Justice’s majority opinion and by those who dissented from it, Friday’s decision will have real implications for law enforcement officials and consumers’ privacy in the digital age.