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Friday, June 15, 2018 - 3:02pm
Humboldt County Code Enforcement Unit is currently sending notices of violation and proposed administrative civil penalty notices to landowners based upon satellite imaging.  The notices order the recipients to correct or otherwise remedy the violation within 10 calendar days or risk fines of $10,000 per day. 
 
If you receive one of these notices please immediately contact an attorney to preserve your rights.
 
Below is a brief list of some of the issues a landowner should consider after receiving a notice of nuisance and abatement.  
  1. Service:  The notices are often posted somewhere on the subject property and certified letters are being sent by mail as well as notices being published in the local newspaper.  Oftentimes the method of notice may not be sufficient and could fail to comply with Due Process.  Each notice should be reviewed for a determination of whether it is sufficient.
  2. Response:  Assuming notice is sufficient, the recipient is given ten days to contest the action.  It is important to timely respond and request a hearing. 
  3. Challenging Nuisance Determination:  Many of the notices to abate are based upon images of greenhouses in which Code Enforcement assumes cultivation of cannabis is occurring.  You have the right to challenge such assumptions.  Additionally, many of the notices assume grading has occurred or occurred without the proper permits.  Again, it is important to challenge any false assumptions and responding timely helps preserve your right to do so.
  4. Abatement.  The County states that the corrective action must be “commenced, prosecuted, and completed” within 10 calendar days.  This is not what the code states.  Humboldt County Code section 352-5 states that the court or Code Enforcement Unit shall provide the responsible party with a reasonable amount of time, not to exceed ten (10) calendar days “to correct or otherwise remedy” prior to the imposition of the administrative civil penalty, except in situations in which the Violation creates an immediate danger to the health, safety, and/or general welfare of the public.   The nuisance and abatement process is intended to have any nuisances remedied by the private citizen rather than the government.  Most of the alleged nuisances can be timely remedied, which prohibits the government from charging a civil penalty for failing to abate.  Some nuisances require permits and landowners can timely apply for those permits and assert reasonable conduct in pursuing those permits as a defense to a nuisance action even if the permit is not issued within ten (10) days.  There are multiple companies locally who can help landowners timely remedy any alleged nuisances. 
  5. Challenging Fine Amounts:  The notices state that if corrective action is not commenced, prosecuted and completed within ten (10) calendar days after service of this Notice of Violation and Proposed Administrative Civil Penalty, a daily administrative fee of Ten Thousand Dollars ($10,000.00) will be imposed for a period of up to ninety (90) calendar days pursuant to Humboldt County Code section 352-5.  The Code Enforcement Unit misquotes Humboldt County Code section 352-5.  It does not provide for $10,000 fines per day if the corrective action is not commenced, prosecuted, and completed within ten (10) calendar days.  The code section provides for penalties of “up to” $10,000 per day.  A fact finder could find that the appropriate fine, if any, could be as low as $1 per day.  Prior cases show that an assessment needs to be made regarding the action and the party’s ability to pay when assessing the reasonableness of a fine.  Any fine of $10,000 per day would likely be challenged as excessive and a comparison of other county codes would support this claim.
Humboldt County Code Enforcement will often present landowners with compliance agreements which require the landowner to pay tens of thousands of dollars and take corrective actions.  For many landowners, such compliance agreements are not necessary and result in excessive payments.  The notices of violation can and should be challenged on multiple grounds.
 
As set forth above, it is important to timely respond to a notice of violation.  There are multiple options available to landowners which may be more beneficial than simply signing a compliance agreement.  It is also important to remember that statements made to Code Enforcement could be used against you later, in either the nuisance action or a criminal action.
 
If you have any questions please feel free to contact our office for a consultation. 
Thursday, June 7, 2018 - 6:31am
We are sometimes asked what can be done to clean up a person’s Record of Arrests and Prosecutions, more commonly called a criminal record or RAP sheet. The answer, as it often is with legal questions is: It depends. In the vast majority of cases, once convicted, a criminal defendant is placed on probation. Upon successful completion of probation, that person and/or her or his attorney may petition the court for an expungement pursuant to Penal Code section 1203.4. This is the most common type of record relief, and Janssen Malloy LLP can and does assist people in obtaining this relief from the court often and efficiently, both in terms of the amount of time required to get in front of the court and seek this relief, and in terms of the modest expense involved.
 
