Blog

Wednesday, January 15, 2020 - 4:18pm
Janssen Malloy LLP is pleased to announce the elevation of Jeff Slack to partner. With an interest in land use and business law, Jeff took over the firm’s dynamic cannabis regulatory practice, steering a multitude of clients through the permitting and licensing process. He also represents clients in real estate and transactional matters, and he advises on all aspects of business—from development through dissolution.  Born and raised in Humboldt County, Jeff returned after receiving his undergraduate degree in economics and his J.D. from the University of Idaho.  Jeff also completed internships at the U.S. Small Business Administration’s Office of Litigation in Seattle, Washington and at the Superior Court of California, County of Humboldt, in Eureka. We’re proud of Jeff’s work and thrilled with his elevation to partner.
Wednesday, January 8, 2020 - 4:45pm
Most people don’t think of uninsured ("UM")/underinsured ("UIM") coverages when they hear the word “stacking;” but California’s Insurance Code prohibits “stacking” of UM/UIM coverages.  UM/UIM coverages become important when a person is injured by someone operating a motor vehicle who is uninsured or underinsured.  Suppose our client is hit by an uninsured driver (often the case with drunk driver defendants); in that circumstance, we’d look to our own client’s auto liability policy, which (hopefully) has uninsured motorist coverage.  That coverage would provide compensation for our client’s damages, up to the limit of that coverage (i.e., what coverage their premium payment to their insurance carrier provided).  But let’s suppose the responsible defendant driver has an inadequate amount of insurance coverage for the damages sustained by our client (i.e., the defendant is “underinsured”).  We’d then look to our client’s underinsured motorist coverage.  Under California’s Insurance Code, our client would only be able to assert a UIM claim if their own coverage was greater in amount that that of the defendant driver’s coverage.  For example, let’s assume the defendant in our scenario had only the minimum mandatory coverage required to comply with California’s auto liability laws ($15,000/per person coverage, $30,000/per occurrence).  Our client would then only have UIM coverage to repair to if their UIM coverage exceeded the coverage of the defendant’s policy (> than $15,000).  This is because of California’s “anti-stacking” provision in its Insurance Code (California Insurance Code section 11580, et seq.).  So, our client would need to have coverage in excess of the defendant’s $15,000 amount in order to pursue compensation under their own UIM coverage.
 
Other states, like Oregon, allow for “stacking” of the UIM coverage.  A current Janssen Malloy LLP case illustrates the point.  Our clients were injured by an inadequately-insured motorist in Oregon, and our clients had an Oregon UIM policy.  Under Oregon Revised Statutes section 742.502(5)-(6), our clients are able to “stack” their own UIM coverage limit on top of the coverage limit of the defendant, thereby increasing the amount of compensation they can assert for their injuries.  In California, they would be subject to the anti-stacking provisions of the California Insurance Code, and also only able to be compensated up to the limit of their own UIM policy limit, less the amount recovered from the defendant’s insurance carrier.  California’s “anti-stacking” provisions in its Insurance Code are plainly unfair to California consumers, who reasonably would assume that their UIM coverage (for which they pay a premium to their own insurance carrier) would apply as the policy limit number suggests, rather than possibly have no UIM coverage at all if their own coverage did not exceed that of the defendant.  The insurance industry has successfully lobbied for years to retain the current rules, which provide them profitable insurance premiums for providing no UIM coverage in many instances.
 
The above discussion shows that injured motorists need to be represented and advised by experience trial counsel who can steer them through the obstacles involved with UM/UIM claims.  The attorneys at Janssen Malloy LLP have the background and knowledge to properly protect clients who find themselves in such circumstances.
Thursday, December 19, 2019 - 3:11pm
When a person is injured through the negligence of an employee of the United States government, there are special procedural hoops to jump through to hold the government accountable and obtain just compensation.  Claims against the United States government must be made pursuant to the Federal Tort Claims Act (“FTCA”), codified at  28 United States Code section 1346, et seq.  A claimant must first “exhaust their administrative remedy” under the FTCA before they can proceed to file a lawsuit against the Uniteds States in federal court (the federal courts have jurisdiction over claims against the United States).  Filing a claim under the FTCA is a therefore a condition precedent to being able to file suit in federal court.  Specific deadlines apply procedurally for filing such a claim, the most important of which is that one has to file the claim under the FTCA within two years from the accrual of the claim.  If the government denies the claim (the most likely outcome), the claimant then has 180 days (6 months), pursuant to 28 United States Code section 2401(b), to file suit in federal district court (the trial court level of the federal system).  If the government just sits on the claim without taking action, the claimant can deem the claim “effectively” denied by inaction after 180 days have passed, and can choose to initiate suit in federal district court.
 
