Blog

Wednesday, August 16, 2017 - 11:45am
Janssen Malloy LLP is proud to support Humboldt County Teen Court via financial donations and by mentoring teen court volunteers. Teen Court, a program run through he Boys and Girls Club of the Redwoods, is a diversion program for first time juvenile offenders. Teen Court is run entirely by teens who are trained and volunteer to serve as jurors, attorneys, and the judge. Hearings are held biweekly on Thursdays throughout the year in the Humboldt County Superior Court. Sentences for offenders focus on restorative justice, and in addition to including mandatory service as a juror for future Teen Court sessions, often include mandatory participation in community building activities and counseling or tutoring services. Janssen Malloy LLP attorneys Megan Yarnall, David Nims, and Jeff Slack regularly volunteer as mentor attorneys – mentoring and assisting teen attorney volunteers and attending teen court sessions to support their mentees. More information about the Teen Court program can be found on its website.
Wednesday, August 9, 2017 - 11:13am
The Compassionate Use Act of 1996 provided seriously ill Californians with the right to obtain and use cannabis for medical purposes when it has been recommended, under certain circumstances, by a physician who is the patient’s attending physician.  The recent passage of California’s Senate Bill 643 established a more comprehensive licensing and regulatory framework for the cultivation, manufacture, transportation, storage, distribution, and sale of medical cannabis.  With respect to physicians, the new law includes guidance and direction to the Medical Board of California (“MBC”).  
 
California law now requires that the MBC prioritize cases against those physicians who excessively recommend cannabis to patients.  The law also specifies that it is unprofessional conduct—and thus puts a physician’s license at risk of revocation, suspension, or probation--to recommend medical cannabis to a patient without (1) an appropriate prior examination and (2) medical indication.
 
The law also criminalizes accepting, soliciting, or offering any form of remuneration from or to a state-licensed cannabis facility if the physician or his or her immediate family has a financial
stake in that facility. 
 
Additionally, the law limits advertising for physician recommendations for medical cannabis in California.
 
All California physicians should know, however, that cannabis remains a Schedule I drug according to the federal Controlled Substances Act.  Activity related to cannabis use is subject to federal prosecution, regardless of protections provided by California law.
Wednesday, August 2, 2017 - 8:50am
A frequent call a general practice attorney or law firm like Janssen Malloy LLP might receive, unfortunately, is from an individual who feels harassed because he or she has been threatened by a neighbor, coworker, or some other relation. The neighbor scenario can be particularly vexing, because all too often a disagreement about a property boundary line, easement, fence, or any number of issues that may arise between two neighboring landowners can and should be resolved informally, or in the worst cases, through routine civil litigation.  
 
When the relationship between the parties - the party allegedly doing the harassing, known as the "restrained person," and the party complaining of harassment and requesting the restraining order, known as the "protected person", does not involve a family or dating relationship, any restraining order case will be pursuant to the Civil Harassment Restraining Order statute, Code of Civil Procedure ("CCP") section 527.6. There are some special cases that either overlap with the Civil Harassment Restraining Order statute or stand apart, and they are briefly discussed below. There are three alternative ways of proving civil harassment. First, any act of physical violence committed by the restrained person against the protected person that was unjustified, i.e., the protected person was not acting in self-defense or in defense of others, qualifies as "harassment." Second, a credible threat of violence that seriously scares the protected person.  Finally, a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the protected person and that serves no legitimate purpose.
 
The protected person files a petition with the court listing, among other things, the additional family and/or household members seeking protection, the act(s) or threat(s) that constitute civil harassment, and whether the protected person seeks immediate orders of protection from the court. In its initial review of the petition, the court may order that the restrained person not have any contact with and stay up to 100 yards away from the protected person, and make other temporary orders that will be in place until the conclusion of an evidentiary hearing in front of a judge, not a jury, which is effectively the trial in the case. At the same time, the court will also set that evidentiary hearing date a few weeks in the future and return all documents to the protected person and/or the Sheriff's Office so that the restrained person can be served. If served at least five days prior to the evidentiary hearing, service is valid and the restrained person must appear in court for the hearing if he or she wants to challenge the protected person's requested orders.
 
Civil Harassment Restraining Orders involve somewhat simplified procedures and forms. They are designed to be much faster and easier for the parties to represent themselves, i.e., not hire an attorney, than general civil litigation. However, having an experienced trial attorney tends to give a party a natural advantage over an unrepresented opposing party. For that reason, prospective clients involved in restraining order litigation sometimes contact Janssen Malloy LLP only after the opposing party has retained an attorney, who in turn has filed motions, issued subpoenas, petitioned on behalf of the would-be restrained person for a restraining order against the would-be protected person, or otherwise complicated what might have been a fairly straightforward proceeding. Effective representation and advocacy at the evidentiary hearing can be a difference-maker for either party. Finally, the stakes may be even higher once an attorney is involved, as either party that prevails at the evidentiary hearing may subsequently file a motion requesting that the court order that the losing party pay its attorney's fees and court costs, if any.
 
