Blog

Wednesday, June 12, 2019 - 4:31pm
It is common these days for people (especially younger people) to post photos and information about themselves and their activities on Facebook, Instagram or other social network platforms.  When people post these photos and messages, they usually are not thinking that such information will be available to the opposing side in litigation should they get injured and be pursuing a damage claim or lawsuit against the responsible party.  A recent example serves to illustrate the point. 

Our client, injured when a commercial delivery vehicle rear-ended her on Highway 101, suffered injuries that ultimately required surgical intervention and rehabilitation for her shoulder and knee.  The lawsuit against the defendant driver and his employer was filed, and our client's deposition (sworn testimony under oath before a court reporter) was scheduled.  Part way through that deposition, defense counsel began showing our client photos of herself she had posted on Instagram and Facebook depicting various outdoor activities she was engaged in with family and friends, including horseback riding, mountain biking, kayaking, running, snowboarding, etc.  The purpose of his inquiry about the activities shown in the photos (and the dates) was not because he was interested in how much she was enjoying herself; his purpose was to attack her credibility about the impact of the injuries she suffered in the collision on her every day life, the extent of limitations on her function, and the length of time required for her to recover from her injuries and surgeries.
 
Because the photos and messages were openly available on the various social network platforms, it was easy for the insurance carrier for the defendant driver (and the lawyer they retained to defend the claim) to access that information, and use it for the purpose of damaging our client's credibility.  For this reason, our firm always advises our clients at the outset of a case that posting about their personal life on such platforms is only done at the risk of the opposition getting ahold of it and using it for their purposes.  In the case described above, we took over from another attorney and all of the posting had occurred well before we were involved in the litigation.  A person is not required to stop living or enjoying any activities of life once they have been injured and filed a lawsuit, but posting these types of photos and information so that it is freely available to the opposing party to use is never a good idea. The defense objective is to pay a plaintiff nothing or as little as possible, and taking such photos and postings out of context is one way of doing that.  A person’s history and medical records are private and confidential until they file a lawsuit and demand damages for their injuries.  Once that litigation is started, a plaintiff has opened up their medical condition and history to inquiry, since they are blaming the defendant for causing the injury and change in their condition.  It is therefore prudent to be careful in posting private information, no matter how fun it may be to share with family and friends.
Thursday, June 6, 2019 - 6:11am
Federal courts are often called upon to rule on hotly-contested, politically controversial cases.  That may delight those on one side of an issue and deeply disappoint those on the other. But unless you enforce parking ordinances, chances are good that if you have any reaction whatsoever to the Sixth Circuit Court of Appeals’ decision in Taylor v. City of Saginaw, it will be a positive one. Plaintiff Alison Taylor sued Saginaw, Michigan, after city employees marked the tires of her car and thereafter ticketed her no fewer than 15 times in three years.
 
The Court of Appeals sided with Taylor, analogizing this low-tech practice to a markedly more modern one of law enforcement officers installing a GPS device without a warrant to track the location of a suspect’s vehicle in United States v. Jones. The Court first found that City employees conducted a “search” under the Fourth Amendment, and also rejected the City’s argument that the search was permissible without a warrant because of the community caretaking exception to the warrant requirement.
 
Although we here at Janssen Malloy LLP don’t foresee the next great class action case being one related to a municipality’s practice of marking car tires with chalk, this case is likely to be one of the more universally popular Fourth Amendment decisions.
Thursday, May 9, 2019 - 8:55am
Back in September 27, 2018, Governor Jerry Brown signed Senate Bill 1459, which allows the California Department of Food and Agriculture (CDFA) to create a new “provisional” cannabis cultivation license as a bridge between temporary and annual cultivation licenses.

A provisional license acts in the same manner as an annual license, except it is not renewable, as required in Business and Professions Code section 26050.2, et. seq. (otherwise known as the Medicinal and Adult Use Cannabis Regulation and Safety Act).

