Blog

Wednesday, August 14, 2019 - 6:57am
Last week, the Medical Board of California warned its licensees of a telephone scam in which people posing as DEA agents telephone California physicians and demand money to address investigations into prescribing practices.  If you receive such a call, please immediately report the scam to the DEA using its Extortion Scam Online Reporting form, which can be found here: DEA Scam Report Form.
 
Read the California Medical Board's warning here:  MBC Warning.  
Wednesday, August 7, 2019 - 10:25am
Most people are familiar with the idea of lost wages: wages or income lost due to injury, for example.  Proving loss of future earnings in a personal injury case is not limited only to the amounts the injured person would have received in the future but for the injury; it also can include damages for “impaired earning capacity.”  The former includes earnings and other payments, such as social security and retirement benefits, attributable to a plaintiff’s “lost years” – i.e., the time by which his or her work life or life expectancy was shortened because of the injury.  Loss of future earnings is typically developed through testimony of an expert economist, based on factors such as a plaintiff’s actual earnings at the time of injury, the plaintiff’s work life expectancy, anticipated job changes, promotions and salary raises, and general economic trends.  “Impaired earning capacity” is closely related to the loss of future earnings, but differs in that it refers to the extent to which the injury interferes with a plaintiff’s ability to advance to a better paying position or an alternative career.  In effect, it compensates for injury to a plaintiff’s earning power.
 
A current case being handled by Janssen Malloy LLP partner Michael J. Crowley illustrates the issue.  Our client was injured in a serious motorcycle collision, and his orthopedic fractures and traumatic injuries required two back surgeries.  Our client was a self-employed full time building contractor prior to the incident, and his injuries have rendered him unable to continue in that occupation.  In addition to his past and future earnings loss due to injury, his earning capacity has been impaired, which is a separate area of compensable injury from just his past wage or income loss.  Damages for impaired earning capacity, like damages for lost earnings, may be awarded to plaintiffs who run their own businesses. (Pannu v. Land Rover North America, (2011) 19 Cal.App. 4th 1298.  A jury may award damages for impaired earning capacity if it is reasonably certain that plaintiff will suffer a loss of future earnings. (Martinez v. Dept. of Health Care Services (2018) 19 Cal. App. 5th 370.)  Expert economic analysis and testimony has been provided to quantify this aspect of his earnings loss.
 
Proving economic loss to one’s earnings capacity requires experienced trial counsel who can demonstrate that loss with the appropriate expert work up and testimony.  Janssen Malloy LLP’s trial attorneys are well versed in the presentation of such damages to ensure that our clients are fully and fairly compensated, and stand ready to assist when need arises.
Tuesday, July 30, 2019 - 4:42pm
Imagine having the good fortune to own a piece of Humboldt County real property, but being stuck with a co-owner (other than a spouse) so difficult that owning the property becomes more of a liability than an asset. Unfortunately, this is a somewhat common occurrence. For example, two people in a romantic relationship but remaining unmarried might purchase a home intending to reside there together, but only one member of the couple has a sufficiently strong credit score to qualify for a mortgage. Sometime later, the couple splits up, but the individual carrying the mortgage is either unable or unwilling to continue making those mortgage payments. Or, as another common example, siblings inherit property previously belonging to a parent or parents, but because of personality conflicts among the siblings, the property remains vacant, benefiting no one.
 
The good news is that in such scenarios there is a relatively straightforward procedure through the courts to bring such a matter to a resolution. California law provides that any co-tenant, that is, a co-owner holding title to real property, may bring an action in Superior Court for Partition. Although the default under the law is technically for partition to result in the real property actually being physically divided between the co-owners, in practice circumstances usually dictate that the court orders the property to be sold and the proceeds to be divided among the owners, after the sale proceeds satisfy any liens against the property. The court also has the power through this process to conduct an accounting between the parties to consider whether one owner is entitled to a greater share than merely her or his title ownership interest, for reasons such as having paid the mortgage or property taxes, or having made substantial improvements to the property.
 
If you have real property in California, particularly in Humboldt County, and are confronting similar circumstances to those described above, consider contacting Janssen Malloy LLP. We have several attorneys who have litigated partition cases and can advise you regarding the challenges and benefits of resolving your difficult co-ownership by bringing a partition case.
Thursday, July 11, 2019 - 8:51am
The way California is issuing state cannabis licenses is getting a makeover. Slow processing times for applications have dogged state cannabis regulators from approving the majority of applicants for state cannabis cultivation, retail, distribution, and manufacturing licenses. The time it takes the State to process annual applications can leave applicants out of compliance if temporary licenses expire while applicant’s annual licenses are still being processed. This has been a huge issue if you are in the middle of a growing season when your state temporary license expires.
 
