Los Angeles Lawyer April 2014

Expert Wit G THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION uide t

PAGE ne o 41 sse s

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What Makes a Franchise page 10 The Decline of the Jury Trial page 15 CleanupCleanup ActAct Los Angeles lawyer Sudhir Lay Burgaard reviews AB440’s new processes for redeveloping blighted properties page 20 A NEW VISION

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41 Special Section Semiannual Guide to Expert Witnesses

Los Angeles Lawyer D EPARTMENTS the magazine of the Los Angeles County 9 Barristers Tips 68 Closing Argument Steps for taking a deposition in Japan The Ninth Circuit rejects First Bar Association BY ANDREW Y. YEN Amendment arguments in favor of SOCE April 2014 BY BRAD SEILING AND JUSTIN JONES RODRIGUEZ Volume 37, No. 2 10 Practice Tips Analyzing what makes a business 66 Index to Advertisers arrangement a franchise COVER PHOTOGRAPH: TOM KELLER JOHN M. ADSIT 67 CLE Preview

15 Practice Tips Advocacy in an era of declining jury trials BY JUDGE MICHAEL L. STERN

LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August, by the Los Angeles County Bar Association, 1055 West 7th Street, Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Periodicals postage paid at Los Angeles, CA and additional mailing offices. Annual sub- scription price of $14 included in the Association membership dues. Nonmember subscriptions: $28 annually; single copy price: $4 plus handling. Address changes must be submitted six weeks in advance of next issue date. POSTMASTER: Address Service Requested. Send address changes to Los Angeles Lawyer, P. O. Box 55020, Los Angeles CA 90055. 04.14 VISIT US ON THE INTERNET AT www.lacba.org/lalawyer E-MAIL CAN BE SENT TO [email protected] EDITORIAL BOARD Chair PAUL S. MARKS Articles Coordinator MARY E. KELLY JERROLD ABELES (PAST CHAIR) K. LUCY ATWOOD ETHEL W. BENNETT SCOTT BOYER CAROLINE BUSSIN PATRICIA H. COMBS CHAD C. COOMBS (PAST CHAIR) HON. MICHELLE WILLIAMS COURT ELIZABETH L. CROOKE BEN M. DAVIDSON GORDON K. ENG DONNA FORD STUART R. FRAENKEL CHRISTY GARGALIS MICHAEL A. GEIBELSON (PAST CHAIR) CHRISTINE D. GILLE SHARON GLANCZ TED M. HANDEL JEFFREY A. HARTWICK STEVEN HECHT (PAST CHAIR) JOSHUA S. HODAS JOHN C. KEITH ERIC KINGSLEY KATHERINE KINSEY JENNIFER W LELAND STEPHANIE LEWIS SANDRA MENDELL AMY MESSIGIAN MICHELLE MICHAELS COMM. ELIZABETH MUNISOGLU PAUL OBICO CARMELA PAGAY AMANDA PAWLYK DENNIS L. PEREZ (IMMEDIATE PAST CHAIR) GREGG A. RAPOPORT GARY RASKIN (PAST CHAIR) JACQUELINE M. REAL-SALAS (PAST CHAIR) A. JOEL RICHLIN DAVID SCHNIDER (PAST CHAIR) NANCY L. SCHROEDER STEVEN SCHWARTZ HEATHER STERN KENNETH W. SWENSON (PAST CHAIR) MATTHEW D. TAGGART DAMON THAYER THOMAS H. VIDAL ALEX M. WEINGARTEN STAFF Editor ERIC HOWARD Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director LINDA BEKAS Administrative Coordinator MATTY JALLOW BABY

Copyright © 2014 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or in part without permission is prohibited. Printed by R. R. Donnelley, Liberty, MO. Member Business Publications Audit of Circulation (BPA). The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.

4 Los Angeles Lawyer April 2014 Los Angeles Lawyer April 2014 5 LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION VIGOROUS JUDGE OF THE LOS ANGELES COUNTY BAR ASSOCIATION LAWRENCE W. CRISPO 1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553 STATE BAR DEFENSE Telephone 213.627.2727 / www.lacba.org (RET.) JAMES R. DIFRANK LACBA OFFICERS A PROFESSIONAL LAW CORP. President PATRICIA EGAN DAEHNKE TEL 562.789.7734 President-Elect www.BarDefense.net LINDA L. CURTIS E-MAIL [email protected] Senior Vice President PAUL R. KIESEL • Disciplinary Defense Vice President • Reinstatements/Admissions MARGARET P. STEVENS Treasurer • Malpractice Defense MICHAEL K. LINDSEY • Bankruptcy Assistant Vice President • Criminal Defense BRIAN S. CURREY Assistant Vice President • Representation within the CHRISTINE C. GOODMAN State of California Assistant Vice President SAJAN KASHYAP FORMER: Immediate Past President State Bar Sr. Prosecutor RICHARD J. BURDGE JR. Sr. State Bar Court Counsel Mediator Arbitrator Chief Executive Officer/Secretary SALLY SUCHIL Chief Financial & Administrative Officer BRUCE BERRA General Counsel & Chief Administrative Officer Referee 213.926.6665 W. CLARK BROWN [email protected] BOARD OF TRUSTEES Home of Sir Winston www.judgecrispo.com HARRY W. R. CHAMBERLAIN BRIAN K. CONDON Pictured Above DUNCAN W. CRABTREE-IRELAND DANIEL M. CROWLEY REBECCA A. DELFINO ANTHONY DE LOS REYES HOWARD S. FISHER RICHARD B. GOETZ JACQUELINE J. HARDING MARK A. KRESSEL DEVON MYERS JUAN A. RAMOS DAVID K. REINERT DIANA K. RODGERS JENNIFER S. ROMANO HARVEY I. SAFERSTEIN SUSAN KOEHLER SULLIVAN TERESA TRACY SULLIVAN BRENDA E. SUTTON-WILLS DAVID A. TILEM

AFFILIATED BAR ASSOCIATIONS BEVERLY HILLS BAR ASSOCIATION CENTURY CITY BAR ASSOCIATION CULVER MARINA BAR ASSOCIATION GLENDALE BAR ASSOCIATION IRANIAN AMERICAN LAWYERS ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION JOHN M. LANGSTON BAR ASSOCIATION KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION SAN GABRIEL VALLEY BAR ASSOCIATION SANTA CLARITA VALLEY BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION SOUTH BAY BAR ASSOCIATION SOUTHEAST DISTRICT BAR ASSOCIATION SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION WHITTIER BAR ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES

6 Los Angeles Lawyer April 2014

ADR FOR THE WORLD’S MOST INTRACTABLE DISPUTES

BUSINESS • EMPLOYMENT • INTELLECTUAL PROPERTY FRANCHISE • INTERNATIONAL DEEP Subject Matter Knowledge ur profession makes liberal use of the language of EFFICIENT Party Driven Process Caesar. We argue about what is de jure versus what FIERCELY Fair and Impartial is de facto; we volunteer our time pro bono publico; SUPERB Judicial Temperament O if our client is having a bad day, we may enter a plea of nolo contendere; if our client is having a bad range of years under

a court’s sentence, we may need to make a habeas corpus petition; we convey property to bona fide transferees. Indeed, we lawyers begin learning Latin words right at the start of law school—ab initio, if you will. An occasional word in our legal lexicon derives from one of the nations Caesar vanquished—France (or Gaul, as he knew it). In jury trials, we decide which jurors to select (really, to deselect) by using a process called voir dire; if we don’t like the allegations of a pleading, we may bring a demurrer; and if a war, a hurricane, a labor action, or civil unrest prevents an agreement from being performed, such a force majeure will often relieve the parties of liability. Cy pres is a French term many of us probably have not heard since law school. Cy pres is the abbreviated form of the phrase Cy pres comme possible, meaning “as near as possible.” The cy pres doctrine allows probate courts to interpret trust doc- “...Holmes is unsurpassed at customizing the uments as closely as possible to the trustor’s intent, if the original objective has parties' chosen resolution process to ensure speed, become impossible or illegal to perform. For example, a cy pres bequest might be economy and justice”—Russell Fransen, Esq., The Business Legal Group made to the Audubon Society if the testator had designated a different wildlife char- ity that is no longer in existence. • Large Complex Case Panel, American Arbitration The cy pres doctrine has found application in the class action arena. Many class Association (AAA) National Roster of Neutrals action settlements result in settlement funds that cannot be distributed to individual • International Panel, International Center for class members because proof of claims is burdensome or too costly or because many Dispute Resolution (ICDR) class members fail to submit claims. Courts approving class action settlements have • Board of Directors, College of Commercial several options for handling residual funds, including pro rata payments to class mem- Arbitrators (CCA) bers, reversion to the defendant, escheat to the government, or cy pres distributions. • Board of Directors, California Dispute Resolution Proponents of cy pres distributions in class actions argue that they support Council (CDRC) important charitable and social causes. Supporters point out that such awards can • Mediation Practice Director, Resolute Systems, LLC serve the purpose of deterrence and voluntary compliance when, for example, the • Fellow, California Academy of Distinguished parties cannot agree on a beneficiary of settlement funds. Defendants can benefit as Neutrals well, with cy pres awards operating as charitable contributions resulting in favor- • President and Executive Director, Neutrals able tax consequences. Diversity Aliance California is among several states providing for cy pres distributions by statute or rule. Code of Civil Procedure Section 384 encourages the payment of class THE HOLMES LAW FIRM action residuals to “nonprofit organizations providing civil legal services to the indigent.” Federal law contains no similar statute, and the tide may be turning against cy pres awards. Late last year, in a case involving Facebook’s Beacon program, Chief Justice John Roberts signaled that the U.S. Supreme Court was keeping its eye on the cy pres doctrine as applied to class actions. To schedule your Mediation, Arbitration or other In this era of underfunded legal aid programs, the cy pres doctrine can provide ADR process with Reg Holmes, please contact: a valuable source of funding for those who cannot afford legal help when they most For American Arbitration Association need it. Counsel representing plaintiffs and defendants in class action cases can work administered matters: Michael R. Powell with California’s Campaign for Justice to ensure that the neediest Californians gain ([email protected]) access to our justice system. The Campaign for Justice provides detailed informa- For independently administrated matters: tion on cy pres awards at http://www.caforjustice.org/about/cypres. I rholmes@theholmeslawfirm.com For Resolute Systems, LLC administered matters: Mike Weinzerl ([email protected] 1.877.FAIR.ADR (1.877.324.7237) Paul S. Marks is the chair of the Editorial Board of Los Angeles Lawyer magazine and a partner with Neufeld Marks, a boutique law firm located in Little Tokyo. He serves as a commis- www.theholmeslawfirm.com sioner on the California Commission on Access to Justice. California • Chicagoland • New York Metro • Atlanta

8 Los Angeles Lawyer April 2014 barristers tips BY ANDREW Y. YEN

Steps for Taking a Deposition in Japan

IN A VIBRANT GLOBAL ECONOMY, it is common for a foreign entity nical degree or an interpreter who has worked on cases with similar to find itself engaged in litigation in the United States. While most depo- or related technologies. While translation from one language to sitions take place in the United States, sometimes it is necessary to take another is seldom, if ever, perfect, retaining an interpreter with the the depositions of foreign witnesses in the countries where they right experience could improve the efficiency and quality of witness reside. Arranging for a deposition abroad can be time-consuming preparation. On the other hand, a qualified interpreter without rel- because the additional rules and regulations that govern the deposi- evant prior experience may require more time to become familiar with tion process in a foreign country must be observed. Japan, in particular, the key terminologies. has strict rules governing depositions. As with preparing an English-speaking witness, it is important to With very rare exceptions, depositions in Japan must take place go over key documents and legal concepts with a foreign witness. This at the U.S. Embassy in Tokyo or the U.S. Consulate General in is also a good opportunity for the interpreter to become familiar with Osaka. These facilities have three rooms dedicated for depositions— potential exhibits, understand what types of questions may be asked one room in Tokyo and two in Osaka. The availability of these during the deposition, and determine how best to translate them. A deposition facilities is limited because the U.S. Embassy and Consulate good interpreter can often provide insights into how certain terms may General observe U.S. holidays and a majority of Japanese holidays. be ambiguous and open to different interpretations. As a result, the deposition rooms are usually booked months in Conducting a simulated deposition session can also be helpful to advance. Without plenty of lead time, a significant risk exists of not a foreign witness and the interpreter. A simulation provides the wit- being able to reserve a room for a deposition before the close of dis- ness and the interpreter a chance to become familiar with the setting covery, thereby losing the opportunity to depose a witness. as well as the pace of the deposition. Finally, interpretation is a Although a court order is not required when timely reserving a highly demanding task that is mentally and physically draining. It is deposition room, it is important to apply for and obtain an order. The important to take breaks during witness preparation and the depo- original or certified copy of the court order must be sent to the U.S. sition to allow the interpreter sufficient time to rest. This helps the Embassy or U.S. Consulate General six weeks before the deposition. interpreter to remain focused. Failure to provide the court order in a timely manner will result in Time Management the cancellation of the deposition room reservation. A deposition visa is required for attorneys based in the United States Time management during a deposition is essential, and deposing a for- to take or defend depositions in Japan. The deposition visa must be eign witness often presents unique time management challenges. For applied for at least three weeks prior to the deposition. The application example, an interpreter needs to translate all questions to another lan- must also be submitted to the Japanese Embassy or Consulate in the guage and translate all responses into English. A check interpreter may United States that is located closest to the applicant. The application also question or seek clarification of the translation performed by the should be submitted once a deposition is scheduled. The application primary interpreter. Naturally, translation increases the time required must include photocopies of the court order for deposition and con- for each question and response and can also disrupt the flow of firmations for flight and hotel reservations. questioning. For security reasons, cell phones and smart phones are not allowed Japanese depositions have additional time constraints. The U.S. inside the U.S. Embassy or Consulate General. While computers are Embassy and Consulate General have strict office hours for deposi- allowed, they are subjected to network connectivity restrictions. If a tions, including a mandatory lunch break. In Tokyo, the deposition computer is necessary for a deposition, it must be registered with the room is available from 8:45 in the morning to 1:00 in the afternoon U.S. Embassy or Consulate General at least two weeks prior to the and from 2:00 to 4:00 in the afternoon. The deposition must stop to deposition. For example, if a computer is needed to demonstrate source allow sufficient time for all parties to leave. Taking into account the code during a technical deposition, the make, model, and serial num- time required for a court reporter and a videographer to set up and ber of that computer must be disclosed. put away their equipment and the time needed for translation, the actual time dedicated to questioning a witness is quite limited. Interpreters While an international deposition is not as straightforward as a A foreign witness often has limited English ability or may be uncom- deposition in the United States, with advanced planning and extra fortable testifying in English. Accordingly, the preparation of a for- attention, attorneys can avoid many potential problems. With proper eign witness and the deposition itself are often conducted with help planning and preparation, taking or defending a deposition abroad from qualified interpreters. Retaining the right interpreter can thus can be a very exciting and rewarding experience. I be essential to a successful deposition. Doing extra research to identify an interpreter with suitable experience would likely enhance the Andrew Y. Yen is a managing associate at Orrick, Herrington & Sutcliffe LLP, efficiency and quality of the witness preparation session. For a tech- where he focuses on patent litigation. He serves on the executive committee nical deposition, it may be helpful to retain an interpreter with a tech- of the Barristers and as a director with the Los Angeles County Bar Foundation.

Los Angeles Lawyer April 2014 9 practice tips BY JOHN M. ADSIT

Analyzing What Makes a Business Arrangement a Franchise

DETERMINING WHETHER A CLIENT’S BUSINESS is involved in fran- losses where the franchisor or his representative has not provided full chising may involve analysis that goes beyond the title of the contract. and complete information regarding the franchisor-franchisee rela- In one Commissioner’s Opinion, the California Department of tionship, the details of the contract between franchisor and franchisee, Corporations (now known as the Department of Business Oversight) and the prior business experience of the franchisor.”14 The intent of has held that what was labeled a distributorship contract was in fact the FIL is “to provide each prospective franchisee with the informa- a franchise subject to California’s Franchise Investment Law (FIL).1 tion necessary to make an intelligent decision regarding franchises being To be a franchise, a business needs to meet three statutory elements, offered and to prohibit the sale of franchises where such sale would and those elements can be present in what the parties understood was lead to fraud or a likelihood that the franchisor’s promises would not a nonfranchise arrangement. Exculpatory clauses are void,2 and the be fulfilled.…”15 fee that is a required element of a franchise agreement may be found The sweeping breadth of the FIL has been upheld in court. In Gentis outside the contract document.3 It is unlawful to establish a franchise without first register- ing with the state and providing an offering cir- cular to the franchisee.4 Controlling members California’s franchise law forbids termination, cancellation, who materially aid in acts by an entity guilty of violations may be held jointly and severally liable.5 Violations can result in strict and sub- nonrenewal, or other interference without proper reason. stantial civil liability, rescission, injunctive relief, and even criminal penalties.6 What may typically arise is commercial litigation involving dis- v. Safeguard Business Systems, the appellate court held, “As a gen- tributor or licensee terminations and nonrenewals. This can result after eral matter, remedial or protective statutes such as the [FIL] are lib- a manufacturer terminates a distributor or notices its intent to so ter- erally construed to…quell the mischief at which they are directed.… minate and the distributor seeks damages or an injunction to prevent With regard to the statutory definition of ‘franchise,’ this means termination. California’s franchise law forbids termination, cancel- each element should be construed liberally to broaden the group of lation, nonrenewal, or other interference with franchisees without investors protected by the law.…”16 The FIL’s preamble and Gentis proper reason and limits the freedom of parties to draft contract terms should be kept in mind when reviewing a business arrangement for that are inconsistent with the requirements of the California Franchise the three elements that create a franchise. Relations Act (FRA).7 The First Element To avoid these outcomes, counsel should become familiar with the FIL8 and FRA and review applicable regulations, releases, guidelines, The first definitional element is that a marketing system be prescribed. and interpretive opinions of the Commissioner of the Department of This element is described in Corporations Code Section 31005(a): “A Business Oversight. The opinions constitute prima facie evidence of franchisee is granted the right to engage in the business of offering, sell- the scope and extent of coverage of the definition of a franchise.9 To ing or distributing goods or services under a marketing plan or sys- assist attorneys, the Department of Business Oversight published tem prescribed in substantial part by a franchisor.” If an agreement Release 3-F, titled “When Does an Agreement Constitute a ‘Fran- does not grant the right to engage in business, it is not a franchise.17 chise’?”10 Although this guide is not the exclusive authority, and the This is true even if the grantee is described as a franchisee.18 final say rests with the courts,11 official interpretations of the FIL and The court in Gentis focused on whether Safeguard had granted FRA are accorded deference.12 Gentis and others the right to engage in the business of “offering, selling or distributing goods or services.” Safeguard argued that Gentis What Is a Franchise? was not a franchisee because it lacked authority to enter into binding The FIL defines a franchise as a contract by which a franchisee 1) is sales contracts on behalf of Safeguard, did not transfer title to goods, granted the right to engage in the business of offering, selling, or dis- and did not regularly deliver products to customers.19 The appellate tributing goods or services under a marketing plan or system prescribed court disagreed, pointing out that the language of the statute was dis- in substantial part by a franchisor, 2) is substantially associated with junctive.20 Neither the language of Section 31005 nor the legislative the franchisor’s trademark or other commercial symbol, and 3) pays history of the FIL demonstrated intent to limit the law’s reach.21 a fee.13 Affirming the lower court’s holding, the appellate court observed In order to apply the three elements of a franchise agreement to that the lower court had found that the plaintiffs were more than sales a client’s contracts and business operations, it is imperative to under- representatives who simply solicited orders without the authority to stand the policy behind the law. The FIL begins with the following pronouncement: “California franchisees have suffered substantial John M. Adsit practices business-related law in Southern California.

10 Los Angeles Lawyer April 2014 bind Safeguard. The plaintiffs “operated inde- instructions for personal introductions and the operation of the cafeteria. pendent businesses through which, in addition pitches, especially if the program is supported In affirming the jury verdict, the appellate to soliciting orders, they demonstrated prod- by training material, courses, or seminars.28 court found that Servosnax had two cate- ucts, solved customer problems, installed Counsel should review not only applicable gories of customers: 1) the cafeteria’s cus- Safeguard systems, maintained contact with contracts but also materials communicated or tomers and 2) the office complexes. Focusing existing customers, generated new business, supplied by the grantor to the grantee. Release on the latter, the court concluded, “The key and provided ongoing service to customers. 3-F provides a list of examples worthy of association with the name and goodwill of On occasion, they participated directly in the review,29 including detailed instruction, direc- [Servosnax] occurs in the selection process distribution of Safeguard’s goods. In some tions, and advice concerning operation tech- when a host employer…selects [Servosnax] circumstances, they guaranteed customer pay- niques;30 assigning exclusive territory;31 pro- from among other competitors to set up the ment. They set prices on certain products.” viding for uniformity or distinctiveness of facility and provide an operator to run it. The court also found that the plaintiffs “were appearance;32 and prescribing or limiting This person, the franchisee, thus is intimately operating under a marketing plan or system resale prices.33 associated with [Servosnax] in the mind of the prescribed in substantial part by Safeguard.” location owner. It is this association that ben- The Second Element The operation of the businesses was substan- efits the franchisee, who then operates the tially associated with Safeguard’s commer- A business arrangement that involves sub- facility pursuant to a license agreement.”37 cial symbol, and the plaintiffs were required stantial association with the grantor’s trade- Servosnax has an unusual fact pattern in that to pay a franchise fee. The appellate court marks fulfills the second element indicative the trademark element is usually the easiest agreed with the trial court that the relation- of a franchise. As Release 3-F puts it, the to identify. Nevertheless, the decision shows ship between the parties was “not simply that second element is present when “the opera- how broadly the elements may be interpreted. of a manufacturer and a nonemployee sales tion of the franchisee’s business…is substan- The Third Element representative.” tially associated with the franchisor’s trade- Practitioners should remember that like mark, service mark, trade name, logotype, The third element of a franchise agreement is the contract, the marketing plan may be advertising or other commercial symbol des- a fee. An agreement that does not expressly expressed or implied, oral or written.22 It ignating the franchisor or its affiliate.” Release require payment of a fee to engage in business need not be prescribed prior to entering into 3-F goes on to state that “if the franchisee is does not mean that no fee requirement exists the agreement.23 If a grantee is left entirely free granted the right to use the franchisor’s sym- or that the payment of a franchise fee is not to operate its business with its own market- bol, that part of the franchise definition is sat- required. The fee need not be paid up front ing plan or system, it is not a franchise.24 A isfied even if the franchisee is not obligated to and may be paid at any time during the rela- marketing plan or system, however, may be display the symbol.”34 An agreement does not tionship. The fee, however, must be for more prescribed without an obligation on the part create a franchise, however, if the agreement than an ordinary business expense.38 Release of the franchisee to observe it. This can hap- prescribes a detailed marketing plan or sys- 3-F points out that Section 31011 of the pen, for example, if a grantor recommends or tem for the operation of the business autho- Corporations Code defines “franchise fee” outlines a specific sales program to the rized thereby, but the business is not substant- broadly as “any fee or charge that a franchisee grantee.25 ially associated with a commercial symbol of is required to pay or agrees to pay for the right A marketing plan may exist, but the deter- the franchisor or its affiliate.35 Courts have, to enter into a business under a franchise mination of whether it has been prescribed is however, generously interpreted the circum- agreement.…regardless of the designation another matter. As the Release 3-F puts it, stances that establish substantial association given to, or the form of, such payment.” “Close questions of interpretation are pre- with a franchisor’s symbol. Release 3-F emphasizes substance over sented by agreements which grant to a per- In Kim v. Servosnax, Inc.,36 Servosnax form: “Whether or not a fee or charge is son the right to engage in business subject to was in the business of contracting with office ‘required’ and whether it is made ‘for the some restrictions but with a measure of free- complexes to run employee cafeterias. It right to enter into business,’ is a mixed ques- dom regarding the plan or system under licensed the right to operate the cafeteria to tion of fact and law.” which the grantee’s business is to be oper- people such as Kim for fees that included an Whether a franchise fee is payable in a ated.”26 Release 3-F also observes that if the initial cash payment, promissory note pay- lump sum or in installments, whether pay- franchisor’s advertising to prospective fran- ments, and 10 percent of net sales. Servosnax ments to the franchisor depend on gross chisees claims to have available a successful built out cafeteria spaces, provided initial receipts or net profits, whether the fee takes the marketing plan, the first element is presum- training to licensees, acted as a liaison between form of a royalty, or whether the fee is based ably present. In addition, provisions for a the licensee and the office complex, carried on units of merchandise ordered or sold by the distribution grid (on an exclusive or semiex- out inspections of the cafeteria to ensure that franchisee, Release 3-F holds that a franchise clusive basis) and an arrangement for uni- quality standards were met, and controlled fee is a franchise fee. A fee may also “be con- formity of prices and marketing terms are menus and prices. The jury found Servosnax tained in the price charged by the franchisor “significant.” Significance also attaches to to have violated the FIL and awarded Kim or an affiliate of the franchisor for goods or ser- provisions that impose “a duty of observing $45,000 in damages. vices supplied to the franchisee or in the rental the licensor’s directions or obtaining the licen- On appeal, Servosnax did not dispute fee payable by the franchisee for business sor’s approval with respect to the selection of that it had granted Kim the right to operate premises or equipment rented from the fran- locations, the use of trade names, advertising, under its marketing system nor that the com- chisor or an affiliate of the franchisor.”39 signs, sales pitches, and sources of supply, or pany had required Kim to pay a fee for that Release 3-F also provides examples of concerning the appearance of the…business right. Servosnax argued that Kim’s opera- franchise fees, including a payment for train- premises…fixtures and equipment…[and] tion of the cafeteria was not substantially ing and school expenses; charges for sales uniforms…[and] hours of operation.”27 associated with Servosnax’s trademarks be- kits, brochures, programs, forms, decals, A sales program may be prescribed if the cause no name, logo, or symbol identified shirts, displays and announcements; and pay- grantor supplies sales aids or props, includ- the cafeteria with Servosnax and that Kim was ment for services, such as consulting or man- ing demonstration kits, films, or detailed not permitted to use the Servosnax name in agement fees.40 Section 1.4.3 of the release dis-

Los Angeles Lawyer April 2014 11 cusses the “bona fide wholesale price of goods” exception, which essentially states that the purchase price of goods for an amount not exceeding their bona fide wholesale price is exempted from the definition of “franchise fee.” This exception is based on the rationale that “no substantial prejudice will come to a person buying a business and paying only the bona fide wholesale price for merchandise which that person proposes to sell in the business.”41 That exception, however, is limited: The bona fide wholesale price exception is applicable only to the purchase of goods which the franchisee is autho- rized to distribute by the franchise agreement and the exception does not Let Us Help You Overcome the apply to payments which the fran- Hurdles in Your Estate Disputes chisee is required to make under the franchise agreement in return for ben- Estate Mediation efits other than goods, such as payment Probates, Trusts & Estates for real estate or services or rental pay- LA County Volunteer Probate Mediator of the Year ments. Furthermore, the exception is 2010, 2011, 2012 not applicable to fixtures, equipment or other articles which are to be utilized in the operation of the franchised business, such as display cases, tools, equip- CALL (626) 584-8000 ment, and, in the case of a restaurant or visit us online franchise, such as table linen, napkins, www.woodardmediation.com flatware and other service utensils.42 Section 1.4.5 of Release 3-F further qual- ifies the bona fide wholesale price exemption by rendering it inapplicable to requirements to buy quantities of goods in excess of what a reasonable businessperson would nor- mally purchase or to maintain an inventory.43 Section 31115 of the Corporations Code places the burden of proving an exemption or an exception from a definition upon the party claiming it.44 Section 1.4.4 of Release 3-F discusses Commissioner’s Rule 310.011.1,45 which exempts from the registration requirement of Section 31110 of the Corporations Code agreements that obligate the franchisee to pay a sum not exceeding $1,000 “annually on account of the purchase price or rental of fixtures, equipment or other tangible property to be utilized in, and necessary for, the operation of the franchised business.…”46 Similar- ly, Commissioner’s Rule 310.011 exempts from the registration requirement a nominal annual fee that does not exceed $500. Release 3-F adds that this payment may be made “for any purpose.”47 Section 1.4.7 of the release discusses the fact that the payment of a franchise fee must be required by the terms of the agreement rather than being optional or voluntary. However, “a payment by a franchisee, though nominally optional, may in reality be essential; this is especially so if the franchisor inti- mates or suggests that the payment is essential for the successful operation of the

12 Los Angeles Lawyer April 2014 business.” Section 1.4.8 clariﬁes that even if 21 Id. at 1303. 38 See Thueson v. U-Haul Int’l, 144 Cal. App. 4th payments are made to third parties for the 22 People v. Kline, 110 Cal. App. 2d 587, 593 (1980). 664, 673 (2006). 23 39 purpose of advertising and promotion to Id. at 595. Release 3-F, supra note 10, at 1.4.1 & 2. 24 Id.; see also Commissioner’s Op. 71/25F. 40 Commissioner’s Ops. 71/60F, 73/39F, 71/49F, enhance the goodwill of the franchisor’s busi- 25 Release 3-F, supra note 10, at 1.2.2.5. 73/29F, 72/1F, 73/25F, 73/41F, 77/1F, 79/2F; Release ness, those payments may be deemed made 26 Id. at 1.2.2.4. 3-F, supra note 10, at 1.4.9. for the account of the franchisor and thus 27 Id. at 1.2.2.3. 41 Commissioner’s Op. 73/20F. qualify as a franchise fee.48 28 Commissioner’s Op. 71/61F. 42 Release 3-F, supra note 10, at 1.2.4.4. 29 43 Determining whether a client’s business is Release 3-F, supra note 10, at 1.2.7. Id. at 1.4.5; see also CORP. CODE §31011; 30 Commissioner’s Ops. 72/11F, 73/17F. Commissioner’s Ops. 73/1F, 73/10F. involved in franchising can require consid- 31 Commissioner’s Ops. 72/45F, 73/25F, 73/30F. 44 Commissioner’s Op. 74/10F, at 3. erable investigation and analysis. Contracts, 32 Commissioner’s Ops. 72/10F, 73/27F, 73/30F. 45 Commissioner’s R. 310.011.1, 10 CAL. CODE REGS. program and training materials, and corre- 33 Commissioner’s Ops. 73/5F, 73/47F. §310.011.1. spondence between the grantor and grantee 34 Commissioner’s Ops. 73/20F. 46 CAL. CODE REGS. tit. 10, §310.011.1; see also 35 are all potential sources of marketing plans Release 3-F, supra note 10, at 1.3. Commissioner’s Op. 74/6F. 36 Kim v. Servosnax, Inc., 10 Cal. App. 4th 1346 47 CAL. CODE REGS., tit. 10, §310.011; Release 3-F, and required fees. Where a marketing plan (1992). supra note 10, at 4.4. that originates with the grantor is found, the 37 Id. at 1357. 48 Id. elements of substantial prescription, trademark association, and payment of fees are often found as well. If the grantor is extract- ing payments from the grantee for items the grantee cannot resell, a fee may be present. The purpose of California’s franchise legislation should be kept in mind. Franchising is a question of control and sometimes adhesion. The more control exercised by the grantor, especially in sales and marketing, the more likely it is that a franchise is being created. I

1 See Commissioner Op. No. 73/17F, available at http://businesslaw.calbar.ca.gov; CORP. CODE §§31000- 31019. 2 CORP. CODE §31512; BUS. & PROF. CODE §20010; see also Gabana Gulf Distrib., Ltd v. Gap Int’l Sales, Inc., 2006 U.S. Dist. LEXIS 59799 (N.D. Cal. 2006). 3 CORP. CODE §31011. 4 CORP. CODE §§31110, 31119. 5 CORP. CODE §31302; see Eastwood v. Froehlich, 60 Cal. App. 523 (1976); Spahn v. Guild Indus. Corp., 94 Cal. App. 3d 143, 158 (1979). 6 CORP. CODE §§31300, 31302, 31410, 31411; see People v. Kline, 110 Cal. App. 3d 587 (1980); People v. Gonda, 138 Cal. App. 3d 774 (1982). 7 The California Franchise Relations Act, codiﬁed at BUS. & PROF. CODE §§20000 et seq. 8 The Franchise Investment Law, codiﬁed at CORP. CODE §§31000 et seq. 9 BUS & PROF. CODE §20009; see Boat & Motor Mart v. Sea Ray Boats, Inc., 825 F. 2d 1295 (1987). Have You Heard? 10 Commissioner’s Release 3-F: When Does an Agree- ment Constitute a “Franchise” (June 22, 1994), avail- DOUBLETREE HAS A NEW STATE OF THE ART WAR ROOM able at http://www.dbo.ca.gov/Commissioner/Releases Now you can achieve a new level of comfort and productivity at the DoubleTree By Hilton Los /3-F.asp [hereinafter Release 3-F]. Angeles Downtown. Our state of the art new venue is the ideal spot for everything from depositions 11 State Comp. Ins. Fund v. Workers’ Comp. Appeals to war rooms to board meetings. Featuring high tech tools to ease the work at hand and a welcoming ambiance at an all inclusive price. Make your reservation by March 31, 2014 and Bd., 88 Cal. App. 3d 43, 53-54 (1979); see People v. earn Triple Hilton HHonors points. Kline, 110 Cal. App. 3d 587, 593 (1980). 12 City and County of San Francisco v. State of Cal., 87 Cal. App. 3d 959, 967 (1978); see also http://www .corp.ca.gov/Laws/Franchise/CFRA.asp. 13 See CORP. CODE §31005(a); BUS. & PROF. CODE §20001. 14 CORP. CODE §31001. 15 Id. See also WITKIN, SUMMARY OF LAW, CORPORA- TIONS §287. Where the little things mean everything.™ 16 Gentis v. Safeguard Bus. Sys., 60 Cal. App. 4th DOUBLETREE BY HILTON LOS ANGELES DOWNTOWN 1294, 1298 (1998) (quoting Kim v. Servosnax, Inc., 10 120 South Los Angeles Street, CA 90012 T (213) 629 1200 Cal. App. 4th 1346, 1355-56 (1992)). LosAngelesDowntown.DoubleTree.com 17 Release 3-F, supra note 10, at 1.2.1. Restrictions may apply. May not be combined with any other oer. Hilton HHonors membership, earning of Points & Miles and redemption of 18 See Requirements of the Corporate Securities Law of points are subject to HHonors Terms and Conditions. ©2013 Hilton Worldwide. 1968, Commissioner’s Op. No. 72/27C. 19 Gentis, 60 Cal. App. 4th at 1297. 20 Id. at 1300.

Los Angeles Lawyer April 2014 13

practice tips BY JUDGE MICHAEL L. STERN

Advocacy in an Era of Declining Jury Trials

AS COURTS ARE WORKING HARDER THAN EVER and with more limited resources, more cases are being resolved short of trial or tried by courts without juries. Indeed, we may be entering an era of the vanishing jury trial.1 Los Angeles Superior Court statistics indicate that the number of jury trials in general jurisdiction civil cases (over $25,000) has been shrinking during the past decade.2 Last year, jury trials in these cases were down more than 25 percent from 10 years ago. Meanwhile, nonjury trials have increased almost threefold from 1,199 annually in 2003 to 3,386 in 2012. Although civil case filings in Los Angeles have fluctuated over the years, most recently they ended up somewhat higher than 10 years ago (52,501 in 2003 to 55,956 in 2012). One of the principal factors that has led to such a marked decline in verdicts rendered by juries is that the traditional rules for civil litigation have been significantly revised in recent years. In particular, the revamping of the rules of civil procedure and judicial practices for pretrial discovery and summary judgment have greatly altered litigation tactics. Pretrial strategies for determining the proverbial search for truth have shifted gears. Fact-gathering for a trial is becoming less and less the end game of litigation. Pretrial motions, summary judgment, and mediation are the focal points of today’s litigation. The main objective is to employ discovery to knock out or defend against an adversary’s case at a pretrial stage or prepare for a mediation, not to marshal evidence for trial purposes. The emphasis of this new era is to convince judges and private arbitrators or mediators, not persuade jurors, about the strengths or weaknesses of a case. Contemporary civil rules encouraging pretrial disclosure of information through interrogatory responses, document production, depositions, and expert disclosures have taken much of the factual guess- work out of litigation and trials. Given the broad latitude of pretrial room at all costs, many parties to consumer, employment, real prop- discovery—aided by computer investigation and research—counsel erty, and other contracts often specify mandatory private arbitration are better equipped than ever to determine the factual gist of a case. or mediation. The redirection of dispute resolution into ADR has Consequently, it is easier to ascertain whether a matter can be resolved received a generally warm reception from judges.3 At the same time, by summary proceedings, settlement, or a bench trial without a labo- privatization of traditionally public judicial functions is allowing rious fact determination by a jury. many cases to be decided in arbitration or mediation conducted by Moreover, civil rules emphasizing civility, ethical conduct, and a second judiciary behind closed doors. meet-and-confer courtesies between opposing counsel are gradually Some parties prefer adjudication through private arbitration over transforming the nature of litigation. Besides promoting professional- the exposure and scrutiny of the public judicial system. Arbitration ism, the rules stressing professional communication to resolve differ- advocates contend that it is less expensive, with greater convenience, ences encourage counsel toward conditions that enable them to better comfort, and informality. They also submit that arbitration infuses assess one another’s cases and foster relationships that can lead to flexibility, eliminates unpredictability, allows for budgeting litiga- improved prospects for case resolution short of trial. The notorious tion expenses, avoids backed-up courts, permits selection of neutrals swearing matches between attorneys are becoming less prevalent with known reputations or specialized expertise or experience, and because counsel are compelled to work out their disagreements. The provides a more expeditious way to obtain earlier justice. Most prospect of a jury trial is lessened when there is such open dialogue and important, the arbitration process dodges the jury system. attorneys consider alternative methods to conclude their clients’ cases. Alternatively, arbitration detractors charge that many arbitration agreements are one-sided and that the costs of private ADR favor the ADR Alters the Playing Field The dramatic growth of private alternative dispute resolution (ADR) Michael L. Stern has served as a judge on the Los Angeles Superior Court

RICHARD EWING is another reason for the decline in jury trials. Seeking to avoid a court- since 2001.

