Blog

Thursday, September 13, 2018 - 8:18am
As you may or may not be aware, Humboldt County is charging $10,000 per day per violation of County Codes related to unlicensed cannabis cultivation. Such violations include grading violations, building permit violations, and violations of the cannabis ordinance. The question is whether the County can really impose such a stiff penalty and what statute authorizes such a penalty? The short answer is likely no, the County does not have authority under the California Government Code to impose such a penalty.
 
The statute that authorizes the imposition of civil penalties by counties in an administrative action is Government Code section 53069.4. The statute provides that where the violation would otherwise be an infraction, the administrative fine or penalty shall not exceed the maximum fine or penalty amounts for infractions set forth in Government Code section 25132 and subdivision (b) of section 36900.
 
The statute governing the imposition of fines and penalties for counties is Government Code Section 25132. That section only provides a penalty schedule for infractions. There is no statute that authorizes counties to impose fines, penalties and forfeitures outside of the imposition of civil penalties provided for in section 53069.4.
 
The statute governing the imposition of fines and penalties for cities is found in Government Code sections 36900 and 36901. Government Code section 36900 provides for a fine schedule if the violation is made an infraction by ordinance. Section 36901 empowers cities to impose fines, penalties, and forfeitures for violations of ordinances. It may fix the penalty by fine or imprisonment, or both. However, the fine shall not exceed one thousand dollars ($1,000) and imprisonment may not exceed six months. As stated above, there is no analogous statute for counties to impose fines, penalties and fees outside of the administrative code enforcement procedure provided for in section 53069.4.
 
A case interpreting these statutes is People v. Minor 96 Cal. App. 4th 29. The Minor case involved an appeal from a conviction of infractions of the San Bernardino County Code for accumulation of trash, rubbish and junk on defendant’s land, having a non-permitted structure, and maintaining a hog farm on the property without a conditional use permit. The court found defendant guilty, required him to bring the property into compliance, and ordered him to repay the costs of investigating, analyzing and prosecuting the action. The appellate court held that counties are not authorized by the legislative scheme to add costs of enforcement as a penalty in prosecutions of code infractions.
 
The court analyzed the statutory scheme and found that Government Code section 25132 is the sole statutory authority for counties to impose penalties for enforcement of ordinances. See generally Minor, at pg. 38-39. The Court reasoned that where there is no other enabling legislation for imposition of fines, fees, or penalties, counties are limited to penalties provided for by the general law. In this case, the Court found that when Government Code section 25132 and Penal Code section 19 (providing for $1,000 fines for misdemeanor violations) are read together, the “statutes do the following: First, they create a default classification of misdemeanors for code violations; second, they authorize counties to classify the violations as infractions if they choose to do so; and, finally, they set the respective punishments for both infraction and misdemeanor code violations.” Minor at pg. 39. The Court continued, stating “we must conclude that counties – unlike cities – do not presently have the power to ‘fix’ fines, penalties and forfeitures for criminal violation of their ordinances, but are relegated to the fines and penalties set by general statutes, except where the Legislature has expressly bestowed on the counties the power to impose additional penalties.” Minor, at pg. 42.
 
Given the express language in Government Code section 53069.4 limiting the imposition of administrative penalties to those penalties outlined in Government Code section 25132 and the Minor court’s reasoning that Government Code section 25132 and Penal Code section 19 must be read together to set the amount of penalties for misdemeanor violations, the imposition of penalties over $1,000 for misdemeanor violations of county code is not authorized since there is no “enabling legislation” to allow the county to fix additional penalties. Therefore, the imposition of additional penalties for misdemeanor violations would violate California Constitution, Article XI, section 7 which provides, “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with the general laws.”
Wednesday, September 5, 2018 - 6:20am
If the Governor signs AB 3080, 2019 will usher in a new era for employees in California.  Initially intended to address “lawyer tactics” in response to workplace sexual harassment claims, the bill (1) makes it unlawful to require arbitration agreements as a condition of employment (and to retaliate against an employee who does not agree to arbitration) and (2) limits the scope of non-disparagement clauses in settlement agreements.
 
Currently, federal law favors arbitration provisions, and there is expected to be a great deal of legal wrangling over whether the bill, if made law, would be preempted by federal authority.  Those in favor of the bill, though, argue that it is carefully crafted not to run afoul of federal preemption arguments.
 
The text of the bill can be found here.
 