In response, the State Legislature enacted Senate Bill 97 on June 27, 2019. Under prior law, to be issued a provisional cannabis state license, an applicant would have had to hold a temporary license for the same activity on the same premises. SB 97 changes that, requiring only that a provisional license may be issued if an applicant has submitted a completed license application including demonstrating that compliance with the California Environmental Quality Act is under way and evidence that the applicant is in compliance with their local jurisdiction, or that compliance is underway.  
 
SB 97 goes further than just making it easier to obtain provisional licenses. The law also provides that a licensing authority has discretion to renew provisional licenses until the licensing authority issues or denies an applicant’s provisional license. Provisional licenses shall be valid for no more than 12 months from the date it was issued. If the licensing authority decides to renew a provisional license, it shall provide the applicant notification of the outstanding items needed to qualify for an annual license that is specific to the licensee.
 
But, as it seems with all cannabis laws, this cookie comes with a caveat. SB 97 has beefed up enforcement of non-compliant commercial cannabis activity and the penalties for failing to comply with the law. Under the law, a licensing authority may issue a citation to a licensee or unlicensed person for any act or omission that violates or has violated any provision of the Business and Professions Code or any regulation adopted pursuant thereto. As part of the citation, the licensing authorities may assess an administrative fine not to exceed five thousand dollars ($5,000) per violation by a licensee and thirty thousand dollars ($30,000) per violation by an unlicensed person. To those familiar with Humboldt County’s abatement process, this should come as no shock: the law provides that each day of a violation shall constitute a separate violation.
 
The bill also gives a nod for all those cannabis farmers waiting to get organic certification. By January 1, 2021, the Department of Food and Agriculture shall establish a program for cannabis that is comparable to the National Organic Program (Section 6517 of the federal Organic Foods Production Act of 1990, and the California Organic Food and Farming Act. In the meantime, a person shall not represent, sell, or offer for sale any cannabis or cannabis product as organic except in accordance with the National Organic Program, if applicable. A person shall not represent, sell, or offer for sale any cannabis or cannabis product with the designation or certification established by the Department of Food and Agriculture.
 
To this author, it would have seemed easier to leave the provisional licensing scheme in place and make temporary licenses valid through the end of the year. If you need help with state licensing, our office is happy to help you navigate the cannabis licensing process.
Friday, July 5, 2019 - 4:10pm
An injured plaintiff does not get a vote on the amount of a defendant’s insurance policy coverage limits, and also didn’t get a vote on the defendant’s carelessness that rendered the plaintiff injured.  So when the defendant’s insurance carrier offers the defendant’s policy limits in a case where the plaintiff’s injuries and damages far exceed those coverage limits, what remedy is available to the plaintiff?  If the case arises from a motor vehicle or truck collision, the plaintiff may have coverage under their own underinsured motorist coverage, but only if that coverage limit exceeds that of the defendant (California has an “anti-stacking provision in its Insurance Code, meaning that one can’t just add the two coverage limits together; the plaintiff’s insurer gets a dollar-for-dollar credit for any recovery obtained from the defendant’s policy coverage).
 
When the plaintiff’s damages far exceed the defendant’s coverage limit, and further compensation is not available under plaintiff’s own coverage, we insist on receiving an asset declaration from the defendant signed under penalty of perjury, which confirms that the defendant has no assets to satisfy a judgment other than the proceeds of their insurance policy coverage.  Any settlement for the defendant’s policy limits is conditioned on receipt of that signed asset declaration.  If the defendant refuses to sign such a declaration, it suggests there may be assets the defendant would prefer us not to know about.  The purpose of demanding and receiving such an asset declaration is to provide confirmation to the plaintiff that there is no point in pursuing that defendant to judgment after trial, since it would likely result in the defendant’s bankruptcy filing.
 
Janssen Malloy LLP’s attorneys have deep experience in pursuing all avenues to obtain justice and fair compensation for our injured clients.  Our firm is in the process of executing a $3.2 million judgment against defendants who defaulted (failed to appear and defend themselves against our client’s lawsuit); we have documented assets those defendants have and will pursue all available remedies to collect that judgment.  When injured persons are facing a defendant with limited insurance coverage, that fact alone does not end the inquiry.