Los Angeles Lawyer April 2014 15 powerful and affluent over the underrepre- they lament that their clients cannot afford the Even when they have a case with potential sented and poor. They also argue that proce- expense of a jury trial. Plaintiffs’ lawyers who jury appeal, these barristers seldom have the dures and rules dictated by some mandatory envision themselves as latter-day Clarence deep pockets necessary to endure long-term arbitration provisions or followed by some Darrows arguing before a jury cannot avoid litigation through a jury trial, let alone the providers are not well defined, that results are the temptation of in-hand settlement money. background and confidence to comfortably uneven, that appeals from arbitration are Moreover, defendants’ counsel bemoan that stand before 12 deciders from the community. extremely limited, and that decisions rendered they cannot get enough trial experience It is not surprising that so many cases without public scrutiny lack the fairness and because their clients refuse to endure the settle short of the selection of a jury or pro- transparency afforded by an open adjudication attorneys’ fees, anxiety, and other unknowns ceed to a bench trial. In many situations, process. Nevertheless, the current momentum of a jury trial. plaintiffs’ attorneys are not willing to gamble is behind arbitration as a practical alternative Recent economic forces have been diffi- on a jury trial when there is money on the to court proceedings and juries.4 cult for attorneys—not to mention their table. Even lowball offers start to look attrac- Private mediation also has increased as a clients—filing and defending civil lawsuits. tive when the odds on scoring big with a preferred case resolution method, especially Attorney and paralegal time, expert fees, jury start to pale as trial costs and hours of after court funding cutbacks have curtailed reporters, and jury costs have considerably trial preparation begin to mount. A jury’s court mediation programs and settlement increased while clients’ litigation budgets returning a large plaintiffs’ verdict—which conferences by judicial officers. For parties have greatly diminished. Attorneys constantly likely will be appealed and might never be col- who can afford it, there are plenty of retired grumble about how much time and money lected—can be more hope than reality. judges and trained mediators begging for the it costs to file or answer a complaint, conduct Defendants’ counsel face the dilemma that opportunity to act as either neutral, “hands pretrial discovery, bring motions, pay court their clients may be unwilling to pay “blood off” mediators facilitating settlement discus- reporter and expert fees, and keep up with money” to a plaintiff but are also reluctant sions or settlement officers actively seeking to a myriad of constantly mounting litigation to foot a considerable bill for a jury trial. achieve results. outlays. Since many attorneys operate their Moreover, there are also contractual pro- Virtually everyone agrees that private law offices on very low budgets, they cannot visions and a growing host of statutes that ADR relieves pressure from an underfunded afford the weighty operating expenses of shift attorneys’ fees and court costs to the los- and overtaxed judicial system by channeling protracted lawsuits, let alone spend long ing party that may give pause, for example cases out of public courts. For the most part, days in a jury trial. California’s employment and discrimination the judiciary has not stood in the way of pri- As pretrial litigation has become more laws.7 Broad judicial interpretations of offers vate ADR. Indeed, when arbitration clauses complicated—often exacerbated by costly of compromise also pose irresistible chal- have not been found to be unconscionable, electronic discovery—lawyers have been challenges to counsel bent on taking a case all the courts have heartily endorsed private ADR lenged to practice in a more cost-effective way through to trial.8 When such an offer is procedures. If the parties to a lawsuit want to manner. In particular, while the rules of civil on the table, the threat of paying an oppo- arbitrate or mediate privately, they usually go procedure allow liberal pretrial document nent’s costs after a trial can loom large for a with the judiciary’s blessing.5 requests for evidence admissible at trial, this party who comes out on the short end of a ADR has become deeply ingrained in the comes at a great cost. Tasks such as plowing jury verdict. litigation process and is an ordinary expec- through bulky computerized financial records It is an attorney’s ethical obligation to tation of both litigants and counsel.6 It is maintained by today’s businesses, straining advise clients on the consequences of losing part of the curriculum in most law schools to make sense out of endless e-mail chains, a trial. Such advice by itself can be enough to and constantly touted to lawyers. Today’s and responding to nitpicking meet-and- force some litigants to seriously consider set- younger attorneys have taken ADR courses confer letters preparatory to the discovery tlement over summoning a jury. in law school and learned that negotiation, motions churned out by competing law firms Court Case Management arbitration, and mediation are regular liti- can rapidly consume a case budget. Further- gation practices. Some of the newer genera- more, sorting through mountains of pro- The remarkable drop in jury trials in Los tion of lawyers now refer to mediation and duced materials often yields only a molehill Angeles state courts in the past 10 years, settlement conference interchangeably. By of evidence for trial. accompanied by a dramatic tripling of bench becoming mediators and holding themselves Out-of-pocket expenditures often drive trials without juries, may in large measure be ready to resolve cases, many practitioners output and sometimes results. By the time attributed to better case management by trial realize that private ADR has an important counsel have trudged through expensive courts. In superior court, the individual case place in a future of litigation with fewer jury paper discovery, suffered high-priced depo- calendaring system assigns cases directly to the trials. Moreover, some ADR companies offer sitions, managed the onerous summary judg- trial courts. This permits counsel to know private trials to complement their offerings of ment gauntlet, ponied up for private medi- which trial judge has been selected and to bet- mock trials and focus groups that have ation or settlement conferences, and endured ter assess whether a case should be tried become more common in high-stakes cases. exorbitant expert hourly rates, litigation without a jury to this judge. Without a mas- funds—or, worse yet, the bank account of ter calendar that requires counsel to wait in Costing Out Jury Trials an attorney advancing the upfront costs— line for an open trial court, there is a far Cost is the main reason that litigants are opt- may be depleted. Having strained capital greater probability of trial date certainty. ing out of jury trials. Because jury trials cost resources, parties on either side of the aisle Bench trials often bring litigation eco- too much, either settlement or a bench trial may want to avoid the costs and risks asso- nomics into more realistic focus. They are has become the necessary destiny of many ciated with a jury trial. shorter, give the parties greater assurance cases that make it through pretrial motions. These recent recessionary years have that sufficient trial time will be available, High costs of trial are no stranger to either greatly exacerbated cost factors. With law ensure that the case will be decided by a side of the aisle. Even while plaintiffs’ attor- firms barely hiring, greater numbers of knowledgeable judicial officer, and lower the neys complain that defendants, or their insur- younger attorneys are hanging out their own apprehension that accompanies educating 12 ance carriers, are too cheap in settlement, shingles, usually with little capital funding. lay people on the issues. Bench trials also

16 Los Angeles Lawyer April 2014 reduce the concern that defendants have of a Court have declined more than a quarter California Labor Code wage and hour viola- runaway jury that might award exorbitant over the past 10 years—from 14,406 in 2003 tions and employment discrimination as fer- damages—for example the award in the infa- to 10,335 in 2012.9 Filings of these actions tile areas for their practices. While these cases mous and often mischaracterized McDonald’s have been affected by better auto safety, im- can furnish steady income for attorneys on hot coffee case—or that plaintiffs may harbor proved medical emergency and trauma care, both sides of the counsel table, the over- about a biased jury (as when jurors are fear- enhanced highway engineering, fraud crack- whelming majority are resolved without a ful that a large judgment may raise insur- downs, tighter insurance company claims jury trial. When defendants’ counsel are not ance frequency). practices, and closer court docket manage- successful in eliminating these claims by On the other hand, even though courts ment. Many of the ordinary fender-bender motion, most settle due to employers’ real- are much better about providing predictable cases have been relegated to limited jurisdic- ization that their labor practices may not be trial dates, these dates are moving further tion courts, in which reduced potential dam- compliant, terminated employees needing a into the future due to court closures and con- ages, tough insurance company settlement payday sooner rather than later, or the cases solidations. Among plaintiffs’ trial attorneys, offers, and trial cost considerations render are just too expensive to justify the costs of a the consensus that “justice delayed is justice these smaller cases unlikely candidates for jury trial. denied” can now translate into “even a bad jury trials. As the mix of cases that might be tried to settlement today is better than a good trial or Other classes of cases that once were typ- juries has changed, there also has been a shift uncollectible judgment tomorrow.” When ical jury trial candidates also have fallen out in juror sophistication. Even jurors who have trial dates are pushed too far ahead, there is of favor. The potential for medical malprac- never been in a courtroom before have seen a deﬁnite incentive to settle by taking an offer tice cases going to a jury has been damp- actual trial situations on television and have on the table rather than waiting for a jury trial. ened by the MICRA statutory cap on noneco- a better grasp of judicial proceedings than in nomic damages—$250,000 in noneconomic the past. They are less susceptible to persua- A New Case Mix damages is not as viable as it might have been sion without solid evidence, view experts with Today’s jury trial docket is markedly differ- when they were capped in 1975.10 Insurance skepticism, and cannot be bullied. Sensible ent from a generation ago. As the nature of bad faith11 and high potential punitive dam- attorneys realize that today’s jurors cannot be legal disputes changes, so does what is tried ages12 cases, which once brought many cases underestimated, since they are better informed, to juries. For instance, the number and mag- before juries, have been tempered by judicial better educated, and more analytical. nitude of automobile accident cases, one of determinations eliminating or limiting such Although contemporary jurors can be the biggest categories of cases that have gone damages. generous with damages—when credible evi- to trial over many decades, have dropped In order to make up for the loss in oppor- dence is presented—they also can see through markedly. Motor vehicle accident personal tunity resulting from the changes in various a smoke screen and are quick to sit on their injury filings in the Los Angeles Superior types of cases, many attorneys have discovered wallets when a case is thin. Lawyers, recog-

Los Angeles Lawyer April 2014 17 nizing that these factors are in play, may found it difficult to gain the experience they has taken a large toll on the traditional men- question whether a jury trial is the best way need to effectively represent clients in a jury toring process that has long allowed younger to proceed. trial. As the costs have risen and jury trials are lawyers to second-chair trials. Fewer clients are fewer and farther between, large and small able or willing to pay for more than a single Mentoring Young Lawyers law firms have turned to their most experienced principal lawyer to try a case. Regrettably, a Attorneys used to say that it takes two dozen attorneys to handle jury trials—to the detriment lack of mentoring and trial opportunities is jury trials for lawyers to figure out on which of younger attorneys who might have been depleting the stable of jury-ready counsel for side of the courtroom the jury box is located. given greater opportunities in former times. civil cases. Veteran lawyers have a saying that “litigators Furthermore, recent economic trends have This situation is compounded by the major are not trial lawyers.” Whether or not there is caused more senior lawyers not to retire as impact that the decline in the attorney job any truth in such conventional wisdom, there early as before. They often continue to shoul- market has had on new law graduates at- is general agreement that actually trying cases der trial responsibilities without yielding trials tempting to gain footholds as litigators. Law to jurors is the only way that most lawyers can to a new generation of trial advocates. This firms and government employers have cut gain the skills necessary to be very good at per- makes it harder for younger attorneys to elbow back hiring and training programs. Newly suading juries. their way to the trial counsel table. admitted attorneys, especially sole practition- Younger attorneys in recent years have The high cost of presenting a jury trial also ers, are struggling to find paying clientele, and fewer all the time have the experience, guidance, or capital to take on a jury trial. The longer that lawyers must wait to get Anita Rae Shapiro jury trial experience, the less likely they are to SUPERIOR COURT COMMISSIONER, RET. become proficient trial attorneys. As much as one might try to offset the lack of actual trial time through reading up about trials or taking PRIVATE DISPUTE RESOLUTION MCLE classes, there is nothing that can take VIP MEMBERSHIP BENEFITS AND PERKS INCLUDE: PROBATE, CIVIL, FAMILY LAW the place of looking into the eyes of 12 jurors PROBATE EXPERT WITNESS and asking for a verdict. The future of our civil jury system could TEL/FAX: (714) 529-0415 CELL/PAGER: (714) 606-2649 be at risk if there are not enough lawyers E-MAIL: [email protected] who can credibly try a case to a jury. Without http://adr-shapiro.com lawyers who can effectively and persuasively present cases to jurors, it is an open question how the jury system in civil cases will fare in the future. I

1 See Patricia Lee Refo, Opening Statement—The Vanishing Trial, 30 A.B.A. J. SEC. LITIG. 2 (2004). 2 The statistics cited in this article are derived from internal Los Angeles Superior Court tracking reported annually to the Administrative Office of the Courts for ﬁscal years ending June 30. 3 See, e.g., Moses H. Cone Mem. Hosp. v. Mercury Const., 460 U.S. 1, 24 n.27, 103 S. Ct. 927, 940 (1983); Armendariz v. Foundation Health Pyschcare Servs., Inc., 24 Cal. 4th 83, 97 (2000). 4 See AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1753 (2011). 5 See Madden v. Kaiser Found. Hosps., 17 Cal. 3d 699, 706-707 (1976). 6 LYNN DURYEE & MATT WHITE, MASTERING MEDIA- TION: 50 ESSENTIAL TOOLS FOR THE ADVANCED PRACTI- TIONER 49 (2012). 7 See, e.g., 42 U.S.C. §2000e-5(k); GOV’T CODE §12965(b). 8 See Goldstein v. Bank of San Pedro, 27 Cal. App. 4th 899, 906 (1994); CODE CIV. PROC. §§998(c), 1032, 1033.5(a)(10). 9 See note 2, supra. 10 CIV. CODE §3333.2 (Dec. 12, 1975). 11 See, e.g., Moradi-Shalal v. Firemans Fund Ins. Cos., 46 Cal. 3d 287 (1988) (A statutory action against insurers for unfair claims settlement practices in violation of Insurance Code §790.03 is barred.). 12 See, e.g., State Farm Mut. Ins. Co. v. Campbell, 538 U.S. 408, 417, 123 S. Ct. 1513 (2003) (A 4:1 ratio of punitive damages to compensatory damages is constitutional.); Roby v. McKesson Corp., 47 Cal. 4th 686, 717 (2009) (A 1:1 ratio between compensatory and punitive damages is mandated when the reprehensibil- ity of a defendant is low.).

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LOS ANGELES COUNTY BAR ASSOCIATION MEMBER SERVICES 213.896.6560 / 800.456.0416 by Sudhir Lay Burgaard Cleanup ACT After the dissolution of California’s redevelopment agencies, AB 440 has granted local governments, developers, and lenders the means to redevelop contaminated properties

COMMUNITIES SADDLED with abandoned warehouses, decom- in Los Angeles—including Hollywood, Little Tokyo, Exposition missioned gas stations, and deserted factories now have a renewed Park, and the Pacific Corridor—in addition to communities in other means to remediate and redevelop these and other contaminated cities, including San Diego’s Gaslamp Quarter and Pasadena’s Old properties. Signed into law in 2013, AB 440 can now be found in the Town, benefitted from the Polanco Act. It promoted cleanup not only California Health and Safety Code commencing with Section 25403 by allowing a redevelopment agency to obtain property in a rede- and replaces the Polanco Redevelopment Act, which had been in effect velopment project area by eminent domain, purchase, or lease but also for 22 years. The new law essentially shifts the powers that redevel- by giving the agency the power to order responsible parties to clean opment agencies once had to cities and counties, as well as to hous- up contamination. If the responsible party failed to do so, the rede- ing authorities that assume the functions of a former redevelopment velopment agency could clean the property or arrange for a third party agency in which the property was transferred from that successor to conduct cleanup and then seek to recover cleanup costs from the agency to the housing authority.1 It authorizes local governments to responsible parties. The act also provided redevelopers, subsequent compel cleanup of contaminated properties while minimizing expo- purchasers, and lenders with immunity from liability for contamination sure to liability. The Polanco Act was created in 1990 to help redevelopment Sudhir Lay Burgaard, a senior associate at Morris Polich & Purdy LLP, focuses agencies respond to brownfield, properties where hazardous substances on environmental compliance and litigation, representing municipal and pri- are present or potentially present and therefore difficult to rede- vate clients in cases involving pollution control, remediation, and redevel- velop or reuse. The Polanco Act was used to promote cleanup and opment. The author wishes to thank Steven L. Hoch for his contribution of

reuse of sites that might otherwise remain idle. Many communities ideas to this article. KEN CORRAL

20 Los Angeles Lawyer April 2014 T that was addressed as part of the cleanup. As an incentive, redevel- I or phase II environmental assessment due to the owner or opera- opment agencies could use a portion of the property taxes to help pay tor’s failure to provide this information has the right, upon reason- for improvements. able notice, to enter the property and conduct an environmental This latter power led to the demise of the Polanco Act and the rede- assessment. The local agency may recover the costs of conducting the velopment agencies because, at the height of the 2011 budget crisis, assessment.10 Governor Jerry Brown and others pushed to eliminate redevelopment Additionally, local agencies can compel responsible parties to agencies, arguing that the state could no longer afford them. The rede- clean up contamination.11 The local agency, or the Department of velopment agencies had collected about $5 billion annually that Toxic Substances Control (DTSC), a regional water quality control would otherwise have gone to local government services but con- board (regional board), the California Environmental Protection tributed only $1.1 billion in return to support local police, firefight- Agency (CEPA), or another designated government agency must ers, road maintenance, parks, and libraries.2 The state was obligated provide the responsible party with notice, giving it 60 days to respond to make up the difference by paying local school districts approxi- and propose an investigation plan and cleanup schedule prepared by mately $1.8 billion to meet minimum funding requirements.3 a qualified independent contractor.12 Proponents of the redevelopment agencies argued that they generated The responsible party may appeal a 60-day notice issued to it to about 300,000 jobs annually and approximately $2 billion in state the local agency’s governing body by making a written request to the and local tax revenue.4 Ultimately, however, California’s redevelop- clerk of the local agency within 30 days of receiving the notice.13 The ment agencies were officially dissolved on February 1, 2012. responsible party may challenge the decision of the local agency’s gov- The dissolution of redevelopment agencies delayed cleanup of con- erning body only as part of a cost recovery or injunctive proceeding taminated properties and, in some instances, brought it to a halt, elim- initiated by the local agency, but the local agency’s decision shall be inating a vital tool to address urban decay and foster commercial and upheld if it is supported by substantial evidence.14 The defenses residential growth in communities. Buildings contaminated with available to a responsible party are some of the same defenses pro- asbestos, lead-based paint, metal dust, and mold remained neglected. vided for under the federal Comprehensive Environmental Response, Subsurface soils and groundwater sat polluted with hazardous wastes, Compensation, Liability Act (CERCLA), which include an act of God, including those discharged from dry cleaners, metal finishing shops, an act of war, an act or omission by a third party, and the bona fide machine shops, electronics manufacturers, auto repair facilities, and prospective purchaser defense. This last defense, although often used industrial manufacturing. Hundreds of city workers and thousands in CERCLA, also often fails without a negotiated and approved of construction workers were laid off. Many argued that a program prospective purchaser agreement with the appropriate agencies. To was needed to address brownfields and foster redevelopment, growth, be a bona fide prospective purchaser, a party must conduct all appro- and renewal in order to continue the work that redevelopment agen- priate inquiry15 into existing contamination before acquiring conta- cies had started. minated property, exercise all appropriate care, and take reasonable steps to stop continuing releases and prevent future releases of haz- AB 440 ardous substances.16 The nature and extent of the appropriate inquiry The passage of AB 440 revives many of the powers provided under is all too often open to attack, and parties seeking to assert the the Polanco Act but instills those powers in local agencies instead of defense should consult with an attorney to ensure that they meet the redevelopment agencies. It authorizes cities, counties, and housing required standards. authorities to take any action similar to that under the old act—with Alternatively, local agencies may conduct cleanup themselves if they some differences—that the local agency determines is necessary, and, cannot identify any responsible party or if the responsible party fails consistent with other state and federal laws, to investigate or clean to propose or implement an investigation plan and a cleanup sched- up a release on, under, or from blighted property that the local ule that are approved by DTSC, a regional board, or the appropri- agency has found to be in a blighted area within the local agency’s ate local agency. If the responsible party fails to respond to a notice boundaries.5 A blighted property contains the presence or perceived letter or does not implement the investigation or cleanup plan, the local presence of a release or releases of hazardous material that con- agency may submit a cleanup plan and applicable documents required tributes to the vacancies, abandonment of property, or reduction or pursuant to the California Environmental Quality Act to DTSC or lack of proper utilization of property. A blighted area is one in which a regional board for approval to conduct cleanup itself.17 the local agency determines there are vacancies, abandonment of prop- It is important that the cleanup plan be consistent with the erty, or a reduction or lack of proper utilization of property, and the intended schedule for redevelopment and use of the property.18 For presence or perceived presence of a release or releases of hazardous example, a project redevelopment for a school or hospital will material that contributes to the vacancies, abandonment of property, likely have more stringent cleanup standards than those for com- or reduction or lack of proper utilization of property.6 mercial or industrial purposes because the level of exposure to con- While AB 440 mirrors the Polanco Act, it transfers many powers taminants will be higher for the former uses. Remediation methods that the redevelopment agencies once had to local agencies. For inconsistent with redevelopment schedules may be precluded from instance, a local agency may require the site owner or operator to pro- implementation or require revisions. A local agency may set deed vide it with all existing environmental information pertaining to the restrictions that limit the use of the property to protect human site, including the results of any phase I or phase II environmental site health and the environment by, for instance, prohibiting the use of assessment, or any assessment conducted pursuant to an order from, groundwater as potable water or banning the storage of hazardous or agreement with, any federal, state, or local agency, and any other wastes or excavation below a certain depth. Local agencies may also environmental assessment information.7 If environmental assess- determine future land uses independently or with the cooperation ment information is not available, the local agency may require the of developers. owner of the property to conduct, and pay the expenses of con- Furthermore, AB 440 allows a local agency to designate another ducting, an assessment in accordance with standard real estate prac- agency in lieu of DTSC or a regional board to review and approve a tices for conducting phase I or phase II environmental assessments.8 cleanup plan and to oversee the cleanup of hazardous materials from The assessments must comply with the requirements adopted by the a specific hazardous material release site if the agency is designated American Society for Testing and Materials for Standard Practice for as the administering agency by the Site Designation Committee, a com- Environmental Site Assessment.9 A local agency conducting a phase mittee within CEPA that is responsible for designating a single state

22 Los Angeles Lawyer April 2014 or local agency to oversee a site investigation and remedial action.19 geographic range of brownfields. A local agency may also designate another agency to review and AB 440 also provides for a dispute resolution process between local approve the cleanup plan for an underground storage tank site and agencies and DTSC, or a regional board, that was absent under the oversee the cleanup at the site if the designated agency consents to old act. If DTSC or a regional board exercises oversight authority over the designation and is certified under California’s Certified Unified an existing cleanup occurring under CERCLA or state laws, the Program, a program that consolidates, coordinates, and makes con- local agency must provide advance notice to DTSC or the regional sistent the administrative requirements, permits, inspections, and board of its intent to issue notices to responsible parties under AB 440. DTSC or the regional board has 30 days to object to the local agency’s intent to issue notice letters to responsible parties. If the local agency and DTSC, or a regional board, have competing interests and cannot reach a resolution as to which agency shall oversee the cleanup, the matter is to be submitted to CEPA’s Site Designation Committee, which is charged with resolving the matter impartially by majority vote.22 Furthermore, AB 440 intro- duces an extensive public partici- pation process. When preparing the cleanup plan, the local agency is required to provide an opportunity for other public agencies and the public to participate in decisions regarding the cleanup plan.23 To accomplish this, 30 days before submitting the cleanup plan for approval, the local agency must notify all other appropriate public agencies of the proposed cleanup plan, including DTSC or the regional board, if neither is required to approve it. A notice must be placed in a newspaper of general circulation in the area of the property, including a community-based newspaper, and a notice enforcement activities of six environmental and emergency response of the proposed cleanup plan posted on the property.24 The local programs.20 However, an agency may not consent to the designation agency must also make available to the public the proposed cleanup unless it determines that it has adequate staff resources and the req- plan, property assessment, addenda, and any other supporting doc- uisite technical expertise and capabilities available to adequately umentation at the local agency and local repositories, as well as pro- supervise the cleanup.21 The lack of sufficient resources in this age vide a reasonable opportunity to comment on the plan and related of budgetary restrictions could prevent many agencies, which may be documents.25 If a public meeting is requested, the local agency must the best agencies to handle a redevelopment project, from conduct- hold a public meeting in the area of the property to receive comments.26 ing or overseeing cleanups. At the conclusion of this process, the local agency has to inform the Despite similarities, the new law also differs significantly from the public regarding the process by which decisions about the property former one, mostly because of the distinct functional characteristics are made and the recourse that is available for those who may dis- between redevelopment agencies and cities, counties, and other local agree with an agency decision.27 agencies. For example, under the Polanco Act, redevelopment agen- Incentives to Clean cies could acquire access to properties only by eminent domain, purchase, or lease. In contrast, the new law allows local agencies to enter Perhaps the most appealing provision of the new law to local agen- and access contaminated properties for site assessment and cleanup cies is that it provides immunity to local agencies from contamina- upon providing notice to owners. This expanded authority provides tion addressed as part of the cleanup. The new law provides that local agencies with a means to access brownfields in a manner more DTSC, a regional board, or the designated agency must determine and expeditious and affordable than those provided under the Polanco Act. approve the completion of the cleanup and notify the local agency Additionally, the jurisdiction of AB 440 differs from that under within 60 days that it is immune from liability for contamination the Polanco Act, in which redevelopment agencies could exercise addressed as part of the cleanup.28 This immunity extends to devel- authority over contaminated properties only within a redevelop- opers, lenders, and subsequent purchasers for the release or releases ment area. But under the new law, local government agencies can rem- specifically identified in the approved cleanup plan, but not for any edy or remove a release of hazardous substances within the bound- subsequent release or any release not specifically identified in the aries of the local agency, thus allowing it to address a broader approved cleanup plan.29

Los Angeles Lawyer April 2014 23 Under the new law, local agencies must cies with leverage and incentive to compel or public sewer system or onto the ground, and reimburse DTSC or the regional board for conduct cleanups. could be subject to liability for environmen- costs incurred in reviewing or approving tal contamination cleanup costs. However, Using Polanco Cases to Interpret investigation plans and cleanup plans.30 These those who merely placed solvents in the stream AB 440 costs will undoubtedly be passed on to respon- of commerce without adequately warning of sible parties. If costs are disputed, the local AB 440 clearly states that it should be inter- the dangers of improper disposal were not agency must pay any undisputed costs and preted by applying case law that previously liable under the Polanco Act. confer with DTSC or the regional board to interpreted the Polanco Redevelopment Act. Applying this ruling to AB 440, local resolve disagreements over the disputed Speciﬁcally, AB 440 instructs that it is “the agencies can seek to compel cleanup or recover costs.31 The parties may take advantage of policy successor to the Polanco Redevelop- cleanup costs not only from direct dischargers any review processes maintained by DTSC or ment Act…[and] that any judicial construc- of pollutants into waters of the state but also the regional board to resolve any remaining tion or interpretation of the Polanco Re- from anyone who affirmatively takes steps disputed issues.32 development Act” shall also be applied to it.36 directed toward discharge of hazardous wastes, Also appealing is the provision that local For example, the case of City of Modesto such as manufacturers and distributors of agencies can recover the full cleanup costs, Redevelopment Agency v. Dow Chemical engine oil, pesticides, or ﬁreworks who provide including attorneys’ fees, staffing costs, and Company37 demonstrates how AB 440 may improper instructions regarding disposal of interest, from responsible parties who in turn be used broadly to compel a range of respon- hazardous wastes. Local agencies may also must reimburse a local agency for costs sible parties to act. The court interpreted a compel past and current owners and operators incurred to investigate or clean up a release responsible party as any person who is liable of facilities from which hazardous substances of hazardous material or costs incurred in under CERCLA or Section 13304(a) of the were released to remediate contaminated prop- requiring others to investigate or clean up.33 California Water Code.38 The court found erties or pay for remediation. A local agency may recover these costs by that parties who took affirmative steps directed A New Tool to Remediate Contaminated commencing a cost recovery action, but it toward discharge of hazardous wastes could Groundwater? must do so within three years after comple- be subject to liability under the act. In par- tion of the cleanup.34 If the local agency ticular, dry cleaning solvent and equipment AB 440 may also be a powerful tool for local brings a civil injunctive action to compel a manufacturers and distributors who manu- agencies to remediate and treat contaminated responsible party to remediate contaminated factured a system designed to dispose of wastes groundwater. AB 440 authorizes cities, coun- property, the responsible party is liable to improperly, or who instructed dry cleaners ties, and housing authorities to investigate or the local agency for costs incurred in the to dispose of wastes improperly, were found clean up a hazardous materials release on, action.35 The immunities under the law and to have taken affirmative steps towards the dry under, or from blighted property that the the ability to recover costs provide local agen- cleaners’ discharge of solvent wastes into the local agency has found inside a blighted area

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L0513326533[exp1214][All States] PEANUTS ©2014 Peanuts Worldwide within the local agency’s boundaries.39 440 may be used in ways that CERCLA can- HEALTH & SAFETY CODE §25403(p). 13 Local water agencies charged with pro- not. With the ability to apply the law broadly HEALTH & SAFETY CODE §25403.1(c). 14 Id. viding water to the public may contend that the to brownfields within their jurisdictions, local 15 Effective November 1, 2006, to qualify for the bona release of hazardous materials into ground- agencies now have a powerful means to effec- fide prospective purchaser defense, purchasers of con- water contributes to the reduction or lack of tively enhance and foster urban growth and taminated properties must exercise “all appropriate proper utilization of their water rights, which redevelopment. I inquiry,” pursuant to a rule issued by the U.S. are considered real property in California.40 Environmental Protection Agency. 40 C.F.R. §312. 16 HEALTH & SAFETY CODE §25403.5(b). The water provider’s property has become 1 HEALTH & SAFETY CODE §25403(l). 17 HEALTH & SAFETY CODE §25403.1(a)(2)(D). 2 Pamela W. Prah, Redevelopment in California: The Pro- blighted because the water provider can no 18 HEALTH & SAFETY CODE §§25403.1(b)(2)-(3). gram That Disappeared, Pew Charitable Trusts, avail- longer exercise its water rights to the extent 19 HEALTH & SAFETY CODE §25403.1(e)(1). able at http://www.pewstates.org/projects/stateline necessary to provide for the beneficial needs of 20 HEALTH & SAFETY CODE §25403.1(e)(2). /headlines/redevelopment-in-california-the-program 21 HEALTH & SAFETY CODE §25403.1(e)(4)(A). its constituents. Local water agencies may seek -that-disappeared-85899418135 [hereinafter Prah]; 22 HEALTH & SAFETY CODE §25403.1(a)(1)(C). to require responsible parties to remediate Andrew K. Fogg, The Demise of California Redevelop- 23 HEALTH & SAFETY CODE §25403.7(a). ment, Abridged, 64 PLANNING AND ENVIRONMENTAL contaminated groundwater or conduct reme- 24 HEALTH & SAFETY CODE §25403.7(b). LAW 3 (June 2012), available at http://www.csus.edu/ppa diation themselves and seek cost recovery. 25 HEALTH & SAFETY CODE §25403.7(c). /about/in_the_community/2012/summer/PEL%20pdf It remains to be seen whether courts will 26 HEALTH & SAFETY CODE §25403.7(d). .pdf. 27 HEALTH & SAFETY CODE §25403.7(g). allow AB 440 to be used in this manner, but 3 See Prah supra note 2. 28 HEALTH & SAFETY CODE §25403.2(b). the new law unquestionably provides a vital 4 Id. 29 HEALTH & SAFETY CODE §25403.2(c). 5 HEALTH & SAFETY CODE §25403.1(a)(1)(A). tool for local agencies to require responsible 30 HEALTH & SAFETY CODE §25403.4. 6 parties to remediate contaminated property HEALTH & SAFETY CODE §§25403(a)-(b). 31 Id. 7 or to conduct effective, expeditious environ- HEALTH & SAFETY CODE §25403(f)(1). 32 Id. 8 HEALTH & SAFETY CODE §25403(f)(2). mental cleanups. Local agencies may also 33 HEALTH & SAFETY CODE §25403.5(a). 9 HEALTH & SAFETY CODE §§25403(n)-(m), 25403.1. 34 HEALTH & SAFETY CODE §25403.5(d). seek to require remediation or remediate or 10 HEALTH & SAFETY CODE §25403(f)(2). 35 Id. seek to recover remediation costs under com- 11 HEALTH & SAFETY CODE §25403.1(b)(1). 36 HEALTH & SAFETY CODE §25403.8. 12 mon law claims, such as nuisance and negli- HEALTH & SAFETY CODE §§25403.1(a)(2)(B), 37 City of Modesto Redevelopment Agency v. Dow gence, or under other state and federal statutes 25403.1(b)(2)(A). A qualified independent contractor Chem. Co., 119 Cal. App. 4th 28 (2004). is defined as 1) an engineering geologist who is certi- such as the Hazardous Substances Account 38 HEALTH & SAFETY CODE §§25323.5, 33459. AB fied pursuant to Section 7842 of the Business and 440 adopts the same definition of “responsible party.” Act, the California Water Code, and CER- Professions Code, 2) a geologist who is registered pur- See HEALTH & SAFETY CODE §25403(s). CLA. But AB 440 provides immunities not suant to Section 7850 of the Business and Professions 39 HEALTH & SAFETY CODE §25403.1(a)(1)(A). provided by common law or those statutes, Code, or 3) a civil engineer who is registered pursuant 40 See State of Cal. v. Riverside County Super. Ct., 78 and since it does not exclude petroleum, AB to Section 6762 of the Business and Professions Code. Cal. App. 4th 1019 (2000).

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26 Los Angeles Lawyer April 2014 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test answer sheet on page 29.

by John W. Amberg and Jon L. Rewinski 2013 ETHICS ROUNDUP

Last year, prominent ethics cases involved the duty of loyalty and confidentiality as well as advertising and solicitation

THE YEAR 2013 saw the California judicial view of the application of Steven Glass, who the state to post its bar exam pass rate was system continue to buckle under budget cuts. fabricated 42 articles written for The New upheld by District Judge James V. Selna Eight Los Angeles County courthouses shut Republic in the 1990s before he changed against a First Amendment challenge.6 their doors, the superior court’s nationally careers and passed the California bar exam. Twelve years ago, the authors of this arti- recognized Alternative Dispute Resolution In January this year, the court unanimously cle were recruited to write a roundup of ethics Department closed, trial dates extended out denied Glass’s application, ﬁnding that he decisions by Sam Lipsman, the redoubtable into future years, and court reporters were “failed to carry his heavy burden of estab- editor and publisher of Los Angeles Lawyer eliminated. Governor Jerry Brown slashed lishing his rehabilitation and current ﬁtness.”4 magazine, who served as mentor, fan, and an increased allocation to the judicial branch. The Supreme Court unanimously held occasional critic of the annual articles through “2014-2015, that’s when we’re going to fall that there is a public right of access to infor- the ensuing years. Lipsman died of cancer on off the cliff,” warned Curt Soderlund, Chief mation regarding the State Bar admission Administrative Officer for the judicial process if the identity of applicants is not John W. Amberg is a partner in the Los Angeles branch.1 As legal jobs became scarcer, law disclosed. Richard Sander, a UCLA law pro- office of Bryan Cave LLP, and Jon L. Rewinski is a school applications fell nearly 18 percent.2 fessor, sought data regarding bar exam scores, partner in the Los Angeles office of Locke Lord LLP. The California Supreme Court acknowl- law schools attended, grade point averages, Both are former chairs and current members of edged a new state law that allows undocu- LSAT scores, and race or ethnicity to test his LACBA’s Professional Responsibility and Ethics mented immigrants to become lawyers and theory that racial preferences in law school Committee. Amberg is also a former chair and granted the request of the Committee of Bar admissions result in a “mismatch” between Rewinski is a former member of the California Examiners to admit Sergio C. Garcia to the minority students and law schools.5 A guide- State Bar’s Committee on Professional Respon- State Bar.3 The court took a more hostile line requiring each accredited law school in sibility and Conduct.