A provisional license is valid for 12 months form the date issued and as stated cannot be renewed. A revocation or suspension of a provisional cannabis cultivation license cannot be appealed in contrast to annual permits, the suspension or revocation of which can be appealed.

Once the provisional license has been issued, the licensee must comply with all licensing requirements, including the following:
  • Pay all applicable application and license fees;
  • Adhere to all California Cannabis Track and Trace system requirements, pursuant to Article 5 of the California Code of Regulations, Title 3, Division 8, Chapter 1 (commencing with section 8400); and
  • Make sure your annual cannabis cultivation application is submitted – and receive approval – prior to the expiration of the provisional license in order to continue to operate after expiration of the provisional license.
The type of temporary license you received will determine your provisional license status. To transition from a temporary license to a provisional license, the annual license application must be for the exact same site and activity (for example, any flowering type to any flowering type, nursery to nursery, processor to processor). CDFA will verify that this information is included and accurate on the annual application.
Monday, April 29, 2019 - 12:54pm
For businesses, one of the great safeguards against liability is the idea that a plaintiff injured by the business can only recover a judgment from the corporate entity that actually injured them. This is one of the primary reasons our legal system recognizes corporations- to encourage business innovation and enterprise without fear that the individuals operating the business could be personally at risk.

However, this system creates loopholes that allow corporations to entirely evade responsibility for injuries they cause the public. Corporate entities accused of wrongdoing often point the finger into a confusing web of subsidiary corporations. Each entity accused of wrongdoing alleges that they, in some way, cannot be held liable. The goal of such a strategy is to leave the injured plaintiff unable to find any defendant from whom to recover.

The tenacious consumer advocates at Janssen Malloy LLP are not deterred by such strategies. We have often been faced with complex corporate defendants who try to make it so difficult to determine who is responsible that plaintiffs just give up. We don’t. When these defendants try to get out of a case by pointing to subsidiaries or other corporate entities, we don’t take them at their word. We have had great success digging deep into publicly available information, some of it quite arcane, to connect the dots and hold corporate wrongdoers in the case. Often, corporations are required to make disclosures to state and federal agencies. Sometimes, corporations must offer explanations of their corporate structures under oath in other cases. Very frequently, corporations make representations of their roles to the public that contradict what they claim in court.

Our attorneys have beaten these corporate shell games time and time again, to achieve the common-sense results our clients deserve. When a complex corporation makes itself out to be a monolith, we don’t back down. We dig in and do the work to find who’s responsible.  
Wednesday, April 3, 2019 - 5:54am
After experiencing the pain and indignity of a crime, a crime victim may be left attempting to navigate the court process and communicate with law enforcement and the district attorney’s office, which can be frustrating in its own right. Several of Janssen Malloy LLP’s attorneys have experience both in criminal and plaintiffs’ personal injury law that informs their ability to help crime victims understand and be heard in the prosecution of the individual who perpetrated the crime against them.
 
The California Victim Compensation Board (“CalVCB”) is a potential lifeline to crime victims that may be under-utilized across the state. This government entity exists to review claims by the victims of crime and their legal representatives for out-of-pocket expenses resulting from crime and reimburse qualifying claims. In many cases, this can mean the difference between tens of thousands of dollars’ worth of medical bills being paid through timely CalVCB reimbursements, and a crime victim’s credit being ruined by those bills going to collections. The program is funded by restitution paid by criminal offenders through fines, orders, penalty assessments and federal funds.
 
Many district attorney’s offices, including Humboldt County’s, have some type of  victim services division, employing non-lawyer advocates to improve communication between crime victims and prosecutors. However, as with a recent Trinity County wrongful death civil case arising from a gross vehicular manslaughter crime, many district attorney's offices will fail to provide crime victims and their families, who may be eligible for CalVCB benefits, with claim forms or even basic information regarding CalVCB. This is another way in which having an experienced advocate in your corner can help you obtain a more just result.