September 30, 2018 is the last day for the Governor to sign or veto AB 3080.
Wednesday, August 29, 2018 - 8:21am
Most people would think I am referring to the kind of umbrella that protects you from rain, but today’s discussion is about the kind of “umbrella” or excess liability insurance that provides an additional layer of insurance coverage on top of an underlying policy.  For example, automobile drivers are required under California state law to carry auto liability insurance coverage for their vehicles.  An individual may also purchase an “umbrella” or excess policy that provides an additional layer of liability coverage beyond the coverage limit of the underlying policy.  Homeowners also may choose to purchase an excess liability policy that provides a similar layer of additional coverage over the policy limits of the underlying policy.  In order to qualify for an excess liability coverage policy, the excess insurer normally requires that the policy holder first secure some minimum level of underlying insurance coverage.  A minimum of $500,000 in auto liability coverage may be required before the excess liability insurer will underwrite that umbrella coverage and a minimum of $300,000 in homeowners’ liability coverage before the excess liability insurer will underwrite similar umbrella coverage.  Identifying the existence of an umbrella or excess liability policy is essential when evaluating the extent of a defendant’s (or a plaintiff’s) policy coverage.
 
Let’s use a current case being handled by Janssen Malloy LLP partner Michael Crowley to illustrate the issue.  Our client was injured in a motorcycle/vehicle collision by a hit and run driver.  After our investigation identified the defendant driver, we filed suit against him, and obtained payment of his auto liability insurance policy limit (which was only $15,000, the absolute minimum a person can drive with in California and be obeying the mandatory insurance requirements).  Our client had an underinsured motorist coverage policy with his own insurance carrier, in the amount of $500,000 (underinsured coverage provides additional coverage beyond that of the inadequately-insured defendant driver).  Our client also had an umbrella or excess liability policy in the amount of $1,000,000, so his full extent of coverage for this incident is $1,500,000.  Our client was driving a motorcycle when the collision occurred, and sustained serious injuries, which required two back surgeries, among other medical interventions.  The case is presently being litigated against our client’s own insurance carrier, which underwrote both the underinsured policy and the excess liability policy.  We have formally demanded that the insurance carrier pay the full benefits of the policies our client paid them to provide.  After all, the premiums were paid to cover exactly the risk that occurred (that he might be injured by an underinsured defendant).  Funnily enough, insurers seem quite open to accepting their insured’s premium payments, but seem to not want to know them when the time comes to pay a claim that the insurance was procured to cover.
 
Janssen Malloy LLP has encountered numerous instances of cases in litigation in which we discovered late in the process that there was an excess liability policy that applied to the incident, which the insurance carrier involved did not disclose.  These non-disclosures have occurred even after the insurance carrier in question had provided answers to written questions (in legalese, the questions are called “interrogatories”), under oath, asserting that there was only the underlying policy of coverage, had responded to requests for production of documents indicating that no such excess policy existed, and had stated in correspondence from their attorneys that there was no such policy.  In one of our cases, that disclosure of an excess liability policy came after the jury’s verdict.  In another, that disclosure of the excess coverage came after the case had gone through a binding underinsured motorist arbitration proceeding.  Call us skeptical types, but we now look deeper and more persistently into the issue of excess liability coverage, having learned that insurance carriers sometimes do not disclose the full extent of coverage.
 
The average person usually hasn’t even heard of umbrellas in the context of insurance coverage, and wouldn’t know to ask if such coverage existed or was applicable to their case.  Because it is such a critical piece of information, an injured person needs the expertise of experienced trial counsel who can identify such layers of coverage, engage the coverage, and collect the benefits that the insured paid for with their premium dollar.  If you or your family suffers a serious personal injury, the attorneys at Janssen Malloy LLP stand ready to assist.
Wednesday, August 22, 2018 - 8:06am
California Civil Code section 813 provides a simple means for landowners to protect themselves from someone asserting prescriptive rights or adverse possession. It states, in relevant part:

“The holder of record title to land may record in the office of the recorder of any county in which any part of the land is situated, a description of said land and a notice reading substantially as follows: ‘The right of the public or any person to make any use whatsoever of the above described land or any portion thereof (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) is by permission, and subject to control, of owner.'

The recorded notice is conclusive evidence that subsequent use of the land during the time such notice is in effect by the public or any user for any purpose (other than any use expressly allowed by a written or recorded map, agreement, deed or dedication) is permissive and with consent in any judicial proceeding involving the issue as to whether all or any portion of such land has been dedicated to public use or whether any user has a prescriptive right in such land or any portion thereof.”
 
If you own land and suspect that an encroaching neighbor may be seeking to establish prescriptive rights or adverse possession, contact Janssen Malloy LLP to speak with an attorney about this simple, inexpensive option for protecting yourself and your property from such a claim in the future.
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.