Los Angeles Lawyer April 2014 27 June 13, 2013, and his intelligence and humor Jean Victor Peloquin, the general partner of revealing client information and filed a motion will be missed by all. the LLC’s managing member, to purchase to strike under the anti-SLAPP statute, Code their membership interest. In litigation over of Civil Procedure Section 425.16, arguing Conflict of Interest whether the Flemings properly exercised their that his communications with Bratton and his Last year produced its share of cases illus- put option, the law firm Hart, King & lawyers were constitutionally protected speech trating risks arising from conflicts of interest, Coldren (HK&C) represented jointly the and petitioning activity in connection with lit- including disqualification, malpractice claims, LLC, the LLC’s managing member, and igation. The superior court denied the motion and loss or disgorgement of fees.7 Two dis- Peloquin. Citing Gong v. RFG Oil, Inc.,14 the and the court of appeal affirmed, holding qualification cases are especially noteworthy. Flemings moved to disqualify HK&C. In that Sagaser’s role in Bratton’s litigation was In Khani v. Superior Court,8 plaintiff Gong, the superior court abused its discretion collateral to the principal thrust of Behnam Khani bought a 2008 Lincoln Nav- in denying a motion by a minority share- Castleman’s lawsuit. The complaint charged igator from Galpin Motors. Claiming the holder to disqualify a law firm jointly repre- that Sagaser had aligned himself with his for- Navigator was defective, Khani, represented senting the corporation and its majority share- mer client’s adversaries in violation of the by attorney Payam Shahian, sued Ford and holder in litigation concerning a buy-sell Rules of Professional Conduct.18 The causes Galpin under California’s lemon law. The agreement. Persuaded by the Flemings’ argu- of action against the lawyer did not arise defendants moved to disqualify Shahian ment, the superior court disqualified HK&C. from protected activity under the anti-SLAPP because between 2004 and July 2007, he had The court of appeal reversed. statute, the appellate court held, but from worked at the law firm of Bowman and What is the difference between Gong and alleged breaches of his ethical duties of loy- Brooke, Ford’s corporate counsel. There he Havasu? In Gong, there was an actual con- alty and confidentiality.19 had represented Ford in 150 cases, including flict between the corporation and majority Confidential information shared with an lemon law cases. Shahian was “privy to con- shareholder because the minority shareholder expert gave rise to a disqualification motion fidential client communications and infor- asserted a derivative claim for corporate in DeLuca v. State Fish Co., Inc.20 During the mation” relating to Ford’s defense of lemon waste against the majority shareholder and trial of a suit between State Fish, a seafood law cases, as well as Ford’s “pre-litigation sought dissolution. In Havasu, on the other business owned by the DeLuca family, and strategies, tactics, and case handling proce- hand, there was no actual conflict based on John DeLuca, a dissident family member, dures.”9 The trial court granted the disqual- the Flemings’ claims. At best, there was a State Fish offered the expert testimony of ification motion. potential conflict—the same potential conflict real estate broker Leo Vusich regarding the The court of appeal reversed. In the case that exists whenever a lawyer jointly repre- value of a fish processing plant claimed by of successive representation of clients with sents multiple parties in a single lawsuit. A both sides. Following remand, Vusich adverse interests, a court must balance the cur- potential conflict is insufficient to justify dis- switched sides and proposed to testify for rent client’s right to counsel of its choosing qualification. DeLuca at the retrial. State Fish objected and against the former client’s right to ensure moved to disqualify DeLuca’s counsel on the Confidentiality and the Attorney-Client that its confidential information will not be ground that he had gained access to its Privilege divulged or used by its former counsel.10 The lawyer’s confidential “impressions, conclu- former client has the burden of showing that A client accused his former lawyer of dis- sions, opinions and theories,” which had the subjects of the successive representations closing confidential information to a busi- been disclosed to the expert before the first are “substantially related,” which requires a ness rival in Castleman v. Sagaser.15 Following trial. Vusich claimed no memory of the test comparing not only the “legal issues an acrimonious dispute with his law partner lawyer’s mental impressions, but the superior involved in successive representations, but Timothy Jones, attorney Howard Sagaser court found the lawyer was more credible also of [the] evidence bearing on the materi- resigned from their Fresno law firm. Before than the expert and disqualified DeLuca’s ality of the information the attorney received his resignation was effective, Sagaser remotely counsel.21 during the earlier representation.”11 Ford accessed the firm’s computer system and The court of appeal reversed. A party provided no evidence that Shahian had work- reviewed client files regarding real estate deals moving to disqualify opposing counsel for ed on any lemon law cases involving allegedly between two clients, Bratton and Castleman, improper contact with the moving party’s defective 2008 Navigators or Galpin’s repair who had compensated Jones for legal ser- expert must prove the expert possesses con- history. The successive engagements involved vices by granting him a percentage interest in fidential information material to the pro- similar legal issues but not similar factual their real estate development projects.16 After ceedings. If this showing is made, a rebuttable issues. The appellate court held that the trial reviewing the client files, Sagaser met with presumption arises that the information has court also “incorrectly assumed that Shahian’s Bratton and his new lawyers, who subse- been disclosed to opposing counsel.22 While exposure to playbook information in prior quently sued Castleman, Jones, and Sagaser’s State Fish was not required to disclose the lemon law cases was sufficient to disqualify former firm for conspiracy and fraud. Sagaser work product information conveyed to the him in this case without any showing of its filed an arbitration claim against Jones, con- expert, it had to provide the court with the materiality.”12 tending that Jones’s ownership interest in the nature of the information and its material rela- Unlike Khani, Havasu Lakeshore Invest- deals should have gone to their law firm, tionship to the proceedings, which State Fish ments, LLC v. Fleming involved an attor- entitling Sagaser to a share worth millions of had failed to do. Neither the attorney-client ney’s concurrent representation of clients dollars. Deposed in Bratton’s suit against privilege nor work product doctrine protects allegedly with conflicting interests.13 In con- Castleman, Sagaser asserted the attorney- statements to a testifying expert such as current representation cases, the lawyer’s client privilege for his communications with Vusich. Even if he had access to work prod- duty of undivided loyalty is center stage. In Bratton and Bratton’s lawyers.17 uct related to nontestimonial subjects, State Havasu, a limited liability company was Castleman sued Sagaser for breach of his Fish failed to show that its lawyer’s impres- formed to develop a recreational mobile- fiduciary duties of loyalty and confidentiality, sions, conclusions, opinions, and theories home park near Lake Havasu. The Flemings alleging that the lawyer had communicated remained confidential after the first trial, dur- were minority members of the LLC. They Castleman’s confidential information to ing which, the court assumed, his strategy had held a put option giving them a right to force Bratton and his lawyers. Sagaser denied been revealed.23

28 Los Angeles Lawyer April 2014 MCLE Test No. 234 MCLE Answer Sheet #234 ETHICS ROUNDUP 2013

The Los Angeles County Bar Association certiﬁes that this activity has been approved for Minimum Name Continuing Legal Education ethics credit by the State Bar of California in the amount of 1 hour. Law Firm/Organization

1. A conflict of interest can result in an attorney’s dis- Rules of Professional Conduct. Address qualification, malpractice claims, and disgorgement of True. fees. False. City True. State/Zip False. 11. A demand letter that couples a demand for money E-mail with a threat to file a lawsuit if payment is not made vio- Phone 2. When an attorney represents successive clients with lates the Rules of Professional Conduct. adverse interests, the new client’s right to counsel is True. State Bar # weighed against the former client’s right to confiden- False. tiality. INSTRUCTIONS FOR OBTAINING MCLE CREDITS True. 12. A lawyer for an employer may defend an employ- 1. Study the MCLE article in this issue. False. ee’s deposition but must advise the employee of any 2. Answer the test questions opposite by marking potential conflicts of interest. the appropriate boxes below. Each question 3. Exposure to a client’s playbook information will True. has only one answer. Photocopies of this answer sheet may be submitted; however, this always result in an attorney’s disqualification if he or False. form should not be enlarged or reduced. she is adverse to the client in a later representation. True. 13. A law firm can compel a former client to arbitrate 3. Mail the answer sheet and the $20 testing fee ($25 for non-LACBA members) to: False. their dispute even if the client cannot afford the arbitrator’s charges. Los Angeles Lawyer 4. When an attorney concurrently represents clients with True. MCLE Test P.O. Box 55020 conflicting interests, he or she must be concerned False. Los Angeles, CA 90055 about the duty of loyalty. Make checks payable to Los Angeles Lawyer. True. 14. It is not reasonable to doubt whether an arbitrator False. could be impartial because of a reference to an attor- 4. Within six weeks, Los Angeles Lawyer will ney in a 10-year-old resume. return your test with the correct answers, a rationale for the correct answers, and a 5. An attorney’s disclosure of confidential client infor- True. certificate verifying the MCLE credit you earned mation in connection with litigation is constitutionally False. through this self-assessment activity. protected speech and petitioning activity under the 5. For future reference, please retain the MCLE anti-SLAPP statute. 15. Malicious prosecution requires proof of termination test materials returned to you. True. in favor of the plaintiff, lack of probable cause, and mal- False. ice. ANSWERS True. Mark your answers to the test by checking the 6. If an expert who possesses confidential information False. appropriate boxes below. Each question has only one answer. material to the proceedings is contacted by opposing counsel, a rebuttable presumption arises that the 16. A voluntary dismissal is presumed to be a favorable information was disclosed. termination on the merits. 1. I True I False True. True. 2. I True I False False. False. 3. I True I False 4. I True I False 7. The attorney-client privilege and work product doc- 17. Malice can be inferred when a lawyer sues the I I trine always protect statements to experts from dis- defendant to put pressure on another party. 5. True False covery. True. 6. I True I False True. False. 7. I True I False False. 8. I True I False 18. A lawyer who deceives a federal court can only be I I 8. The crime-fraud exception requires independent reported to the district’s disciplinary committee. 9. True False evidence before an attorney can use a privileged doc- True. 10. I True I False ument. False. 11. I True I False True. 12. I True I False False. 19. A court has discretion to deny recovery of legal I I fees by a lawyer who obstructs discovery of his or her 13. True False 9. The litigation privilege protects an attorney from time records. 14. I True I False liability for false statements to the press. True. 15. I True I False True. False. 16. I True I False False. 17. I True I False 20. The California Supreme Court has approved new 10. A demand letter that couples a demand for money Rules of Professional Conduct. 18. I True I False with a threat to report conduct to criminal and gov- True. 19. I True I False ernment authorities if payment is not made violates the False. 20. I True I False

Los Angeles Lawyer April 2014 29 Seven years ago, in Rico v. Mitsubishi camera review is not available to determine RICO claim with prejudice. As the federal Motors Corporation,24 the California Su- whether an exception applies, absent inde- court dismissed the RICO claim, GetFugu preme Court considered what to do when pendent prima facie evidence.28 and various officers filed a $500,000 defama- privileged, work product, or otherwise con- tion lawsuit against attorney Oparil, Patton Advertising and Solicitation fidential documents are inadvertently received Boggs, and others. About a week later, Oparil by opposing counsel. Adopting language from Lawyers and courts continue to wrestle with tweeted: “GetFugu runs an organization for the Second District Court of Appeal’s opin- applying longstanding ethics rules in an the benefit of its officers and directors, not ion in State Compensation Insurance Fund v. increasingly connected world. Many lawyers shareholders and employees. The RICO suit WPS, Inc.,25 the court held that the lawyer regularly tweet, post, and blog, instanta- was not frivolous. The 500K lawsuit is friv- receiving the document should refrain from neously disseminating statements across the olous, however, so buyer be wary.” In an examining it any more than essential to ascer- globe. There are risks to doing this. amended complaint, the GetFugu parties tain if it is privileged and should immedi- Having recently filed a shareholder law- added Oparil’s tweet to the defamation claim. ately notify the sender.26 The court left unan- suit in federal court against Los Angeles- Oparil and Patton Boggs persuaded the

A party moving to disqualify opposing counsel for improper contact with the moving party’s expert must prove the expert possesses confidential information material to the proceedings. If this showing is made, a rebuttable presumption arises that the information has been disclosed to opposing counsel. While State Fish was not required to disclose the work product information conveyed to the expert, it had to provide the court with the nature of the information and its material relationship to the proceedings, which State Fish had failed to do. swered what the lawyer should do if the based Getfugu, Inc., and some of its officers, superior court to strike the defamation claim document reveals the existence of a crime or Patton Boggs LLP partner Richard J. Oparil under the anti-SLAPP statute. The court of fraud, which could vitiate the privilege under issued a press release through Investment appeal agreed that Oparil’s tweet was not Evidence Code Section 956. Is he or she oblig- Wire titled “FBI SAID TO BE INVESTI- actionable. It merely reﬂected his opinion. ated to notify the other side or to return the GATING GETFUGU’S CARL FREER.”29 The court of appeal reversed, however, the dis- evidence of wrongdoing and thereby risk its According to the press release, Oparil’s clients, missal of the defamation claim based on the disappearance or destruction? In 2013, the the plaintiffs, “were pleased about a report by press release. The issuance of the press release California State Bar’s Committee on the Copenhagen Post that the FBI and Danish constituted protected petitioning activity in a Professional Responsibility and Conduct authorities are investigating Freer’s involve- matter of public interest within the meaning (COPRAC) tackled that issue in Formal ment in the Danish IT Factory scandal.” The of the anti-SLAPP statute. This shifted the bur- Opinion No. 2013-188. Citing the deference release went on, “[a]ccording to the article, den to GetFugu and its officers to prove a paid to the privilege in California, COPRAC the FBI is following what is said to be a com- probability of prevailing on their defama- concluded that the ethical duties in Rico and plex international money trail that allegedly tion claim. GetFugu’s president subsequently State Fund apply whether the document is links GetFugu and Freer to several failed submitted a declaration stating that, con- received through inadvertence or intention- ‘pump and dump’ investments.…” The release trary to Oparil’s press release, neither he nor ally from a whistleblower, and the duties described a criminal conviction against one GetFugu had ever been under investigation by would bar use of the document unless inde- GetFugu officer in a German court and the the FBI, the SEC, or any other governmental pendent evidence of a crime or fraud exists. fraud conviction against another GetFugu agency. This declaration was enough to defeat “The mere assertion of a crime or fraud is officer. Citing their clients’ federal complaint, the attorneys’ motion to strike. Oparil and insufficient to trigger the exception—there the press release stated that the SEC was Patton Boggs could not rely on the litigation must be a prima facie showing by the pro- investigating GetFugu and its officers. The privilege codiﬁed in Civil Code Section 47(b) ponent through non-privileged information release invited readers to send investigative to insulate their press release from the defama- that the allegation that the attorney’s ser- leads to an e-mail address.30 tion claim. The litigation privilege does not vices were sought or obtained to enable the After the press release was issued, the encompass statements that are published to planning of a crime or fraud has some foun- Copenhagen Post retracted its article. The the general public through the press.31 dation in fact.”27 The lawyer receiving the federal court dismissed the state law claims In Steiner v. Superior Court, the court of document may seek court guidance, but in without prejudice, and later dismissed the appeal addressed a trial court’s authority to

30 Los Angeles Lawyer April 2014 issue an order restricting an attorney’s free addressee and others for “embezzling and the lawyer on the ground that Yanez could not speech rights during trial to prevent potential stealing money” from Singer’s client, for show that but for the lawyer’s conduct, he jury contamination.32 On her firm’s Web site, engaging “in insurance scams designed to would not have been fired, but the court of attorney Simona A. Farrisse touted verdicts defraud” various insurers, for attempting to appeal reversed. It held that the lawyer had for $1.6 million and $4.3 million against hide assets from creditors and taxing author- a conflict of interest while representing both Ford Motor Company and others in per- ities in offshore accounts, and for “using employer and employee in the deposition sonal injury litigation alleging illnesses caused company resources to arrange sexual liaisons because he portrayed the employee in the by exposure to asbestos. On the eve of a jury with older men” including a retired judge of worst possible light to benefit the employer. trial on similar claims asserted by Farnisse’s the superior court—”unless this matter is It was Plummer who highlighted his client’s clients against Ford and Volkswagen Group resolved to my client’s satisfaction within testimony that he did not see the coworker of America, the trial court ordered Farrisse to five (5) business days…”39 Even though slip, introduced the contradictory written remove from her Web site the descriptions of Singer’s letter was in many ways more offen- statement, and then got him to admit that his the two earlier verdicts pending the comple- sive that Hamzeh’s, Hamzeh’s letter coupled testimony conflicted with the statement.47 tion of trial. The appellate court found that a threat to report conduct to criminal and Since the employer had had the two contra- the trial court’s order constituted an unlaw- governmental authorities with a demand for dictory written statements for nine months ful prior restraint on Farrisse’s constitutional money. That constitutes a violation of Rule without charging Yanez with dishonesty, the right to free speech. of Professional Conduct 1-500 and “criminal court concluded that it was the deposition that Without deciding whether the trial court’s extortion as a matter of law.”40 Singer’s let- led to his dismissal. It rejected the lawyer’s order should be analyzed under a strict ter concluded with a demand for money, but argument that the appeal would bar a lawyer scrutiny standard or the intermediate scrutiny without a threat to report the recipient’s con- for an employer from ever representing an standard generally applicable to prior re- duct to governmental authorities. Therefore, employee and held the case merely raised a tri- straints on commercial speech, the court in it did not constitute extortion as a matter of able issue of fact regarding causation.48 Steiner reasoned that even under the inter- law.41 That Singer’s letter insinuated that the Arbitration mediate scrutiny standard, the trial court’s recipient’s failure to pay money in settlement order was unlawful.33 The trial court had would expose third parties to potential pub- In Roldan v. Callahan & Blaine, Justice already admonished the jury not to Google lic humiliation was not enough.42 William F. Rylaarsdam wrote a ground- trial counsel. “[I]t must be assumed that a jury breaking opinion for the Fourth Appellate Malpractice does its duty, abides by cautionary instruc- District imposing conditions on a law firm’s tions, and finds facts only because those facts A lawyer for Union Pacific Railroad was sued right to enforce a mandatory arbitration pro- are proved.”34 The court’s order was more for malpractice by an employee of the railroad vision in their retainer agreement.49 The for- restrictive than necessary, thereby unable to in Yanez v. Plummer after he defended the mer clients, alleging that the law firm improp- withstand even intermediate scrutiny. In addi- employee in a deposition that went terribly erly coerced them into settling toxic mold tion, the appellate record contained no evi- wrong and the employee was fired.43 Union cases, sued the law firm for elder abuse, con- dence on which to conclude that attorney Pacific employee Michael Yanez was present version (for not promptly forwarding settle- Farrisse’s statements were subject to restraint when a coworker was injured on the job and ment proceeds), and breach of fiduciary duty. as misleading advertising.35 wrote two witness statements. In the first, The law firm petitioned to compel arbitration. Yanez wrote that the coworker slipped and The former clients alleged that they could Demand Letters fell on an oil-soaked floor, and in the second, not afford to pay the upfront charges imposed Overbearing demand letters can come back he wrote that he saw the coworker slip and by the arbitrator. Reasoning that “all liti- to haunt the lawyers who write them. In fall.44 Attorney Brian Plummer was retained gants have access to the justice system for res- Mendoza v. Hamzeh, the lawyer’s demand to defend the coworker’s suit against Union olution of their grievances, without regard to letter went too far, subjecting the lawyer to Pacific under the Federal Employers Liability their financial means”50 and that if the for- claims for civil extortion, emotional distress, Act, and when Yanez was deposed, Plummer mer clients could not front the costs of arbi- and unfair business practices.36 In Malin v. represented both the railroad and Yanez. tration, they might be effectively deprived of Singer, on the other hand, the litigation priv- Meeting with Plummer before the deposi- access to any forum, Justice Rylaarsdam gave ilege shielded a lawyer from claims for civil tion, Yanez expressed concern because his the law firm a choice. Upon a showing that extortion and emotional distress based on his testimony was not likely to be favorable to the the former clients lacked the financial means acerbic but not extortionate demand letter.37 railroad, but Plummer told him his job would to pay the upfront arbitration costs, the law In Mendoza, lawyer Reed Hamzeh wrote not be affected so long as he told the truth. firm could pay the former clients’ share of the a demand letter advising the addressee, a for- The lawyer did not discuss any conflict of costs or waive its right to arbitrate the dis- mer manager at Hamzeh’s client’s business, interest in representing both Union Pacific pute.51 that Hamzeh and his client were investigat- and Yanez at the deposition.45 During the In Mt. Holyoke Homes L.P. v. Jeffer ing a substantial fraud and “if your client does deposition, after the plaintiff’s lawyer exam- Mangels Butler & Mitchell, LLP, the court not agree to cooperate with our investigation ined Yanez, Plummer questioned him and of appeal reversed an arbitration award issued and provide us with a repayment of such confirmed he had not seen the coworker fall. by retired superior court judge Eli Chernow damages caused, we will be forced to proceed The lawyer marked the second written state- in favor of Jeffer Mangels on a legal mal- with filing a legal action against him, as well ment in which Yanez wrote that he had seen practice claim.52 Before being selected, Judge as reporting him to the California Attorney the fall. Union Pacific subsequently termi- Chernow had disclosed that he had known General, the Los Angeles District Attorney, nated Yanez for dishonesty based on the con- one of the Jeffer Mangels lawyers for years the Internal Revenue Service regarding tax tradiction between his written statement and and that the Jeffer Mangels defendants’ coun- fraud.…”38 In Malin, lawyer Martin Singer his deposition testimony.46 sel had mediated a case before him within wrote a demand letter advising the addressee, Yanez sued Plummer for legal malpractice, the last five years. After receiving Judge a former business associate of Singer’s client, breach of fiduciary duty, and fraud. The supe- Chernow’s unfavorable award, the claimant that Singer and his client intended to sue the rior court granted summary judgment for found on the Internet a 10-year-old resume in

Los Angeles Lawyer April 2014 31 which Judge Chernow had named named- for an improper purpose.60 Regarding his and numerous inaccurate and contradictory partner Robert Mangels as a reference for malice, the court concluded: “Was the evi- entries, which destroyed her credibility. his mediation services. Although Mangels dence sufficient? ‘Overwhelming’ would be a The total hours were excessive, showing her had appeared before Judge Chernow as a better word.”61 working almost 11 hours every day, includ- judge, mediator, and arbitrator, he and Judge ing weekends and holidays, for five years.66 Lawyers Behaving Badly Chernow had never had a professional or Sklar’s accusations of unethical behavior personal relationship. The court of appeal District Judge Otis D. Wright II “went to against the court and other parties were inap- concluded that the arbitration award had to battlestations” to sanction lawyers for manip- propriate and unprofessional and justified a be vacated because a reasonable person aware ulating the legal system in Ingenuity 13 LLC denial of fees.67 of the facts could reasonably entertain a v. Doe and four related cases.62 The lawyers Judge Mohr did not believe Sklar’s evi- doubt that Judge Chernow could be impar- represented a “porno-trolling collective” com- dence concerning her time spent working on tial in the arbitration.53 prised of shell corporations that owned copy- the class action, and the court of appeal rights to pornographic movies. They traced declined to reassess her credibility, which is Malicious Prosecution download activity of the movies, subpoe- uniquely the province of the trial court.68 Limited partners sued for malicious prose- naed the identity of subscribers from Internet The court affirmed the denial of any fees to cution in Jay v. Mahaffey after they were dis- service providers, and sent cease and desist let- Sklar and directed the clerk to send the opin- missed from a cross-complaint filed by the ters offering to settle each copyright infringe- ion to the State Bar pursuant to Business and owners of an Anaheim mobile home park ment claim for about $4,000. Most recipients Professions Code Section 6086.7, which against a limited partnership in which the settled to avoid embarrassment and the cost requires the State Bar to investigate the appro- limited partners were passive investors.54 In of litigation, but if they refused, the lawyers priateness of disciplinary action against an a campaign to break a 50-year lease with filed vexatious lawsuits. Although copyright attorney.69 the partnership so the property could be rede- owners have the right to protect their intel- Rules Revision veloped, the owners unsuccessfully tried to lectual property rights, the court found a buy off the limited partners, failed to foment pattern of deception and ordered the lawyers The State Bar continued to send proposed new a condemnation suit by the city, and then to pay attorney’s fees and costs for their Rules of Professional Conduct to the Cal- sued the partnership but lost at trial. Un- “brazen misconduct and relentless fraud.” ifornia Supreme Court for its adoption or daunted, their lawyer Douglas Mahaffey The judge also referred them to their respec- modification. After two proposed rules were threatened to tie up the partnership in expen- tive state and federal bar associations, the U.S. submitted in 2012, 12 more proposed rules sive litigation for five years and filed a new Attorney for the Central District, the Criminal were submitted in 2013, but the Court did not cross action in which he named 45 limited Investigation Division of the Internal Revenue take action on any of them.70 I partners, although they were not parties to the Service, and the district court’s Standing lease and had no involvement in the part- Committee on Discipline.63 1 Judicial branch budget outlook still cloudy, L.A. nership’s business.55 Mahaffey offered to dis- A lawyer’s application for legal fees fol- DAILY J., Dec. 26, 2013. miss the limited partners if they would hire lowing the settlement of a class action was for- 2 Law school applications drop nearly 18 percent, benefitting students seeking financial aid, A.B.A. J., him to file a derivative action against the feited by her unprofessional conduct in Ellis Aug. 23, 2013. partnership and proposed to pay a finder’s fee v. Toshiba American Information Systems, 3 Immigrant in U.S. Illegally May Practice Law, 56 64 to their current counsel. When this was Inc. Two law firms brought a class action California Court Rules, N.Y. TIMES, Jan. 2, 2014; rejected, he voluntarily dismissed the limited on behalf of purchasers of a Toshiba laptop see also In re Sergio C. Garcia on Admission, 58 Cal. partners. Twelve of them sued Mahaffey and computer with an electrostatic discharge 4th 440 (2014). 4 his clients for malicious prosecution. problem, which was settled by giving each Would-be lawyer who fabricated stories gets chilly reception at high court, L.A. DAILY J., Nov. 7, 2013; The superior court denied the defendants’ member a 12-month repair warranty exten- In re Glass, 58 Cal. 4th 500 (2014); 30 LAW. MAN. motion to strike under the anti-SLAPP statute, sion and either $25 cash or a $50 voucher for PROF. CONDUCT 69, Jan. 28, 2014. and the court of appeal affirmed. To prevail replacement of the defective part. Caddell & 5 Sander v. State Bar of Cal., 58 Cal. 4th 300 (2013). on a malicious prosecution claim, a plaintiff Chapman was awarded slightly over $1 mil- 6 Southern California Institute of Law v. Biggers, No. must show the prior action was pursued to lion in fees and expenses, but Toshiba op- SAcv 13-00193 JVS (RNBx) (C.D. Cal. Aug. 19, 2013). a legal termination favorable to the plaintiff, posed the request by the cocounsel, Lori Sklar 7 See, e.g., Fiduciary Trust Int’l of Cal. v. Superior was brought without probable cause, and of the Sklar Law Offices (SLO), a sole prac- Court, 218 Cal. App. 4th 465 (2013) (disqualification); was initiated with malice.57 In its de novo titioner admitted in California but working Yanez v. Plummer, 221 Cal. App. 4th 180 (2013) review, the appellate court held the plaintiffs from a home office in Minnesota, who sought (malpractice); In re GFI Commercial Mortgage LLP v. had established a probability of prevailing $12,079,534.69 in fees for herself (originally Meyers Law Group, P.C., 2013 WL 4647300, 2013 U.S. Dist. LEXIS 124077 (N.D. Cal. Aug. 29, 2013) because a voluntary dismissal is presumed $24 million) and $908,752.72 in expenses for (alleged conflicts violation not sufficiently egregious to to be a favorable termination on the merits, SLO. After Sklar obstructed Toshiba’s dis- warrant fee forfeiture); Sabey v. City of Pomona, 215 and there was no probable cause to sue the covery and violated court orders by wiping Cal. App. 4th 489 (2013) (private law firm’s multiple limited partners since they are immune from her electronic time records and refusing to roles during administrative proceedings violated police liability under the Uniform Limited Partner- let experts inspect her computer, Judge officer’s due process rights). 8 Khani v. Superior Court, 215 Cal. App. 4th 916 ship Act unless they help operate the part- Anthony J. Mohr awarded discovery sanc- (2013). 58 65 nership’s business. The court inferred mal- tions of $165,000. 9 Id. at 919. ice from the conduct of the defendant clients.59 Ultimately, Judge Mohr denied Sklar’s 10 Id. at 920. As to the attorney Mahaffey, the court ruled entire fee request, and his detailed findings 11 Id. at 921. that he had sued the limited partners not to were affirmed by the Second District Court 12 Id. at 922. 13 vindicate a legal right but to use them as of Appeal. The superior court found that Havasu Lakeshore Invs., LLC v. Fleming, 217 Cal. App. 4th 770 (2013). pawns in the chess game against the limited Sklar’s billing records were unusable to cal- 14 Gong v. RFG Oil, Inc., 166 Cal. App. 4th 209 partnership and that a jury could find the culate the lodestar because they contained (2008). case was a “poster child” for cases instituted “troubling inconsistencies and omissions” 15 Castleman v. Sagaser, 216 Cal. App. 4th 481 (2013).

32 Los Angeles Lawyer April 2014 16 Id. at 486. 17 Id. at 487. TRUST DEED FORECLOSURES 18 Castleman, 216 Cal. App. 4th at 494. TRUST DEED FORECLOSURES Law Firms 4 Sale 19 Id. at 495. “Industry Specialists For Over 25 years” 20 DeLuca v. State Fish Co., Inc., 217 Cal. App. 4th 671 t Witkin & Eisinger we specialize in the Non-Judicial Want to retire? Want to plan (2013). AForeclosure of obligations secured by real property 21 Id. at 682-83. or real and personal property (mixed collateral). When for your life after law! 22 Id. at 691. your clients needs a foreclosure done professionally and 23 Id. at 693. at the lowest possible cost, please call us at: See Ed Poll’s website 24 Rico v. Mitsubishi Motors Corp., 42 Cal. 4th 807 1-800-950-6522 www.lawbiz.com for the tools (2007). you need to make a transition. 25 State Compensation Ins. Fund v. WPS, Inc., 70 Cal. We have always offered free advice to all attorneys. App. 4th 644 (1999). Want to buy a practice? 26 Id. at 817-18. WITKIN 27 State Bar Standing Committee on Professional , LLC Ed can help! Responsibility and Conduct, Formal Op. No. 2013-188 &EISINGER Call today 800.837.5880 ! at 5. RICHARD G. WITKIN, ESQ. CAROLE EISINGER 28 Id.; see also Costco Wholesale Corp. v. Superior Court, 47 Cal. 4th 725, 739-40 (2009); EVID. CODE §915. 29 GetFugu, Inc. v. Patton Boggs LLP, 220 Cal. App. 4th 141, 145-46 (2013). 30 Id. 31 Id. at 153. 32 Steiner v. Superior Court, 220 Cal. App. 4th 1479 (2013). 33 Id. at 1488. 34 Id. at 1489 (quoting NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1223-24 (1999)). 35 Steiner, 220 Cal. App. 4th at 1488; see also Hunter v. Virginia State Bar, ex rel. Third District Committee, 285 Va. 485, cert. denied, 133 S. Ct. 2871 (2013) (An attorney’s blog constituted commercial speech subject to regulation under Virginia’s rules of professional conduct governing advertising and solicitation.). 36 Mendoza v. Hamzeh, 215 Cal. App. 4th 799 (2013). 37 Malin v. Singer, 217 Cal. App. 4th 1283 (2013). 38 Mendoza, 215 Cal. App. 4th at 802. 39 Malin, 217 Cal. App. 4th at 1288-89. 40 Mendoza, 215 Cal. App. 4th at 806. 41 Malin, 217 Cal. App. 4th at 1299. 42 Id. 43 Yanez v. Plummer, 221 Cal. App. 4th 180 (2013). ERISA LAWYERS 44 Id. at 183-84. 45 Id. at 184. 46 Id. at 185. 47 Id. at 189. • Long Term Disability 48 Id. at 190. 49 Roldan v. Callahan & Blaine, 219 Cal. App. 4th 87 • Long Term Care (2013). 50 Id. at 94. • Health and Eating Disorder 51 See id. at 89-90. 52 Mt. Holyoke Homes LP v. Jeffer Mangels Butler & • Life Insurance claims Mitchell LLP, 219 Cal. App. 4th 1299 (2013). 53 Id. at 1314. 54 Jay v. Mahaffey, 218 Cal. App. 4th 1522 (2013). We handle claim denials under both 55 Id. at 1531. ERISA and California Bad Faith laws. 56 Id. 57 Soukup v. Law Office of Herbert Haﬁf, 39 Cal. 4th 260, 269 n.3 (2006). 58 Id. at 1540-41. State and Federal Courts throughout California 59 Id. at 1542. 60 Id. at 1545. More than 20 years experience 61 Id. Settlements, trials and appeals 62 Ingenuity 13 LLC v. Doe, 2013 WL 1898633 (C.D. Cal. May 6, 2013). 63 Id. at *5-6. KANTOR LLP 64 Ellis v. Toshiba Am. Info. Sys., Inc., 218 Cal. App. 4th 853 (2013). KANTOR 818.886.2525 65 Id. at 867-68. www.kantorlaw.net 66 Id. at 872-73. 67 Id. at 872. Referral fees as allowed by State Bar of California 68 Id. at 884. 69 Id. at 890-91. 70 California Supreme Court docket, Case No. S206125 Dedicated to Helping People Receive the Insurance Beneﬁts to Which They Are Entitled. (Rules of Professional Conduct), eff. 01/02/2014.

Los Angeles Lawyer April 2014 33 by Steven G. Pearl The Conscience of Arbitration

Lower courts have held that unconscionability analysis survives the U.S. Supreme Court’s holding in Concepcion

IN RECENT YEARS, the U.S. Supreme FAA.4 Since that time the California courts Court has issued a number of opinions and legislature have “consistently reflected a strengthening federal arbitration law and friendly policy toward the arbitration limiting the ability of employees to bring process.”5 The policy has been expanded class actions. Lower courts, including the and clarified in the CAA, which was created California Supreme Court and Courts of in 1961. Therefore, arbitration agreements are Appeal, continue to deal with the implications valid, irrevocable, and enforceable under fed- of these decisions, as various questions eral and California law, except upon grounds remain. Specifically, the California Supreme in law or equity for the revocation of any con- Court has granted review in more than a tract.6 dozen cases that raise these issues. Historically, California law on arbitra- Analysis of this area of law begins largely tion has been relatively protective of employee but not entirely with the Federal Arbitration rights and hostile to mandatory arbitration. Act1 (FAA) and its state analog, the California In 2000, the California Supreme Court in Arbitration Act (CAA). The FAA incorporates Armendariz v. Foundation Health Psychcare a strong federal policy of enforcing arbitra- Services, Inc.,7 considered whether an em- tion agreements, including agreements to ployer may enforce a mandatory employ- arbitrate statutory rights. Section 2 of the ment arbitration agreement that an employer FAA reflects a “liberal federal policy favor- imposes on an employee as a condition of ing arbitration.”2 The FAA’s purpose is to employment.8 The court held that an employ- ensure the enforcement of arbitration agree- er may enforce such an agreement, provided ments according to their terms so as to facil- that it does not require the employee to for- itate informal, streamlined proceedings.3 feit his or her unwaivable statutory rights— Two years after the FAA was enacted in such as the rights established by the Fair 1925, California adopted its first modern arbitration statute and declared arbitration Steven G. Pearl is a full-time mediator with ADR agreements to be irrevocable and enforce- Services, Inc., specializing in resolving individ- able, identical to the terms of Section 2 in the ual and class action employment lawsuits. AMENE KANEKO

34 Los Angeles Lawyer April 2014

Employment and Housing Act 9—and is not In Gentry v. Superior Court,23 the Cali- held that federal antitrust laws “do not guar- unconscionable.10 fornia Supreme Court turned its attention to antee an affordable procedural path to the A mandatory arbitration agreement does the unwaivable statutory right to be paid vindication of every claim” and that Con- not require the forfeiture of unwaivable statu- overtime compensation.24 The court held gressional approval of Federal Rule of Civil tory rights if it meets five minimum procedural that the ability to bring a class action should Procedure 23 does not entitle class proceed- requirements: 1) a neutral arbitrator,11 2) no be included in the Armendariz list of neces- ings for the vindication of statutory rights.36 limitation on statutorily imposed remedies sary minimum requirements for the arbitra- The class action waiver at issue in the such as punitive damages and attorney’s tion of unwaivable rights, at least when the plaintiffs’ effective vindication theory was fees,12 3) the right to conduct adequate dis- following factors are present: 1) individual found not to forbid the assertion of statutory covery,13 4) a written arbitration decision awards “tend to be modest,”25 2) an em- rights or to require payment of fees pro- that reveals the essential findings and con- ployee suing his or her current employer is at hibiting access to the forum.37 It merely made clusions on which the award is based,14 and risk of retaliation,26 3) some employees may proving the statutory violation impractical, 5) no type of expense that the employee not bring individual claims because they are which did not “constitute the elimination of would not be required to bear in court.15 unaware that their legal rights have been vio- the right to pursue that remedy.”38 The court further held that an arbitra- lated,27 and 4) even if some individual claims Unconscionability Analysis tion agreement must not be unconscionable, are sizeable enough to provide an incentive for whether the claims being arbitrated may be individual action, it may be cost effective for These developments in the U.S. and California waived or not.16 Unconscionability has two an employer to pay those judgments and con- Supreme Courts lead to a number of unan- components: procedural and substantive. An tinue not to pay overtime, and only a class swered questions. Perhaps the most basic agreement will be enforced unless both com- action will compel the employer to properly question is whether unconscionability analy- ponents are present, though they need not be comply with the overtime law.28 sis survives Concepcion. Most lower courts present in equal measure. The more sub- In stark contrast to California case law, considering the issue have held that uncon- stantively oppressive the contract term, the recent federal case law has strongly supported scionability analysis does survive. less evidence of procedural unconscionabil- mandatory arbitration. In 2010, in Stolt- The California Supreme Court has ac- ity is required to conclude that the contract Nielsen S.A. v. AnimalFeeds International cepted review in one case concerning uncon- is unenforceable, and vice versa.17 Corporation, the U.S. Supreme Court issued scionability analysis, Sanchez v. Valencia An arbitration agreement is procedurally the first in a series of recent decisions affect- Holding Company, LLC.39 In Sanchez, a puta- unconscionable if it is imposed as a condition ing the ability of employees to prosecute class tive consumer class action under the Con- of employment and if there is no opportunity actions. In Stolt-Nielsen, a case involving sumers Legal Remedies Act (CLRA), the Unfair to negotiate.18 It is substantively uncon- large shipping companies and their com- Competition Law (UCL), and other California scionable if it lacks at least a “modicum of mercial customers, the Court held that an statutes, the court of appeal held that Con- bilaterality.”19 In other words, the agreement arbitrator does not have discretion to impose cepcion does not prevent courts from apply- should require both parties to arbitrate their class arbitration when the parties to the arbi- ing unconscionability analysis. The Court con- claims, and an agreement that is unilateral tration agreement stipulate that the agree- cluded that the arbitration agreement at issue must state some reasonable justification based ment is silent as to whether class arbitration was unconscionable and unenforceable, but it on “business realities.”20 is allowed.29 did not base its decision on the presence of a The following year, in AT&T Mobility class action waiver. The California Supreme Class Action Arbitration Case Law LLC v. Concepcion, the Court overruled the Court has granted review in a number of other In Discover Bank v. Superior Court,21 the California Supreme Court’s decision in cases presenting this issue.40 California Supreme Court considered the Discover Bank, holding that class arbitra- The court denied review in another case validity of a provision in an arbitration agree- tion, “to the extent it is manufactured by presenting the same issue. In Samaniego v. ment between Discover Bank and a credit Discover Bank rather than consensual, inter- Empire Today LLC,41 the court of appeal cardholder forbidding classwide arbitration. feres with fundamental attributes of arbitra- considered the issue in the context of a puta- The court held that the class action waiver tion.”30 The switch from bilateral arbitra- tive wage and hour class action and held that was unconscionable and unenforceable: tion to class arbitration sacrifices arbitration’s Concepcion does not prevent courts from [W]hen the waiver is found in a con- informality and makes the process slower, applying traditional unconscionability anal- sumer contract of adhesion in a setting more costly, and more likely to generate pro- ysis.42 The court went on to hold that the arbi- in which disputes between the con- cedural morass than final judgment.31 Class tration agreement at issue was unconscionable tracting parties predictably involve small arbitration also greatly increases the risks to and unenforceable because it was mandated amounts of damages, and when it is defendants.32 as a condition of employment and included alleged that the party with the supe- In 2013, in American Express Company a shortened statute of limitations and other rior bargaining power has carried out v. Italian Colors Restaurant,33 the Court provisions that unfairly favored the employer. a scheme to deliberately cheat large considered whether to enforce a contractual A second question that has drawn mixed numbers of consumers out of individ- action waiver in an antitrust action, even results in the California courts of appeal is ually small sums of money, then, at though enforcement of the class action waiver whether the California Supreme Court’s deci- least to the extent the obligation at likely would mean that no plaintiff could sion in Gentry survives Concepcion. In issue is governed by California law, the pursue the case. The Court held that the waiver Iskanian v. CLS Transportation L.A., LLC,43 waiver becomes in practice the exemp- was enforceable, even when “the plaintiff’s a putative wage and hour class action, the tion of the party “from responsibility for cost of individually arbitrating a federal statu- court of appeal concluded that Concepcion [its] own fraud, or willful injury to the tory claim exceeds the potential recovery.”34 overturned Gentry. First, the court held that person or property of another.…” The Court found no “contrary Congres- invalidation of the class action waiver at issue Under these circumstances, such waivers sional command” that would require it to would result in class arbitration since the are unconscionable under California depart from the normal rules and invalidate decision in Concepcion has rejected the con- law and should not be enforced.22 the class action waiver.35 Moreover, the Court cept that class arbitration procedures should