As noted above, Civil Harassment is not the only form of restraining order in California law. Domestic Violence Restraining Orders cover a slightly broader range of conduct, including stalking, but pertain to certain family and/or dating-type relationships defined by the Family Code only. The Workplace Violence Restraining Order statute allows employers to petition on behalf of their employees for court protection. The Elder and Dependent Adult Abuse Act provides for a particular restraining order for those especially vulnerable populations. Finally, law enforcement such as police officers and the District Attorney's Office can request Emergency Protective Orders and Criminal Protective Orders, respectively, when they determine and represent to the court that a crime has been committed and that the alleged victim or in some cases even witnesses need the court's protection.
 
If you ever find yourself either the subject of or accused of such harassment, contact our firm to schedule a consultation.
 
 
 
 
Wednesday, July 26, 2017 - 9:42am
In 2009 the Centers for Disease Control and Prevention studied the incidence rate of dog bites and found that an estimated 4.5 million dog bites that occur annually nationwide result in over 300,000 hospital emergency department (ED) visits. An ED visit following a dog bite is on average about 50% more expensive than for any other reason.
 
A 1932 California law, Civil Code section 3342, holds dog owners strictly liable – meaning that an injured plaintiff is not required to prove any knowledge or mental state on the part of the dog owner – for injuries caused by the dog when the person injured was attacked in a public place “or lawfully in a private place.” Liability for a dog attack may extend to persons other than the dog’s owner, but they are not covered by the strict liability statute, and a plaintiff therefore would have to prove additional facts to recover damages from such third parties. For example, a landlord or the dog’s “keeper” may be liable for injuries caused by a dog, but only when he or she knew, actually or constructively, of the dog’s dangerous or vicious propensities.
 
Dog bite cases often involve additional thorny legal issues such as disputed insurance coverage, comparative fault, or assumption of risk, not to mention practical concerns at trial with jurors potentially imagining themselves sitting in the defendant’s seat. Although the majority of dog bite cases Janssen Malloy LP takes involve representing the injured individual, in a handful of cases we are retained to represent the dog’s owner, or a homeowner accused of knowing about the dog’s dangerous character. Having experience on both sides of the case is invaluable, as are the decades of expertise we bring to bear, including arguing a dog bite case before the California Supreme Court.
Thursday, July 20, 2017 - 8:06am
For those of you who missed the boat on applying for a permit for new or existing cultivation last December, you may be getting another chance.
 
In April, Humboldt County released a document titled, “Proposed Ordinance Policy Areas and Discussion Items” (“Policy Areas”) for a planned update to the Humboldt County Commercial Medical Marijuana Land Use Ordinance (“CMMLUO”), that will reopen the permitting process to new and existing cultivators. Rumor has it that a draft of the updated CMMLUO provisions will be released for public comment on August 11 of this year.  If the document available on the County’s website are any indication of what will be in the updated ordinance, there are some major changes coming to what and how cannabis projects will be permitted by the County.
  • The first major change affects new cultivators. New cultivation will no longer have to take place on parcels with, and in areas of, prime agricultural soil. Rather, new cultivation will be permitted in designated zones on parcels with slopes of 15% or less.  
  • The second major change affects mixed light cultivators and nurseries. The old ordinance was silent with respect to power sources for mixed light cultivation and nurseries. According to the Policy Areas document, the new ordinance will principally permit mixed light and nursery operations if 100% of the power source for these operations come from on grid power or on-site renewable energy sources (i.e. solar, wind). Applications for mixed light and nurseries will be under discretionary permitting if less than 80% of the power source comes from on grid or on-site renewable energy.
  • The third major change affects all cultivators. The Policy Areas state that the new ordinance will now require that category 4 road standards be met for all roads leading to cultivation sites. However, cultivation sites located along publicly maintained roads will not have to be analyzed to determine whether the public road meets the category 4 standards. The County may also require cultivators to establish Road Maintenance Associations for private roads that serve three or more cultivation sites.
  • Another major change that affects all cultivators is new water source and storage requirements. First, the Policy Areas document states that there may be a forbearance period where cultivators cannot pull irrigation water from wells. Second, ponds will now be required to be drained at the end of the season to prevent invasive species habitation. The ponds will also have to be adequately fenced and provide pathways for wildlife. Third, storage bladders for cannabis cultivation will be allowed with certain conditions. The conditions include minimum secondary containment consisting of a contiguous earthen berm around the perimeter of the bladder that extends at least one foot above the height of the enclosed bladder when full.
  • Lastly, the new ordinance will have some quick deadlines to make application for permits. For new cultivation on existing sites, there is a six-month deadline from the effective date of the new regulations to apply for a permit. For eligible existing sites not previously permitted, there is a three-month deadline from the effective date of the new regulations to apply for a permit. Bottom line, cultivators will have less time to decide whether to come into compliance under the new ordinance.
 
Note: Cannabis is a Schedule I controlled substance under Federal law. The cultivation, manufacture, distribution, and transportation of cannabis is a felony and could expose offenders to civil and criminal liability. The above blog entry is only intended as informational, and does not constitute legal advice. If you are interested in receiving advice on compliance with California state law with respect to cannabis, contact the attorneys at Janssen Malloy LLP.