EXPERT WITNESSESSEMIANNUAL THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION GUIDE TO

APRIL 2017 / $5

EARN MCLE CREDIT PLUS 2016 ETHICS HVCRE Capital ROUNDUP Requirements page 23 page 30

Samsung v. Apple page 10 Protecting Sanctuary Cities page 60 Nations on Trial Costa Mesa lawyer Juan C. Basombrio discusses the 2016 Justice Against Sponsors of Terrorism Act and its impact on foreign sovereign immunity theory as well as U.S. foreign relations page 16

FEATURES 16 Nations on Trial BY JUAN C. BASOMBRIO The Justice Against Sponsors of Terrorism Act broadens the scope of the terrorism exception under prior law 23 2016 Ethics Roundup BY JOHN W. AMBERG AND JON L. REWINSKI Though California courts generally ruled against misbehaving attorneys last year, some lawyers found relief in malpractice cases Plus: Earn MCLE ethics credit. MCLE Test No. 267 appears on page 25. 30 Skin in the Game BY SUSANNAH KEAGLE While current regulation imposes relatively high capital reserves for high volatility commercial real estate, there is no consensus for an alterntive policy

36 Special Section Semiannual Guide to Expert Witnesses

Los Angeles Lawyer DEPARTME NTS the magazine of the Los Angeles County 8 Barristers Tips 13 Practice Tips Bar Association Suggestions for critical thinking skills in The effect of Luis v. United Stateson April 2017 advocacy Penal Code Section 186.11 BY CHRISTOPHER MONTES DE OCA BY MELISSA WEINBERGER AND Volume 40, No. 2 AMANDA TOUCHTON 10 Practice Tips COVER PHOTO: TOM KELLER Patent infringement as applied in 60 Closing Argument Samsung v. Apple The constitutionality of withholding BY THOMAS J. DALY AND KATHERINE QUIGLEY federal funds from sanctuary cities BY ERWIN CHEMERINSKY

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Los Angeles Lawyer April 2017 5 s California becoming the next Texas? When I posed that rhetorical question to my Los Angeles Lawyer Editorial IBoard colleagues in December, some looked at me quiz - zically. Was I predicting that a conservative movement hark - ing back to the days of Ronald Reagan, George Deukmejian,

and Pete Wilson was about to overtake California’s more recent tradition of being a stead fast blue state? No. My question was about whether our state was poised to assume the activist role that Texas has taken in recent years in using the federal courts as a vehicle to challenge the legality of certain executive orders. During President Barack Obama’s term, Texas sued the federal government 48 times, according to a Texas Tribune analysis. As Texas Governor Greg Abbott famously said when he was attorney general, “I go into the office, I sue the federal government, and then I go home.” Take an issue deep to the heart of Texas and a lawsuit will ensue. Immigration: Texas and 24 other states prevailed when a Fifth Circuit decision blocking Obama’s immi gration plan was upheld because of a U.S. Supreme Court deadlock. A woman’s right to choose: Texas sued the U.S. Health and Human Services Department when HHS stopped funding the state’s Women’s Health Program because it prohibited money going to affiliates of abortion providers. A judge denied Texas’ request for an injunction preventing HHS from taking this action. The environment: Texas has filed numerous actions related to climate change and air and water quality with mixed results in some while others are pending. Syrian refugees: A federal judge dismissed Texas’ suit seeking to prevent refugees from settling in the state. According to California Sunday Magazine, Texas’ scorecard stands at eight wins, 12 losses, 20 pending decisions, and nine cases withdrawn. University of Texas Law Professor Tom McGarity explained “the state often failed because...it was fighting to weaken new laws or throw out new regulations.” McGarity predicts California will follow the opposite course. As he said, “It’s tough to persuade a court to make an agency do more.... It’s not as hard to overturn a decision by an agency...trying to do less than it has been doing.” California attorneys general have been successful in suing the federal government. In Massachusetts v. Environmental Protection Agency, they prevailed in suing the agency to curb greenhouse gases under the Clean Air Act. Similar results were achieved in enforcing home appliance energy efficiency standards and protecting endangered species. Before Donald Trump’s inauguration, California was already arranging the legal resources to challenge the new president through Xavier Becerra’s appointment as attorney general and Eric Holder’s hiring as the legislature’s outside counsel. The issues that Texas has sued on are ones California could litigate, too. The state’s waiver allowing it to impose tougher emission standards and rollbacks in other environmental regulations will likely be at the forefront. Immigration and health care are others. A certain irony cannot be overlooked in this state versus federal government litigation. Conservatives traditionally have been perceived as advocates of state’s rights but now apparently will use federal authority to restrain them. In contrast, as a state senate aide said in California Sunday Magazine, blue states like ours will “be pushing the envelope on state legislative authority.” n