36 Los Angeles Lawyer April 2014 be imposed on a party who did not agree to Iskanian v. CLS Transportation L.A., Residential, Inc.,65 holding that Broughton- them.44 Second, although the court agreed LLC,55 reached the opposite conclusion. The Cruz has been abrogated in the wake of that Gentry is grounded in a public policy court disagreed with Brown, holding that Concepcion.66 “Since Broughton-Cruz pro- rationale, and “not on Discover Bank’s un- Concepcion decided the case. The court also hibits outright the arbitration of claims for conscionability rationale,” Gentry may still fall held that the public policy concerns under- public injunctive relief, it is in conflict with within the scope of the Concepcion decision.45 pinning the PAGA, although they may be the FAA.”67 Third, the court found that Iskanian’s bring- valid, did not justify disregarding a binding The court of appeal in Vasquez v. Greene ing a “class action to ‘vindicate statutory arbitration agreement and that the FAA pre- Motors, Inc.,68 followed this logic, holding rights’ is irrelevant in the wake of Concep- empts “any attempt by a court or state legisla- that Concepcion forecloses any argument cion.... The sound policy reasons identified in ture to insulate a particular type of claim”— that claims for injunctive relief under the Gentry for invalidating certain class waivers are insufficient to trump the far-reaching effect of the FAA, as expressed in Concepcion.”46 The court of appeal reached the same result in Truly Nolen of America v. Superior Court,47 a putative wage and hour class action. The court held that Concepcion “implicitly disapproved the reasoning of the Gentry court,” but lower courts should adhere to Gentry until the U.S. Supreme Court rules on the issue.48 The parties in Truly Nolen did not petition for review. In Franco v. Arakelian Enterprises, Inc.,49 The court of appeal arrived at the opposite result. This case concerned another putative wage and hour class action, and the court held that Gentry remained good law since, as required by Concepcion, “it does not establish a categorical rule against class action waivers but, instead, sets forth several factors to be applied on a case-by-case basis to determine whether a class action waiver precludes employees from vindicating their statutory rights.”50 The California Supreme Court granted review and deferred briefing pending its decision in Iskanian. including a claim under PAGA—from arbi- CLRA cannot be ordered into arbitration.69 A third question is whether Concepcion tration.56 The California Supreme Court has The California Supreme Court granted review applies in actions brought under the Private granted review in Iskanian and at least one in Vasquez and deferred briefing pending Attorneys General Act of 2004 (PAGA), other case that addresses this issue.57 Sanchez. which allows employees to recover certain A fourth question is whether claims for An en banc panel of the Ninth Circuit penalties that, prior to 2004, only the Labor public injunctive relief are subject to arbi- appeared ready to address this issue in Kilgore Commissioner could recover.51 This issue tration. The California Supreme Court replied v. Keybank, N.A.,70 but instead ruled on nar- is particularly important because the Cal- in the negative before Concepcion, but since, rower grounds, finding that the plaintiffs did ifornia Supreme Court has held that employ- the Ninth Circuit and at least one California not seek the type of broad injunctive relief that ees may bring PAGA representative actions Court of Appeal have gone in the opposite would implicate Broughton-Cruz.71 Instead, on behalf of themselves and their cowork- direction. the injunctions at issue related only to past ers without meeting the requirements for In Broughton v. Cigna Healthplans,58 the harms and would benefit only the approxi- class certification.52 California Supreme Court held that claims mately 120 putative class members.72 In Brown v. Ralphs Grocery Company,53 for injunctive relief under California’s Con- Subsequently, a three-judge panel of the the plaintiff brought a putative class and sumer Legal Remedies Act (CLRA)59 may Ninth Circuit in Ferguson v. Corinthian PAGA representative action for alleged Labor not be ordered to arbitration because they are Colleges, Inc.,73 held that the FAA preempts Code violations. The court concluded that “beyond the scope of an arbitrator to grant or the Broughton-Cruz rule. However, even this Concepcion does not apply to actions under properly enforce.”60 In Cruz v. PacifiCare decision explicitly raises a number of impor- PAGA, in which the employee filing suit acts Health Systems, Inc.,61 the court extended this tant questions, including: 1) what court rem- as “the proxy or agent of the state’s labor law holding to claims for injunctive relief under edy, if any, the plaintiffs may have if an arbi- enforcement agencies” because even if a PAGA California’s UCL.62 trator determines that they lack the authority claim were subject to arbitration, “it would The court of appeal in Hoover v. American to issue a requested injunction, 2) how fur- not have the attributes of a class action that Income Life Insurance Company,63 followed ther court action for injunctive relief should [Concepcion] said conflicted with arbitra- Cruz in finding that the UCL injunctive relief be handled, 3) how to handle motions to tion, such as class certification, notices, and claims at issue there were not arbitrable, but confirm arbitration awards that include in- opt-outs.”54 Accordingly, the court declined the court did not discuss Concepcion or its junctive relief, and 4) whether district courts to compel arbitration. The California Supreme impact on the Broughton-Cruz rule.64 may enforce the injunctions.74 Court denied review of Brown, leaving it as The court of appeal reached the opposite A fifth question is whether the National a citable authority. conclusion in Nelsen v. Legacy Partners Labor Relations Act (NLRA)75 prohibits class

Los Angeles Lawyer April 2014 37 and collective action waivers. In In re D.R. in 2013 and heard oral argument on January arbitrate the entire dispute. The court of Horton, Inc.,76 the National Labor Relations 13, 2014. A decision invalidating NLRB recess appeal reversed, holding that the trial court Board (NLRB) held that an employer violates appointments would invalidate D.R. Horton should have stricken the class allegations. Section 8(a)(1) of the NLRA when it requires, and a host of other NLRB decisions. The court reasoned that the trial court could as a condition of employment, that covered A sixth question is whether an arbitration not order the parties to conduct a class arbi- employees sign an agreement that precludes agreement can require employees to waive tration when the arbitration provision was them from filing joint, class, or collective their right to proceed before an administra- limited to disputes between the plaintiff and claims addressing their wages, hours, or other tive body, in one case the Division of Labor defendant and when the plaintiff cited “no working conditions against the employer in Standards Enforcement (DLSE). In 2011, in evidence that despite the language of the any forum, whether arbitral or judicial.77 Sonic-Calabasas A, Inc. v. Moreno,87 the Cal- arbitration provision, the parties agreed to The NLRB reasoned that the ﬁling of a class ifornia Supreme Court answered this question arbitrate disputes of classes of other employ- or collective action constitutes protected in the negative, holding: 1) an employee’s ees, employee groups, or employee members The court went on to hold that the arbitration agreement at issue was unconscionable and unenforceable because it was mandated as a condition of employment and included a shortened statute of limitations and other provisions that unfairly favored the employer.

“concerted activity” under Section 7 of the statutory right to a wage hearing before the of classes identified in the complaint.”94 NLRA78 and that an arbitration agreement DLSE, known as a Berman hearing, “is itself The court in Nelsen v. Legacy Partners prohibiting concerted activity violates Section an unwaivable right that an employee cannot Residential, Inc.,95 noting that Kinecta had 8 of the act.79 be compelled to relinquish as a condition of decided almost an identical issue, reached The Fifth Circuit reversed on appeal with employment,” 2) waiver of an employee’s the same conclusion.96 However, the court the premise that the FAA requires courts to right to seek a hearing is a substantively in Franco v. Arakelian Enterprises, Inc.,97 enforce arbitration agreements according to unconscionable contract term, and 3) the arrived at a different result, holding that their terms, unless one of two exceptions FAA does not preempt the court’s holdings on Gentry remained good law and construing applies: 1) an arbitration agreement may be points one and two. The U.S. Supreme Court Stolt-Nielsen to mean that when a class invalidated on any ground that would inval- disagreed, granting review, vacating the deci- action waiver is unenforceable under Gentry, idate a contract under the FAA’s “saving sion, and remanding for further consideration the plaintiff’s claims must be adjudicated clause,” or 2) application of the FAA may be in light of Concepcion. in court, where the plaintiff may file a puta- precluded by another statute’s contrary con- On remand, the California Supreme Court tive class action. gressional command.80 The NLRB’s inter- reversed its earlier position.88 After Con- Plainly, in a case where Gentry ap- pretation of the NLRA did not fit within the cepcion and a change of personnel on the plies—to invalidate a class action saving clause because—although facially neu- court, it held that although the Berman waiver—the parties have not agreed in tral—its effect would be “to disfavor arbi- statutes89 provide important benefits to em- any fashion to allow class arbitration. tration.”81 The court then held that neither ployees, the FAA as construed by Concepcion Consequently, under Stolt-Nielsen, the the text of the NLRA nor its legislative his- preempts the earlier holding that the waiver remedy under Gentry should be the tory evidences a “congressional command of a Berman hearing is, in and of itself, uncon- denial of the motion or petition to to override the FAA.”82 Finally, the court scionable and contrary to public policy.90 compel arbitration, permitting the case affirmed the NLRB’s holding on the limited Although waiver of Berman hearing proce- to be heard in court, where the plain- basis that the arbitration language at issue vio- dures is not unconscionable per se, “waiver tiff may seek to certify a class.98 lated the NLRA because it would lead of these protections in the context of an With so many cases involving these issues employees to a reasonable belief that they agreement that does not provide an employee on the dockets, it likely will be years before were prohibited from filing unfair labor prac- with an accessible and affordable arbitral the dust settles. The parties have completed tice charges with the board.83 forum for resolving wage disputes may sup- briefing in some of these cases, but not in oth- A number of California appellate courts port a finding of unconscionability.”91 Finally, ers, and even after the courts rule, more ques- also have held that the NLRB erred in its the court remanded to the trial court “to tions undoubtedly will arise. Counsel for decision in D.R. Horton.84 Of these, Nelsen examine the totality of the agreement’s sub- employers and employees will need to follow v. Legacy Partners Residential, Inc., and Truly stantive terms as well as the circumstances of these cases to remain up-to-date on the appli- Nolen of America v. Superior Court stand as its formation to determine whether the over- cation of arbitration law to employment class citable authority, while the California all bargain was unreasonably one-sided” and actions. I Supreme Court has granted review in Iskanian thus unconscionable.92 v. CLS Transportation L.A., LLC, and Reyes A final question is how to proceed if the 1 9 U.S.C. §§1 et seq. v. Liberman Broadcasting, Inc. court finds a valid arbitration agreement that 2 AT&T Mobility LLC v. Concepcion, 131 S. Ct. A more fundamental challenge to D.R. is silent as to class arbitration. In Kinecta 1740, 1748 (2011). 3 Id. Horton has been raised in Noel Canning v. Alternative Financial Solutions, Inc. v. Sup- 4 See CODE CIV. PROC. §§1281-1290. 85 93 NLRB in which the U.S. Court of Appeals erior Court, a wage and hour action, the 5 Keating v. Superior Court, 31 Cal. 3d 584, 601-02 for the D.C. Circuit held that President Barack defendant moved to compel individual arbi- (1982), disapproved on other grounds sub nom. Obama lacked constitutional authority to use tration and to dismiss the class allegations. Southland Corp. v. Keating, 465 U.S. 1, 104 (1984). recess appointments to name members to the The trial court denied the motion to strike 6 9 U.S.C. §2; see also CODE CIV. PROC. §1281. 7 board.86 The Supreme Court granted certiorari class allegations and ordered the parties to Armendariz v Foundation Health Psychcare Servs.,

38 Los Angeles Lawyer April 2014 Inc., 24 Cal. 4th 83 (2000). 8 Id. at 90. 9 Id. at 99-100. BUSINESS 10 Id. at 113. OPPORTUNITY 11 Graham v. Scissor-Tail, Inc., 28 Cal. 3d 807, 825 (1981). 12 Armendariz, 24 Cal. 4th at 103. 13 Id. at 104. Want to purchase 14 Id. at 107. minerals and other 15 Id. at 111. 16 Id. at 113. oil/gas interests. 17 Id. at 114 n.11. 18 Id. at 114-15. Send details to: 19 Id. at 117. P.O. Box 13557 20 Id. at 117-18. Denver, CO 80201 21 Discover Bank v. Superior Court, 36 Cal. 4th 148 (2005). 22 Id. at 162-63 (citing CIV. CODE §1668). 23 Gentry v. Superior Court, 42 Cal. 4th 443 (2007). 24 Id. at 455. 25 Id. at 457. 26 Id. at 459. EMPLOYMENT LAW REFERRALS 27 Id. at 461. 28 Id. at 462. Paying Highest Referral Fees (Per State Bar Rules) 29 Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010). 30 AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1751-52 (2011). Honored to receive regular employment referrals from over 100 of Californiaʼs fi nest attorneys 31 Id. at 1752. 32 Id. 33 American Express Co. v. Italian Colors Rest., 133 S. Stephen Danz 877.789.9707 Ct. 2304 (2013). & Associates 34 Id., slip op. at 1. Main offi ce located in Los Angeles and nearby offi ces in Pasadena, 35 Id., slip op. at 4-5. Orange County, Inland Empire & San Diego 36 Id., slip op. at 4. Stephen Danz, Senior Partner 11661 San Vicente Boulevard, Suite 500, Los Angeles, CA 90049 37 Id., slip op. at 6. 38 Id., slip op. at 7. 39 Sanchez v. Valencia Holding Co., LLC, 201 Cal. App. 4th 74 (2011), rev. granted Mar. 21, 2012 (Case No. S199119). 40 Buzenes v. Nuvell Financial Servs., LLC, No. S200376 (2012), rev. granted May 9, 2012, and briefing deferred pending Sanchez v. Valencia Holding Co.; Mayers v. Volt Mgmt. Corp., 203 Cal. App. 4th 1194 (2012), rev. granted June 13, 2012; Baltazar v. Forever 21, Inc., 212 Cal. App. 4th 221 (2012), rev. granted Mar. 20, 2013; Natalini v. Import Motors, 213 Cal. App. 4th 587 (2013), rev. granted May 1, 2013 and briefing deferred pending Sanchez v. Valencia Holding Co.; Compton v. Superior Court, 214 Cal. App. 4th 873 (2013), rev. granted June 12, 2013 and briefing deferred pending Sanchez v. Valencia Holding Co. 41 Samaniego v. Empire Today LLC, 205 Cal. App. 4th 1138 (2012), rev. denied July 11, 2012. 42 Id., slip op. at 12. 43 Iskanian v. CLS Transp. L.A., LLC, 206 Cal. App. 4th 949 (2012), rev. granted Sept. 19, 2012 (Case No. S204032). 44 Id., slip op. at 8 (citing Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758, 1775 (2010)). 45 Id., slip op. at 9. 46 Id., slip op. at 9-10. 47 Truly Nolen of Am. v. Superior Court, 208 Cal. App. 4th 487 (2012). 48 Id., slip op. at 21-24. 49 Franco v. Arakelian Enters., Inc., 211 Cal. App. 4th 314 (2012), rev. granted Feb. 13, 2013 and briefing deferred pending Iskanian v. CLS Transp. L.A., 206 Cal. App. 4th 949 (2012). 50 Franco, 211 Cal. App. 4th slip op. at 3. 51 LAB. CODE §§2698 et seq. 52 Arias v. Superior Court, 46 Cal. 4th 969 (2009). 53 Brown v. Ralphs Grocery Co., 197 Cal. App. 4th 489 (2011), rev. denied Oct. 19, 2011. 54 Id., slip op. at 13. 55 Iskanian v. CLS Transp. L.A., LLC, 206 Cal. App.

Los Angeles Lawyer April 2014 39 4th 949 (2012), rev. granted Sept. 19, 2012 (Case No. S204032). 56 Id., slip op. at 17. 57 Franco v. Arakelian Enters., Inc., 211 Cal. App. 4th 314 (2012), rev. granted Feb. 13, 2013, and briefing deferred pending Iskanian v. CLS Transp. L.A. REFER CLIENTS WITH 58 Broughton v. Cigna Healthplans, 21 Cal. 4th 1066 (1999). 59 CIV. Code §§1750 et seq. CONFIDENCE! 60 Broughton, 21 Cal. 4th at 1067. 61 Cruz v. PacifiCare Health Sys., Inc., 30 Cal. 4th 303 (2003). 62 BUS. & PROF. CODE §§17200 et seq. 63 Hoover v. American Income Life Ins. Co., 206 Cal. App. 4th 1193 (2012), rev. denied Sept. 12, 2012. 64 Id. at 1209. 65 Nelsen v. Legacy Partners Residential, Inc., 207 Cal. App. 4th 1115 (2012), rev. denied Nov. 2, 2012. 66 Id., slip op. at 20-21. 67 Id., slip op. at 22. 68 Vasquez v. Greene Motors, Inc., 214 Cal. App. 4th 1172 (2013), rev. granted June 27, 2013, and briefing deferred pending Sanchez v. Valencia Holding Co., LLC, 201 Cal. App. 4th 74 (2011). 69 Vasquez, 214 App. 4th at 1199. 70 Kilgore v. Keybank, N.A., ___ F. 3d ___ (9th Cir. 2013). 71 Id., slip op. at 16. 72 Id., slip op. at 17. 73 Ferguson v. Corinthian Colls., Inc., ___ F. 3d ___ (9th Cir. 2013). 74 Id., slip op. at 17. 75 29 U.S.C. §§151 et seq. 76 In re D.R. Horton, Inc., 357 NLRB No. 184 (2012). 77 Id., slip op. at 1. HAVE A PAYING CLIENT OUTSIDE OF 78 Id., slip op. at 3. 79 Id., slip op. at 4. YOUR LEGAL EXPERTISE? 80 D.R. Horton, Inc. v. NLRB, ___ F. 3d ___ (5th Cir. Dec. 3, 2013). 81 Id., slip op. at 20. Refer to the Los Angeles County Bar Association Lawyer Referral Service. 82 Id., slip op. at 22. All LRIS lawyers are vetted for experience, insurance, and good standing. 83 Id., slip op. at 26-28. 84 Iskanian v. CLS Transp. L.A., LLC, 206 Cal. App. 4th 949 (2012), rev. granted Sept. 19, 2012 (Case No. S204032); Nelsen v. Legacy Partners Residential, Inc., 207 Cal. App. 4th 1115 (2012), rev. denied Nov. 2, 2012; Truly Nolen of America v. Super. Ct., 208 Cal. App. 4th 487, 514-15 (2012); Reyes v. Liberman Broad., Inc., 208 Cal. App. 4th 1537, 1559-60 (2012), rev. granted Dec. 12, 2012, and briefing deferred pending Iskanian. Los Angeles County Bar Association 85 Noel Canning v. NLRB, 705 F. 3d 490 (D.C. Cir. 2013). LAWYER REFERRAL & 86 Id. at 514. 87 Sonic-Calabasas A, Inc. v. Moreno, 51 Cal. 4th 659 INFORMATION SERVICE (2011). 88 Sonic-Calabasas A, Inc. v. Moreno, 57 Cal. 4th (213) 243-1525 1109 (2013) . 89 LAB. CODE §§98-98.8. 90 Sonic-Calabasas, 57 Cal. 4th at 1139. 91 Id. at 1146. LACBA LOS ANGELES 92 Id. 93 Kinecta Alternative Fin. Solutions, Inc. v. Superior COUNTY BAR Court, 205 Cal. App. 4th 506 (2012), rev. denied July SmartLaw 11, 2012. ASSOCIATION 94 smartlaw.org Id. at 518-19 (citing Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758, 1776 (2010)). LACBA.org 95 Nelsen v. Leacy Partners Residential, Inc., 207 Cal. App. 4th 1115 (2012), rev. denied Nov. 2, 2012. 96 See also Truly Nolen of Am. v. Superior Court, 208 Cal. App. 4th 487 (2012). 97 Franco v. Arakelian Enters., Inc., 211 Cal. App. 4th 314 (2012), rev. granted Feb. 13, 2013, and brief- State Bar of California and American Bar Association Certified ing deferred pending Iskanian v. CLS Transp. L.A., LLC, 206 Cal. App. 4th 1115 (2012). 98 Franco, 211 Cal. App. 4th at 361.

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We provide experienced expert testimony and tax 18075 Ventura Boulevard, Suite 209, Encino, CA Nationally recognized banking, finance, insurance, and controversy representation. 91316. Cell (818) 389-2062, (818) 344-2700. e-mail: real estate consulting group (established 1973). Experi- CORNERSTONE RESEARCH [email protected]. Web site: www.jurispro.com enced litigation consultants/experts include senior /MartinBalaban. Contact Martin Balaban, PhD, PE. 633 West Fifth Street, 31st Floor, Los Angeles, CA PhD Mechanical Engineering UC Berkeley, MS Mechan- 90071-2005, (213) 553-2500, fax (213) 553-2699. ics, BS Civil Engineering. Licensed Safety Engineer. Web site: www.cornerstone.com. Contact George G. Extensive expert testimony. Engineering, mechanics, Strong, Jr., Richard W. Dalbeck, Katie J. Galley, biomechanics, safety, human factors. Premises liability: KRYCLER Elaine Harwood, Carlyn Irwin, Erin McGlogan, or pedestrian slip/trip, coefficient of friction, stairs, ramps, Ashish Pradhan. For more than 25 years, Corner- handrails, guardrails, sidewalks, building codes, ADA, ERVIN stone Research staff have provided economic and electronic gates, lighting, glass, screens. Industrial/con- TAUBMAN & financial analysis in all phases of commercial litigation struction accidents: machine guarding, forklifts, convey- and regulatory proceedings. We work with a broad ors, hoists, lifts, ladders, scaffolds, power tools, fasten- KAMINSKY network of testifying experts, including prominent fac- ers, construction vehicles, OSHA. Products: fitness ulty and industry practitioners, in a distinctive collabo- equipment, chairs, consumer products. Collisions: ration. The experts with whom we work bring the vehicles (all types), bicycles, pedestrians, component specialized expertise required to meet the demands of failures 72. each assignment. Our areas of specialization include Litigation support intellectual property, antitrust, securities, entertain- WILLIAM KUNZMAN, PE ment, real estate, financial institutions, and general 1111 Town and Country #34, Orange, CA 92868, Expert witness business litigation. (714) 973-8383, fax (714) 973-8821, e-mail: bill@traffic -engineer.com. Web site: www.traffic-engineer.com. Forensic accountants FULCRUM INQUIRY Contact William Kunzman, PE. Traffic expert witness 888 South Figueroa Street, Suite 2000, Los Angeles, since 1979, both defense and plaintiff. Auto, pedestrian, Family law matters CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: bicycle, and motorcycle accidents. Largest plaintiff [email protected]. Web site: www.fulcrum.com. verdicts: 1) $12,200,000 in pedestrian accident case Contact David Nolte. Our professionals are experi- against Caltrans, 2) $10,300,000 in case against Los Business valuations enced CPAs, MBAs, ASAs, CFAs, affiliated professors, Angeles Unified School District. Largest settlement: and industry specialists. Our analysis and research, $2,000,000 solo vehicle accident case against Caltrans. Loss of earnings combined with unique presentation techniques, have Best defense verdict: $0 while defending Caltrans and resulted in an unequaled record of successful court opposition sought $16,000,000. Before becoming Damages cases and client recoveries. Our expertise encompasses expert witness, employed by Los Angeles County Road damages analysis, lost profit studies, business and Department, Riverside County Road Department, city of intangible asset valuations, appraisals, fraud investiga- Irvine, and Federal Highway Administration. Knowledge When you need more than just tions, troubled company consultation, statistics, forensic of governmental agency procedures, design, geomet- economic analysis, royalty audits, strategic and market rics, signs, traffic controls, maintenance, and pedestrian numbers... you can count on us... assessments, computer forensics, electronic discovery, protection barriers. Hundreds of cases. Undergraduate and analysis of computerized data. Degrees/licenses: work—UCLA, graduate work—Yale University. CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, Contact Michael Krycler finance, economics, and related subjects. See display MOMENTUM ENGINEERING CORP PHONE (818) 995-1040 ad on back cover. 3860 Del Amo Boulevard, Suite 402, Torrance, CA AX (818) 995-4124 90503, (310) 406-3657, fax (310) 542-9014, e-mail: ecf F GLENN M. GELMAN & ASSOCIATES CERTIFIED PUBLIC ACCOUNTANTS AND @momentum-eng.com. Web site: www.momentum-eng E-MAIL [email protected] .com. Contact Ed Fatziner. Expert witness services, BUSINESS ADVISERS ISIT US www.ketkcpa.com heavy truck, crash data recorder, airbag control module, V @ 1940 East 17th Street, Santa Ana, CA 92705, vehicle dynamics and testing, animation and graphics, (714) 667-2600, fax (714) 667-2636, e-mail: rsquar forensic engineering, failure analysis, and motorcycle 15303 VENTURA BOULEVARD, SUITE 1040 @gmgcpa.com. Web site: www.gmgcpa.com. Con- dynamics. SHERMAN OAKS, CALIFORNIA 91403 tact Richard M. Squar. Glenn M. Gelman and Asso-

Los Angeles Lawyer April 2014 41 ciates provides superior litigation support services, MICHAEL D. ROSEN, CPA, PHD, ABV GLENN M. GELMAN including expert witness testimony, strategy develop- 3780 Kilroy Airport Way, Suite 200, Long Beach, CA & ASSOCIATES ment, document discovery, deposition assistance, 90806, (562) 256-7052, fax (562) 256-7001, e-mail: CERTIFIED PUBLIC ACCOUNTANTS computation of damages, arbitration consulting, foren- [email protected]. Web site: www.mrosencpa AND BUSINESS ADVISORS sic accounting, investigative auditing, rebuttal testi- .com. Contact Michael D. Rosen. We are litigation mony, fiduciary accountings, and trial exhibit prepara- consultants, forensic accountants, expert witnesses. tion. Our areas of expertise include business Our mission is to tell the financial story that underlies interruption, loss of earnings analysis, breach of con- every business litigation matter and to convey that story tract, partnership dissolution, profits distribution, tax in a clear and concise manner to the trier of fact. Our consequences of settlements, reconstruction of findings allow a realistic assessment of the case and accounting records, embezzlement and fraud, contract support settlement efforts. Our work is designed to ren- costs, lost profits, construction claims, damage com- der conclusive opinions and to withstand cross-exami- putations, and malpractice cases. Our comprehensive nation. We specialize in business damages (lost profits case list is available upon request. Our practice and loss in value), personal damages (lost earnings), and focuses on closely held entrepreneurial firms in the fol- business valuation. lowing industries: construction, real estate development, equipment leasing, auto parts (wholesale and SCHULZE HAYNES LOEVENGUTH & CO. retail), manufacturing, and professional services. Hon- 660 South Figueroa Street, Suite 1280, Los Angeles, ored by Construction Link as the “Best Accounting CA 90017, (213) 627-8280, fax (213) 627-8301, Firm for the construction industry.” Glenn M. Gelman e-mail: [email protected]. Web site: www has been appointed and served as Special Master in .schulzehaynes.com. Contact Karl J. Schulze, presi- litigation support matters and has testified over 30 dent. Specialties: forensic business analysis and times. Our comprehensive case list is available upon accounting, lost profits, economic damages, expert tes- request. See display ad on page 42. timony, discovery assistance, business valuations, corporate recovery, financial analysis, and modeling. Mem- GURSEY | SCHNEIDER LLP ber of major professional organizations, experience 1888 Century Park East, Suite 900, Los Angeles, CA across a broad spectrum of industries and business 90067, (310) 552-0960, fax (310) 557-3468, e-mail: issues. Degrees/licenses: CPA, CVA, CFE, ABV, PhD- [email protected], [email protected], or gk Economics. See display ad on page 51. @gursey.com Web site: www.gursey.com. Contact . SMITH DICKSON, AN ACCOUNTANCY We provide you with the professional Naz Afshar, Keith Dolabson, or Gary Krausz. results you need to support your case Forensic accounting and litigation support services in CORPORATION the areas of marital dissolution, civil litigation, business 18100 Von Karman Avenue, Suite 420, Irvine, CA valuation and appraisal, goodwill, business disputes, 92612, (949) 553-1020, fax (949) 553-0249, e-mail: malpractice, tax matters, bankruptcy, damage and cost- [email protected]. Web site: www profit assessments, insurance claims, court accounting, .smithdickson.com. Contact Deborah Dickson, CPA. tracing, and entertainment industry litigation. See dis- CPA 25+ years, testifying 15+ years, audits, reviews, play ad on page 49. evaluations of companies, financial statement and business profitability analysis, document review, reconstruc- HARGRAVE & HARGRAVE, AN tion of accounting records, asset, note, capital, ACCOUNTANCY CORPORATION expense, cash flow tracing, lost revenues, lost profits, 12121 Wilshire Boulevard, Suite 700, Los Angeles, CA economic damages, business dissolution, business val- 90025, (310) 576-1090, fax (310) 576-1080, e-mail: uations, IRS, FTB, EDD, and SBE tax controversy/nego- [email protected]. Web site: www tiations. Industries include service, professionals, med- .hargraveandhargrave.com. Contact Terry M. Har- ical, manufacturing, distribution, real estate, grave, CPA/ABV/CFF, CFE. Forensic accounting and construction, escrow, and title. business valuation services for family law and civil cases. Past chair of California Society of CPAs’ Family Law THOMAS NECHES & COMPANY LLP Section and business valuation instructor for California 633 West 5th Street, Suite 2800, Los Angeles, CA CPA Education Foundation. Services include business 90071-2039, (213) 624-8150, fax (213) 223-2304, valuations, income available for support, tracing sepa- e-mail: [email protected]. Web site: www rate property, litigation consulting, real estate litigation, .thomasneches.com. Contact Thomas M. Neches, mediation, fraud investigations, damage calculation, and CPA, ABV, CVA, CFE, CFF. Accounting, financial, other forensic accounting work. business valuation, and statistical analyses to assist attorneys in litigation. Expert testimony in state and fed- Air Weather & Sea KRYCLER, ERVIN, TAUBMAN, AND eral courts. Cases: antitrust, breach of contract, fraud, Conditions, Inc. KAMINSKY intellectual property, lost business value, lost profits, 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, wrongful death, and wrongful termination. Industries: CA 91403, (818) 995-1040, fax (818) 995-4124. Web banking, construction, entertainment, insurance, manu- Clear, plain-language and convincing expert site: www.ketkcpa.com. Contact Michael J. Krycler. facturing, retail, securities, and wholesale. Credentials: testimony, reports and analyses to reconstruct Litigation support, including forensic accounting, busi- certified public accountant/accredited in business valua- weather, climate, storm, and atmospheric ness appraisals, family law accounting, business and tion, certified valuation analyst, certified fraud examiner conditions at location and time of interest. professional valuations, damages, fraud investigations, and certified in financial forensics. Education: BA (Math- and lost earnings. Krycler, Ervin, Taubman and Kamin- ematics) UC San Diego, MS (Operations Research) Wind and rain and ice assessments, and sky is a full-service accounting firm serving the legal UCLA. Teaching: adjunct professor, Loyola Law School. indications of their normalcy, unusualness community for more than 20 years. See display ad on See display ad on page 55. and foreseeability. page 41. WHITE, ZUCKERMAN, WARSAVSKY, Authoritative, certified data acquisition, DIANA G. LESGART, CPA, CFE, CVA, CFF, AN LUNA & HUNT preparation of exhibit materials, site visits ACCOUNTANCY CORP. 15490 Ventura Boulevard, Suite 300, Sherman Oaks, and evaluations of reports for legal and 22024 Lassen Street, Suite 106, Chatsworth, CA CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park insurance matters including building projects, 91311, (818) 886-7140, fax (818) 886-7146, e-mail: Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax mold, accidents, wildfires, ice, homeland [email protected]. Contact Diana G. Lesgart, (949) 219-9095, e-mail: [email protected]. Web site: security and alternative energy applications. CPA, CFE, CVA, CFF. Specialized accounting and liti- www.wzwlh.com. Contact Barbara Luna. Expert wit- gation support services in the areas of family law litiga- ness testimony for complex litigation involving damage Excellent client references provided on request. tion, including tracing of separate and community analyses of lost profits, unjust enrichment, reasonable EXTENSIVE COURT EXPERIENCE property assets, pension plan tracing, forensic royalties, lost earnings, lost value of business, forensic accounting, business valuations, goodwill calculation, accounting, fraud investigation, investigative analysis of Jay Rosenthal CCM expert testimony, cash available for support, Moore- liability, and marital dissolution, and tax planning and AMS CERTIFIED CONSULTING METEOROLOGIST Marsden calculations, fraud investigations, real estate preparation. Excellent communicators with extensive NATIONAL WEATHER SERVICE WEATHER SPOTTER analysis, community property balance sheet. Over 25 testimony experience. Prior Big Four accountants. Spe- years of accounting experience with 20 years’ litigation cialties include accounting, breach of contract, breach of Phone 818.645.8632 or 310.454.7549 support specialization. Appointed as Section 730 fiduciary duty, business interruption, business dissolu- Fax 310.454.7569 accounting expert. Ms. Lesgart’s profile can be found tion, construction defects, delays, and cost overruns, E-mail [email protected] at http://www.jurispro.com/DianaLesgartCPA. Expert fraud, insurance bad faith, intellectual property (including www.weatherman.org is English/Spanish bilingual. See display ad on trademark, patent, and copyright nfringement, and trade secrets), malpractice, marital dissolution, personal injury, P. O. Box 512, Pacific Palisades, CA 90272 page 46. product liability, real estate, securities, tax planning and

42 Los Angeles Lawyer April 2014 preparation, IRS audit defense, tracing, unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on page 45. A & E FORENSICS ZIVETZ, SCHWARTZ & SALTSMAN, CPAS 11900 West Olympic Boulevard, Suite 650, Los Ange- Steven B. Norris, AIA, PE, GE, CEG, GBC, CASp les, CA 90064-1046, (310) 826-1040, fax (310) 826- 1065. Web site: www.zsscpa.com. Contact Lester J. 2121 Monel Road San Marcos, CA 92069 (877) 839-7302 Schwartz, CPA/CFF, DABFE, DABFA, Michael D. Saltsman, CPA, MBA, David L. Bass, CPA, David Dichner, CPA, ABV, CVA, Sandy Green, CPA, Dal- ■ ARCHITECTURE ■ CONSTRUCTION ■ ADA jeet Kaur, CPA, Silva Hakobyan, CPA. Accounting experts in forensic accounting, tax issues, business valuations, and appraisals, marital dissolutions, eminent ■ GEOTECHNICAL ■ CIVIL ■ STRUCTURAL domain, insurance losses, business interruption, goodwill, economic analysis, investigative auditing, loss of ENGINEERING ENGINEERING ENGINEERING earning, commercial damages, and lost proﬁts. Expert witness testimony preparation, settlement negotiations, and consultations. See display ad on page 47. www.aeforensics.com

ADA/DISABILITY DISCRIMINATION

HAIGHT CONSULTING 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) 454-2988, fax (310) 454-4516. Contact Marcia Haight, SPHR—CA. Human resources expert knowl- mcgladrey.com edgeable in both federal and California law. Twenty-five years’ corporate human resources management experience plus over 20 years as a Human Resources Compli- Litigation consulting and financial forensics practice focusing on: ance Consultant in California. Specializations include sexual harassment, ADA/disability discrimination, other Business and commercial litigation • Forensic analysis • Fraud investigations • Title VII and FEHA discrimination and harassment, retali- Contract compliance • Royalty inspections ation, FMLA/CFRA, safety, and wrongful termination. Courtroom testimony and deposition experience. Extensive experience in the areas of damages, lost profits, and forensic analysis as they Retained 60 percent by defense, 40 percent by plaintiff. Audit employer’s actions in preventing and resolving dis- relate to contract, post-closing, real estate, and fee disputes. Our experts have experience crimination, harassment, and retaliation issues. Assess testifying at deposition, arbitration, and at trial in state and federal courts. human resources policies and practices for soundness, for comparison to prevailing practices, and for compli- Contact Patrick Chylinski at 213.330.4605 515 South Flower Street ance. Evaluate employer responsiveness to complaints 41st Floor and effectiveness of employer investigations. Assist [email protected] Los Angeles, California 90071 counsel via preliminary case analysis, discovery strategy, examination of documents, and expert testimony. APPRAISAL & VALUATION

BTI APPRAISAL 605 West Olympic Boulevard, Suite 820, Los Angeles, CA 90015, (213) 532-3800, fax (213) 532-3807, e-mail: [email protected]. Web site: www.btiappraisal.com. Contact Ben F. Tunnell III, Chairman. BTI Appraisal has been providing litigation and appraisal services, both nationally and internationally, since 1974 in the areas of real estate, machinery and equipment, and business valuation. Well-written and documented reports reduce litigation costs and speed dispute resolution. Our work has passed the most rigorous scrutiny of the IRS, the SEC, government condemning agencies, and the state and federal courts. The collective experience of our nationally regarded professionals can address projects of all sizes and locations. FULCRUM INQUIRY 888 South Figueroa Street, Suite 2000, Los Angeles, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: [email protected]. Web site: www.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our analysis and research, combined with unique presentation techniques, have resulted in an unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis, lost proﬁt studies, business and intangible asset valuations, appraisals, fraud investigations, troubled company consultation, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and analysis of computerized data. Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, ﬁnance, economics, and related subjects. See display ad on back cover. GURSEY | SCHNEIDER LLP 1888 Century Park East, Suite 900, Los Angeles, CA 90067, (310) 552-0960, fax (310) 557-3468, e-mail: [email protected]. Web site: www.gursey.com. Contact Stephan Wasserman. Gursey| Schneider is