However, some people many years ago made more serious mistakes – or the sentencing laws and how courts applied them were much harsher at the time – resulting not in probation but instead in a state prison commitment. In that scenario, a person who has served his or her sentence, complied with the law, and demonstrated that he or she has been rehabilitated may be eligible for either a Petition for a Certificate of Rehabilitation or a Governor’s Pardon. Either process is more involved than petitioning the court for an expungement, but the time and expense involved may be well worth it to an individual who has served a sentence and thereafter worked hard to rehabilitate her or himself in the eyes of society and the law. A person convicted of a felony loses certain rights and privileges under California law, including the ability to possess a firearm or ammunition lawfully, to serve on a jury, or from holding certain jobs.
 
The difference between petitioning the court for a Certificate of Rehabilitation and applying to the Governor for a pardon turns on one seemingly arbitrary qualification: that a person who has resided in the state, after leaving prison or jail, for the five years immediately preceding the filing of the petition and after the requisite waiting period may go through the court. During World War II, the Governor’s office was inundated with pardon applications received from ex-felons who were otherwise barred from serving in the military and working in defense industries. So in 1943 the Legislature enacted Penal Code section 4852.01, et seq., which created a procedure for persons convicted of a felony to petition the court for a certificate of rehabilitation. If the court finds a petitioner meets the statutory requirements, it may issue a certificate of rehabilitation. The certificate is sent to the Governor as an application and recommendation for a pardon, which the Governor is authorized to grant without further investigation. The advantage is substantial: petitions to the court are processed in a matter of a couple months; applications to the Governor may languish for years before even being considered.
 
Regardless of your particular circumstances, Janssen Malloy LLP’s experienced attorneys are prepared to help you or your loved ones navigate the court process to obtain relief from restrictions related to prior criminal convictions.
Wednesday, May 9, 2018 - 7:24am
In California, a wrongful death action (a lawsuit claiming damages against a defendant for wrongfully causing the death of a human being) is strictly a creation of statute (California Code of Civil Procedure ["CCP"] section 377.60).  California’s wrongful death statute creates a cause of action for certain designated survivors of the decedent and permits them to recover for their own independent injury and loss. In other words, the wrongful death action “belongs” to the heirs of the decedent, not to the decedent him or herself.  CCP section 377.60 sets forth the categories of persons who may bring (file) a wrongful death action (this post will only address the most common scenarios of who may bring such actions):
  1. The decedent’s surviving spouse, domestic partner, children and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse, entitled to the decedent’s property by intestate (where person died without a will) succession;
  2. Whether qualified under the first category or not, a putative spouse, stepchildren, and parents, if they were dependent on the decedent; and
  3. Whether or not qualified under the first or second category, a minor who, at the time of the decedent’s death, resided for the previous 180 days in the decedent’s household and depended on the decedent for one half or more of his or her support.
It is common that the decedent in a wrongful death case dies without a will, and the threshold inquiry for the attorney advising the family in such a situation is to determine who is the “proper party plaintiff” (who is legally entitled to bring the wrongful death lawsuit and recover damages for the loss).  Figuring out who are the legal heirs under the California Probate Code’s intestate succession provisions can be complex.  Under those provisions:
  1. If a decedent was married and had children, the spouse and children are heirs.
  2. If the child of a decedent does not survive, then the issue (children) of that child become heirs by right of representation, along with the spouse and surviving children.
  3. If a decedent was not married at the time of death but had children (or the issue of children), they are heirs.
  4. If a decedent was married and did not have children, the spouse and the decedent’s surviving parents, if any, are heirs.
  5. If a decedent has no surviving spouse or children (or issue of children), the decedent’s surviving parents are heirs.
  6. If both of decedent’s parents are dead, they are replaced as heirs by their other children (the decedent’s brothers and sisters) and their issue by right of representation.
  7. If a decedent leaves no surviving spouse, children (or issue of children), or parents (or issue of parents), the Probate Code contains provisions for the decedent’s property to pass to more distant relatives.
 
