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Simas & Associates, Ltd. Newsletter | April 7, 2017 | Volume V, Issue 4
Firm Announcement
 
Simas & Associates, Ltd. Prevails on Motion to Compel Discovery 

Santa Rosa, CA — Simas & Associates, Ltd. received notification this week that it had prevailed in its Motion to Compel the production of requested discovery in a matter before the Office of Administrative Hearings

"Winning a Motion to Compel the production of discovery in administrative hearing practice against a California state agency is rare," explained Steven Simas, owner and founder of Simas & Associates, Ltd. "However, the behavior of the board in this particular case was so extreme that it warranted the attempt. The client was properly advised on the risks moving forward. Nevertheless, reason prevailed and I am glad that [the Office of Administrative Hearings] is making the [Board] comply."

The case involved the denial of an application for licensure. The applicant was a highly successful student in their respective health care field in California. Licensed in multiple states, the applicant received a number of prestigious job offers in California. However, the applicant had several expunged criminal convictions. The applicant was transparent and forthright in disclosing the convictions and circumstances underlying them and resulting rehabilitative efforts in response to the Board's inquiries. Ultimately, that the licensing board decided the convictions merited a  denial. After immediately requesting a hearing, the licensing board delayed referring the matter to the Office of the Attorney General for almost the entire statutory period for providing a hearing on the denial (see Business & Profession Code, section 487) before a Statement of Issues was filed. 

"The client immediately filed a Special Notice of Defense," explained Justin D. Hein, first chair attorney on the case. "And that was coupled with a Request for Discovery that mirrored the discovery statute for administrative proceedings."

Administrative proceedings before the Office of Administrative Hearings pursuant to the Administrative Procedure Act provide for discovery according to Government Code, section 11507.6. It specifies the extent of discovery that must be produced.

"Unlike civil litigation," explained Hein, "administrative proceeding discovery is extremely limited. One must not expect to get every single morsel of information, notation, documentation, correspondence, or other recording that could possibly identify witnesses or lead to admissible evidence. Rather, much of what is considered "discoverable" is left up to the discretion of the underlying agency."

But here, the licensing board used a unique standard. It was called, "none."



"Basically, we asked for discovery and all they sent back were items submitted by [the applicant] or our office on [the applicant's] behalf," explained Hein. "After one look by [our client] of what was provided, we knew the discovery was deficient. We knew there were communications the [licensing agency] had with [our client] that had been improperly omitted. Furthermore, we know internal discussion by the [licensing agency] about [our client] had been omitted. So, with approval from [the client], we pressed."

In response, the Board, through its counsel, said, "nope."

"Counsel for the [licensing agency]," Hein continued, "basically said 'we know there were other communications about [our client] but we don't care and don't feel like looking for them because we don't think they are relevant to our case.'  In response, I asked, 'has your client - or you for that matter - read the discovery statute? Because that is not the standard for production.' If there were discussion about our client, our client's application, or the denial of our client's application, [the applicant] is entitled to examine it and make a copy of it for purposes of presenting a defense."

The Board dug its heals and said, "make me."

"Well," continued Hein, "that is what we did. Through great overall effort and excellent, research, argument, and writing, Lindsay [Yoshitomi] and Chrisy [Strickland] put together a great motion. And when a grasping-at-straws opposition came-in, Lindsay and Chrisy put together a direct and efficient reply within a matter of a day."

The Presiding Judge of the Office of Administrative Hearings granted the motion. The order compelled the Board to conduct an investigation into all that it possessed or controlled that reflects that which is discoverable under the statute. And, once identified, the order compelled the Board to produce, make available for investigation, or to shield by asserting a known discovery privilege. The order did not award requested sanctions at this time.

"All in all," Hein concluded, "the motion was a great success. Our client is happy because the [licensing agency] will have to divulge its internal communications as to why it denied this highly capable individual a license. While much is still left to be learned, we hope that this will ultimately motivate the [licensing agency] to come to its senses and award [the applicant] a license."