Ted M. Handel is the 2016-17 chair of the Los Angeles Lawyer Editorial Board and chief executive officer of a nonprofit organization that develops and manages affordable multifamily projects for low-income families and seniors.

6 Los Angeles Lawyer April 2017 barristers tips BY CHRISTOPHER MONTES DE OCA

Suggestions for Critical Thinking Skills in Advocacy

AFTER READING “BARRISTERS TIPS” FOR OVER A DECADE, I want visor that the California Vehicle Code says I may request it without to share a generic tip for newly admitted lawyers that I hope will an authorization from my client.2 The supervisor told me, “We have help in all areas of practice. With case files piled high and hours always done it that way” and that in her 27 years she had never seen needing to be billed, it can be easy to follow standard office protocols it my way so it could not be right. Nevertheless, she said she would without giving them much thought. But amid the pressures of your have LAPD legal counsel get in touch with me to explain “the way day and the demands of your clients and colleagues, I urge you to we do things.” Shortly thereafter, I received both a verbal and written take a step back and critically think about what you are doing. apology and was advised that going forward staff would handle Think back to your childhood. these issues in accordance with the California Vehicle Code. Remember when you were a kid and you were incessantly ques- Now you might be thinking, “What is the point of this article? tioning your mom with, “But why not, Mom?” Even back then your Who cares if the POS is done wrong? What does it matter if I have mom might have suspected you would be a great attorney. In each phase of your life, as you grew and perceived the circum- I challenge you to think critically about what you are doing and stances around you differently, asking these questions helped you come to understand the way things worked. about what others are asking you to do. However, somewhere along the way we stopped asking, “But why?” That is too bad because now you are an actual attorney. That means you’ve had years of higher education and passed one of to have my client sign an authorization?” Well, you are probably the most difficult professional exams in the country. Some of you right. Those examples are not very consequential, but I wanted to are even licensed in other states and countries. Yet for some reason share with you common examples that you might see or have probably now that you pay the State of California dues each year, many of come across as a new attorney. you kind of just go through the motions and follow what everyone My point is that this is going on for the big stuff, too, the issues else is doing. that have huge consequences for your clients. I see it happening all Maybe you’ve heard something along these lines in your legal the time where my opposing counsel just wants me to go along experience: “That’s the way we do things” or “you can’t fight the with something to my client’s detriment. I am talking about major system” or “we have always done it that way.” I know I have. Most issues that affect people’s lives and families. I am talking about the of the time there is no problem with that. But for those times when hundreds of thousands of dollars my clients have been able to hold you aren’t sure or think there may be a better way, I hope you will onto when someone wanted to take that money away; the license take the time to look into the issue at hand. Here are a few times that was suspended and then reinstated; the house that was taken this has happened in my practice: and then returned; the ability to recover money for the death of a Signing the Proof of Service. Does your firm have a policy of blindly loved one after being told it was impossible; the serious felony signing every Proof of Service (POS) form, including the copy that is charges that were dismissed because no crime was committed under sent to the addressee? Or have you asked opposing counsel via a the law. meet-and-confer letter why their POS attached to the served document I challenge you to think critically about what you are doing and is not signed? This is a common practice copied by everyone, especially about what others are asking you to do. It might add a few minutes at large law firms. The statute is cited right on the POS form, but I to your work day, but it might have a significant benefit for your don’t think people ever read it.1 If they did, they would see that they client one day. I hope it will also have a positive impact on how you would be committing perjury by signing a POS attached to the doc- view yourself as an attorney. You are an advocate. Not just for your ument being served. It is clearly not accurate to state that you have client, but for yourself. So take a second, reflect on your work, and served a document prior to serving it. be proud of your accomplishments. After all, “Why not?” n Requesting Traffic Collision Report. Do you always have the client sign an authorization to request the Traffic Collision Report? Have 1 CIV. CODE §1013. you ever had your request rejected if you did not enclose an autho- 2 VEH. CODE §20012 rization from your client? I encountered this issue a few years ago with the Los Angeles Police Department, one of the largest records Christopher Montes de Oca is the government relations subcommittee chair divisions in the state. I was told that my request was not valid of the Los Angeles County Bar Association Barristers. He has been hanging because I did not include an executed authorization from my client. his shingle since 2006, practicing criminal defense and plaintiffs’ personal I took a deep breath and respectfully told the clerk and the super- injury law in downtown Los Angeles.