Los Angeles Lawyer April 2014 43 an accounting firm specializing in forensic accounting, AUTOMOTIVE sis and valuations/damages assessment, insurance litigation support services, business valuation, and claims, coverages and bad faith, real estate brokerage, appraisal services for a variety of purposes, including FORENSICS INTERNATIONAL appraisal, escrow, and title insurance. marital dissolution, gift and estate planning, eminent 10298 Hawley Road, El Cajon, CA 92021, (619) 390- domain, goodwill loss, business disputes, malpractice, 9081, cell (619) 823-9081, fax (619) 390-9086, e-mail: BIOMECHANICS/RECONSTRUCTION/HUMAN tax matters, bankruptcy, damage and cost-profit [email protected]. Contact William D. Guentzler, FACTORS assessments, insurance claims, and entertainment PhD. Dr. Guentzler, a Professor Emeritus of the College industry litigation. Gursey| Schneider has over 35 years of Engineering at San Diego State University has over 30 INSTITUTE OF RISK & SAFETY ANALYSES of experience as expert witnesses in litigation support. years’ experience as an expert witness, serving in over KENNETH A. SOLOMON, PHD, PE, POST PHD, See display ad on page 49. 450 cases nationally, involving automobiles, trucks, CHIEF SCIENTIST ATCs, ATVs, motorhomes and motorcycles. He is well 5324 Canoga Avenue, Woodland Hills, CA 91364, (818) HARGRAVE & HARGRAVE, AN known for his expertise in braking systems, engine, and ACCOUNTANCY CORPORATION 348-1133, fax (818) 348-4484, e-mail: kennethsolomon electrical issues as well as fire cause and origin. The @mac.com. Web site: www.irsa.us. Specialized staff, 12121 Wilshire Boulevard, Suite 700, Los Angeles, depth and breadth of his knowledge of all land trans- broad range of consulting and expert testimony, 42 CA 90025, (310) 576-1090, fax (310) 576-1080, portation vehicles is absolutely amazing. years of courtroom experience. Accident reconstruction, e-mail: [email protected]. Web site: biomechanics, human factors, safety, accident preven- www.hargraveandhargrave.com. Contact Terry M. AVIATION tion, adequacy of warnings, computer animation and Hargrave, CPA/ABV/CFF, CFE. Forensic accounting simulations, construction defect, criminal defense, crimi- and business valuation services for family law and civil AEROPACIFIC CONSULTING nal prosecution, premises, product integrity, product lia- cases. Past chair of California Society of CPAs’ Family 195 N. Argyle Court, Reno, NV 89511, (310) 503-4350, bility, product testing, warnings, and lost income calcula- Law Section and business valuation instructor for Cali- fax (815) 550-8766, e-mail: doug.moss@aeropacific.net. tions. Auto, bicycle, bus, chair, elevator, escalator, fornia CPA Education Foundation. Services include Web site: www.aeropacific.net. Contact Doug Moss. forklift, gate, ladder, machinery, motorcycle, press, business valuations, income available for support, trac- Aircraft accident investigation, causal analysis, determi- recreational equipment, rollercoaster, slip/trip and fall, ing separate property, litigation consulting, real estate nation of pilot error, failure analysis, design defect, etc. stairs, swimming pool, and truck. Litigation and claims, litigation, mediation, fraud investigations, damage cal- Qualifications BS and MS in engineering, engineering defense/plaintiff, educational seminars, and mediation culation, and other forensic accounting work. test pilot, airline pilot, aircraft owner, instructor pilot, CF- and arbitration services. II, and ME-I. HIGGINS, MARCUS & LOVETT, INC. BOATING 800 South Figueroa Street, Suite 710, Los Angeles, CA BANKING 90017, (213) 617-7775, fax (213) 617-8372, e-mail: info CAPTAIN TOM CARNEY Contact Mark C. Higgins, ASA. @hmlinc.com. The ADVISORS/EXPERTS @ MCS ASSOCIATES firm has over 30 years of litigation support and expert 980 Orma Drive, San Diego, CA 92106, (619) 417-6766, testimony experience in matters involving business valu- 18881 Von Karman, Suite 1175, Irvine, CA 92612, fax (619) 225-8141, e-mail: [email protected]. Web ation, economic damages, intellectual property, loss of (949) 263-8700, fax (949) 263-0770, e-mail: experts site: www.sandiegoyachtdelivery.com. Contact Tom business goodwill, and lost profits. Areas of practice @mcsassociates.com. Web site: www.mcsassociates Carney. Experienced consultant and expert witness in include business disputes, eminent domain, bankruptcy, .com. Contact Norman Katz, managing partner. the marine industry representing plaintiff or defendant, and corporate and marital dissolution. See display ad Nationally recognized banking, finance, insurance, and testimony for recreational or commercial boats, power on page 51. real estate consulting group (established 1973). Experi- and sail, accident reconstruction, damage analysis, colli- enced litigation consultants/experts include senior sion causes, rules of the road, insurance investigation, KRYCLER, ERVIN, TAUBMAN, AND KAMINSKY bankers, lenders, consultants, economists, accountants, fraud, proper seamanship, navigation, marine propul- 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, insurance underwriters/brokers. Specialties include: sion, mechanical and electrical systems on vessels, CA 91403, (818) 995-1040, fax (818) 995-4124. Web lending customs, practices, policies, in all types of lend- proper boat handling, liability analysis and weather site: www.ketkcpa.com. Contact Michael J. Krycler. ing (real estate, subprime, business/commercial, con- analysis. Degrees/license: BA, Captain, U.S. Merchant Litigation support, including forensic accounting, busi- struction, consumer/credit card), banking operations/ Marine, 5,000 tons—all oceans, any waters. ness appraisals, family law accounting, business and administration, trusts and investments, economic analy- professional valuations, damages, fraud investigations, sis and valuations/damages assessment, insurance BUSINESS and lost earnings. Krycler, Ervin, Taubman and Kamin- claims, coverages and bad faith, real estate brokerage, sky is a full-service accounting firm serving the legal appraisal, escrow, and title insurance. FORENSISGROUP community for more than 20 years. See display ad on EXPERT WITNESS SERVICES SINCE 1991 page 41. BANKRUPTCY 301 North Lake Avenue, Suite 420, Pasadena, CA 91101, (800) 555-5422, (626) 795-5000, fax: (626) 795- WARONZOF ASSOCIATES, INC. FULCRUM INQUIRY 1950, e-mail: [email protected]. Web site: 400 Continental Boulevard, Sixth Floor, El Segundo, CA 888 South Figueroa Street, Suite 2000, Los Angeles, www.forensisgroup.com. Contact Mercy Steenwyk. 90245, (310) 322-7744, fax (424) 285-5380. Web site: CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: 10,000 cases ForensisGroup has provided experts. www.waronzof.com. Contact Timothy R. Lowe, MAI, [email protected]. Web site: www.fulcrum.com. 8,000 clients have retained experts from us. We respond CRE. Waronzof provides real estate and land use litiga- Contact David Nolte. Our professionals are experi- in one hour or less. ForensisGroup is an expert witness tion support services including economic damages, lost enced CPAs, MBAs, ASAs, CFAs, affiliated professors, services and consulting company providing experts, profits, financial feasibility, lease dispute, property value, and industry specialists. Our analysis and research, expert witnesses, and consultants to law firms, insur- enterprise value, partnership interest and closely-held combined with unique presentation techniques, have ance companies, and other public and private firms in share value, fair compensation, lender liability, and reor- resulted in an unequaled record of successful court thousands of disciplines: construction, engineering, busi- ganization plan feasibility. Professional staff of five with cases and client recoveries. Our expertise encompasses ness, accounting, intellectual property, computers, IT, advanced degrees and training in real estate, finance, damages analysis, lost profit studies, business and medical, real estate, insurance, product liability, urban planning, and accounting. See display ad on intangible asset valuations, appraisals, fraud investiga- premises liability, safety, and others, including experts in page 46. tions, troubled company consultation, statistics, forensic complex and hard-to-find disciplines. Let us give you the economic analysis, royalty audits, strategic and market technical advantage and competitive edge in your cases. ARCHITECTURE assessments, computer forensics, electronic discovery, Referrals, customized searches, and initial phone con- and analysis of computerized data. Degrees/licenses: sultations are free. See display ad on page 47. A & E FORENSICS CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, 2121 Montiel Road, San Marcos, CA 92069, (877) 839- finance, economics, and related subjects. See display ROBERT C. ROSEN 7302, fax (760) 480-7477, e-mail: steve@aeforensics ad on back cover. Citigroup Center, 444 South Flower Street, 30th Floor, .com. Web site: www.aeforensics.com. Contact Steve Los Angeles, CA 90071, (213) 362-1000, fax (213) 362- Norris, AIA, PE, GE, HG, CEG, CASp, LEED. Archi- BANKRUPTCY/TAX 1001, e-mail: [email protected]. Web site: tect, engineer, contractor—standard of care expert. www.rosen-law.com. Specializing in securities law, fed- Retained over 200 times, deposed over 100 times, and ADVISORS/EXPERTS @ MCS ASSOCIATES eral securities law enforcement, securities arbitration, testified in trial over 20 times. Waterproofing, water intru- 18881 Von Karman, Suite 1175, Irvine, CA 92612, and international securities, insider trading, NYSE, sion, building envelope, zoning setbacks, concrete per- (949) 263-8700, fax (949) 263-0770, e-mail: experts AMEX, FINRA, DOC disciplinary proceedings, broker- formance, path of travel, structural analysis, earthquake- @mcsassociates.com. Web site: www.mcsassociates dealer, investment company and investment adviser fire damage, and plan analysis. Landslides, retaining wall .com. Contact Norman Katz, managing partner. matters, liability under federal and state securities laws, failure, settlement, flooding, grading, septic, expansive Nationally recognized banking, finance, insurance, and public and private offerings, Internet securities, and law soils, mud flows, pavement distress, ground water eval- real estate consulting group (established 1973). Experi- firm liability. AV rated. Former chair, LACBA Business uation, and slope analysis. Cost estimates, construction enced litigation consultants/experts include senior and Corporations Law Section. LLM, Harvard Law management, delay analysis, and contracts. Serving all bankers, lenders, consultants, economists, accountants, School. Forty years practicing securities law, 12 years California, Hawaii, and Oklahoma. See display ad on insurance underwriters/brokers. Specialties include: with the U.S. Securities and Exchange Commission, page 43. lending customs, practices, policies, in all types of lend- Washington, DC. Published author/editor of securities ing (real estate, subprime, business/commercial, con- regulations, including multivolume treatises. See display struction, consumer/credit card), banking operations/ ad on page 65. administration, trusts and investments, economic analy-

44 Los Angeles Lawyer April 2014

BUSINESS APPRAISAL/VALUATION

DIANA G. LESGART, CPA, CFE, CVA, CFF ADVISORS/EXPERTS @ MCS ASSOCIATES An Accountancy Corporation 18881 Von Karman, Suite 1175, Irvine, CA 92612, — — (949) 263-8700, fax (949) 263-0770, e-mail: experts @mcsassociates.com. Web site: www.mcsassociates .com. Contact Norman Katz, managing partner. LITIGATION CONSULTING Nationally recognized banking, finance, insurance, and Certified Certified Certified Certified in real estate consulting group (established 1973). Experi- enced litigation consultants/experts include senior Public Fraud Valuation Financial bankers, lenders, consultants, economists, accoun- Accountant Examiner Analyst Forensics tants, insurance underwriters/brokers. Specialties include: lending customs, practices, policies, in all types of lending (real estate, subprime, business/commercial, TEL 818.886.7140 • FAX 818.886.7146 • E-MAIL [email protected] construction, consumer/credit card), banking opera- 22024 LASSEN STREET, SUITE 106, CHATSWORTH, CA 91311 tions/administration, trusts and investments, economic analysis and valuations/damages assessment, insur- www.jurispro.com/DianaLesgartCPA ance claims, coverages and bad faith, real estate brokerage, appraisal, escrow, and title insurance. BRIAN LEWIS & COMPANY 10900 Wilshire Boulevard, Suite 610, Los Angeles, CA REAL ESTATE DISPUTE CONSULTING 90024, (310) 475-5676, fax (310) 475-5268, e-mail: [email protected]. Contact Brian Lewis, CPA, CVA. Forensic accounting, business valuations, cash spendable reports, estate, trust, and income tax WARONZOF ASSOCIATES services. Timothy R. Lowe, MAI, CRE, FRICS CBIZ & MAYER HOFFMAN MCCANN PC 10474 Santa Monica Boulevard, Suite 200, Los Ange- les, CA 90025, (310) 268-2000, fax (310) 268-2001, •economic damages •lease disputes e-mail: [email protected]. Contact Coral Hansen. •fair compensation •land use disputes Web site: www.MHM-PC.com, www.CBIZ.com. CBIZ & Mayer Hoffman McCann PC specializes in fraud investi- •property valuation •partnership interest value gations, forensic accounting, business litigation, com- •lost profits •reorganization plan feasibility mercial damage and lost profits computations, business valuation and appraisal, transactional due diligence, family limited partnerships, business interruption, and Waronzof Associates, Incorporated 310.322.7744 T 424.285.5380 F family law. We provide experienced expert testimony 400 Continental Boulevard, Sixth Floor [email protected] and tax controversy representation. El Segundo, CA 90245 www.waronzof.com CMM, LLP 5700 Canoga Avenue, Suite 300, Woodland Hills, CA 91367, (818) 986-5070, fax (818) 986-5034, e-mail: CHOOSEABETTER MORE SUCCESSFUL [email protected]. Web site: www.cmmcpas & .com. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, EXPERT WITNESS and expert testimony regarding forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, and reorganization. Degrees/licenses: CPAs, CFEs, MBAs. See display ad on page 43. CORNERSTONE RESEARCH 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071-2005, (213) 553-2500, fax (213) 553-2699. Web site: www.cornerstone.com. Contact George G. Strong, Jr., Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, Carlyn Irwin, Erin McGlogan, or Ashish Pradhan. For more than 25 years, Cornerstone Research staff have provided economic and financial analysis in all phases of commercial litigation and regulatory proceedings. We work with a broad network of testifying experts, including prominent faculty and industry practitioners, in a distinctive collaboration. The experts with whom we work bring the specialized expertise required to meet the demands of each assignment. Our Expert Witness Directory–call today for your free copy areas of specialization include intellectual property, antitrust, securities, entertainment, real estate, financial National association of professional consultants providing institutions, and general business litigation. forensic services with chapters across the u.s. FULCRUM INQUIRY Annual expert witness conference. 888 South Figueroa Street, Suite 2000, Los Angeles, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: Approved ca MCLE provider for attorneys and law firms [email protected]. Web site: www.fulcrum.com. Contact David Nolte. Our professionals are experi- Visit www.forensic.org for immediate access to hundreds enced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our analysis and research, of qualified forensic experts in diverse disciplines combined with unique presentation techniques, have resulted in an unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis, lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, troubled company consultation, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic 415.369.9614 PHONE | 415.764.4933 FAX | WWW.FORENSIC.ORG | [email protected] discovery, and analysis of computerized data. Degrees/ licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in

46 Los Angeles Lawyer April 2014 accounting, finance, economics, and related subjects. See display ad on back cover. GURSEY | SCHNEIDER LLP 1888 Century Park East, Suite 900, Los Angeles, CA 90067, (310) 552-0960, fax (310) 557-3468, Web site: www.gursey.com. Contact Stephan Wasserman. Gursey| Schneider is an accounting firm specializing in forensic accounting, litigation support services, business valuation, and appraisal services for a variety of purposes, including marital dissolution, gift and estate planning, eminent domain, goodwill loss, business disputes, malpractice, tax matters, bankruptcy, damage and cost- profit assessments, insurance claims, and entertainment industry litigation. Gursey| Schneiderhas over 35 years of experience as expert witnesses in litigation support. See display ad on page 49. HAYNIE & COMPANY, CPAS 4910 Campus Drive, Newport Beach, CA 92660-2119, (949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson @hayniecpa.com. Web site: www.hayniecpa.com. Con- tact Steven C. Gabrielson. Consulting and expert witness testimony in a variety of practice areas: commercial damages, ownership disputes, economic analysis, business valuation, lost profits analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination, and professional liability. HIGGINS, MARCUS & LOVETT, INC. CARPE DATUMTM……SEIZE THE DATA 800 South Figueroa Street, Suite 710, Los Angeles, CA 90017, (213) 617-7775, fax (213) 617-8372, e-mail: COMPUTER FORENSICS E-DISCOVERY [email protected]. Contact Mark C. Higgins, ASA. The firm has over 30 years of litigation support and • Recover Critical Data • De-Duplication expert testimony experience in matters involving busi- • E-Mail Recovery • Redaction ness valuation, economic damages, intellectual property, • Dates on All Files • Bates Stamped Data loss of business goodwill, and lost profits. Areas of prac- • Cell Phone Forensics • Electronic (ESI) Production tice include business disputes, eminent domain, bankruptcy, and corporate and marital dissolution. See display ad on page 51. 951.780.7892 | DataChasers.com RGL FORENSICS Los Angeles Office: 800 South Figueroa Street, Suite 980, Los Angeles, CA 90017, (213) 996-0900. Contact Alan Lurie, [email protected], Rich Holstrom, [email protected]. Orange County Office: 625 City Drive South, Suite 290, Orange, CA 92868, (714) 740- 2100. Contact Hank Kahrs, [email protected]. San Zivetz, Schwartz & Saltsman CPA’s Diego Office: 11440 W Bernardo Court Suite 300, San Diego, CA 92127, (619) 236-0377, Contact Rich With more than thirty years of experience as expert witnesses Holstrom, [email protected]. RGL Forensics is an international firm of forensic financial experts exclusively in testimony, pre-trial preparation, settlement negotiations, dedicated to damage analysis, fraud investigation, and consultations and court appointed special master. valuation. Serving the legal, insurance, and business communities for more than 30 years, the firm is unique in its ability to combine investigative accounting, business valuation, fraud, and forensic technology expertise. For attorneys, we discover and define financial value in Some of our specialties consist of: transactions and civil and criminal disputes, and when necessary provide expert witness testimony in court • Forensic Accounting • Marital Dissolutions and arbitration proceedings. For more information about RGL and its 23 offices worldwide, please visit www.rgl.com. • Business Valuation and Appraisal • Lost Profits SCHULZE HAYNES LOEVENGUTH & CO. • Economic Damages • Accounting Malpractice 660 South Figueroa Street, Suite 1280, Los Angeles, CA 90017, (213) 627-8280, fax (213) 627-8301, • Employee Benefit Plans • Entertainment Entities e-mail: [email protected]. Web site: www .schulzehaynes.com. Contact Karl J. Schulze, president. Specialties: forensic business analysis and • Financial and Economic Analysis • Shareholder Disputes accounting, lost profits, economic damages, expert testimony, discovery assistance, business valuations, • Wrongful Termination corporate recovery, financial analysis, and modeling. Member of major professional organizations, experience across a broad spectrum of industries and business issues. Degrees/licenses: CPA, CVA, CFE, ABV, PhD- Tel: (310) 826-1040 Lester J. Schwartz, CPA, CFF, DABFA, DABFE Economics. See display ad on page 51. Fax: (310) 826-1065 Michael D. Saltsman, CPA, MBA THOMAS NECHES & COMPANY LLP E-mail: [email protected] David L. Bass, CPA 633 West 5th Street, Suite 2800, Los Angeles, CA www.zsscpa.com Dave Dichner, CPA, ABV, CVA 90071-2039, (213) 624-8150, fax (213) 223-2304, Sandy Green, CPA e-mail: [email protected]. Web site: www 11900 W. Olympic Blvd. .thomasneches.com. Contact Thomas M. Neches, Suite 650 Daljeet Kaur, CPA CPA, ABV, CVA, CFE, CFF. Accounting, financial, Los Angeles, CA 90064-1046 Silva Hakobyan, CPA business valuation, and statistical analyses to assist attorneys in litigation. Expert testimony in state and federal courts. Cases: antitrust, breach of contract, fraud, intellectual property, lost business value, lost profits,

Los Angeles Lawyer April 2014 47 wrongful death, and wrongful termination. Industries: COMPOSITE & FIBERGLASS MATERIALS UCLA School of Engineering and LMU graduate banking, construction, entertainment, insurance, manu- schools. He provided an invited article, “Software Engi- facturing, retail, securities, and wholesale. Credentials: KARS’ ADVANCED MATERIALS, INC. neering and Litigation,” for the Encyclopedia of Software certified public accountant/accredited in business valua- Testing and Research Labs, 2528 West Woodland Engineering. He is a Certified Forensic Consultant (CFC), tion, certified valuation analyst, certified fraud examiner Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax holds the CDP, is a member of ACM, ACFEI, FEWA, a and certified in financial forensics. Education: BA (Math- (714) 527-7169, e-mail: [email protected]. Web site: life senior member of IEEE Computer Society, NSPE, a ematics) UC San Diego, MS (Operations Research) www.karslab.com. Contact Dr. Ramesh Kar, Dr. Fellow of the National Academy of Forensic Engineers UCLA. Teaching: adjunct professor, Loyola Law School. Naresh Kar, Dr. Nikhil Kar. Southern California’s pre- (an affiliate of NSPE), and a professional engineer in Cali- See display ad on page 55. mier materials/mechanical/metallurgical/structural/foren- fornia. Formal education includes a BSEE from Loyola sics laboratory. Registered professional engineers with University (now LMU) and a master of engineering WHITE, ZUCKERMAN, WARSAVSKY, 30+ years in metallurgical/forensic/structural failure from UCLA. LUNA & HUNT analysis. Experienced with automotive, bicycles, tires, 15490 Ventura Boulevard, Suite 300, Sherman Oaks, fire, paint, plumbing, corrosion, and structural failures. CONSTRUCTION CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park We work on both plaintiff and defendant cases. Com- Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax plete in-house capabilities for tests. Extensive deposition CONSTRUCTION DISPUTE RESOLUTION (949) 219-9095, e-mail: [email protected]. Web site: and courtroom experience (civil and criminal investiga- CONSULTANTS www.wzwlh.com. Contact Barbara Luna. Expert wit- tions). Principals are Fellows of American Society for 312 Emerald Bay, Laguna Beach, CA 92651, (949) ness testimony for complex litigation involving damage Metals and Fellows, American College of Forensic 300-2244, e-mail: [email protected]. Web analyses of lost profits, unjust enrichment, reasonable Examiners. See display ad on page 53. site: www.constructionDRC.com. Contact Hanns U. royalties, lost earnings, lost value of business, forensic Baumann, S.E. Expert construction forensic consulta- accounting, fraud investigation, investigative analysis of COMPUTER FORENSICS tion by licensed civil, structural, geotechnical/soil, engi- liability, and marital dissolution, and tax planning and neering and licensed general contractor with many years preparation. Excellent communicators with extensive DATACHASERS, INC. of professional experience in California. testimony experience. Prior Big Four accountants. Spe- P.O. Box 2861, Riverside, CA 92516-2861, (877) cialties include accounting, breach of contract, breach of DataExam, (877) 328-2392, (951) 780-7892, e-mail: FORENSISGROUP EXPERT WITNESS fiduciary duty, business interruption, business dissolu- [email protected]. Web site: www.DataChasers SERVICES SINCE 1991 tion, construction defects, delays, and cost overruns, .com. E-Discovery: Full e-discovery services; you give us 301 North Lake Avenue, Suite 420, Pasadena, CA fraud, insurance bad faith, intellectual property (including the mountain, we give you the mole hill: Tiff production, 91101, (800) 555-5422, (626) 795-5000, fax: (626) 795- trademark, patent, and copyright infringement, and trade de-duplication, redaction, Bates-stamped data, and 1950, e-mail: [email protected]. Web site: secrets), malpractice, marital dissolution, personal injury, electronically stored information (ESI) production. Com- www.forensisgroup.com. Contact Mercy Steenwyk. product liability, real estate, securities, tax planning and puter forensic: full forensic computer lab. Recovering 10,000 cases ForensisGroup has provided experts. preparation, IRS audit defense, tracing, unfair advertis- deleted text files (documents), graphics (pictures), date 8,000 clients have retained experts from us. We respond ing, unfair competition, valuation of businesses, and codes on all files, e-mail, and tracing Internet activity. in one hour or less. ForensisGroup is an expert witness wrongful termination. See display ad on page 45. Intellectual property cases, family law, employment law, services and consulting company providing experts, expert witnesses, and consultants to law firms, insur- ZIVETZ, SCHWARTZ & SALTSMAN, CPAS probate resolution, asset verification, criminal law (prosecution or defense), etc. Litigation support, trial prepara- ance companies, and other public and private firms in 11900 West Olympic Boulevard, Suite 650, Los Ange- tion, experienced expert witnesses, and professional thousands of disciplines: construction, engineering, busi- les, CA 90064-1046, (310) 826-1040, fax (310) 826- courtroom displays. See display ad on page 47. ness, accounting, intellectual property, computers, IT, 1065. Web site: www.zsscpa.com. Contact Lester J. medical, real estate, insurance, product liability, Schwartz, CPA/CFF, DABFE, DABFA, Michael D. FULCRUM INQUIRY premises liability, safety, and others, including experts in Saltsman, CPA, MBA, David L. Bass, CPA, David 888 South Figueroa Street, Suite 2000, Los Angeles, CA complex and hard-to-find disciplines. Let us give you the Dichner, CPA, ABV, CVA, Sandy Green, CPA, Dal- 90017, (213) 787-4100, fax (213) 891-1300, e-mail: technical advantage and competitive edge in your cases. jeet Kaur, CPA, Silva Hakobyan, CPA. Accounting [email protected]. Web site: www.fulcrum.com. Referrals, customized searches, and initial phone con- experts in forensic accounting, tax issues, business valu- Contact David Nolte. Our professionals are experi- sultations are free. See display ad on page 47. ations, and appraisals, marital dissolutions, eminent enced CPAs, MBAs, ASAs, CFAs, affiliated professors, domain, insurance losses, business interruption, good- and industry specialists. Our analysis and research, GLENN M. GELMAN & ASSOCIATES CERTIFIED will, economic analysis, investigative auditing, loss of combined with unique presentation techniques, have PUBLIC ACCOUNTANTS AND BUSINESS earning, commercial damages, and lost profits. Expert resulted in an unequaled record of successful court ADVISERS witness testimony preparation, settlement negotiations, cases and client recoveries. Our expertise encompasses 1940 East 17th Street, Santa Ana, CA 92705, (714) and consultations. See display ad on page 47. damages analysis, lost profit studies, business and 667-2600, fax (714) 667-2636, e-mail: rsquar@gmgcpa intangible asset valuations, appraisals, fraud investiga- .com. Web site: www.gmgcpa.com. Contact Richard CHEMISTRY tions, troubled company consultation, statistics, forensic M. Squar. Exclusive LA and Orange County representa- economic analysis, royalty audits, strategic and market tive for CICPAC (Construction Industry CPA/Consultants CHEMICAL ACCIDENT RECONSTRUCTION assessments, computer forensics, electronic discovery, Association) This is a nationwide network of CPA firms SERVICES, INC. and analysis of computerized data. Degrees/licenses: specifically selected for their experience in and commit- 9121 East Tanque Verde Road, Suite 105, Tucson, AZ CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, ment to serving the construction industry. We are one of 85749, (800) 645-3369, e-mail: [email protected]. finance, economics, and related subjects. See display only six firms in all of California that are members of this Web site: www.chemaxx.com. Contact Dr. Michael ad on back cover. prestigious organization. We provide these litigation sup- Fox. Comprehensive chemical accident investigation— port services: expert witness testimony, strategy devel- specializing in complex industrial chemical accidents and SETEC INVESTIGATIONS opment, document discovery, deposition assistance, chemical related consumer product injuries, chemical 8391 Beverly Boulevard, Suite 167, Los Angeles, computation of damages, arbitration consulting, forensic fires and explosions, chemical labeling, chemical pack- CA 90036, (800) 748-5440, fax (323) 939-5481, e-mail: accounting, investigative auditing, rebuttal testimony, aging, handling and shipping, burns, warnings, labels, [email protected]. Web site: www fiduciary accountings, and trial exhibit preparation. Our MSDSs, disposal, safety, EPA, OSHA, DOT, propane, .setecinvestigations.com. Contact Todd Stefan. Setec areas of expertise include: business interruption, loss of natural gas, hydrogen, flammable liquids, hazardous Investigations offers unparalleled expertise in computer earnings analysis, breach of contract, partnership disso- chemicals, aerosols (hairspray, spray paint, refrigerants). forensics and enterprise investigations providing person- lution, profits distribution, tax consequences of settle- DOT certified (hazardous materials shipment). Certified alized, case-specific forensic analysis and litigation sup- ments, reconstruction of accounting records, embezzle- fire and explosion investigator, OSHA process hazard port services for law firms and corporations. Setec ment and fraud, contract costs, lost profits, construction analysis team leader. PhD physical chemistry. Extensive Investigations possesses the necessary combination of claims, and damage computations cases. Honored by experience in metallurgy, corrosion, and failure analysis. technical expertise, understanding of the legal system, Construction Link as the “Best Accounting Firm for the and specialized tools and processes enabling the dis- construction industry.” Glenn M. Gelman has been CIVIL LITIGATION covery, collection, investigation, and production of elec- appointed and served as Special Master in litigation sup- tronic information for investigating and handling com- port matters and has testified over 30 times. Our com- GURSEY | SCHNEIDER LLP puter-related crimes or misuse. Our expertise includes prehensive case list is available upon request. See 1888 Century Park East, Suite 900, Los Angeles, CA computer forensics, electronic discovery, litigation sup- display ad on page 42. 90067, (310) 552-0960, fax (310) 557-3468, e-mail: port, and expert witness testimony. [email protected]. Web site: www.gursey.com. Contact KGA, INC. Gary Krausz. Gursey| Schneider specializes in forensic COMPUTERS/INFORMATION SCIENCES 1409 Glenneyre Street, Suite A, Laguna Beach, CA accounting and litigation support services in the areas of 92651, (949) 497-6000, fax (949) 494-4893, e-mail: civil litigation, business disputes, bankruptcy, damage COSGROVE COMPUTER SYSTEMS, INC. [email protected]. Web site: www.kgainc.com. and cost-profit insurance claims, court accountings, 7411 Earldom Avenue, Playa del Rey, CA 90293, Contact Kurt Grosz. Construction and environmental fraud investigations, accounting malpractice, intellectual (310) 823-9448, fax (310) 821-4021, e-mail: jcosgrove consultants since 1991. Licensed engineers and con- property, construction, government accounting, and @computer.org. Web site:www.cosgrovecomputer.com. tractors. ICC building, plumbing, mechanical, concrete entertainment litigation. Gursey| Schneider has over 35 Contact John Cosgrove. John Cosgrove, PE, has and accessibility inspectors. Certified professional esti- years of experience as expert witnesses in accounting over 50 years of experience in computer systems and mators.Trial experts, arbitrators, and insurance apprais- related matters. See display ad on page 49. has been a self-employed, consulting software engineer ers/umpires. since 1970. He was a part-time lecturer in the

48 Los Angeles Lawyer April 2014 URS testimony experience. Prior Big Four accountants. Spe- Published and have been written about in print, radio, 915 Wilshire Boulevard, Suite 700, Los Angeles, CA cialties include accounting, breach of contract, breach of and TV over 116 times. Expert on issues including: stan- 90017, (213) 996-2598, fax (213) 996-2521, e-mail: fiduciary duty, business interruption, business dissolu- dard of care, cosmetics, lasers, extractions, nerve dam- [email protected]. Expert witness for entitlement, tion, construction defects, delays, and cost overruns, age, valuation, informed consent, antibiotic coverage, causation damages on design, construction, and geot- fraud, insurance bad faith, intellectual property (including TMJ, orthodontics including Invisalign, sleep apnea, echnical environmental disputes. Experienced in all types trademark, patent, and copyright infringement, and trade treatment planning, occlusion and vertical dimension, of construction projects. See display ad on page 65. secrets), malpractice, marital dissolution, personal injury, electrosurgery, abscess, resorption, implants, crowns, product liability, real estate, securities, tax planning and root canal, veneers, periodontics, and patent infringe- CORPORATE INVESTIGATIONS preparation, IRS audit defense, tracing, unfair advertis- ment. Licensed in 42 states to opine on standard of ing, unfair competition, valuation of businesses, and care, with specific license in California, Nevada, and the FULCRUM INQUIRY wrongful termination. See display ad on page 45. Northeast as well as a Florida Expert Certification. Grad- 888 South Figueroa Street, Suite 2000, Los Angeles, uated NYU 1988; Lieutenant, United States Navy 1989- CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: CREDIT DAMAGES EXPERT 91; private practice Brentwood, CA since 1991; faculty: [email protected]. Web site: www.fulcrum.com. Staff, attending—UCLA. Professor of Dental Medicine: Contact David Nolte. Our professionals are experi- EASY CREDIT RELIEF, INC. Western University, Health Sciences College of Dental enced CPAs, MBAs, ASAs, CFAs, affiliated professors, 2625 Townsgate Road, Suite 330, Westlake Village, CA Medicine. and industry specialists. Our analysis and research, 91361, (805) 267-1118, fax (805) 299-4980, e-mail: combined with unique presentation techniques, have [email protected]. Web site: www.creditdamage- DEVELOPMENT resulted in an unequaled record of successful court sexpert.com. Contact Doug Minor. Credit damages cases and client recoveries. Our expertise encompasses expert witness/consultant with over 25 years of experi- THE SIMMONS GROUP, INC. damages analysis, lost profit studies, business and ence. He has passed the required examination to 5023 Butterfield Court, Culver City, CA 90230, (310) intangible asset valuations, appraisals, fraud investiga- receive from the CDIA a Fair Credit Reporting Act Certifi- 439-4119, fax (310) 300-3020, e-mail: phil.simmons252 tions, troubled company consultation, statistics, forensic cation and can help with credit report evaluation prepar- @gmail.com. Web site: www.simmonsgroupconsulting economic analysis, royalty audits, strategic and market ing credit damages report, including quantitative assess- .com. Contact Philip Simmons, Esq. Decades of assessments, computer forensics, electronic discovery, ment, modern credit scoring types of credit damages, executive land use, development, and real estate law and analysis of computerized data. Degrees/licenses: assessing violations of the Fair Credit Reporting Act expertise provides a unique combination of skills provid- CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, (FCRA), review of residential mortgage loan application ing expert witness issues analysis, case preparation, and finance, economics, and related subjects. See display forms 1003 and 1008. Modern credit scoring, unfair testimony. Over thirty years of experience in corporate ad on back cover. debt collections (FDCPA), evaluate testimony, and devel- mixed-use real estate and development operations, spe- oping questions for deposition and trial. cializing in all aspects of land acquisition, major project WHITE, ZUCKERMAN, WARSAVSKY, entitlement, project design, development, finance, mar- LUNA & HUNT DENTIST keting, and disposition. In-depth legal expertise in com- 15490 Ventura Boulevard, Suite 300, Sherman Oaks, plex negotiations, reviewing and implementing ordi- CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park JAY GROSSMAN DDS nances, drafting agreements, structuring compliance, Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax 11980 San Vicente Boulevard, Suite 507, Brentwood, and directing teams of consultants and outside counsel. (949) 219-9095, e-mail: [email protected]. Web site: CA 90049, (310) 820-0123, e-mail: jaygrossmandds www.wzwlh.com. Contact Barbara Luna. Expert wit- @gmail.com. Web site: www.drjaydds.com. Contact DOCUMENT EXAMINER ness testimony for complex litigation involving damage Jay Grossman. Dental malpractice expert testimony. analyses of lost profits, unjust enrichment, reasonable Have been deposed over 80 times; reviewed over 400 SANDRA L. HOMEWOOD, FORENSIC royalties, lost earnings, lost value of business, forensic cases for both defense and plaintiff including peer DOCUMENT EXAMINER accounting, fraud investigation, investigative analysis of review, accidents, and malpractice. 60% plaintiff / 40% 1132 San Marino Drive, Suite 216, Lake San Marcos, liability, and marital dissolution, and tax planning and defense. Have qualified in Superior Court over 30 times. CA 92078, (760) 931-2529, fax (760) 510-8412, e-mail: preparation. Excellent communicators with extensive