A current wrongful death case being handled by Janssen Malloy LLP partner Michael Crowley serves to illustrate this process of identifying who is the plaintiff who can bring the lawsuit to recover damages for the loss of the loved one.  The decedent in the current case was killed by a careless driver while walking alongside a road in McKinleyville, California last Thanksgiving.  The decedent’s sister was asked to identify his body after the fatal collision, and thereafter contacted our office about what to do in the circumstances.  Our interview determined that the decedent was not married, although he did have one child, a 19 year old son.  The decedent died without having a will, so the Probate Code’s rules of intestate succession controlled who would be the “property party plaintiff” to pursue the wrongful death action.  As outlined above, that meant the 19 year old son is the only person legally entitled to pursue the action and damages from the negligent defendant.  The CHP traffic collision report showed that the driver was at fault for the fatal collision, and Janssen Malloy LLP has obtained the defendant’s full policy limits coverage for the young man who lost his father.
 
Janssen Malloy LLP’s attorneys are experienced in sorting out the complexities involved in wrongful death matters, identifying the applicable insurance coverages, and aggressively pursuing the full measure of justice for those who have lost a loved one due to the careless conduct of others.  If your family faces such a situation, we stand ready to assist.
Thursday, May 3, 2018 - 12:53pm
Janssen Malloy LLP attorney and partner Michael J. Crowley previously wrote about a particular litigation tool, the California Code of Civil Procedure section 998 offer to compromise, linked to here. A recent decision by the California Second District Court of Appeal underscored why parties in litigation should seek the advice of experienced counsel when such an offer has been made in their case.
 
In Timed Out, LLC v. 13359 Corp., B280301, plaintiff, a professional model, sued a bar and restaurant for using her likeness without her permission in advertising for its St. Patrick’s Day event. The statute she sued under, Civil Code section 3344, provides that the prevailing party shall be entitled to attorney fees and costs. Prior to trial, and before the cutoff for making such an offer, the defendant made a 998 offer to pay plaintiff “the total sum of $12,500, exclusive of reasonable costs and attorney fees, if any.” After a bench trial, the court found defendant misappropriated plaintiff’s likeness and awarded $4,483.30 as damages. After briefing and argument by the parties, the trial court awarded pre-offer attorney fees and costs to plaintiff, and post-offer fees and costs to defendant, such that defendant, in a nifty bit of legal jiu-jitsu, wound up recovering more in fees and costs from plaintiff than plaintiff did from defendant for damages plus pre-offer fees and costs. Plaintiff appealed.

The Court of Appeal affirmed. The purpose of section 998 offers is to encourage the settlement of litigation prior to trial. Courts essentially treat 998 offers like any other contract and apply ordinary principles of interpreting a contract. Although perhaps awkwardly worded, defendant’s offer was neither ambiguous nor internally contradictory, as plaintiff argued.

Why this technical discussion of the 998 procedure? Plaintiff won the battle (trial) but lost the war by winding up having to pay money to defendant despite the judge finding that the defendant was liable for the tort of misappropriation. I have heard opposing counsel say and read letters by attorneys stating, “This 998 is invalid and unenforceable because it’s ambiguous” offhandedly and with more confidence than was warranted. As this case and others like it demonstrate, trial and appellate courts recognize that the legislature has encouraged them to enforce section 998 offers as a means of getting cases settled, and in the heat of the moment some attorneys may not appreciate how effectively such an offer has changed the strategic positions of the parties in the case. An individual, business, or nonprofit involved in litigation where a section 998 offer has been made needs advice from well-informed trial counsel. Janssen Malloy LLP’s experienced attorneys have litigated these issues and are prepared to assist you consider its options and make a wise, fully-informed decision in your case. 
Friday, April 13, 2018 - 12:02pm
Earlier this week, the Pacific Fishery Management Council ("PFMC") adopted recreational and commercial ocean salmon season recommendations for the West Coast, including the North Coast of California. The proposed recreational salmon season on the north coast, from the Oregon/California border south to Horse Mountain, runs from June 1 through Labor Day, September 3, 2018. The proposed commercial season is more detailed, with intermittent openings and varying quotas along the northern California coast.
 
The PFMC’s recommendations follow its annual spring meetings in March and April and multiple opportunities for public comment. At its March meeting, the PFMC adopted three alternatives for the 2018 West Coast salmon season. It then solicited public comments on the alternatives, both in writing and in person at public hearings held in Washington, Oregon, and California. This month’s meeting included additional public comment and scientific information before the adoption of the final proposals. In reaching its season recommendations each year, the PFMC considers input from federal, state, and tribal fishery scientists, fishing industry members, and public comment.
 
The PFMC’s recommendations will be sent to the National Marine Fisheries Service for approval later this month, which will be followed by individual sate agency actions to adopt appropriate state regulations for the upcoming season.