Blog

Thursday, February 14, 2019 - 4:19pm
Janssen Malloy LLP routinely handles personal injury cases that arise out of a criminal context, e.g., damages or wrongful death caused by a drunk driver (a violation of Penal Code section 23153).  Parallel to and alongside the civil personal injury action for damages, if the responsible defendant is convicted of (or pleads guilty to) felony charges, the defendant may be responsible for the attorneys’ fees incurred by the plaintiff in recovering damages (pursuant to Penal Code section 1202.4, et seq.).  A recent wrongful death case handled by Janssen Malloy LLP partner Michael Crowley serves to illustrate the additional remedy provided to the plaintiffs in the form of a criminal court restitution order.  In our case example, the mother of three young children was killed in a motor vehicle incident in which the mother was a passenger in a vehicle driven by a driver who turned out to be intoxicated.  The defendant was prosecuted for vehicular manslaughter (Vehicle Code section 192.5), and eventually pled guilty to that felony offense.  Mr. Crowley presented evidence to the criminal court judge of the economic loss to the minor children, in the form of the lost income and support the decedent mother would have provided, and the court made a restitution order in the amount of $330,000.  The defendant had a limited auto liability coverage, so the restitution order in the criminal matter proved crucial in the effort to obtain compensation and justice for the children.
 
This case shows the challenges involved in guiding the case through both the criminal and civil justice system.  Mr. Crowley retained an economist to analyze the economic loss issues and prepared expert testimony that demonstrated that loss to the criminal court, in order to obtain the restitution order as part of the sentencing of the defendant.  That restitution order has the same force as a civil judgment, and required that the defendant’s payments under the order go to the minor children.  In the civil action filed against the defendant, the insurance carrier paid the policy limits under the defendant’s coverage, and the civil court approved the settlement as in the best interests of the minor children.  The criminal action was in a different county than the civil action, so the case required court appearances and hearings in different jurisdictions.  The provisions in Penal Code section 1202.4 regarding the recoverability of attorneys’ fees from the defendant provide another arrow in the quiver of experienced trial counsel in obtaining justice.
 
Janssen Malloy LLP’s attorneys have the experience and tenacity to pursue defendants who need to be held accountable for their reckless and criminal actions, and stand ready to assist your family if need arises.
Wednesday, February 6, 2019 - 7:11am
Although some personal injury claims tend to adhere to a pattern, or involve variations on a theme, certain cases present unique challenges that require plaintiffs’ counsel to identify and retain experts in niche areas of the law and then present a compelling claim to the appropriate audience, whether that is insurance defense counsel and a claims representative, an arbitrator, or a jury. Janssen Malloy LLP attorneys Michael Crowley and David Nims recently successfully mediated a personal injury claim for their client, a non-commissioned officer in the United States Coast Guard, who was injured by a negligent, uninsured motorist.
 
The client suffered a serious injury to his shoulder in the collision that affected his ability to lift and move objects above his head, impeding his activities of daily living at home and threatening his ongoing Coast Guard career. Unfortunately for the presentation of the client’s case to his own insurer, his medical and personnel file maintained by the Coast Guard was as clear as mud about his prognosis and how his chain of command might deal with the shoulder injury. A civilian orthopedic surgeon recommended, in no uncertain terms, that the client should undergo shoulder repair surgery. However, upon receiving that report, rather than place the client on light duty and schedule surgery, Coast Guard Medical ordered him transferred to a new assignment on the East Coast.
 
With relatively little in the way of paid medical expenses, the case did not fit neatly into an insurance algorithm. Janssen Malloy LLP retained several experts, including Emma Shinn, a former enlisted Marine who provided a report that explained and clarified the client’s impossible position: he could continue in the status quo, working through severe shoulder pain until, as predicted by his civilian orthopedic surgeon, his shoulder deteriorated to the point where surgical intervention was absolutely unavoidable, or attempt to force the issue with Coast Guard Medical and risk medical separation from the Coast Guard prior to his pension vesting. Ultimately, the client’s insurer settled the client’s claim for $200,000, an excellent result given the uncertainty surrounding future events in the client’s medical treatment and resulting effects on his continued career with the Coast Guard.
 
Wednesday, January 23, 2019 - 6:28am
Janssen Malloy LLP proudly announces that David Nims is our newest law partner.
 