Los Angeles Lawyer April 2014 49 [email protected]. Contact Sandra L. years of financial analysis and expert testimony in all C ontact Patrick Chylinski. McGladrey is the 5th Homewood. Highly skilled and experienced document types of commercial litigation. Extensive experience in a largest accounting and consulting firm in the United examiner and expert witness in many complex and high- broad range of industries for computing economic dam- States. Our litigation consulting and financial forensics profile civil and criminal cases with fully equipped docu- ages, lost profits, valuation and appraisal, fraud, breach practice focuses on assisting counsel and clients in the ment laboratory. Specializing in handwriting and hand- of contract, partnership disputes, and bankruptcy- areas of business and commercial litigation, forensic printing identification, handwriting of the elderly in related matters. Professionals also serve as mediators, analysis, fraud investigations, contract compliance, and financial elder abuse cases and will contests, and exami- arbitrators, special masters, and third-party administra- royalty inspection matters. We have extensive experi- nation of altered medical and corporate records. Trained tors as well as consulting and testifying experts. ence in the areas of damages, lost profits, and forensic in government laboratory including specialized training analysis as they relate to contract, post-closing, real by the FBI and Secret Service. Former government FULCRUM INQUIRY estate, and fee disputes. Our experts have experience experience includes document examiner for the San 888 South Figueroa Street, Suite 2000, Los Angeles, testifying at deposition, arbitration, and at trial in state Diego Police Department crime lab, Arizona State crime CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: and federal courts. Degrees/Licenses: CPAs, MBAs, lab, and San Diego County District Attorney’s office. [email protected]. Web site: www.fulcrum.com. JDs, CFEs, CVAs, ASAs, CFFs. See display ad on Currently in private, criminal, and civil practice. Contact David Nolte. Our professionals are experi- page 43. enced CPAs, MBAs, ASAs, CFAs, affiliated professors, ECONOMIC ANALYSIS and industry specialists. Our analysis and research, MICHAEL D. ROSEN, CPA, PHD, ABV combined with unique presentation techniques, have 3780 Kilroy Airport Way, Suite 200, Long Beach, CA CBIZ & MAYER HOFFMAN MCCANN PC resulted in an unequaled record of successful court 90806, (562) 256-7052, fax (562) 256-7001, e-mail: 10474 Santa Monica Boulevard, Suite 200, Los Angeles, cases and client recoveries. Our expertise encompasses [email protected]. Web site: www.mrosencpa CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: damages analysis, lost profit studies, business and .com. Contact Michael D. Rosen. We are litigation [email protected]. Contact Coral Hansen. Web site: intangible asset valuations, appraisals, fraud investiga- consultants, forensic accountants, expert witnesses. Our www.MHM-PC.com, www.CBIZ.com. CBIZ & Mayer tions, troubled company consultation, statistics, forensic mission is to tell the financial story that underlies every Hoffman McCann PC specializes in fraud investigations, economic analysis, royalty audits, strategic and market business litigation matter and to convey that story in a forensic accounting, business litigation, commercial assessments, computer forensics, electronic discovery, clear and concise manner to the trier of fact. Our find- damage and lost profits computations, business valua- and analysis of computerized data. Degrees/licenses: ings allow a realistic assessment of the case and sup- tion and appraisal, transactional due diligence, family CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, port settlement efforts. Our work is designed to render limited partnerships, business interruption, and family finance, economics, and related subjects. See display conclusive opinions and to withstand cross-examination. law. We provide experienced expert testimony and tax ad on back cover. We specialize in business damages (lost profits and loss controversy representation. in value), personal damages (lost earnings), and busi- GLENN M. GELMAN & ASSOCIATES CERTIFIED ness valuation. PUBLIC ACCOUNTANTS AND BUSINESS ECONOMIC DAMAGES ADVISERS SCHULZE HAYNES LOEVENGUTH & CO. ADVISORS/EXPERTS @ MCS ASSOCIATES 1940 East 17th Street, Santa Ana, CA 92705, (714) 660 South Figueroa Street, Suite 1280, Los Angeles, 667-2600, fax (714) 667-2636, e-mail: rsquar@gmgcpa CA 90017, (213) 627-8280, fax (213) 627-8301, 18881 Von Karman, Suite 1175, Irvine, CA 92612, .com. Web site: www.gmgcpa.com. Contact Richard e-mail: [email protected]. Web site: www (949) 263-8700, fax (949) 263-0770, e-mail: experts M. Squar. Since 1983, our firm has specialized in deliv- .schulzehaynes.com. Contact Karl J. Schulze, presi- @mcsassociates.com. Web site: www.mcsassociates ering forensic accounting and litigation support services dent. Specialties: forensic business analysis and .com. Contact Norman Katz, managing partner. that give our clients an edge. We provide the quality and accounting, lost profits, economic damages, expert tes- Nationally recognized banking, finance, insurance, and depth traditionally associated with Big Four firms with timony, discovery assistance, business valuations, cor- real estate consulting group (established 1973). Experi- the personal attention and fee structure of a local firm. porate recovery, financial analysis, and modeling. Mem- enced litigation consultants/experts include senior We are recognized throughout southern California for the ber of major professional organizations, experience bankers, lenders, consultants, economists, accountants, effectiveness of our work. Areas of expertise include: across a broad spectrum of industries and business insurance underwriters/brokers. Specialties include: business interruption, loss of earnings analysis, breach issues. Degrees/licenses: CPA, CVA, CFE, ABV, PhD- lending customs, practices, policies, in all types of lend- of contract, partnership dissolution, profits distribution, Economics. See display ad on page 51. ing (real estate, subprime, business/commercial, con- tax consequences of settlements, reconstruction of struction, consumer/credit card), banking accounting records, embezzlement and fraud, contract THOMAS NECHES & COMPANY LLP operations/administration, trusts and investments, eco- costs, lost profits, construction claims, and damage 633 West 5th Street, Suite 2800, Los Angeles, CA nomic analysis and valuations/damages assessment, computations cases. Our practice focuses on closely 90071-2039, (213) 624-8150, fax (213) 223-2304, insurance claims, coverages and bad faith, real estate held entrepreneurial firms in the following industries: con- e-mail: [email protected]. Web site: www brokerage, appraisal, escrow, and title insurance. struction, real estate development, equipment leasing, .thomasneches.com. Contact Thomas M. Neches, CBIZ & MAYER HOFFMAN MCCANN PC auto parts (wholesale and retail), manufacturing, and CPA, ABV, CVA, CFE, CFF. Accounting, financial, business valuation, and statistical analyses to assist 10474 Santa Monica Boulevard, Suite 200, Los Angeles, professional services. Glenn M. Gelman has been attorneys in litigation. Expert testimony in state and fed- CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: appointed and served as Special Master in litigation sup- eral courts. Cases: antitrust, breach of contract, fraud, [email protected]. Contact Coral Hansen. Web site: port matters and has testified over 30 times. Our com- intellectual property, lost business value, lost profits, www.MHM-PC.com, www.CBIZ.com. CBIZ & Mayer prehensive case list is available upon request. See dis- wrongful death, and wrongful termination. Industries: Hoffman McCann PC specializes in fraud investigations, play ad on page 42. banking, construction, entertainment, insurance, manu- forensic accounting, business litigation, commercial GURSEY | SCHNEIDER LLP facturing, retail, securities, and wholesale. Credentials: damage and lost profits computations, business valua- 1888 Century Park East, Suite 900, Los Angeles, CA certified public accountant/accredited in business valuation and appraisal, transactional due diligence, family 90067, (310) 552-0960, fax (310) 557-3468, e-mail: tion, certified valuation analyst, certified fraud examiner limited partnerships, business interruption, and family [email protected]. Web site: www.gursey.com. Contact and certified in financial forensics. Education: BA (Math- law. We provide experienced expert testimony and tax Gary Krausz. Gursey| Schneider specializes in forensic ematics) UC San Diego, MS (Operations Research) controversy representation. accounting and litigation support services in the areas of UCLA. Teaching: adjunct professor, Loyola Law School. CORNERSTONE RESEARCH civil litigation, business disputes, bankruptcy, damage See display ad on page 55. and cost-profit insurance claims, court accountings, 633 West Fifth Street, 31st Floor, Los Angeles, CA WARONZOF ASSOCIATES, INC. 90071-2005, (213) 553-2500, fax (213) 553-2699. fraud investigations, accounting malpractice, intellectual 400 Continental Boulevard, Sixth Floor, El Segundo, CA Web site: www.cornerstone.com. Contact George G. property, construction, government accounting, and 90245, (310) 322-7744, fax (424) 285-5380. Web site: Strong, Jr., Richard W. Dalbeck, Katie J. Galley, entertainment litigation. Gursey| Schneider has over 35 www.waronzof.com. Contact Timothy R. Lowe, MAI, Elaine Harwood, Carlyn Irwin, Erin McGlogan, or years of experience as expert witnesses in accounting CRE. Waronzof provides real estate and land use litiga- Ashish Pradhan. For more than 25 years, Cornerstone related matters. See display ad on page 49. tion support services including economic damages, lost Research staff have provided economic and financial HIGGINS, MARCUS & LOVETT, INC. profits, financial feasibility, lease dispute, property value, analysis in all phases of commercial litigation and regula- 800 South Figueroa Street, Suite 710, Los Angeles, CA enterprise value, partnership interest and closely-held tory proceedings. We work with a broad network of tes- 90017, (213) 617-7775, fax (213) 617-8372, e-mail: share value, fair compensation, lender liability, and reor- tifying experts, including prominent faculty and industry [email protected]. Contact Mark C. Higgins, ASA. The ganization plan feasibility. Professional staff of five with practitioners, in a distinctive collaboration. The experts firm has over 30 years of litigation support and expert advanced degrees and training in real estate, finance, with whom we work bring the specialized expertise testimony experience in matters involving business valu- urban planning, and accounting. See display ad on required to meet the demands of each assignment. ation, economic damages, intellectual property, loss of page 46. Our areas of specialization include intellectual property, business goodwill, and lost profits. Areas of practice antitrust, securities, entertainment, real estate, financial include business disputes, eminent domain, bankruptcy, WHITE, ZUCKERMAN, WARSAVSKY, institutions, and general business litigation. and corporate and marital dissolution. See display ad LUNA & HUNT CORPORATE SCIENCES, INC. on page 51. 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park 3215 East Foothill Boulevard, Pasadena, CA 91107, MCGLADREY LLP Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (626) 440-7200, fax: (626) 440-1800, e-mail: jsdantoni 515 South Flower Street, 41st Floor, Los Angeles, (949) 219-9095, e-mail: [email protected]. Web site: @hotmail.com. Web site: www.corporatesciences CA 90071, (213) 330-4605, e-mail: patrick.chylinski www.wzwlh.com. Contact Barbara Luna. Expert wit- .com. Contact Dr. Joseph S. D’Antoni, Managing @mcgladrey.com. Web site: www.mcgladrey.com. ness testimony for complex litigation involving damage Principal. Corporate Sciences, Inc., provides over 40

50 Los Angeles Lawyer April 2014 analyses of lost profits, unjust enrichment, reasonable royalties, lost earnings, lost value of business, forensic accounting, fraud investigation, investigative analysis of liability, and marital dissolution, and tax planning and preparation. Excellent communicators with extensive testimony experience. Prior Big Four accountants. Specialties include accounting, breach of contract, breach of fiduciary duty, business interruption, business dissolution, construction defects, delays, and cost overruns, fraud, insurance bad faith, intellectual property (including trademark, patent, and copyright infringement, and trade secrets), malpractice, marital dissolution, personal injury, product liability, real estate, securities, tax planning and preparation, IRS audit defense, tracing, unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on page 45. ZIVETZ, SCHWARTZ & SALTSMAN, CPAS 11900 West Olympic Boulevard, Suite 650, Los Ange- les, CA 90064-1046, (310) 826-1040, fax (310) 826- 1065. Web site: www.zsscpa.com. Contact Lester J. Schwartz, CPA/CFF, DABFE, DABFA, Michael D. Saltsman, CPA, MBA, David L. Bass, CPA, David Dichner, CPA, ABV, CVA, Sandy Green, CPA, Dal- Schulze Haynes Loevenguth & Co. jeet Kaur, CPA, Silva Hakobyan, CPA. Accounting experts in forensic accounting, tax issues, business val- FORENSIC/LITIGATION EXPERTS uations, and appraisals, marital dissolutions, eminent domain, insurance losses, business interruption, goodwill, economic analysis, investigative auditing, loss of Designations include: earning, commercial damages, and lost profits. Expert • Financial Forensic Analysis witness testimony preparation, settlement negotiations, Certified Public • Expert Testimony Accountant (CPA) and consultations. See display ad on page 47. Certified in Financial • Turnaround and Bankruptcy ECONOMICS Forensics (CFF) • Business Valuation Certified Valuation ADVISORS/EXPERTS @ MCS ASSOCIATES Analyst/Accredited in CONTACT KARL J. SCHULZE 18881 Von Karman, Suite 1175, Irvine, CA 92612, Business Valuation [email protected] • www.schulzehaynes.com (949) 263-8700, fax (949) 263-0770, e-mail: experts (CVA/ABV) @mcsassociates.com. Web site: www.mcsassociates Certified Fraud 213.627.8280 .com. Contact Norman Katz, managing partner. Examiner (CFE) 660 SOUTH FIGUEROA STREET, SUITE 1280, LOS ANGELES, CALIFORNIA 90017 Nationally recognized banking, finance, insurance, and real estate consulting group (established 1973). Expe- rienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties include: lending customs, practices, policies, in all types of lending (real estate, subprime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and valuations/damages assessment, insurance claims, coverages and bad faith, real estate brokerage, appraisal, escrow, and title insurance. CMM, LLP 5700 Canoga Avenue, Suite 300, Woodland Hills, CA 91367, (818) 986-5070, fax (818) 986-5034, e-mail: [email protected]. Web site: www.cmmcpas .com. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, and reorganization. Degrees/licenses: CPAs, CFEs, MBAs. See display ad on page 43. FULCRUM INQUIRY 888 South Figueroa Street, Suite 2000, Los Angeles, Confidence At The Courthouse. CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: [email protected]. Web site: www.fulcrum.com. Contact David Nolte. Our professionals are experi- Business litigation is increasingly complex. That is why we believe valuation enced CPAs, MBAs, ASAs, CFAs, affiliated professors, issues must be addressed with the same meticulous care and industry specialists. Our analysis and research, as legal issues. Analysis must be clear. Opinions must be combined with unique presentation techniques, have defensible. Expert testimony must be thorough and resulted in an unequaled record of successful court cases and client recoveries. Our expertise encom- articulate. HML has extensive trial experience and can passes damages analysis, lost profit studies, business provide legal counsel with a powerful resource for expert and intangible asset valuations, appraisals, fraud testimony and litigation support. investigations, troubled company consultation, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, For More Information Call 213-617-7775 electronic discovery, and analysis of computerized data. Degrees/licenses: CPAs, CFAs, ASAs, PhDs, Or visit us on the web at www.hmlinc.com and MBAs in accounting, finance, economics, and related subjects. See display ad on back cover. BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS

Los Angeles Lawyer April 2014 51 ELDER ABUSE and practices for soundness, for comparison to prevail- CONSTRUCTION DISPUTE RESOLUTION ing practices, and for compliance. Evaluate employer CONSULTANTS HAMPTON HEALTH, LTD JOHN H. responsiveness to complaints and effectiveness of 312 Emerald Bay, Laguna Beach, CA 92651, (949) FULLERTON, MD, MRO, CMD, CFP, FACP, employer investigations. Assist counsel via preliminary 300-2244, e-mail: [email protected]. Web AGSF, FAAHPM case analysis, discovery strategy, examination of docu- site: www.constructionDRC.com. Contact Hanns U. 1700 California Street, Suite 470, San Francisco, CA ments, and expert testimony. Baumann, S.E. Expert construction forensic consulta- 94109, (415) 460-5532, fax (415) 459-2774, e-mail: tion by licensed civil, structural, geotechnical/soil, engi- [email protected]. Web site: hamptonhealthltd EMPLOYMENT/WAGE EARNING CAPACITY neering and licensed general contractor with many years .com. Contact Kate McElroy, PA-C. Services available: of professional experience in California. board certified in internal medicine, geriatrics, hospice, CALIFORNIA CAREER SERVICES palliative medicine, addiction medicine, and home health; 6024 Wilshire Boulevard, Los Angeles, CA 90036, EXPONENT licensed medical review officer. Expertise: Medicare (323) 933-2900, fax (323) 933-9929, e-mail: susan 5401 McConnell Avenue, Los Angeles, CA 90066, (310) fraud cases for the government, toxicology/DUI, elder @californiacareerservices.com. Web site: www. 754-2700, fax (310) 754-2799, e-mail: reza@exponent abuse including criminal defense of lay caregivers californiacareerservices.com. Contact Susan Wise .com. Web site: www.exponent.com. Contact Ali accused of homicide of demented relatives during end- Miller, MA. Career Counselor/Vocational Expert Spe- Reza. Specialties: fires and explosions, metallurgy and of-life phase. Hospital, ambulatory/outpatient, PI, med- cializing in divorce and wrongful termination cases Con- mechanical engineering, structural and geotechnical, ical malpractice, and LTC. Medical/hospice director- duct vocational examinations, labor market research, accident reconstruction and analysis, human factors, ships. Testified over 200 times and reviewed more than and testify on employability and earning capacity issues. risk and reliability assessment, toxicology and human 1,500 cases, including Medicare audits for the govern- health, biomechanics, electrical and semiconductors, ment, in the last 13 years. See display ad on page 59. ENDOCRINOLOGY/INTERNAL MEDICINE aviation, materials science, HVAC, energy consulting, construction defect, and scheduling. ELECTRONIC DISCOVERY JORDAN GELLER, M.D. SCS ENGINEERS 8920 Wilshire Boulevard, Suite 635, Beverly Hills, CA 3900 Kilroy Airport Way, Suite 100, Long Beach, CA SETEC INVESTIGATIONS 90211, fax (310) 300-0189, e-mail: info@jordangeller 90806, (562) 426-9544, fax (562) 427-0805, e-mail: 8391 Beverly Boulevard, Suite 167, Los Angeles, CA .com. Web site: www.jordangeller.com. Contact Dr. [email protected]. Web site: www.scsengineers 90036, (800) 748-5440, fax (323) 939-5481, e-mail: Jordan Geller. Expert testimony in medical and .com. Contact Julio Nuno, VP. SCS provides expert [email protected]. Web site: www endocrinology cases. Independent medical exams, witness services related to environmental studies and .setecinvestigations.com. Contact Todd Stefan. Setec records review, and written opinions. engineering, water resources, solid waste and air quality Investigations offers unparalleled expertise in computer and industrial hygiene and safety services. We are a 43- forensics and enterprise investigations providing person- ENGINEER/TRAFFIC year old consulting firm with 71 offices across the US alized, case-specific forensic analysis and litigation sup- and over 800 employees. Our Long Beach office has port services for law firms and corporations. Setec WILLIAM KUNZMAN, PE more than 30 professional engineers, scientists, and Investigations possesses the necessary combination of 1111 Town and Country #34, Orange, CA 92868, subject matter experts available on short notice to serve technical expertise, understanding of the legal system, (714) 973-8383, fax (714) 973-8821, e-mail: bill asbestos, lead-based paint, and other specialty areas and specialized tools and processes enabling the dis- @traffic-engineer.com. Web site: www.traffic-engineer requiring expert witness services. covery, collection, investigation, and production of elec- .com. Contact William Kunzman, PE. Traffic expert tronic information for investigating and handling com- witness since 1979, both defense and plaintiff. Auto, ENGINEERING/GEOTECHNICAL puter-related crimes or misuse. Our expertise includes pedestrian, bicycle, and motorcycle accidents. Largest computer forensics, electronic discovery, litigation sup- plaintiff verdicts: 1) $12,200,000 in pedestrian accident COTTON, SHIRES AND ASSOCIATES, INC. port, and expert witness testimony. case against Caltrans, 2) $10,300,000 in case against Southern California branch, serving greater So. Cal. Los Angeles Unified School District. Largest settlement: area, (805) 497-7999, fax (805) 497-7933, e-mail: EMBEZZLEMENT AND FRAUD $2,000,000 solo vehicle accident case against Caltrans. [email protected]. Web site: www Best defense verdict: $0 while defending Caltrans and .cottonshires.com. Contact Michael Phipps or GLENN M. GELMAN & ASSOCIATES CERTIFIED opposition sought $16,000,000. Before becoming Patrick O. Shires. Full service geotechnical engineering PUBLIC ACCOUNTANTS AND BUSINESS expert witness, employed by Los Angeles County Road consulting firm specializing in investigation, design, arbi- ADVISERS Department, Riverside County Road Department, city of tration, and expert witness testimony with offices in Los 1940 East 17th Street, Santa Ana, CA 92705, (714) Irvine, and Federal Highway Administration. Knowledge Gatos, Thousand Oaks, and San Andreas, California. 667-2600, fax (714) 667-2636, e-mail: rsquar@gmgcpa of governmental agency procedures, design, geomet- Earth movement (settlement, soil creep, landslides, tun- .com. Web site: www.gmgcpa.com. Contact Richard rics, signs, traffic controls, maintenance, and pedestrian neling and expansive soil), foundation distress (move- M. Squar. Glenn M. Gelman and Associates provides a protection barriers. Hundreds of cases. 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Our litigation ENGINEERING ment and slab distress (cracking and separating), retain- support services include: embezzlement and fraud, expert ing walls (movement, cracking, and failures), pipelines, witness testimony, strategy development, document dis- 4X FORENSIC ENGINEERING flooding and hydrology, design and construction defi- covery, deposition assistance, computation of damages, LABORATORIES, INC. ciencies, aerial photo analysis; expert testimony at 77+ arbitration consulting, forensic accounting, investigative 5262 Oceanus Drive, Huntington Beach, CA 92649, trials (municipal, superior, and federal), 207+ deposi- auditing, rebuttal testimony, fiduciary accountings, and (714) 450-8500, fax (714) 450-8599, e-mail: phil tions, 208+ settlement conferences in California, trial exhibit preparation and reconstruction of accounting @4Xforensic.com. Web Site: www.4Xforensic.com. Nevada, Hawaii, and Michigan. records. Our practice focuses on closely held entrepre- Contact Phil Van Herle. 4X Forensic Engineering Lab- neurial firms in the following industries: construction, real oratories is a full-service forensic engineering laboratory. ENVIRONMENTAL estate development, equipment leasing, auto parts We provide expert witness and analytical and testing (wholesale and retail), manufacturing, and professional services in the following areas: fires and explosions: KGA, INC. services. Glenn M. Gelman has been appointed and electrical and gas product defect investigations, thermal 1409 Glenneyre Street, Suite A, Laguna Beach, CA served as Special Master in litigation support matters and and fire modeling and laboratory testing; water loss: 92651, (949) 497-6000, fax (949) 494-4893, e-mail: has testified over 30 times. Our comprehensive case list is materials, corrosion and failure analysis of plumbing [email protected]. Web site: www.kgainc.com. available upon request. See display ad on page 42. products; failure analysis: metallurgy, product testing, Contact Kurt Grosz. Construction and environmental and computerized stress analysis; accident reconstruc- consultants since 1991. Licensed engineers and contrac- EMPLOYMENT/DISCRIMINATION/ tion: automotive, trucks, construction equipment, and tors. ICC building, plumbing, mechanical, concrete, and premises liability. See display ad on page 51. HARASSMENT/RETALIATION accessibility inspectors. Certified professional estimators. Trial experts, arbitrators, and insurance appraisers. HAIGHT CONSULTING A & E FORENSICS 1726 Palisades Drive, Pacific Palisades, CA 90272, 2121 Montiel Road, San Marcos, CA 92069, (877) 839- THE REYNOLDS GROUP 7302, fax (760) 480-7477, e-mail: steve@aeforensics (310) 454-2988, fax (310) 454-4516. Contact Marcia P.O. Box 1996, Tustin, CA 92781-1996, (714) 730- .com. Web site: www.aeforensics.com. Contact Steve Haight, SPHR—CA. Human resources expert knowl- 5397, fax (714)730-6476, e-mail: edreynolds@reynolds Norris, AIA, PE, GE, HG, CEG, CASp, LEED. Architect, edgeable in both federal and California law. Twenty-five -group.com. Website: www.reynolds-group.com. engineer, contractor—standard of care expert. Retained years’ corporate human resources management expe- Contact Ed Reynolds, principal. An environmental over 200 times, deposed over 100 times, and testified in rience plus over 20 years as a Human Resources consulting, contracting firm. Expertise: environmental con- trial over 20 times. Waterproofing, water intrusion, building Compliance Consultant in California. Specializations tamination, assessment, remediation, reasonable value of envelope, zoning setbacks, concrete performance, path include sexual harassment, ADA/disability discrimina- construction, and related financial matters. 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Assess human resources policies Oklahoma. See display ad on page 43.

52 Los Angeles Lawyer April 2014 SCS ENGINEERS 3900 Kilroy Airport Way, Suite 100, Long Beach, CA 90806, (562) 426-9544, fax (562) 427-0805, e-mail: [email protected]. Web site: www.scsengineers .com. Contact Julio Nuno, VP. SCS provides expert Life Care witness services related to environmental studies and engineering, water resources, solid waste and air quality Planning and industrial hygiene and safety services. We are a 43- year old consulting firm with 71 offices across the US and over 800 employees. Our Long Beach office has • LIFE CARE PLANS Comprehensive (Trial) – Mini (Mediation/ more than 30 professional engineers, scientists, and Settlement Conference) – Critique subject matter experts available on short notice to serve • EXPERT TESTIMONY Trial – Arbitration – Mediation/Settlement asbestos, lead-based paint, and other specialty areas requiring expert witness services. JAN ROUGHAN, RN • VIDEO SERVICE Day in Life – Mediation/Settlement Documentary • MEDICAL RECORDS Review – Chronology ENVIRONMENTAL ENGINEER www.linc.biz • IME Attendance Report/Critique WZI INC. (ENVIRONMENTAL ENGINEERS) 1717 28th Street, Bakersfield, CA 93301, (661) 326- 114 W. COLORADO BLVD., MONROVIA, CA 91016 | 626.303.6333 EXT. 216 OR 217 1112, fax (661) 326-6480, e-mail: mjwilson@wziinc .com. Web site: www.wziinc.com. Contact Mary Jane Wilson. BS, petroleum engineering environmental assessor #00050. Specialties include regulatory compliance, petroleum, and power generation. FORENSIC PATHOLOGY AND TOXICOLOGY ESCROW BURR HARTMAN, DO, PHD | BURR HARTMAN CONSULTING ADVISORS/EXPERTS @ MCS ASSOCIATES Forensic pathologist with PhD in chemistry. Board certified 18881 Von Karman, Suite 1175, Irvine, CA 92612, in anatomic, clinical and forensic pathology. (949) 263-8700, fax (949) 263-0770, e-mail: experts @mcsassociates.com. Web site: www.mcsassociates. Practice provides services for Tulare Regional Medical Center, coroner’s com. Contact Norman Katz, managing partner. pathology for three sheriff-coroner departments, and consultation for Nationally recognized banking, finance, insurance, and Mineral King Toxicology Laboratory. Broad-based scientific background real estate consulting group (established 1973). Experi- and longstanding interest in toxicology. Testified/deposed 100 times in last enced litigation consultants/experts include senior 4 years. Interested in technical and scientific issues encountered and not bankers, lenders, consultants, economists, accountants, usually encountered in clinical practice. insurance underwriters/brokers. Specialties include: lending customs, practices, policies, in all types of lend- Contact Burr Hartman, DO, PhD TEL 559.686.4000 | FAX 559.686.9432 ing (real estate, subprime, business/commercial, con- Burr Hartman Consulting EMAIL [email protected] struction, consumer/credit card), banking operations/ administration, trusts and investments, economic analy- MICROCORRE DX LAB, 890 CHERRY STREET, TULARE, CALIFORNIA 93274 sis and valuations/damages assessment, insurance claims, coverages and bad faith, real estate brokerage, appraisal, escrow, and title insurance. EXPERT REFERRAL SERVICE FORENSIC EXPERT WITNESS ASSOCIATION THE BEST LEGAL MINDS 575 Market Street, Suite 2125, San Francisco, CA 94105, (415) 369-9614, e-mail: [email protected]. Web site: www.forensic.org. Contact FEWA. Expert Witness IN THE COUNTRY Directory—call today for your free annual print copy or visit www.forensic.org to request a copy. Directory pro- TALK TO US vides listing of experts in a wide range of disciplines. Searchable website also available for use by attorneys and the public to find a qualified forensic expert by areas of expertise and by keyword search. See display ad on page 46. • Metallurgical Failures • Bio-Medical/Orthopedic Implants TASA (TECHNICAL ADVISORY SERVICE FOR • Corrosion & Welding Failures ATTORNEYS) EXPERTS IN ALL CATEGORIES • Glass & Ceramic Failures • Plumbing/Piping/ABS Failures Contact Heather Williamson. (800) 523-2319, fax (800) 329-8272, e-mail: [email protected]. Web • Chairs/Ladders / Tires • Complete In-House Laboratory site: www.TASAnet.com. The TASA Group is your Testing & Analysis Facilities timesaving, cost-effective source for a variety of supe- • Automobile /Aerospace rior quality, independent Testifying and Consulting Accident Investigations • Expert Witnesses/Jury Verdicts Experts in all fields and locations. 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We provide experienced expert testimony and tax term on the State Bar Committee on Professional controversy representation. 888 South Figueroa Street, Suite 2000, Los Angeles, Responsibility and Conduct, and has been appointed as CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: an expert consultant by the Los Angeles Superior Court. FIRE/EXPLOSIONS [email protected]. Web site: www.fulcrum.com. FINANCIAL Contact David Nolte. Our professionals are experi- 4X FORENSIC ENGINEERING enced CPAs, MBAs, ASAs, CFAs, affiliated professors, LABORATORIES, INC. ADVISORS/EXPERTS @ MCS ASSOCIATES and industry specialists. Our analysis and research, combined with unique presentation techniques, have 5262 Oceanus Drive, Huntington Beach, CA 92649, 18881 Von Karman, Suite 1175, Irvine, CA 92612, resulted in an unequaled record of successful court (714) 450-8500, fax (714) 450-8599, e-mail: phil (949) 263-8700, fax (949) 263-0770, e-mail: experts cases and client recoveries. 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Degrees/licenses: and fire modeling and laboratory testing; water loss, insurance underwriters/brokers. Specialties include: CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, materials, corrosion and failure analysis of plumbing lending customs, practices, policies, in all types of lend- finance, economics, and related subjects. See display products; failure analysis: metallurgy, product testing, ing (real estate, subprime, business/commercial, con- ad on back cover. and computerized stress analysis; accident reconstruc- struction, consumer/credit card), banking operations/ tion: automotive, trucks, construction equipment, and administration, trusts and investments, economic analy- HAYNIE & COMPANY, CPAS premises liability. 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Contact George G. tigations, taxation, personal injury, wrongful termination, specializing in complex industrial chemical accidents and Strong, Jr., Richard W. Dalbeck, Katie J. Galley, and professional liability. chemical related consumer product injuries, chemical

• Expert testimony • Damages calculation • Forensic accounting • Business valuation • Database analysis Thomas Neches

Certified Public Accountant Thomas Neches & Company LLP Accredited in Business Valuation 633 West 5th Street, Suite 2800 Certified Valuation Analyst Los Angeles, California 90071-2039 Certified Fraud Examiner voice: (213) 624-8150 Certified in Financial Forensics e-mail: [email protected] www.thomasneches.com

Los Angeles Lawyer April 2014 55 fires and explosions, chemical labeling, chemical pack- GLENN M. GELMAN & ASSOCIATES preparation. Excellent communicators with extensive aging, handling and shipping, burns, warnings, labels, CERTIFIED PUBLIC ACCOUNTANTS AND testimony experience. Prior Big Four accountants. Spe- MSDSs, disposal, safety, EPA, OSHA, DOT, propane, BUSINESS ADVISERS cialties include accounting, breach of contract, breach of natural gas, hydrogen, flammable liquids, hazardous 1940 East 17th Street, Santa Ana, CA 92705, (714) fiduciary duty, business interruption, business dissolu- chemicals, aerosols (hairspray, spray paint, refrigerants). 667-2600, fax (714) 667-2636, e-mail: rsquar@gmgcpa tion, construction defects, delays, and cost overruns, DOT certified (hazardous materials shipment). Certified .com. Web site: www.gmgcpa.com. Contact Richard fraud, insurance bad faith, intellectual property (including fire and explosion investigator, OSHA process hazard M. Squar. Since 1983, our firm has specialized in deliv- trademark, patent, and copyright infringement, and trade analysis team leader. PhD physical chemistry. Extensive ering forensic accounting and litigation support services secrets), malpractice, marital dissolution, personal injury, experience in metallurgy, corrosion, and failure analysis. that give our clients an edge. We provide the quality and product liability, real estate, securities, tax planning and depth traditionally associated with Big Four firms with preparation, IRS audit defense, tracing, unfair advertis- THE MCMULLEN COMPANY, INC. the personal attention and fee structure of a local firm. ing, unfair competition, valuation of businesses, and 1260 Lake Boulevard, Suite 226, Davis, CA 95616, Our litigation support services include forensic account- wrongful termination. See display ad on page 45. (888) 747-9857, fax (530) 757-1293, e-mail: tmc ing, investigative auditing, embezzlement and fraud, @themcmullencompany.com. Web site: www expert witness testimony, strategy development, docu- FORENSIC ANALYSIS .themcmullencompany.com. Contact James F. ment discovery, deposition assistance, computation of Mc-Mullen, California State Fire Marshal (retired). damages, arbitration consulting, rebuttal testimony, fidu- BRIAN LEWIS & COMPANY Senior associates available throughout California (includ- ciary accountings, and trial exhibit preparation and 10900 Wilshire Boulevard, Suite 610, Los Angeles, ing Los Angeles County). Fire/building code analysis and reconstruction of accounting records. Our practice CA 90024, (310) 475-5676, fax (310) 475-5268, e-mail: development, construction defects, code compliance focuses on closely held entrepreneurial firms in the fol- [email protected]. Contact Brian Lewis, inspections, fire origin/cause/spread investigation, fire lowing industries: construction, real estate development, CPA, CVA. Forensic accounting, business valuations, services management/operations, fire safety-related equipment leasing, auto parts (wholesale and retail), cash spendable reports, estate, trust, and income tax product analysis/evaluation, and forensic expert. manufacturing, and professional services Glenn M. Gel- services. man has been appointed and served as Special Master FOOD SAFETY/HACCP in litigation support matters and has testified over 30 MCGLADREY LLP times. Our comprehensive case list is available upon 515 South Flower Street, 41st Floor, Los Angeles, CA FOOD SAFETY AND HACCP COMPLIANCE request. See display ad on page 42. 90071, (213) 330-4605, e-mail: patrick.chylinski 20938 De Mina Street, Woodland Hills, CA 91364, (818) @mcgladrey.com. Web site: www.mcgladrey.com. 703-7147, e-mail: [email protected]. Web site: www GURSEY | SCHNEIDER LLP Contact Patrick Chylinsk McGladrey is the 5th .foodsafetycoach.com. Contact Jeff Nelken, BS, MA. 1888 Century Park East, Suite 900, Los Angeles, CA largest accounting and consulting firm in the United Forensic food safety expert knowledgeable in both food 90067, (310) 552-0960, fax (310) 557-3468, e-mail: States. Our litigation consulting and financial forensics safety, accident prevention and hazard analysis critical [email protected]. Web site: www.gursey.com. Contact practice focuses on assisting counsel and clients in the control point program development. Specializes in Gary Krausz. G ursey| Schneider specializes in forensic areas of business and commercial litigation, forensic expert witness testimony and litigation consultant in mat- accounting and litigation support services in the areas of analysis, fraud investigations, contract compliance, and ters regarding food safety, Q.A., standards of perfor- civil litigation, business disputes, bankruptcy, damage royalty inspection matters. We have extensive experi- mance, HACCP, crisis management, food-borne illness, and cost-profit insurance claims, court accountings, ence in the areas of damages, lost profits, and forensic burns, foreign object, accidents, health department rep- fraud investigations, accounting malpractice, intellectual analysis as they relate to contract, post-closing, real resentation, food spoilage, allergy, and customer com- property, construction, government accounting, and estate, and fee disputes. Our experts have experience plaints. Performs inspections, vendor audits, and train- entertainment litigation. Gursey| Schneider has over 35 testifying at deposition, arbitration, and at trial in state ing. Hands-on food safety consultant for restaurants, years of experience as expert witnesses in accounting and federal courts. Degrees/Licenses: CPAs, MBAs, manufacturers, distributors, country clubs, schools, related matters. See display ad on page 49. JDs, CFEs, CVAs, ASAs, CFFs. See display ad on nursing homes, and casinos. NRA SERVSAFE certified page 43. instructor. Thirty years of food and hospitality experi- RGL FORENSICS ence. Registered as a food handler provider with the Los Los Angeles Office: 800 South Figueroa Street, Suite FORENSIC PATHOLOGY AND TOXICOLOGY Angeles County Health Department. Provider # 015. 980, Los Angeles, CA 90017, (213) 996-0900. Forensic food safety expert. Food safety expert for CBS, Contact Alan Lurie, [email protected]. Rich Holstrom BURR HARTMAN, DO, PHD NBC, Inside Edition, and CNN. Epidemiologist consul- [email protected]. Orange County Office: 625 City BURR HARTMAN CONSULTING tant available—UCLA and LA County Health Dept. Free Drive South, Suite 290, Orange, CA 92868, (714) 740- Microcorre Dx Lab, 890 Cherry St, Tulare, CA 93274, Consultation. 2100. Contact Hank Kahrs,[email protected]. San (559) 686 4000, fax (559) 686 9432, e-mail: burr Diego Office: 11440 W Bernardo Court Suite 300, San [email protected]. Contact Burr Hartman, DO, FORENSIC ACCOUNTING Diego, CA 92127, (619) 236-0377, Contact Rich Hol- PhD. Forensic pathologist with PhD in chemistry. Board strom, [email protected]. RGL Forensics is an inter- certified in anatomic, clinical and forensic pathology. CORNERSTONE RESEARCH national firm of forensic financial experts exclusively dedi- Practice provides services for Tulare Regional Med Ctr, 633 West Fifth Street, 31st Floor, Los Angeles, CA cated to damage analysis, fraud investigation, and coroner’s pathology for three sheriff-coroner depart- 90071-2005, (213) 553-2500, fax (213) 553-2699. valuation. Serving the legal, insurance, and business ments and consultation for Mineral King Toxicology Lab- Web site: www.cornerstone.com. Contact George G. communities for more than 30 years, the firm is unique in oratory. Broad-based scientific background and long- Strong, Jr., Richard W. Dalbeck, Katie J. Galley, its ability to combine investigative accounting, business standing interest in toxicology. Testified/deposed 100 Elaine Harwood, Carlyn Irwin, Erin McGlogan, or valuation, fraud, and forensic technology expertise. For times in last 4 yrs. Interested in technical and scientific Ashish Pradhan. For more than 25 years, Cornerstone attorneys, we discover and define financial value in issues encountered and not usually encountered in clini- Research staff have provided economic and financial transactions and civil and criminal disputes, and when cal practice. See display ad on page 53. analysis in all phases of commercial litigation and regula- necessary provide expert witness testimony in court and tory proceedings. We work with a broad network of tes- arbitration proceedings. For more information about FRAUD INVESTIGATIONS tifying experts, including prominent faculty and industry RGL and its 23 offices worldwide, please visit practitioners, in a distinctive collaboration. The experts www.rgl.com. CBIZ & MAYER HOFFMAN MCCANN PC with whom we work bring the specialized expertise PAMELA WAX-SEMUS, CFE 10474 Santa Monica Boulevard, Suite 200, Los Angeles, required to meet the demands of each assignment. Our 107 North Reino Road, #402, Newbury Park, CA 91320, CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: areas of specialization include intellectual property, (805) 499-3035, fax (805) 498-0468, e-mail: tracing [email protected]. Contact Coral Hansen. Web site: antitrust, securities, entertainment, real estate, financial [email protected]. Web site: www.tracingqueen.net. www.MHM-PC.com, www.CBIZ.com. CBIZ & Mayer institutions, and general business litigation. Contact Pamela Wax-Semus, CFE. I am experienced Hoffman McCann PC specializes in fraud investigations, in most areas of litigation support services with a partic- forensic accounting, business litigation, commercial FULCRUM INQUIRY damage and lost profits computations, business valua- 888 South Figueroa Street, Suite 2000, Los Angeles, CA ular emphasis in tracing, property allocation, reimburse- ments, stock options and related allocations issues. I tion and appraisal, transactional due diligence, family 90017, (213) 787-4100, fax (213) 891-1300, e-mail: limited partnerships, business interruption, and family [email protected]. Web site: www.fulcrum.com. have vast experience not only in marital dissolution matters. My expertise expands to trust and probate law. We provide experienced expert testimony and tax Contact David Nolte. Our professionals are experi- controversy representation. enced CPAs, MBAs, ASAs, CFAs, affiliated professors, accountings, fraud, and other litigation-related matters. and industry specialists. Our analysis and research, WHITE, ZUCKERMAN, WARSAVSKY, GEOTECHNICAL ENGINEERING combined with unique presentation techniques, have LUNA & HUNT resulted in an unequaled record of successful court 15490 Ventura Boulevard, Suite 300, Sherman Oaks, A & E FORENSICS cases and client recoveries. Our expertise encompasses CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park 2121 Montiel Road, San Marcos, CA 92069, (877) 839- damages analysis, lost profit studies, business and Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax 7302, fax (760) 480-7477, e-mail: steve@aeforensics intangible asset valuations, appraisals, fraud investiga- (949) 219-9095, e-mail: [email protected]. Web site: .com. Web site: www.aeforensics.com. Steve Norris, tions, troubled company consultation, statistics, forensic www.wzwlh.com. Contact Barbara Luna. Expert wit- AIA, PE, GE, HG, CEG, CASp, LEED. Architect, engi- economic analysis, royalty audits, strategic and market ness testimony for complex litigation involving damage neer, contractor—standard of care expert. Retained assessments, computer forensics, electronic discovery, analyses of lost profits, unjust enrichment, reasonable over 200 times, deposed over 100 times, and testified in and analysis of computerized data. Degrees/licenses: royalties, lost earnings, lost value of business, forensic trial over 20 times. Waterproofing, water intrusion, build- CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, accounting, fraud investigation, investigative analysis of ing envelope, zoning setbacks, concrete performance, finance, economics, and related subjects. See display liability, and marital dissolution, and tax planning and path of travel, structural analysis, earthquake-fire dam- ad on back cover. age, and plan analysis. Landslides, retaining wall failure,