For more information on Simas & Associates, Ltd. and its Administrative Law, Healthcare Law, and Professional Licensing Defense practice areas and Administrative Hearing legal services, please visit our website at www.simasgovlaw.com.
Firm Announcement
 
Julianne Allen Sweeps Quarterly Simas & Associates, Ltd. Awards!

On April 7, 2017, Senior Paralegal, Julianne Allen was announced as the winner of Simas & Associates, Ltd. quarterly Concilio et Labor Award. In addition, Ms. Allen was also announced as the winner of the law firm's initial Semper Pergendum Award - for her performance in the same quarter!

"The law firm went through a mini-transition in early 2017," explained Managing Attorney, Daniel J. Tatick. "We had to bring on a new paralegal, another paralegal was only able to work partial hours due to a professional accommodation, and the firm was adjusting to a new, flat fee contract for a public entity client. As such, we needed someone to pick up the pieces. By and large, Julianne was the employee who did so immediately, without question or prodding, and without complaint."

Julianne Allen joined Simas & Associates, Ltd. in 2010. She is presently the longest serving employee at the law firm. In her role as Senior Paralegal, she has shaped how the firm administers all of its healthcare licensing, professional licensing, and public employment defense cases, has contributed to streamlining business formation and employment consulting services, and is a trusted colleague of all attorneys on the many nuances of the law firm's unique writ of mandamus and public contract law practices.



"This was unexpected," explained Julianne Allen. "My mind was focused on helping our clients. So many ended up having emergencies or mini-crises in the past 2-4 months, and luckily I was able to draw upon my prior experiences to help assist our attorneys in guiding them through their individual storms."

The Concilio et Labore award is a quarterly award provided to the member of the Simas & Associates, Ltd. tribe that demonstrates the highest level of wisdom and effort in helping the law firm achieve its collective goals on behalf of its clients. The phrase is in latin and loosely means, "by wisdom and effort" though some prefer to read it as meaning something along the lines of "Think about the consequences of your work before beginning it." It has been awarded since 2015. This is Ms. Allen's second time winning the award.

The Semper Pergendum award is a new quarterly award started in 2017. It is a latin for "always moving forward." The standard for the award is meeting and exceeding one's personal objectives. Ms. Allen did so by exceeding her goals for attendance and hours spent on individual client matters.
Client/Vendor of the Month

Konocti Harbor Resort & Spa
8727 Soda Bay Road
Kelseyville, CA 95451
P: (800) 660-LAKE
F: (707) 279-9205 
http://www.konoctiharbor.com/
 
Located just a short and scenic 2 hour drive away from Sacramento or the Bay Area, Konocit Harbor Resort & Spa is 90 pine studded acres of paradise. And it is on the market, ready for sale.

Dramatically situated at the base of Mount Konocti, this lakeside classic underwent a multi-million dollar facelift to compete as one of Northern California's premier destination resorts in 2009. It has gone on-and-off the market since then. And is presently primmed and primed for sale.

Long a destination for tourists and concert goers, Konocti Harbor Resort & Spa, is located in Lake County, which is surrounded by Napa, Sonoma, and Mendocino counties, all known for great wines and food. It originally opened in 1959 as a low-cost vacation spot for union members, in particular United Association Local 38, a union of Northern California plumbers. The facility has expanded and how hosts a 5,000 seat outdoor amphitheater, a 1,000 seat showroom. miniature golf course, marina, and two Olympic-sized swimming pools.  

Simas & Associates, Ltd. appreciates the opportunity to serve as Konocti Harbor Resot & Spa's counsel since 2017. If you would like to be featured as our law firm’s “Client/Vendor of the Month,” please contact us at info@simasgovlaw.com
Featured Agency Announcement

Spring Break Travelers Reminded to Protect Themselves against Zika

Sacramento, CA — The California Department of Public Health (CDPH) advises spring break travelers vacationing in warmer climates to protect themselves from mosquito bites and avoid unprotected sex in areas with known transmission of the Zika virus. 