David’s main practice areas include civil litigation, real property litigation, personal injury, and criminal defense, including juvenile cases.  
 
Prior to joining Janssen Malloy LLP as an associate, David practiced at the Humboldt County District Attorney’s Office and the El Dorado Public Defender’s Office, gaining valuable trial experience.  David earned a reputation for relentlessly pursuing justice for his clients while acting with honesty and integrity.   
 
David is UC Hasting Law School graduate.  During law school David distinguished himself in both academics and trial practice skills.  He served as a Senior Articles Editor on the Hastings Women’s Journal and as President of the school’s American Constitution Society.  He received the CALI award for the best academic performance in CA Local Government Law.  He also competed for, coached, and served on the board of one of the top-ranked Moot Court programs in the nation.
Wednesday, January 9, 2019 - 8:38am
On September 27, 2018 California Governor Jerry Brown signed Senate Bill 1459 which allows the California Department of Food and Agriculture ("CDFA") to issue “provisional” cannabis cultivation licenses as a bridge between temporary and annual cultivation licenses. Provisional licenses act in the same manner as annual licenses, except those licenses are not renewable.
 
Unlike annual and temporary licenses through CDFA, there is no application for a provisional license. Rather, CDFA staff determines whether an applicant qualifies for either an annual or provisional license after the submission of an annual license.
 
To qualify for a provisional commercial cannabis cultivation license, an applicant must satisfy the following requirements:
  1. Hold, or have held, a temporary cannabis cultivation license for the same premises and the same commercial cannabis activity for which the provisional license will be issued;
  2. Pay the application fee for the associated license type; and
  3. Submit a completed state annual cultivation license application, including evidence that compliance with the California Environmental Quality Act ("CEQUA") is underway.
The determination whether compliance with the CEQUA will be based on evidence of exemption from or compliance with CEQA, as provided by the applicant in the application. If the applicant can provide evidence that CEQA compliance is underway, then CDFA may issue a provisional license.
 
If CEQA compliance can be demonstrated, then the CDFA will review the rest of the application for consideration of an annual license, as a provisional license will not be needed. CEQA compliance is underway if one of the following criteria is true: 
  1. A project specific document is being prepared, which may be demonstrated through the issuance of a Notice of Preparation, early referral consultations, or a contract with a consultant to produce a document;
  2. The applicant is located in a county or city that has – or is working toward – a program CEQA document and the applicant has evidence he or she is engaged in the permitting process with his or her local agency;
  3. The applicant is located in a county or city that requires a permit issued through a discretionary review process and the applicant has evidence he or she is engaged in the permitting process with his or her local agency.
 For those applicants with an interim permit from the County of Humboldt, CEQA compliance is likely underway as stated in bullet point #2 or #3 above.
Wednesday, January 2, 2019 - 12:52pm
This year marks a new phase in the evolution of California’s regulated market for cannabis. As of January 1, 2019, the California Department of Food and Agriculture ("CDFA") no longer has the authority to grant provisional licenses for cannabis cultivation. Already-issued temporary licenses will be subject to an automatic extension of time for those who submitted applications for annual licenses on or before December 31.

The consequences of missing this deadline are significant. Cultivators who did not secure a temporary license will not be able to legally cultivate cannabis until they are issued an annual license. The application for an annual license is extensive, requiring submission of detailed site plans, corporate documents, surety bonds, and documentation of water rights. These applications require the work of surveyors, watershed biologists, and other third-party consultants.

Even if an annual application can be completed promptly, the CDFA has taken six months or more to review the applications and issue annual licenses. The result is that even those cultivators who have the necessary information for an annual license application right now could be unable to legally cultivate well into the growing season without a temporary license.

We are pleased to say that for many of our cannabis clients, we have beaten these critical deadlines and obtained temporary licenses from the State. Attorneys Jeff Slack and Willie Stein, along with support staff, worked hard in the last few months to marshal the required documents and submit temporary cultivation applications, followed by annual applications. We appreciate the hard work of the surveyors and consultants who produced the required site plans and water documents. Most of all, we appreciate our clients, who trusted us to manage a process with many moving parts and pitfalls.

Happy New Year from all of us at Janssen Malloy LLP. We wish you a prosperous and joyful year.