56 Los Angeles Lawyer April 2014 settlement, ﬂooding, grading, septic, expansive soils, mud ﬂows, pavement distress, ground water evaluation, As an Expert Witness, Attorney and slope analysis. Cost estimates, construction management, delay analysis, and contracts. Serving all Cali- fornia, Hawaii, and Oklahoma. See display ad on LAWRENCE H. JACOBSON page 43. has consistently been on the Winning Team CONSTRUCTION DISPUTE RESOLUTION CONSULTANTS • Real estate broker, mortgage broker, title • Lawyer malpractice in ethics, business 312 Emerald Bay, Laguna Beach, CA 92651, (949) 300- insurance and escrow standards of care and real estate transactions 2244, e-mail: [email protected]. Web site: www.constructionDRC.com. Contact Hanns U. • Interpretation of real estate documents Baumann, S.E. Expert construction forensic consultation by licensed civil, structural, geotechnical/soil, engi- Practicing real estate law in California since 1968. Past President, Beverly Hills Bar Association. neering and licensed general contractor with many years Former Vice President-Legal Affairs, California Association of Realtors. California Real Estate Broker since 1978. of professional experience in California. LAWRENCE H. JACOBSON AB, UCLA 1964, JD UCLA SCHOOL OF LAW 1967

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Los Angeles Lawyer April 2014 57 lab, and San Diego County District Attorney’s office. marine, misrepresentation, OCIP, professional liability, FULCRUM INQUIRY Currently in private, criminal, and civil practice. property, rescission, reinsurance, surety, title, workers 888 South Figueroa Street, Suite 2000, Los Angeles, CA compensation and more. Services available: The Insur- 90017, (213) 787-4100, fax (213) 891-1300, e-mail: HOSPICE/PALLIATIVE MEDICINE ance Expert Network, LLC is the premier provider of [email protected]. Web site: www.fulcrum.com. experts for insurance litigation, arbitration, and media- Contact David Nolte. Our professionals are experi- HAMPTON HEALTH, LTD tion. IEN has processed and placed thousands of refer- enced CPAs, MBAs, ASAs, CFAs, affiliated professors, JOHN H. FULLERTON, MD, MRO, CMD, CFP, rals all over the United States. Attorneys who have and industry specialists. Our analysis and research, FACP, AGSF, FAAHPM worked with IEN know that each request for referral is combined with unique presentation techniques, have 1700 California Street, Suite 470, San Francisco, CA meticulously reviewed by the IEN staff of insurance pro- resulted in an unequaled record of successful court 94109, (415) 460-5532, fax (415) 459-2774, e-mail: fessionals. The experts IEN refers are all highly qualified, cases and client recoveries. Our expertise encompasses [email protected]. Web site: hamptonhealthltd selected for their particular insurance expertise. For fur- damages analysis, lost profit studies, business and .com. Contact Kate McElroy, PA-C. 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See display end-of-life phase. Hospital, ambulatory/outpatient, PI, insurance professor, author, and consultant. Over ad on back cover. medical malpractice, and LTC. Medical/hospice director- 30 years of experience as expert witness in state and ships. Testified over 200 times and reviewed more than federal courts. Coauthor of books and articles on under- WHITE, ZUCKERMAN, WARSAVSKY, 1,500 cases, including Medicare audits for the govern- writing, insurance company operations, and punitive LUNA & HUNT ment, in the last 13 years. See display ad on page 59. damages. Consulting, expert witness on underwriting, 15490 Ventura Boulevard, Suite 300, Sherman Oaks, company and agency operations, and bad faith. CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park HUMAN FACTORS Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax CLINTON E. MILLER, JD, BCFE INSURANCE (949) 219-9095, e-mail: [email protected]. Web site: BAD FAITH EXPERT ANALYTICA SYSTEMS INTERNATIONAL, INC. www.wzwlh.com. 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Excellent communicators with extensive an engineering perspective, human cause and effect testimony experience. Prior Big Four accountants. Spe- JANICE A. RAMSAY, ATTORNEY cialties include accounting, breach of contract, breach of relationships for claimed personal injury incidents using 5 Saros, Irvine, CA 92603, (949) 854-9375, (949) 400- human factors, ergonomics, biomechanics, and safety fiduciary duty, business interruption, business dissolu- 5040 (cell), fax (949) 854-0073, e-mail: jramsay@cox tion, construction defects, delays, and cost overruns, principles. Areas of personal injury and product liability .net. Contact Janice A. Ramsay. Experienced in testi- expertise includes accident investigation and analysis fraud, insurance bad faith, intellectual property (including fying in depositions and at bad-faith trials as an expert in trademark, patent, and copyright infringement, and trade regarding driver behavior involving cars, tractor-trailer, the customs and practices of the property insurance motorcycles, ATC-ATV, bicycles; falling objects, slips- secrets), malpractice, marital dissolution, personal injury, industry in evaluating coverage and handling personal product liability, real estate, securities, tax planning and trips-missteps-falls, occupational injuries, low-speed lines and commercial prop insurance claims. Has testi- impacts, illumination, playgrounds, and warnings. preparation, IRS audit defense, tracing, unfair advertis- fied for insurers, insureds, and brokers. Practiced law in ing, unfair competition, valuation of businesses, and property insurance specialty since 1971. Also acts as wrongful termination. See display ad on page 45. INSURANCE Insurance Code Section 2071 appraiser, adviser, and consultant. Chairperson of the OCBA Insurance Law INTERNAL MEDICINE ADVISORS/EXPERTS @ MCS ASSOCIATES Section for 2014. 18881 Von Karman, Suite 1175, Irvine, CA 92612, HAMPTON HEALTH, LTD (949) 263-8700, fax (949) 263-0770, e-mail: experts RICHARD MASTERS INSURANCE JOHN H. FULLERTON, MD, MRO, CMD, CFP, @mcsassociates.com. Web site: www.mcsassociates SERVICES, INC. FACP, AGSF, FAAHPM .com. Contact Norman Katz, managing partner. 35 West Main Street, #B170, Ventura, CA 93001, 1700 California Street, Suite 470, San Francisco, CA Nationally recognized banking, finance, insurance, and (805) 377-2688, fax (805) 830-0432, e-mail: richard 94109, (415) 460-5532, fax (415) 459-2774, e-mail: real estate consulting group (established 1973). Experi- [email protected]. Contact Richard Masters. Forty- [email protected]. Web site: hamptonhealthltd enced litigation consultants/experts include senior seven years of experience. Agent and broker standard of .com. Contact Kate McElroy, PA-C. Services avail- bankers, lenders, consultants, economists, accountants, care. Claims handling, underwriting and claims, specialty able: board certified in internal medicine, geriatrics, hos- insurance underwriters/brokers. Specialties include: lines, custom and practice of industry, certificate and pice, palliative medicine, addiction medicine, and home lending customs, practices, policies, in all types of lend- additional insured issues. ing (real estate, subprime, business/commercial, con- health; licensed medical review officer. Expertise: struction, consumer/credit card), banking operations/ BARRY ZALMA, ZALMA INSURANCE Medicare fraud cases for the government, toxicology/ administration, trusts and investments, economic analy- CONSULTANTS DUI, elder abuse including criminal defense of lay care- sis and valuations/damages assessment, insurance 4441 Sepulveda Boulevard, Culver City, CA 90230, givers accused of homicide of demented relatives during claims, coverages and bad faith, real estate brokerage, (310) 390-4455, fax (310) 391-5614, e-mail: zalma end-of-life phase. Hospital, ambulatory/outpatient, PI, appraisal, escrow, and title insurance. @zalma.com. Web site: www.zalma.com. Blog: medical malpractice, and LTC. Medical/hospice director- http://zalma.com/blog. Contact Barry Zalma. Insur- ships. Testified over 200 times and reviewed more than E.L. EVANS ASSOCIATES ance bad faith, insurance claims handling, insurance 1,500 cases, including Medicare audits for the govern- 3310 Airport Avenue, Suite # 7, Santa Monica, CA coverage, insurance fraud and consulting, internationally ment, in the last 13 years. See display ad on page 59. 90405, (310) 559-4005, fax (310) 559-4236, e-mail: recognized expert, consultants and insurance author, [email protected]. Contact Gene Evans. Good arbitrator and blogger. JUDICIAL ETHICS faith/bad faith. Over 45 years’ experience—claims adjuster. Standards and practices in the industry, litiga- INTELLECTUAL PROPERTY OSBORN MALEDON, P.A. tion support, claims consultation, case review and evalu- 2929 North Central Avenue, Suite 2100, Phoenix, AZ ation, property/casualty claims, construction claims, CORNERSTONE RESEARCH 85012, (602) 640-9324, fax (602) 640-9050, e-mail: uninsured/underinsured motorist claims, general liability, 633 West Fifth Street, 31st Floor, Los Angeles, CA [email protected]. Web site: www.omlaw.com. fire/water/mold claims, damage assessment, profes- 90071-2005, (213) 553-2500, fax (213) 553-2699. Available for expert and consulting engagements involv- sional liability claims, appraisal under policy, arbitration, Web site: www.cornerstone.com. Contact George G. ing the legal profession and judiciary, including: legal duty to defend, advertising claims, coverage applica- Strong, Jr., Richard W. Dalbeck, Katie J. Galley, ethics, judicial ethics and judicial discipline. Retained as tions, and suspected fraud claims. CV available on Elaine Harwood, Carlyn Irwin, Erin McGlogan, or a testifying and/or consulting expert witness in legal or request. See display ad on page 65. Ashish Pradhan.For more than 25 years, Cornerstone judicial ethics matters in more than 170 cases. Deposed or testified in more than 20 matters over the past 12 INSURANCE EXPERT NETWORK, LLC Research staff have provided economic and financial analysis in all phases of commercial litigation and regula- years. 364 West Trenton Avenue, Suite 3, Morrisville, PA tory proceedings. We work with a broad network of tes- 19067, (215) 736-2980, fax (215) 736-2986, e-mail: tifying experts, including prominent faculty and industry LAND USE [email protected]. Web site: practitioners, in a distinctive collaboration. The experts www.insuranceexpertnetwork.com. Contact Douglas with whom we work bring the specialized expertise THE SIMMONS GROUP, INC. R. Emerick. Claims, underwriting, actuary, bad faith, required to meet the demands of each assignment. Our 5023 Butterfield Court, Culver City, CA 90230, (310) captives, casualty, credit, directors and officers, excess areas of specialization include intellectual property, 439-4119, fax (310) 300-3020, e-mail: phil.simmons252 and umbrella, general liability, fidelity, health, industry antitrust, securities, entertainment, real estate, financial @gmail.com. Web site: www.simmonsgroupconsulting standards, inland marine, insurance broker E&O, life, institutions, and general business litigation. .com. Contact Philip Simmons, Esq. Decades of

58 Los Angeles Lawyer April 2014 executive land use, development, and real estate law HAMPTON HEALTH, LTD. expertise provides a unique combination of skills providing expert witness issues analysis, case preparation, and testimony. Over thirty years of experience in corporate - Internal Medicine - Toxicology/DUI as mixed-use real estate and development operations, spe- - Geriatrics MRO cializing in all aspects of land acquisition, major project - Addiction Medicine entitlement, project design, development, finance, mar- - Personal Injury keting, and disposition. In-depth legal expertise in com- - Adult Hospital - Capacity & Estate plex negotiations, reviewing and implementing ordi- Medicine Dispute nances, drafting agreements, structuring compliance, - Long Term Care - Legal Insanity and directing teams of consultants and outside counsel. - Medical Malpractice - Hospice, End-of-Life Care - Elder Abuse LEGAL ETHICS - Wound Care - Medicare Fraud for OSBORN MALEDON, P.A. DOJ, FBI, OIG 2929 North Central Avenue, Suite 2100, Phoenix, AZ 85012, (602) 640-9324, fax (602) 640-9050, e-mail: Testified in over [email protected]. Web site: www.omlaw.com. 200 cases and Available for expert and consulting engagements involv- reviewed more than ing the legal profession and the judiciary, including: legal 1,500 cases including ethics, professional liability (including standard of care Medicare audits for and breach of fiduciary duty), professional licensure, risk the Government. management issues and judicial ethics and judicial discipline. Retained as a testifying and/or consulting expert witness in legal or judicial ethics matters in more than BOARD CERTIFICATIONS: 170 cases. Deposed or testified in more than 20 matters Internal Medicine (ABIM), Geriatrics (ABIM) over the past 12 years. Hospice and Palliative Medicine (ABHPM) Addiction Medicine (ABAM), Licensed as a Medical Review LEGAL MALPRACTICE Officer (MROCC), Certified Forensic Physician (CFP)

LAWRENCE H. JACOBSON, ESQ. CLINICAL FACULTY AT STANFORD, YALE, USC AND UCSF 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA MEDICAL SCHOOLS 90212, (310) 271-0747, fax (310) 271-0757, e-mail: [email protected]. Web site: www.lawrencejacobson HAMPTON HEALTH, LTD. .com. Past President, Beverly Hills Bar Association. Expert witness: lawyer malpractice in business and real JOHN H. FULLERTON, MD, MRO estate transactions, standard of care for real estate bro- CMD, CFP, FACP, AGSF, FAAHPM kers and mortgage brokers, and real estate document 415.460.5532 TEL | 415.459.2774 FAX custom and usage. Practicing real estate and business 1700 CALIFORNIA STREET, SUITE 470, SAN FRANCISCO CA 94109 law in California since 1968. See display ad on page 57. http://hamptonhealthltd.com OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100, Phoenix, AZ 85012, (602) 640-9324, fax (602) 640-9050, e-mail: [email protected]. Web site: www.omlaw.com. Available for expert and consulting engagements involving the legal profession including: legal ethics, professional liability (including standard of care and breach of I fiduciary duty), professional licensure and risk manage- EVALUATION ment issues. Retained as a testifying and/or consulting expert witness in legal or judicial ethics matters in more I than 170 cases. Deposed or testified in more than 20 TESTING matters over the past 12 years. I LAW OFFICES OF CHRISTOPHER ROLIN TREATMENT 5707 Corsa Avenue, Suite 106, Westlake Village, CA 91362, (818) 707-7065, fax (818) 735-9992, e-mail: [email protected]. Web site: www.chrisrolin.com. Contact Christopher Rolin. Christopher Rolin is a Neurology and highly effective trial attorney with over 46 years in civil litigation. He is a certified specialist in legal malpractice. Electromyography His practice focuses as an expert witness on the applicable community standard of care for practicing attorneys in the litigation and business areas. He has been Neurotoxicology retained as an expert by both plaintiffs and defendants in legal malpractice cases. Also testifies on issues of pro- Occupational/ fessional ethics and fee disputes. LITIGATION Environmental

ROBERT C. ROSEN Medicine Citigroup Center, 444 South Flower Street, 30th Floor, Los Angeles, CA 90071, (213) 362-1000, fax (213) 362- 1001, e-mail: [email protected]. Web site: www.rosen-law.com. Specializing in securities law, fed- CA Medical Practice Since 2000 JONATHAN S. RUTCHIK, MD, MPH eral securities law enforcement, securities arbitration, and international securities, insider trading, NYSE, AMEX, FINRA, DOC disciplinary proceedings, broker- dealer, investment company and investment adviser TEL 415.381.3133 | FAX 415.381.3131 | E-MAIL [email protected] matters, liability under federal and state securities laws, public and private offerings, Internet securities, and law www.neoma.com ﬁrm liability. AV rated. Former chair, LACBA Business and Corporations Law Section. LLM, Harvard Law 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941 School. Forty years practicing securities law, 12 years Offices in San Francisco, Richmond, Petaluma, Sacramento and Eureka/Arcata with the U.S. Securities and Exchange Commission, Washington, DC. Published author/editor of securities

Los Angeles Lawyer April 2014 59 regulations, including multivolume treatises. See display HAMPTON HEALTH, LTD and treatment, including electromyography, of individu- ad on page 65. JOHN H. FULLERTON, MD, MRO, CMD, CFP, als and populations with suspected neurological illness FACP, AGSF, FAAHPM secondary to workplace injuries or chemical exposure. LOST PROFITS ANAYLSIS 1700 California Street, Suite 470, San Francisco, CA Services include medical record and utilization review 94109, (415) 460-5532, fax (415) 459-2774, e-mail: and consulting to industrial, legal, government, pharma- MCGLADREY LLP [email protected]. Web site: hamptonhealthltd ceutical, and academic institutions on topics such as 515 South Flower Street, 41st Floor, Los Angeles, .com. Contact Kate McElroy, PA-C. 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Our litigation consulting and financial forensics DUI, elder abuse including criminal defense of lay care- practice focuses on assisting counsel and clients in the givers accused of homicide of demented relatives during MEDICAL/NEUROLOGY/PERSONAL INJURY areas of business and commercial litigation, forensic end-of-life phase. Hospital, ambulatory/outpatient, PI, analysis, fraud investigations, contract compliance, and medical malpractice, and LTC. Medical/hospice director- ANDREW WOO, MD, PHD royalty inspection matters. We have extensive experi- ships. Testified over 200 times and reviewed more than 2021 Santa Monica Boulevard, Suite 525-E, Santa ence in the areas of damages, lost profits, and forensic 1,500 cases, including Medicare audits for the govern- Monica, CA 90404, (310) 829-2126, fax (310) 998- analysis as they relate to contract, post-closing, real ment, in the last 13 years. See display ad on page 59. 8887. Contact Gail. 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Offices in SF, oratories is a full-service forensic engineering laboratory. Richmond, Petaluma, Sacramento, and Eureka/Arcata. Licensed in CA, NY, MA, NM and ID. See display ad We provide expert witness and analytical and testing BIERMAN FORENSIC DERMATOLOGY services in the following areas: fires and explosions: on page 59. electrical and gas product defect investigations, thermal 2080 Century Park East, #1008, Los Angeles, CA and fire modeling and laboratory testing; water loss: 90067, (310) 553-3567, fax (310) 553-4538, e-mail: MEDICAL LEGAL materials, corrosion and failure analysis of plumbing [email protected]. Web site: www.biermanderma- products; failure analysis: metallurgy, product testing, tology.com. Contact Stanley Bierman, MD. Dr. Bier- ROUGHAN & ASSOCIATES AT LINC, INC. and computerized stress analysis; accident reconstruc- man is an expert witness in matters relating to diagnosis 114 West Colorado Boulevard, Monrovia, CA 91016, tion: automotive, trucks, construction equipment, and and treatment of skin cancers, including melanoma. He (626) 303-6333, fax (626) 303-8080, e-mail: janr@linc premises liability. See display ad on page 51 is an acknowledged expert in legal matters relating to .biz. Contact Jan Roughan at ext. 216. Specialties: sexually transmitted diseases. Dr. Bierman is honorary Roughan and Associates at LINC is a case manage- ALLERGY, ASTHMA, RESPIRATORY CARE associate professor of medicine and past president of ment and medical/legal consulting firm. Services/prod- MEDICAL CENTER Los Angeles Dermatologic Society. ucts offered include: 1) Expert Testimony, 2) Life Care 3515 Howard Way, Costa Mesa, CA 92626, (562) 997- Plan (LCP) Construction/LCP Critique, 3) Medical 7888, fax (562) 997-8884, e-mail: [email protected]. MEDICAL/NEUROLOGY Record Organization/Summarization/Analysis, 4) Med- Web site: www.theallergyasthma.com. Contact Rose ical Bill Auditing, 5) Expert Witness Identification, 6) IME Certeza. Medical practice standard of care, mold a JONATHAN S. RUTCHIK, MD, MPH, QME Attendance, 7) Video Services (e.g., Day In Life, Settle- latex allergy, asthma, and allergic rhinitis. 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA ment Brief, IME Evaluation, NDT/PT Evaluation, etc.), 8) 94941, (415) 381-3133, fax (415) 381-3131, e-mail: Questions for: Deposition/Cross Examination ,9) Med- [email protected]. Web site: www.neoma.com. ical/Psychiatric Case Management. See display ad on Jonathan S. Rutchik, MD, MPH is a physician who is page 53. board certified in both Neurology and Occupational and Environmental Medicine. He provides clinical evaluations

60 Los Angeles Lawyer April 2014 MEDICAL MALPRACTICE —EXPERT WITNESS—

HAMPTON HEALTH, LTD REAL ESTATE MATTERS JOHN H. FULLERTON, MD, MRO, CMD, CFP, FACP, AGSF, FAAHPM SPECIALIST IN: 1700 California Street, Suite 470, San Francisco, CA • Broker Duties; Standard of Care 94109, (415) 460-5532, fax (415) 459-2774, e-mail: • Disclosure Issues – Buyer/Seller [email protected]. Web site: hamptonhealthltd • Agency Obligations .com. Contact Kate McElroy, PA-C. Services avail- • Real Estate Malpractice able: board certified in internal medicine, geriatrics, hospice, palliative medicine, addiction medicine, and home • Mortgage Brokerage Law health; licensed medical review officer. Expertise: • Residential & Commercial Transactions Medicare fraud cases for the government, toxicology/ • Escrow Standard of Care DUI, elder abuse including criminal defense of lay care- • Foreclosure Related Issues givers accused of homicide of demented relatives during end-of-life phase. Hospital, ambulatory/outpatient, PI, • Short Sales and Loan Modifications medical malpractice, and LTC. Medical/hospice director- ships. Testified over 200 times and reviewed more than CREDENTIALS: 1,500 cases, including Medicare audits for the govern- SUPERVISING BROKER ment, in the last 13 years. See display ad on page 59. Responsible for overseeing more than 7,500 RE transactions in major California- GRAHAM A. PURCELL, MD, INC. based real estate companies. ASSISTANT CLINICAL PROFESSOR ORTHOPEDIC SURGERY, UCLA GENERAL COUNSEL Legal adviser for two of nation’s largest 3600 Wrightwood Drive, Studio City, CA 91604, (818) real estate companies. 985-3051, fax (818) 985-3049, e-mail: gpurcellmd @gmail.com. Web site: gpurcellmd.com. Contact ADJUNCT PROFESSOR Graham A. Purcell, MD. Dr. Purcell is a board certified Loyola Law School orthopedic surgeon, subspecialty in spinal disorders HOTLINE ATTORNEY affecting adults and children. Examples of spinal disor- Supervising Senior Counsel at California ders treated by Dr. Purcell include disc diseases, steno- Association of Realtors (CAR) sis, infections, tumors, injuries, and deformities including DRE MASTER INSTRUCTOR scoliosis. He possesses 34 years of orthopedic and 26 Author, DRE Disclosure Course. years of med-legal experience, including defense, plaintiff, insurance carriers, United States Attorney General’s office, CA Attorney General’s office and Public Defend- ALAN D. WALLACE, ESQ. er’s office. Expert testimony pertains to med-mal, per- 14011 VENTURA BLVD., STE. 406, SHERMAN OAKS CA 91423 sonal injury, and workers’ compensation cases. As a qualified medical evaluator, Dr. Purcell has extensive TEL 818.501.0133 • FAX 818.905.6091 experience in performing QMEs, AMEs, IMEs, WC evals. www.expertwitnessre.com See display ad on page 57. E-MAIL: [email protected] METALLURGICAL AND CORROSION ENGINEER

4X FORENSIC ENGINEERING BOARD CERTIFIED ORTHOPEDIC SURGEON LABORATORIES, INC. 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) 450-8500, fax (714) 450-8599, e-mail: phil @4Xforensic.com. Web Site: www.4Xforensic.com. MARC J. FRIEDMAN, M.D. Contact Phil Van Herle. 4X Forensic Engineering Lab- 6815 Noble Avenue, Van Nuys, California 91405 oratories is a full-service forensic engineering laboratory. We provide expert witness and analytical and testing Tel. 818.901.6600 ext. 2810 • Fax: 818.901.6685 • Email: [email protected] services in the following areas: fires and explosions: Web Site: www.scoi.com electrical and gas product defect investigations, thermal and fire modeling and laboratory testing; water loss: materials, corrosion and failure analysis of plumbing Education: Princeton University and Cornell Medical School products; failure analysis: metallurgy, product testing, and computerized stress analysis; accident reconstruc- Certificate: Board Certified Orthopedic Surgeon tion: automotive, trucks, construction equipment, and premises liability. See display ad on page 51. Memberships: Fellowship Sports Medicine CHEMICAL ACCIDENT RECONSTRUCTION Fellow American Academy of Orthopedic Surgeons SERVICES, INC. Fellow in the Arthroscopy Association of North America 9121 East Tanque Verde Road, Suite 105, Tucson, AZ Fellow in the International Arthroscopy Association 85749, (800) 645-3369, e-mail: [email protected]. Fellow in the International Knee Society Web site: www.chemaxx.com. Contact Dr. Michael Fellow in the American Orthopedic Society of Sports Medicine Fox. Comprehensive chemical accident investigation— specializing in complex industrial chemical accidents and ACL Study Group chemical related consumer product injuries, chemical Certified QME, IME, AME fires and explosions, chemical labeling, chemical pack- aging, handling and shipping, burns, warnings, labels, Specialties: Sports Medicine, Arthroscopic and Reconstructive Surgery of MSDSs, disposal, safety, EPA, OSHA, DOT, propane, the Knee and Shoulder, and Knee Replacement natural gas, hydrogen, flammable liquids, hazardous chemicals, aerosols (hairspray, spray paint, refrigerants). Appointments: Assistant Clinical Professor, Division of Orthopedics DOT certified (hazardous materials shipment). Certified UCLA School of Medicine fire and explosion investigator, OSHA process hazard World Cup Soccer Team Physician analysis team leader. PhD physical chemistry. Extensive experience in metallurgy, corrosion, and failure analysis. Physician Specialist XXIII Olympiad 1984 Orthopedic Consultant–New York Knicks and Jets 1978-1985 KARS’ ADVANCED MATERIALS, INC. Testing and Research Labs, 2528 West Woodland Publications: 60 Publications including handbook for Orthopedic Surgeons Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax on Prosthetic Ligament Reconstruction of the Knee (714) 527-7169, e-mail: [email protected]. Web site: www.karslab.com. Contact Dr. Ramesh Kar, Dr. Presentations: Lectures extensively with over 375 presentations worldwide Naresh Kar, Dr. Nikhil Kar. Southern California’s premier materials/mechanical/metallurgical/structural/foren-

Los Angeles Lawyer April 2014 61 sics laboratory. Registered professionalengineers with @gmail.com. Web site: gpurcellmd.com. Contact Expert testimony pertains to med-mal, personal injury, 30+ years in metallurgical/forensic/structural failure Graham A. Purcell, MD. Dr. Purcell is a board certified and workers’ compensation cases. As a qualified med- analysis. Experienced with automotive, bicycles, tires, orthopedic surgeon, subspecialty in spinal disorders ical evaluator, Dr. Purcell has extensive experience in fire, paint, plumbing, corrosion, and structural failures. affecting adults and children. Examples of spinal disor- performing QMEs, AMEs, IMEs, WC evals. See display We work on both plaintiff and defendant cases. Com- ders treated by Dr. Purcell include disc diseases, steno- ad on page 57. plete in-house capabilities for tests. Extensive deposition sis, infections, tumors, injuries, and deformities including and courtroom experience (civil and criminal investiga- scoliosis. He possesses 34 years of orthopedic and 26 WHITE, ZUCKERMAN, WARSAVSKY, tions). Principals are Fellows of American Society for years of med-legal experience, including defense, plain- LUNA & HUNT Metals and Fellows, American College of Forensic tiff, insurance carriers, United States Attorney General’s 15490 Ventura Boulevard, Suite 300, Sherman Oaks, Examiners. See display ad on page 53. office, CA Attorney General’s office and Public Defend- CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park er’s office. Expert testimony pertains to med-mal, per- Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax METALLURGY sonal injury, and workers’ compensation cases. As a (949) 219-9095, e-mail: [email protected]. Web site: qualified medical evaluator, Dr. Purcell has extensive www.wzwlh.com. Contact Barbara Luna. Expert wit- KARS’ ADVANCED MATERIALS, INC. experience in performing QMEs, AMEs, IMEs, WC evals. ness testimony for complex litigation involving damage Testing and Research Labs, 2528 West Woodland See display ad on page 57. analyses of lost profits, unjust enrichment, reasonable Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax royalties, lost earnings, lost value of business, forensic (714) 527-7169, e-mail: [email protected]. Web site: RICHARD C. ROSENBERG, MD accounting, fraud investigation, investigative analysis of www.karslab.com. Contact Dr. Ramesh Kar, Dr. 18370 Burbank Boulevard, #614 Tarzana, CA 91356, tel liability, and marital dissolution, and tax planning and Naresh Kar, Dr. Nikhil Kar. Southern California’s pre- (818) 996-6800, fax (818) 996-2929, e-mail drrosenberg preparation. Excellent communicators with extensive mier materials/mechanical/metallurgical/structural/foren- @tarzanaortho.com. Website: www.drrosenberg.com. testimony experience. Prior Big Four accountants. Spe- sics laboratory. Registered professional engineers with Orthopedic surgery & sports medicine; Experienced in cialties include accounting, breach of contract, breach of 30+ years in metallurgical/forensic/structural failure IME, QME, AME evaluations. Medical/legal reports and fiduciary duty, business interruption, business dissolu- analysis. Experienced with automotive, bicycles, tires, expert testimony. Personal injury and workers’ compen- tion, construction defects, delays, and cost overruns, fire, paint, plumbing, corrosion, and structural failures. sation. Satellite offices in Oxnard and Santa Ana, fraud, insurance bad faith, intellectual property (including We work on both plaintiff and defendant cases. Com- California. trademark, patent, and copyright infringement, and trade secrets), malpractice, marital dissolution, personal injury, plete in-house capabilities for tests. Extensive WILLIAM B. STETSON, MD deposition and courtroom experience (civil and criminal product liability, real estate, securities, tax planning and investigations). Principals are Fellowsof American Society 191 South Buena Vista Street, Suite 470, Burbank, CA preparation, IRS audit defense, tracing, unfair advertis- for Metals and Fellows, American College of Forensic 91505, (818) 848-3030, fax (818) 848-2228, e-mail: ing, unfair competition, valuation of businesses, and Examiners. See display ad on page 53. [email protected]. Web site: www wrongful termination. See display ad on page 45. .sportsmedicinedr.com. Contact W. Stetson, MD. Dr. METEOROLOGY Stetson is fellowship trained in arthroscopic surgery of ZIVETZ, SCHWARTZ & SALTSMAN, CPAS the shoulder, knee, elbow, and ankle. He is an Associate 11900 West Olympic Boulevard, Suite 650, Los Ange- AIR, WEATHER, AND SEA CONDITIONS, INC. Clinical Professor of orthopedic surgery at the USC Keck les, CA 90064-1046, (310) 826-1040, fax (310) 826- School of Medicine. He also has extensive experience in 1065. Web site: www.zsscpa.com. Contact Lester J. P.O. Box 512, Pacific Palisades, CA 90272, (818) sports medicine and orthopedic trauma. Schwartz, CPA/CFF, DABFE, DABFA, Michael D. 645-8632, fax (310) 454-7569, e-mail: AirWeather@aol Saltsman, CPA, MBA, David L. Bass, CPA, David .com. Web site: www.weatherman.org. Contact Jay PEDIATRIC EXPERT WITNESS Dichner, CPA, ABV, CVA, Sandy Green, CPA, Dal- Rosenthal, AMS Certified Consulting Meteorolo- jeet Kaur, CPA, Silva Hakobyan, CPA. Accounting gist (CCM). Experienced and authoritative expert testi- MICHAEL WEINRAUB, MD, FAAP experts in forensic accounting, tax issues, business valu- mony, reports and analyses of wind, rain, storms, light- ations, and appraisals, marital dissolutions, eminent ning, climatic conditions, flooding, waves, specialist in 515 South Flower Street, Suite 3600, Los Angeles, domain, insurance losses, business interruption, good- wildfires, ice, dust, auto/boat/ship/aircraft accident CA 90071, (213) 236-3662, fax (213) 236-3663, will, economic analysis, investigative auditing, loss of reconstruction, property damage, slip and falls, con- e-mail: [email protected]. Web site: www earning, commercial damages, and lost profits. Expert struction, mold issues, homeland security applications, .michaelweinraubmd.com. Experience in general witness testimony preparation, settlement negotiations, air pollution, transport, and risk identification. Movie pediatrics applied to your legal questions. Contact and consultations. See display ad on page 47. industry applications, cinematography, and visual Dr. Michael Weinraub. Board Certified Pediatrician. effects. Determining unusualness, normalcy, and fore- Child abuse and neglect, Munchausen syndrome by proxy, PLASTIC AND COSMETIC RECONSTRUCTIVE seeability. Official data, site visits, clear and convincing shaken baby syndrome (SBS), lead poisoning, fetal alcohol testimony. See display ad on page 42. spectrum disorder (FASD), pediatric malpractice, childhood SURGERY injury and product liability, developmental disabilities NURSING/SURGERY/MEDSURG (autism), healthcare of foster children, and adoption JEFFREY L. ROSENBERG, MD /custody evaluation for health supervision concerns. 1245 Wilshire Boulevard, Suite 601, Los Angeles, CA 90017, (213) 977-0257, fax (213) 977-0501, MED-LINK CONSULTATION PERSONAL INJURY 3362 Budleigh Drive, Hacienda Heights, CA 91745, e-mail: [email protected]. Web site: www .jrosenbergmd.com. Contact Jackie or Judy. Plastic (626) 333-5110, fax (626) 968-0064, e-mail: KGA, INC. [email protected]. Contact Dorothy and reconstructive surgery, burn specialist. Diplomate, Pollock, RN, LNCC. Registered nurse with over 40 1409 Glenneyre Street, Suite A, Laguna Beach, CA American Board of Plastic Surgery. Member, American years of clinical experience. Nontestifying services 92651, (949) 497-6000, fax (949) 494-4893, e-mail: Burn Association and American Society of Plastic Sur- include case analysis/for merit, chronology, translation, [email protected]. Web site: www.kgainc.com. Con- geons. written reports, medical record organization. DME/IME tact Kurt Grosz. Construction and environmental con- accompaniment including CD recording and written sultants since 1991. Licensed engineers and contrac- PLASTICS report. Expert witness and testifying services, including tors. ICC building, plumbing, mechanical, concrete and affidavit, arbitration, declaration, letters, and trial. Court- accessibility inspectors. Certified professional estimators. KARS’ ADVANCED MATERIALS, INC. room experienced both plaintiff and defense. Trial experts, arbitrators, and insurance appraisers. Testing and Research Labs, 2528 West Woodland Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax ORTHOPEDIC SURGEON GLENN D. COHEN, MD, INC. (714) 527-7169, e-mail: [email protected]. Web site: 696 Hampshire Road, Suite 180, Westlake Village, CA www.karslab.com. Contact Dr. Ramesh Kar, Dr. 91361, (805) 370-6877, fax (805) 777-7411, e-mail: GLENN D. COHEN, MD, INC. Naresh Kar, Dr. Nikhil Kar. Southern California’s pre- [email protected]. Web site: www.handsurgeon mier materials/mechanical/metallurgical/structural/foren- 696 Hampshire Road, Suite 180, Westlake Village, CA .org. Contact Nancy Land. Expert witness, IME, per- 91361, (805) 370-6877, fax (805) 777-7411, e-mail: sics laboratory. Registered professional engineers with sonal injury, orthopedic surgery—hand, wrist, and 30+ years in metallurgical/forensic/structural failure [email protected]. Web site: www.handsurgeon elbow. .org. Contact Nancy Land. Expert witness, IME, per- analysis. Experienced with automotive, bicycles, tires, sonal injury, orthopedic surgery—hand, wrist, and elbow. GRAHAM A. PURCELL, MD, INC. fire, paint, plumbing, corrosion, and structural failures. ASSISTANT CLINICAL PROFESSOR We wor on both plaintiff and defendant cases. Complete MARC J. FRIEDMAN, MD ORTHOPEDIC SURGERY, UCLA in-house capabilities for tests. Extensive deposition and 6815 Noble Avenue, Van Nuys, CA 91405, (818) 901- courtroom experience (civil and criminal investigations). 3600 Wrightwood Drive, Studio City, CA 91604, (818) Principals are Fellows of American Society for Metals 6600, fax (818) 901-6685, e-mail: [email protected]. 985-3051, fax (818) 985-3049, e-mail: purcellmd@gmail Web site: www.scoi.com. Contact Vanessa Espinal, and Fellows, American College of Forensic Examiners. .com. Web site: gpurcellmd.com. Contact Graham A. See display ad on page 53. ext 2810/2910. Orthopedic shoulder and knee, consult- Purcell, MD. Dr. Purcell is a board certified orthopedic ing, and expert witness testimony. IME, AME, QME, and surgeon, subspecialty in spinal disorders affecting adults PLUMBING workers’ compensation evaluations. See display ad on and children. Examples of spinal disorders treated by Dr. page 61. Purcell include disc diseases, stenosis, infections, 4X FORENSIC ENGINEERING GRAHAM A. PURCELL, MD, INC. tumors, injuries, and deformities including scoliosis. He LABORATORIES, INC. possesses 34 years of orthopedic and 26 years of med- ASSISTANT CLINICAL PROFESSOR 5262 Oceanus Drive, Huntington Beach, CA 92649, legal experience, including defense, plaintiff, insurance ORTHOPEDIC SURGERY, UCLA (714) 450-8500, fax (714) 450-8599, e-mail: phil carriers, United States Attorney General’s office, CA 3600 Wrightwood Drive, Studio City, CA 91604, (818) @4Xforensic.com. Web Site: www.4Xforensic.com. Attorney General’s office and Public Defender’s office. 985-3051, fax (818) 985-3049, e-mail: gpurcellmd Contact Phil Van Herle. 4X Forensic Engineering Lab-