The Centers for Disease Control and Prevention (CDC) considers any travel to Mexico and most of Latin America to be a potential risk for Zika virus infection. Local transmission of the Zika virus has been reported in many areas of Mexico, including states with popular tourist destinations such as Ensenada, a coastal city approximately 85 miles south of San Diego, Baja California Sur (Cabo San Lucas) and Sonora, which borders Arizona. 

Zika virus can spread through mosquito bites and can also be transmitted by both men and women during sex. Most people who are infected with Zika do not experience symptoms (fever, rash, joint pain and red eyes), but they should still take precautions to avoid sexual transmission. That is because Zika can cause severe birth defects. 

In particular, young women who could become pregnant, pregnant women and couples considering pregnancy need to be cautious. Couples planning pregnancy when either partner has been exposed to Zika virus should speak with a health care provider about a safe time to try to get pregnant. A health care provider can also provide information on the most effective contraceptive methods.

Pregnant women are urged to avoid travel to areas with known Zika transmission if at all possible. If travel is necessary, it is extremely important to take steps to prevent mosquito bites. 
Featured Blog Entry

Private Email, Texts Conducting Public Business Subject to PRA

On March 3, the California Supreme Court held that the California Public Records Act (PRA) law provides the public with a right to emails and other communications, such as text messages, regarding government business written or received by public officials and employees, regardless of whether the communication was done using a private account or device.



Justice Carol Corrigan, relying on a broad interpretation of the PRA, wrote, “In today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace.” 

The court concluded that a writing prepared by a public employee or official conducting agency business is considered to be “prepared by” the agency within the meaning of the PRA, even if the writing is prepared using the employee or official’s personal account. 

To keep reading this entry, please click here:
Private Email, Texts Conducting Public Business Subject to PRA. For more blog entries from our attorneys and legal staff, please visit our law firm’s official blog – Wit of Mandate.
Word of the Month

Order to Show Cause



A judge's written mandate that a party appear in court on a certain date and give reasons, legal and/or factual, (show cause) why a particular order should not be made. May be made after motion by applicant (e.g. opposing party) or on court's own volition. This rather severe method of making a party appear with proof and legal arguments is applied to cases of possible contempt for failure to pay child support, sanctions for failure to file necessary documents or appear previously, or to persuade the judge he/she should not grant a writ of mandate against a governmental agency. 

For more terms related to our practice areas, please visit our law firm’s glossary at 
SimasGovLaw.com - Glossary.
Upcoming Calendar

April 7 - Happy National Beer Day!



April 9 - Winston Churchill Day.

April 11 - National Pet Day. Also, Be Kind to Lawyers Day.

April 12 -
2017 Stanley Cup Playoffs Begin. Also, National Licorice Day.

April 15 -
NBA Playoffs Begin. Also, Husband Appreciation Day.

April 16 - Happy Easter!



April 17 -
Boston Marathon. Also, Patriot's Day.

April 18 - Tax Day 2017.

April 20 - National High-5 Day! Also, Sonoma County Bar Association Presents, "
End of Life Option Act." And SLO County Bar Association Presents, "Should Your Client Sign That?" But most importantly, Steve Simas will be presenting "Writs of Administrative Mandamus Demystified" in Sacramento.

April 21 - British National Tea Day.

April 23 -
London Marathon.

April 25 - World Penguin Day.




April 26 - San Diego County Bar Association Presents, "
Considerations In Veterinary Malpractice Cases." Also, Administrative Professionals' Day!

April 27 -
NFL Draft Begins. Also, Take Your Daughter to Work Day.

April 28 - Arbor Day.

May 1 -
Happy May Day!

May 4 -
May the Fourth Be With You Day.

And a big happy birthday to Sharon Cain!
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