These procedural deadlines are strictly enforced, so an injured person in this situation needs trial counsel experienced in federal court practice and procedure to protect their rights to a just recovery.  A current Janssen Malloy LLP case serves to illustrate the procedural requirements to protect our clients.  Three Humboldt State University students were injured when a United States Postal Service (“USPS”) truck unsafely pulled out in front of them on Highway 101 locally, causing a significant collision.  One of the passengers suffered a skull fracture and a degloving injury to his hand, among other injuries.  Because the USPS (a federal government entity) is the defendant, a claim under the FTCA must be timely filed before the lawsuit in federal court can be initiated. The FTCA does not allow for a jury trial in federal court; a court trial with the federal district judge is the procedural remedy for the plaintiffs (the judge serves as judge and jury in the sense of fact finding and eventual ruling on liability and damages).
 
The Federal Rules of Civil Procedure and Federal Rules of Evidence apply in a federal trial under the FTCA, which differ in important respects from state court procedural and evidentiary rules.  It is therefore important for an injured party to be represented by trial counsel familiar and experienced in litigating FTCA claims in the federal court arena.  Janssen Malloy LLP’s attorneys have the background and knowledge to successfully handle cases involving the federal government as a defendant, and stand ready to assist when the need arises.
Friday, December 13, 2019 - 6:59am
If you are going to be advertising your wares as a cannabis licensee, pay attention. Any advertising or promoting of commercial cannabis must identify the licensee responsible for the advertising content, including the responsible licensee’s state license number. In addition, all advertising and promoting of commercial cannabis must not: 
  • Be published or disseminated while a licensee’s license is suspended;
  • Be located within 1,000 feet of a day care center, school, playground, or youth center;
  • Be published or disseminated without first obtaining reliable up-to-date audience composition data demonstrating that at least 71.6 percent of the audience viewing the advertising or promotion is reasonably expected to be 21 years of age or older;
  • Use any depictions of minors or anyone under 21 years of age;
  • Use objects, such as toys, inflatables, movie characters, cartoon characters, or include any other display, depiction, or image designed in any manner likely to be appealing to minors or anyone under 21 years of age;
  • Advertise free cannabis goods or giveaways of any type of product;
  • Advertise or promote in a manner that is false, untrue, or tends to create a misleading impression as to the effects on health of cannabis consumption;
  • Include any statement concerning a brand or product that is inconsistent with any statement on the labeling thereof; or
  • Create the impression that the cannabis originated in a particular place or region, unless the label of the advertised product bears an appellation of origin, and such appellation of origin appears in the advertisement. 
Moreover, all outdoor signs and billboards used for commercial cannabis advertising must: 
  • Be affixed to a building or permanent structure;
  • Comply with the provisions of the Outdoor Advertising Act, commencing with section 5200 of the Business and Professions Code, if applicable; and
  • Not be located within a 15 mile radius of the California border on an interstate highway or on a state highway that crosses the California border. 
Failure to comply with the requirements above may result in the issuance of a citation or disciplinary action. Each day of violation is considered a separate violation subject to separate fines. Violations by licensed persons may result in citations with fines up to $5,000. Violations may also result in suspension or revocation of the license.
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Friday, December 13, 2019 - 6:58am
If you are going to be advertising your wares as a cannabis licensee, pay attention. Any advertising or promoting of commercial cannabis must identify the licensee responsible for the advertising content, including the responsible licensee’s state license number. In addition, all advertising and promoting of commercial cannabis must not: 
  • Be published or disseminated while a licensee’s license is suspended;
  • Be located within 1,000 feet of a day care center, school, playground, or youth center;
  • Be published or disseminated without first obtaining reliable up-to-date audience composition data demonstrating that at least 71.6 percent of the audience viewing the advertising or promotion is reasonably expected to be 21 years of age or older;
  • Use any depictions of minors or anyone under 21 years of age;
  • Use objects, such as toys, inflatables, movie characters, cartoon characters, or include any other display, depiction, or image designed in any manner likely to be appealing to minors or anyone under 21 years of age;
  • Advertise free cannabis goods or giveaways of any type of product;
  • Advertise or promote in a manner that is false, untrue, or tends to create a misleading impression as to the effects on health of cannabis consumption;
  • Include any statement concerning a brand or product that is inconsistent with any statement on the labeling thereof; or
  • Create the impression that the cannabis originated in a particular place or region, unless the label of the advertised product bears an appellation of origin, and such appellation of origin appears in the advertisement. 
Moreover, all outdoor signs and billboards used for commercial cannabis advertising must: 
  • Be affixed to a building or permanent structure;
  • Comply with the provisions of the Outdoor Advertising Act, commencing with section 5200 of the Business and Professions Code, if applicable; and
  • Not be located within a 15 mile radius of the California border on an interstate highway or on a state highway that crosses the California border. 
Failure to comply with the requirements above may result in the issuance of a citation or disciplinary action. Each day of violation is considered a separate violation subject to separate fines. Violations by licensed persons may result in citations with fines up to $5,000. Violations may also result in suspension or revocation of the license.