62 Los Angeles Lawyer April 2014 oratories is a full-service forensic engineering laboratory. QUESTIONED DOCUMENTS demand assessment, acquisition due diligence, and We provide expert witness and analytical and testing economic, financial, and investment analysis. services in the following areas: fires and explosions: SANDRA L. HOMEWOOD, FORENSIC electrical and gas product defect investigations, thermal DOCUMENT EXAMINER RODINO ASSOCIATES and fire modeling and laboratory testing; water loss: 1132 San Marino Drive, Suite 216, Lake San Marcos, 11661 San Vicente Boulevard, Suite 306, Los Angeles, materials, corrosion and failure analysis of plumbing CA 92078, (760) 931-2529, fax (760) 510-8412, e-mail: CA 90049, (310) 459-9474, e-mail: [email protected]. products; failure analysis: metallurgy, product testing, [email protected]. Contact Sandra L. Web site: www.RodinoAssociates.com. Contact and computerized stress analysis; accident reconstruc- Homewood. Highly skilled and experienced document Robert J. Rodino, Ph.D. Research, report preparation, tion: automotive, trucks, construction equipment, and examiner and expert witness in many complex and high- deposition, court testimony in all major property types, premises liability. See display ad on page 51. profile civil and criminal cases with fully equipped docu- for multi-family residential, retail, office and light indus- ment laboratory. Specializing in handwriting and hand- trial, acquisition & disposition, development, manage- PODIATRY—FOOT SPECIALIST printing identification, handwriting of the elderly in ment, leasing, investment analysis, brokerage, and mar- financial elder abuse cases and will contests, and exami- ket research. STEVEN L. ROSENBERG, DPM nation of altered medical and corporate records. 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Contact Norman Katz, managing partner. nances, drafting agreements, structuring compliance, 9454 Wilshire Boulevard, 6th Floor, Beverly Hills, CA Nationally recognized banking, finance, insurance, and and directing teams of consultants and outside counsel. 90212, (310) 247-2637, e-mail: [email protected]. real estate consulting group (established 1973). Experi- Web site: www.jacktrimarco.com. Contact Jack enced litigation consultants/experts include senior ALAN D. WALLACE, ESQ. Trimarco. Former manager of the Federal Bureau of bankers, lenders, consultants, economists, accountants, 14011 Ventura Boulevard, Suite 406, Sherman Oaks, Investigation’s polygraph program in Los Angeles. For- insurance underwriters/brokers. Specialties include: CA 91423, (818) 501-0133, fax (818) 905-6091, e-mail: mer Inspector General Polygraph Program—Department lending customs, practices, policies, in all types of lend- [email protected]. Contact Alan D. Wallace, of Energy. Nationally known and respected polygraph ing (real estate, subprime, business/commercial, con- Esq. Expert witness and litigation consulting for general expert. I have the credentials you would want when you struction, consumer/credit card), banking operations real estate matters, including law, custom and practice, have a client polygraphed, a case reviewed, or a motion /administration, trusts and investments, economic analy- agency, disclosure, broker malpractice, standards of made regarding polygraph. My unique background sis and valuations/damages assessment, insurance care for brokers, buyers and sellers. Broker and attor- allows me to bring the highest levels of service and claims, coverages and bad faith, real estate brokerage, ney. Involved as broker in more than 7,500 real estate expertise to any polygraph situation. Current member of appraisal, escrow, and title insurance. transactions. Department of Real Estate master instruc- the Ethics Committee, California Association of Poly- FORRY LAW GROUP; CARES REALTY INC. tor and author, Adjunct Professor Loyola Law School, graph Examiners (CAPE). Hundreds of appearances on former CAR Hotline attorney, University Law Professor in 15501 San Fernando Mission Boulevard, Suite 309, national TV, including Dr. Phil, Oprah, Greta, Nancy real estate. Successfully testified in dozens of cases. Mission Hills, CA 91345, (818) 361-1321, fax (818) 365- Grace, O’Reilly Factor, and Hannity and Colmes. See display ad on page 61. Degrees/licenses: BS Psychology, Certified APA, AAPP, 6522, e-mail: [email protected]; [email protected]. CAPE, AAFE. See display ad on page 2. Web site: www.forrylaw.com. Contact Craig B. Forry, WARONZOF ASSOCIATES, INC. JD, GRI, Realtor. 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Degrees/licenses: BA, enterprise value, partnership interest and closely-held Angeles Superior Court commissioner (15 years) avail- JD; California attorney for 29 years. California broker for share value, fair compensation, lender liability, and reor- able to serve as a probate expert witness in cases 9 years, Realtor; Graduate Realtor Institute. Member- ganization plan feasibility. Professional staff of five with involving wills and trust issues. Presided in Long Beach ships: National and California Association of Realtors; advanced degrees and training in real estate, finance, Probate Department five years. See display ad on Southland Regional Association of Realtors; California urban planning, and accounting. See display ad on page 18. State Bar; LACBA. page 51. PSYCHIATRY LAWRENCE H. JACOBSON, ESQ. REAL ESTATE APPRAISAL 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA MARIA T. LYMBERIS, MD, INC. 90212, (310) 271-0747, fax (310) 271-0757, e-mail: CURTIS-ROSENTHAL, INC. [email protected]. Web site: www.lawrencejacobson 1500 Montana Avenue, Suite 201, Santa Monica, CA .com. Past President, Beverly Hills Bar Association. 5959 West Century Boulevard, Suite 1010, Los Angeles, 90403, (310) 451-3152, fax (310) 310-2620, e-mail: Expert witness: lawyer malpractice in business and real CA 90045, (310) 215-0482, fax (310) 215-3089, e-mail: [email protected]. Web site: www.lymberis.com. estate transactions, standard of care for real estate bro- [email protected]. Web site: www Contact Maria T. Lymberis, MD. Clinical Professor kers and mortgage brokers, and real estate document .curtisrosenthal.com. Contact David Rosenthal, MAI, of Psychiatry, UCLA School of Medicine. Board Certified custom and usage. Practicing real estate and business FRICS, or Dawn Olson, MRICS. Appraisal of commer- in adult, child/adolescent psychiatry, expert consultant law in California since 1968. See display ad on cial real estate for estate planning, eminent domain, Medical Board of California, forensic expert for psychi- page 57. bankruptcy, divorce, and general litigation. Accepted in atric malpractice, sexual harassment, posttraumatic local, state, and federal courts. stress cases, and divorce/child custody and psychiatric MAURICE ROBINSON AND ASSOCIATES LLC evaluations for: fitness for duty and competency to 28 Dover Place, Manhattan Beach, CA 90266, (310) REAL ESTATE TITLE CONSULTING stand trial. 640-9656, fax (310) 640-9276, e-mail: maurice @mauricerobinson.com. Web site: www.mauricerobinson PETRU CORPORATION PSYCHIATRY/PSYCHOLOGY .com. Contact R. Maurice Robinson, president. 250 Hallock Drive, Suite 100, Santa Paula, CA Hotel and real estate industry business issues, including 93060, (805) 933-1389, fax (805) 933-1380, e-mail: BRIAN P. JACKS, MD, F.A.A.C.P. market, economic and financial feasibility, valuation, and [email protected]. Web site: www .PetruCorporation.com. Contact Tim Truwe. Incorpo- 9730 Wilshire Boulevard, Suite 108, Beverly Hills, disputes between owner-operator, borrower-lender, and rated in 1986, Petru Corporation is a full service land CA 90212, (310) 274-0684, e-mail: [email protected]. franchisor-franchisee. Fluent in management contracts, consulting company including: title searching/research, Contact Daniela Rios. Clinical Professor of Psychiatry license agreements, ground and building leases, part- forensic title, title engineering, oil, gas, mineral and geot- USC. Over 25 years of trial experience in child sex nership and JV agreement, concession contracts, devel- hermal consulting, wind and solar land consulting, regu- abuse, workers’ compensation, personal injury, mal- opment agreements, and loan docs. 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Twenty plus years as PETRU CORPORATION ters and journal articles related to above topics. Exten- consultants in investment and trading litigation. Asset 250 Hallock Drive, Suite 100, Santa Paula, CA sive experience in medical malpractice case review, con- management, pension investments, securities and 93060, (805) 933-1389, fax (805) 933-1380, e-mail: sultation, written evaluation and testimony in depositions futures tax matters including IRS examinations, appeals, [email protected]. Web site: www and trial for plaintiff and defense. Articulate subspecialty U.S. Tax Court appearances. Broker/customer disputes: .PetruCorporation.com. Contact Tim Truwe. Incorpo- consultant with up-to-date knowledge and expertise of stocks and bonds, options, commodity futures, currency rated in 1986, Petru Corporation is a full service land plastic surgery literature and standards of care. Opinions trading, derivatives including swaps, limited partnerships, consulting company including: title searching/research, supported by extensive subspecialty education, training, hedge funds, managed futures. Consultants to NYSE, forensic title, title engineering, oil, gas, mineral and geot- and experience. Options Clearing Corporation, CBOT, CME, COMEX, hermal consulting, wind and solar land consulting, regu- TIAA/CREF, banks, other major clients. Arbitrator NASD latory/permit compliance, subdivisions, right-of-way con- RETALIATION (now FINRA), NYSE, AAA, NFA, mediator with NASD sulting, water rights, autoCAD map drafting. Petru (now FIRNA) training. Member: Compliance and Legal Corporation has provided its services on multimillion-dol- HAIGHT CONSULTING Division, Securities Industry Association. lar projects and matters involving court litigation. 1726 Palisades Drive, Pacific Palisades, CA 90272, ROBERT C. ROSEN (310) 454-2988, fax (310) 454-4516. Contact Marcia TOXICOLOGY Citigroup Center, 444 South Flower Street, 30th Floor, Haight, SPHR—CA. Human resources expert knowl- Los Angeles, CA 90071, (213) 362-1000, fax (213) 362- edgeable in both federal and California law. Twenty-five HAMPTON HEALTH, LTD 1001, e-mail: [email protected]. Web site: years’ corporate human resources management experi- JOHN H. FULLERTON, MD, MRO, CMD, CFP, www.rosen-law.com. Specializing in securities law, fed- ence plus over 20 years as a Human Resources Compli- FACP, AGSF, FAAHPM eral securities law enforcement, securities arbitration, ance Consultant in California. Specializations include 1700 California Street, Suite 470, San Francisco, CA and international securities, insider trading, NYSE, sexual harassment, ADA/disability discrimination, other 94109, (415) 460-5532, fax (415) 459-2774, e-mail: AMEX, FINRA, DOC disciplinary proceedings, broker- Title VII and FEHA discrimination and harassment, retali- [email protected]. Web site: hamptonhealthltd dealer, investment company and investment adviser ation, FMLA/CFRA, safety, and wrongful termination. .com. Contact Kate McElroy, PA-C. Services avail- matters, liability under federal and state securities laws, Courtroom testimony and deposition experience. able: board certified in internal medicine, geriatrics, hos- public and private offerings, Internet securities, and law Retained 60 percent by defense, 40 percent by plaintiff. pice, palliative medicine, addiction medicine, and home firm liability. AV rated. Former chair, LACBA Business Audit employer’s actions in preventing and resolving dis- health; licensed medical review officer. Expertise: and Corporations Law Section. LLM, Harvard Law crimination, harassment, and retaliation issues. Assess Medicare fraud cases for the government, toxicology/ School. Forty years practicing securities law, 12 years human resources policies and practices for soundness, DUI, elder abuse including criminal defense of lay care- with the U.S. Securities and Exchange Commission, for comparison to prevailing practices, and for compli- givers accused of homicide of demented relatives during Washington, DC. Published author/editor of securities ance. Evaluate employer responsiveness to complaints end-of-life phase. Hospital, ambulatory/outpatient, PI, regulations, including multivolume treatises. See display and effectiveness of employer investigations. Assist medical malpractice, and LTC. Medical/hospice director- ad on page 65. counsel via preliminary case analysis, discovery strategy, ships. Testified over 200 times and reviewed more than examination of documents, and expert testimony. 1,500 cases, including Medicare audits for the govern- SECURITY & GUARDS ment, in the last 13 years. See display ad on page 59. ROOFING AND WATERPROOFING DARRYL THIBAULT, JD., CPP. PRINCETON-SOMERSET GROUP, INC. KGA, INC. 3659 India Street, Suite 201, San Diego, CA 92103, 4 Carroll Drive, Hillsborough, NJ 08844, (800) 597-8836, (619) 297-9959, fax (619) 297-9062, e-mail: Darryl (908) 369-6890, fax (908) 369-6881. Web site: www 1409 Glenneyre Street, Suite A, Laguna Beach, CA @pexis.com. Web site: www.pexis.com. Contact .PrincetonSomerset.com. Contact Dr. Dennis 92651, (949) 497-6000, fax (949) 494-4893, e-mail: Darryl Thibault. Premises liability, foreseeability, guard Stainken. Expert witness, toxicology, health issues, [email protected]. Web site: www.kgainc.com. Con- force standards of performance, tavern and innkeeper chemical exposure, mold issues, worker exposure, cont- tact Kurt Grosz. Construction and environmental con- security. amination issues, causation assessment, property dam- sultants since 1991. Licensed engineers and contrac- age/contamination and remediation, sewage, gasoline tors. ICC building, plumbing, mechanical, concrete and SEXUAL HARASSMENT/DISCRIMINATION and oil issues and age determination, petroleum accessibility inspectors. Certified professional estimators. releases, chemicals/products, risk assessment, indoor Trial experts, arbitrators, and insurance appraisers. HAIGHT CONSULTING air quality/health effects, toxic tort evaluation, chemistry, SAFETY 1726 Palisades Drive, Pacific Palisades, CA 90272, site assessment, regulatory issues, environmental toxi- (310) 454-2988, fax (310) 454-4516. Contact Marcia cology, environmental issues, and wetland/ecological. SCS ENGINEERS Haight, SPHR—CA. Human resources expert knowl- Services nationwide. Thirty-plus years of industrial and edgeable in both federal and California law. Twenty-five government experience in pollution under NPDES, CER- 3900 Kilroy Airport Way, Suite 100, Long Beach, years’ corporate human resources management experi- CLA, RCRA, SDWA and CWA. Former federal and state CA 90806, (562) 426-9544, fax (562) 427-0805, ence plus over 20 years as a Human Resources Compli- regulator, professor, consultant, industrial research. Sev- e-mail: [email protected]. Web site: www ance Consultant in California. Specializations include enty-five plus publications. .scsengineers.com. Contact Julio Nuno, VP. SCS sexual harassment, ADA/disability discrimination, other provides expert witness services related to environmen- Title VII and FEHA discrimination and harassment, retali- TRAFFIC ENGINEERING tal studies and engineering, water resources, solid waste ation, FMLA/CFRA, safety, and wrongful termination. and air quality and industrial hygiene and safety services. Courtroom testimony and deposition experience. WILLIAM KUNZMAN, PE We are a 43-year old consulting firm with 71 offices Retained 60 percent by defense, 40 percent by plaintiff. 1111 Town and Country #34, Orange, CA 92868, across the US and over 800 employees. Our Long Audit employer’s actions in preventing and resolving dis- (714) 973-8383, fax (714) 973-8821, e-mail: bill Beach office has more than 30 professional engineers, crimination, harassment, and retaliation issues. Assess @traffic-engineer.com. Web site: www.traffic-engineer scientists, and subject matter experts available on short human resources policies and practices for soundness, .com. Contact William Kunzman, PE. Traffic expert notice to serve asbestos, lead-based paint, and other for comparison to prevailing practices, and for compli- witness since 1979, both defense and plaintiff. Auto, specialty areas requiring expert witness services. ance. Evaluate employer responsiveness to complaints pedestrian, bicycle, and motorcycle accidents. Largest SECURITIES and effectiveness of employer investigations. Assist plaintiff verdicts: 1) $12,200,000 in pedestrian accident counsel via preliminary case analysis, discovery strategy, case against Caltrans, 2) $10,300,000 in case against CORNERSTONE RESEARCH examination of documents, and expert testimony. Los Angeles Unified School District. Largest settlement: $2,000,000 solo vehicle accident case against 633 West Fifth Street, 31st Floor, Los Angeles, CA SURVEY RESEARCH EXPERT TESTIMONY Caltrans. Best defense verdict: $0 while defending Cal- 90071-2005, (213) 553-2500, fax (213) 553-2699. trans and opposition sought $16,000,000. Before Web site: www.cornerstone.com. Contact George G. MARYLANDER MARKETING RESEARCH becoming expert witness, employed by Los Angeles Strong, Jr., Richard W. Dalbeck, Katie J. Galley, MMR STRATEGY GROUP County Road Department, Riverside County Road Elaine Harwood, Carlyn Irwin, Erin McGlogan, or 16501 Ventura Boulevard. Suite, Suite 601, Encino, CA Department, city of Irvine, and Federal Highway Admin- Ashish Pradhan. For more than 25 years, Cornerstone 91436, (818) 464-2400, fax (818) 464-2399, e-mail: istration. Knowledge of governmental agency proce Research staff have provided economic and financial

64 Los Angeles Lawyer April 2014 dures, design, geometrics, signs, traffic controls, maintenance, and pedestrian protection barriers. Hundreds EXPERT WITNESS — Claims Consultant of cases. Undergraduate work—UCLA, graduate work—Yale University. OVER 45 YEARS EXPERIENCE as a claims adjuster, licensed in three states and TRANSACTIONAL DUE DILIGENCE qualified in state and federal courts. Expert in good faith/bad faith, CBIZ & MAYER HOFFMAN MCCANN PC standards and practices and standard in the industry. Specialties in 10474 Santa Monica Boulevard, Suite 200, Los Ange- property/casualty construction defect, fire/water, uninsured/underinsured les, CA 90025, (310) 268-2000, fax (310) 268-2001, motorist, warehouse and cargo claims. Failure to defend and/or indemnify. e-mail: [email protected]. Contact Coral Hansen. EXPERIENCE Web site: www.MHM-PC.com, www.CBIZ.com. CBIZ & q Litigation support, case review and evaluation claim consultation, coverage Mayer Hoffman McCann PC specializes in fraud investi- INTEGRITY review and valuations. Appraisal, Arbitration and Claims Rep. at MSC & MMC. gations, forensic accounting, business litigation, com- q mercial damage and lost proﬁts computations, business Contact Gene Evans at E. L. Evans Associates valuation and appraisal, transactional due diligence, fam- HONESTY Phone (310) 559-4005 / Fax (310) 559-4236 / E-mail [email protected] ily limited partnerships, business interruption, and family law. We provide experienced expert testimony and tax controversy representation. 3310 AIRPORT AVENUE, SUITE 7, SANTA MONICA, CALIFORNIA 90405 WASTEWATER

JOHN SHAW CONSULTING, LLC Tel: (530) 550-1576, e-mail: [email protected]. Keith Kajiya Website: www.shaweng.com. Contact John Shaw, 213-996-2598 PE. Water/wastewater/sewer industry—unique combi- [email protected] nation of operations and engineering background. Sani- tary engineering including water (potable) and wastewater (industrial and domestic) treatment, conveyance, URS is the nation’s largest engineering, consulting and construction hydraulics, storage, reuse, master planning, operations, services firm. URS specializes in the resolution of construction disputes. maintenance, and expert witness and forensic (mode of failure and standard of care analysis, engineering analysis, product suitability and construction defect issues). Dispute Resolution & Forensic Analysis Technical Expertise Wastewater treatment plants, disposal/reuse facilities, Design/Construction Claims Architecture sewage lift station design, sewer collection systems, Environmental Claims Engineering and sludge treatment. Water treatment plants, pipelines, Bid/Cost/Damage Analysis Scheduling and swimming pools. Construction Defect Analysis Construction Management Delay/Acceleration/Disruption Analysis Cost Estimating & Auditing WORKERS’ COMPENSATION Expert Witness Testimony Environmental Insurance/Bond Claims Geotechnical GRAHAM A. PURCELL, MD, INC. ASSISTANT CLINICAL PROFESSOR ORTHOPEDIC SURGERY, UCLA 3600 Wrightwood Drive, Studio City, CA 91604, (818) 985-3051, fax (818) 985-3049, e-mail: gpurcellmd @gmail.com. Web site: gpurcellmd.com. Contact Graham A. Purcell, MD. Dr. Purcell is a board certified orthopedic surgeon, subspecialty in spinal disorders affecting adults and children. Examples of spinal disorders treated by Dr. Purcell include disc diseases, stenosis, infections, tumors, injuries, and deformities including scoliosis. He possesses 34 years of orthopedic and 26 years of med-legal experience, including defense, plaintiff, insurance carriers, United States Securities & Business Law Attorney General’s office, CA Attorney General’s office SEC Enforcement Defense and Public Defender’s office. Expert testimony pertains to med-mal, personal injury, and workers’ compensa- International Business & Securities tion cases. As a qualified medical evaluator, Dr. Purcell Class & Derivative Actions has extensive experience in performing QMEs, AMEs, Insider Trading IMEs, WC evals. See display ad on page 57. NYSE, AMEX, FINRA, DOC Disciplinary Proceedings WRONGFUL TERMINATION Broker-Dealer, Investment Company & Investment Adviser Matters HAIGHT CONSULTING Liability Under Federal & State Securities Laws 1726 Palisades Drive, Pacific Palisades, CA 90272, Internet Securities (310) 454-2988, fax (310) 454-4516. Contact Marcia Haight, SPHR—CA. Human resources expert knowl- Securities Arbitration edgeable in both federal and California law. Twenty-five Law Firm Liability years’ corporate human resources management experience plus over 20 years as a Human Resources Compliance Consultant in California. Specializations include sexual harassment, ADA/disability discrimination, other Title VII and FEHA discrimination and AV Rated, Former Chair, LACBA Business & Corporations Law Section, LLM Harvard Law School. harassment, retaliation, FMLA/CFRA, safety, and 40 years practicing Securities Law, 12 years with the U.S. Securities and Exchange Commission, wrongful termination. Courtroom testimony and deposition experience. Retained 60 percent by defense, 40 Washington D.C. Published Author of Securities Regulations, including eight volume treatise. percent by plaintiff. Audit employer’s actions in preventing and resolving discrimination, harassment, and retaliation issues. Assess human resources policies and practices for soundness, for comparison to prevailing practices, and for compliance. Evaluate employer responsiveness to complaints and effective- Citigroup Center • 444 S. Flower Street, 30th Floor • Los Angeles, CA 90071 ness of employer investigations. Assist counsel via preliminary case analysis, discovery strategy, examination of documents, and expert testimony

Los Angeles Lawyer April 2014 65 4x Forensic Engineering Laboratories, Inc., p. 51 Gursey, Schneider & Company, p. 49 Clinton E. Miller, JD, p. 57 Tel. 714-450-8500 www.4xforensic.com Tel. 310-552-0960 www.gursey.com Tel. 408-279-1034 www.millerjd.qpg.com

A & E Forensics, p. 43 Hampton Health, Ltd., John H. Fullerton, MD, p. 59 Thomas Neches & Company, p. 55 Tel. 877-839-7302 www.aeforensics.com Tel. 415-460-5532 e-mail: [email protected] Tel. 213-624-8150 www.thomasneches.com

Affiniscape Merchant Solutions, p. 5 Burr Hartman DO, PHD, p. 53 Noriega Clinics, p. 26 Tel. 866-376-0950 www.lawpay.com Tel.559-686-4000 e-mail: [email protected] Tel. 213-716-3744

Air, Weather & Sea Conditions, Inc., p. 42 Higgins, Marcus & Lovett, Inc., p. 51 NSC Services, LLC, p. 12 Tel. 818-645-8632 www.weatherman.org Tel. 213-617-7775 www.hmlinc.com Tel. 909-593-4019 www.nscservices.net

American Arbitration Association, p. 14 The Holmes Law Firm, p. 8 Graham A. Purcell, M.D., Inc., p. 57 Tel. 800-778-7879 www.adr.org Tel. 626-432-7222 www.theholmeslawﬁrm.com Tel. 818-985-3051 e-mail: [email protected]

AMFS, Inc. (American Medical Forensic Specialists, Inc.), p. 59 Insurance Specialists, Inc., p. 25 Rosen & Associates, PC, p. 65 Tel. 800-275-8903 www.amfs.com Tel. 888-474-1959 www.isi1959.com/lacba Tel. 213-362-1000 www.rosen-law.com

Chapman University School of Law, Inside Front Cover Law Office of Paul P. Young, p. 24 Roughan & Associates at LINC, p. 53 Tel. 877-CHAPLAW (877-242-7529) www.chaplaw.edu/law Tel. 626-744-1838 http://paulyounglaw.com Tel. 626-303-6333 x16 e-mail: [email protected]

CMM, LLP, p. 43 Lawrence H. Jacobson, Esq., p. 57 Jonathan S. Rutchik, M.D., p. 59 Tel. 818-986-5070 e-mail: [email protected] Tel. 310-271-0747 www.lawrencejacobson.com Tel. 415-381-3133 www.neoma.com

CPT Special Needs Trusts, p. 12 Jack Trimarco & Associates Polygraph, Inc., p. 2 Schulze Haynes Loevenguth & Co., p. 51 Tel. 877-695-6444 Ext: 2 www.snthelp.com Tel. 310-247-2637 www.jacktrimarco.com Tel. 213-627-8280 www.schulzehaynes.com

Lawrence W. Crispo, p. 6 JAMS, The Resolution Experts, p. 17 Sepassi & Tarighati, p. 39 Tel. 213-926-6665 e-mail: [email protected] Tel. 800-352-JAMS (800-352-5267) www.jamsadr.com www.stevesepassi.com, www.mitchtarighati.com

James R. DiFrank, PLC, p. 6 Judicate West, p. 18 Anita Rae Shapiro, p. 18 Tel. 562-789-7734 www.bardefense.net e-mail: [email protected] 800-488-8805 www.judicatewest.com Tel. 714-529-0415 www.adr-shapiro.com

DoubleTree by Hilton Los Angeles Downtown, p. 13 Jurisco, Inc., p. 4 Stephen Danz & Associates, p. 39 Tel. 213-629-1200 www.DoubleTreeLADowntown.com Tel. 800-274-2663 www.Jurisco.com Tel. 877-789-9707 www.employmentattorneyca.com

E. L. Evans & Associates, p. 65 Kantor & Kantor, LLP, p. 33 TASA, Technical Advisory Service for Attorneys, p. 11, 61 Tel. 310-559-4005 Tel. 877-783-8686 www.kantorlaw.net Tel. 800-523-2319 www.tasanet.com

Fragomen, p. 6 KARS Advanced Materials, Inc., p. 53 URS, p. 65 Tel. 310-820-3322 www.fragomen.com Tel. 714-892-8987 www.karslab.com Tel. 213-996-2555 www.urscorp.com

DataChasers.com, p. 47 Krycler, Ervin, Taubman & Kaminsky, p. 41 Law Offices of Alan D. Wallace, p. 61 Tel. 951-780-7892 www.datachasers.com Tel. 818-995-1040 www.ketkcpa.com Tel. 818-501-0133 www.expertwitnessre.com

Forensic Expert Witness Association, p. 46 LawBiz Management, p. 33 Walzer & Melcher, p. 1 Tel. 415-369-9614 www.forensic.org, [email protected] Tel. 800-837-5880 www.lawbiz.com e-mail: [email protected] Tel. 818-591-3700 e-mail: [email protected]

ForensisGroup Inc., p. 47 Lawyers’ Mutual Insurance Co., p. 7 Waronzof Associates, p. 46 Tel. 626-795-5000 www.forensisgroup.com Tel. 800-252-2045 www.lawyersmutual.com Tel. 310-954-8060 www.waronzof.com

Marc J. Friedman, M.D., p. 61 Diana G. Lesgart, An Accountancy Corp., p. 46 White, Zuckerman, Warsavsky, Luna & Hunt LLP, p. 45 Tel. 818-901-6600 e-mail: [email protected] Tel. 818-886-7140 e-mail: [email protected] Tel. 818-981-4226 www.wzwlh.com

FULCRUM Financial Inquiry LLP, Back Cover McGladrey LLP, p 43 Witkin & Eisinger, LLC, p. 33 Tel. 213-787-4100 www.fulcruminquiry.com Tel. 213-330-4605 [email protected] Tel. 818-845-4000

Gerber & Co., p. 4 MCLE4LAWYERS.COM, p. 33 Woodard Mediation, p. 12 Tel. 310-552-1600 http://gerberco.com Tel. 310-552-5382 www.MCLEforlawyers.com Tel. 626-584-8000 www.woodardmediation.com

Glenn M. Gelman & Associates, p. 42 Michael Marcus, p. 4 Zivetz, Schwartz & Saltsman, p. 47 Tel. 714-667-2600 e-mail: [email protected] Tel. 310-201-0010 www.marcusmediation.com Tel. 310-826-1040 www.zsscpa.com

66 Los Angeles Lawyer April 2014 Lunch at the Ninth Circuit: 6th Annual Symposium on Family-Based Immigration Tips from Judges on ON SATURDAY, APRIL 5, The Immigration and Nationality Law Section will Getting Your Just Desserts host the sixth annual symposium on family-based immigration law. ON THURSDAY, APRIL 10, the Appellate Experts Gail Pendleton, Kristen Jacksen, Vera Weisz, Javier Pineda, Lance Courts Section and its counterparts with the Gallardo, and Mary Mucha will share their knowledge and experience with California, Orange County, Riverside, and the most relevant legal issues faced by immigrants and their families. San Diego Bar Associations will host a The program will take place at LACBA, 1055 West 7th Street, 27th floor, program featuring three Ninth Circuit judges, Downtown. Parking is available at 1055 West 7th and nearby lots. On-site who will share their unique insights into registration will begin at 8:30 A.M, with the program continuing from 9 A.M. federal appellate practice gained through to 4 P.M. The registration code number is 012274. their many years of experience on the bench. $100—CLE+ member This program provides the opportunity for $150—Immigration Law Section member attendees to get to know the judges and $199—LACBA member learn what matters most to federal judges $215—all others when they review appeals and hear oral arguments. The panel discussion will be 6 CLE hours followed by 15 to 20 minutes of questions and answers. Prior to the program, a catered lunch, including the featured judges’ “just” desserts will be served. During lunch, Restrictive Practices in Retailing and Distribution attorneys will have an opportunity to ON WEDNESDAY, APRIL 30, the Antitrust and Unfair Business Practices network with the judges and other lawyers interested in appellate practice. The names Section will host a program that focuses on distribution practices, including of the speakers, visiting Ninth Circuit vertical price and nonprice restraints. Our distinguished panelists are leading judges, will be announced one week before antitrust practitioners Don Hibner Jr., Benjamin Klein, Roxane A. Polidora, the program. The program will take place at and Ronald C. Redcay. The panel, moderated by Eric P. Enson, will discuss the Richard H. Chambers Courthouse, 125 recent developments in this highly active and dynamic area of the law, South Grand Avenue in Pasadena. Free including the FTC’s February 2014 decision involving a “full support program” parking is available in the lot across the instituted by the nation’s largest iron pipe fittings supplier, McWane, Inc. The street from the courthouse, and parking is program will cover de facto exclusivity, loyalty discounts, and most favored also available on the street. On-site purchaser agreements, to be followed by a lively discussion. The program will registration and lunch will be available take place at Jones Day, 555 South Flower Street, 50th floor, Downtown. On- beginning at noon, with the program site registration and lunch will begin at noon, with the program continuing continuing from 12:30 to 2 P.M. The registration code number is 012252. The from 12:30 to 1:30 P.M. The registration code number is 012278. The prices below include the meal. prices below include the meal. $25—CLE+ member $25—CLE+ member $55—Appellate Courts Section member $45—Antitrust Section member $75—LACBA member $65—LACBA member $90—all others, including at-the-door $85—all others registrants 1 CLE hour 1.5 CLE hours, with appellate law specialization credit

The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs listed on this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site at http://calendar.lacba.org, where you will ﬁnd a full listing of this month’s Association programs.

Los Angeles Lawyer April 2014 67 closing argument BY BRAD SEILING AND JUSTIN JONES RODRIGUEZ

The Ninth Circuit Rejects First Amendment Arguments in Favor of SOCE

DESPITE THE RECENT ADVANCES toward marriage equality, lesbian, Second, the Ninth Circuit acknowledged the overwhelming consensus gay, bisexual, and transgender (LGBT) people continue to face sig- that SOCE is harmful and ineffective—an important precedent. Third, nificant hurdles to attaining full equality. LGBT people have often been the Pickup decision and the battle surrounding SB 1172 highlight subjected to attempts to change their sexual orientation or gender iden- California’s evolution from a state that once suppressed LGBT identity. Often promoted or even mandated by governments and the tity into a state at the forefront of advancing LGBT rights. Pickup doc- parents and families of LGBT children, reparative therapy, gay con- uments extreme SOCE methods, including shock therapy and castra- version therapy, and sexual orientation change efforts (SOCE) have tion, that once were employed in California with the state’s knowledge until recently been ignored as a civil rights issue. and sanction. The law is starting to catch up, however, and a trend to protect With the enactment of SB 1172 and its defense in court, California LGBT youth from forced SOCE is emerging. California lawmakers rec- now stands at the forefront in advancing equality for LGBT people. ognized this with the enactment of SB 1172, the first law in the United States to bar licensed mental health providers from applying SOCE to The Ninth Circuit acknowledged the overwhelming consensus minor patients. SB 1172 gives California’s mental health providers who wish to perform SOCE a choice. They can wait until their patient that SOCE is harmful and ineffective. becomes an adult or be disciplined for unprofessional conduct. Other states have followed California’s lead. Massachusetts, New Jersey, New York, Pennsylvania, and Washington have all introduced or California same-sex couples can legally marry, California employees enacted legislation similar to SB 1172. are protected from discrimination on the basis of sexual orientation In enacting SB 1172, the California Legislature acknowledged that and gender identity, California’s antibullying statute specifically pro- California has an obligation to protect LGBT youth from the serious tects sexual orientation and gender identity, and transgender students harm that SOCE inflicts. Children who undergo SOCE are more likely can use the restroom of the gender with which they identify. LGBT peo- than their peers to experience alcohol and drug dependence, have ple in California enjoy legal safeguards that do not exist in other states. unprotected sex, be averse to other forms of therapy, become home- SB 1172 and Pickup are significant additions to those safeguards. less, and develop long-term mental health problems. Not surprisingly, Pickup also demonstrates one of the primary strategies opponents SOCE survivors are significantly more likely to commit suicide than of LGBT rights are employing to challenge LGBT rights legislation. LGBT youth who are not subjected to SOCE therapy. SOCE survivors Opponents are now arguing that legislation such as SB 1172 violates often have difficulty developing a healthy sexual identity and inter- their First Amendment rights to freedom of speech, association, and nalize anti-LGBT stigma and animus. religion. These arguments are made to oppose laws or to enact reli- Notwithstanding the clear and well-documented dangers of SOCE, gious and other First Amendment-based exemptions that actually two groups of plaintiffs filed suits challenging SB 1172 to enjoin its undermine the effectiveness of the proposed laws. The Ninth Circuit enforcement on First Amendment and other constitutional grounds. In rejected those arguments in Pickup, which may be used in future cases Welch v. Brown,1 one federal judge held that SB 1172 is subject to strict as precedent to reject similar arguments. scrutiny because it constitutes content and viewpoint restrictions. The The battle over SB 1172 is not over. The challengers filed petitions court granted a preliminary injunction against enforcement of the law for rehearing en banc, which the Ninth Circuit denied over the dis- on the grounds that SB 1172 was unlikely to survive heightened sent of three of its members. Review by the U.S. Supreme Court scrutiny. In Pickup v. Brown,2 a different judge went in the other remains an open question. But even though the appellate process is direction. Reasoning that SB 1172 bars treatment and not discussions not exhausted, SB 1172 and Pickup represent another step forward of treatment, the court applied rational basis review. The court denied in the struggle for LGBT equality. I a preliminary injunction, finding that the plaintiffs were unlikely to show that SB 1172 violates the speech rights of SOCE practitioners. The orders 1 Welch v. Brown, 907 F. Supp. 2d 1102 (E.D. Cal. 2012). resulted in two appeals to the Ninth Circuit, which were consolidated. 2 Pickup v. Brown, No. 2:12–CV–02497–KJM–EFB, 2012 WL 6021465; see also The Ninth Circuit upheld SB 1172.3 Pickup is significant for at least Amicus Brief by Children’s Law Center, et al. (13-15023), available at http://www .ca9.uscourts.gov. three reasons. First, the court clarified that the First Amendment does 3 Pickup v. Brown, 728 F. 3d 1042 (9th Cir. 2013). not insulate medical professionals from giving negligent advice to patients. The state has a clear interest in protecting minors from Brad Seiling is a partner at Manatt, Phelps & Phillips, LLP, where Justin demonstrably harmful forms of psychotherapy that have been rejected Jones Rodriguez is an associate. They filed amici briefs in Pickup and Welch by the mainstream medical community. as cooperating counsel with Lambda Legal.

68 Los Angeles Lawyer April 2014 UPCOMING LACBA BUSINESS AND CORPORATIONS LAW COMMITTEE EVENTS CORPORATE LAW DEPARTMENTS SECTION

I 2014 Annual Delaware and California Law Update Symposium (formerly known as the Glendon Tremaine Symposium) Save Tentatively scheduled for May 16th at the Omni Hotel I June 5th: JOBS Act, 506(c) and Crowdfunding— the What You Need to Know Location: Los Angeles County Bar Association date! I October 24th: Securities Regulation Seminar Location: Biltmore Hotel

For further information please contact [email protected]. If you want to be involved in the Executive Committee for next year, please contact [email protected].

IN MEMORIAM: LEE R. PETILLON One of the luminaries of the Los Angeles legal community, Lee R. Petillon, passed away from lung cancer last July at age 84. He had worked full-time at his law ﬁrm Petillon, Hiraide, and Loomis until two months before his death. He practiced law with a passion for 53 years.

Petillon was a securities attorney and “Although esteemed as a lawyer’s lawyer, Lee vestment banker before entering private legal expert on corporate financing for small wasn’t content to deal with the law as it was. practice and forming his own firm. businesses. He drafted seven bills passed He constantly thought about how the law When not practicing law or donating his by the California Legislature that supported could better meet the needs of small busi- time to organizations, Petillon traveled small business growth. He authored several ness. He then put those thoughts into action. throughout the world with his wife of 53 years, important books about securities and corpo- Combining his keen intellect Mary. He also hiked and fished rate law, including the widely used Repre- with pragmatism, enthusiasm, throughout the Sierras with his senting Start-Up Companies. He frequently and persistence, Lee achieved sons, Andrew and Joe. He en- lectured at law schools and business impressive results and made joyed music of all kinds and schools and was a popular speaker at legal many friends in the process.” loved to read, paint, and spend events and conferences. Born in Gary, Indiana in time with his granddaughters, Petillon also was a longstanding and 1929, Petillon received a de- Emily and Kate. He had bound- beloved member of the LACBA’s Business gree in economics from the less energy, even into his 80s, and Corporations Law Section. Among other University of Minnesota, and and was constantly working on honors he received the Section’s prestigious then served as an officer in the projects and engaging friends Marvin Greene award in 2005. Section mem- U.S. Air Force. One assign- to exchange ideas. bers have fond memories of working with ment during his service was “Lee was an inspiration to him. working in the Air Force Judge clients and colleagues alike,” “Lee epitomized the skilled, ethical, and Advocate General’s (JAG) of- said his longtime law partner, perceptive lawyer we all wanted to be,” said fice, which sparked his interest in law. After Mark Hiraide. “This was due in part to his Roz Tyson, a longtime member of the Sec- the Air Force he moved to California and amazing legal abilities, but also due to his tion. “He was also known throughout the bar worked briefly as a stock analyst before en- personal qualities. He was kind, enthusias- for his personal warmth and geniality. His tering law school and earning his law degree tic, encouraging, had an infectious sense of passing truly marks the end of an era.” from Boalt Hall, U.C. Berkeley. humor, and thought the best of people. Peo- Another longtime Section member, Allen During his long legal career, Petillon ple typically had a good day when they Matkins partner Keith Bishop, remembered worked as in-house counsel for a mutual spent time with Lee. He was a great lawyer Petillon’s proactive approach to legal issues: fund and a venture capital fund and as an in- and a great man.”