8 Los Angeles Lawyer April 2017 practice tips BY THOMAS J. DALY AND KATHERINE QUIGLEY

Patent Infringement as Applied in Samsung v. Apple

THE U. S. SUPREME COURT’S recent decision in Samsung v. Apple1 titioners typically limit the ornamental features they include as part creates a quandary for patent practitioners and clients alike. Most of the claimed design. This is particularly true in light of the Federal design patents are drafted to provide clients with the broadest pro- Circuit’s decision in Contessa Food Products, Inc. v. Conagra, Inc.9 tection possible by limiting the number of elements in the patented Contessa Food Products involved a case of design patent infringement design. The fewer elements in the design, the easier it is to prove for a serving tray having an arrangement of shrimp. The design that accused products have substantially the same design as required patent owned by Contessa included five drawings, with the top and for infringement.2 For example, in Samsung v. Apple, one of Apple’s side views showing the tray and shrimp arranged on the tray and a design patents at issue claimed the top “surface” of the iPhone design bottom view showing the underside of the tray.10 The allegedly rather than seeking patent protection for the design of the entire infringing products were shrimp trays sold by Conagra having a electronic device.3 That way, to show infringement, Apple only had similar design to the patented one. Contessa sought summary judgment to prove that the “surface” of Samsung’s accused Galaxy phones of infringement, which was granted. had the same design as Apple’s patent. In its analysis, the district court analyzed the top and side features Previously, in cases like this, the patent owner was able to recover of the tray including the shrimp arrangement; however, the district the infringer’s profits on the entire device, despite the fact that the court discounted the importance of the underside, finding that, in design patent was limited to a portion of the device, (e.g., the top the accused products, the grooves and features of the underside were surface of a smartphone). This provided an apparent windfall to covered by packaging at the point of sale and would not be visible patent owners. As an example, the U.S. Court of Appeals for the to the ordinary observer (i.e., the purchaser).11 On appeal, the Federal Federal Circuit awarded Apple $399 million in damages prior to Circuit disagreed. It reversed the finding of infringement, holding the Supreme Court appeal. This damage award covered Samsung’s that the design of the underside of the tray was not sufficiently con- entire profits for its sale of infringing smartphones.4 However, the sidered.12 Supreme Court seemingly has ended this type of award, ruling that The Federal Circuit found that “the ‘ordinary observer’ analysis damages must now be apportioned so that the patent owner only is not limited to those features visible at the point of sale, but instead recovers those profits attributable to the patented design. The Court must encompass all ornamental features visible at any time during noted that such apportionment would apply to cases involving mul- normal use of the product,” where “normal use” includes “a period ticomponent devices in which the patented design covers only a por- in the article’s life, beginning after completion of manufacture or tion, such as the accused Samsung smartphones.5 As such, the assembly and ending with the ultimate destruction, loss, or disap- Supreme Court reversed the finding of damages in Samsung v. Apple pearance of the article.”13 and remanded the case to the district court for a factual determination The Court explained that this holding was in line with its prior of what portion of Samsung’s profits are attributable to the designs decision in Keystone Retaining Wall Systems, Inc. v. Westrock, Inc. covered by Apple’s patents.6 Keystone involved a case of design patent infringement of a con- In light of this decision, for multicomponent devices, patent prac- struction block intended to be combined with other blocks to form titioners and their clients must now balance the competing interests a wall.14 The Federal Circuit held that even though only the front of crafting their design patents broadly enough to be able to enforce face of the block was visible during its use in a retaining wall, the them against would-be infringers while at the same time making patented block comprised the entire retaining wall block, not just sure not to limit the claimed design to a too narrow portion of a the front, and thus an accused product must include ornamental product, which may severely limit recoverable damages. This fine features from all faces of the block.15 In total, these cases led to the line must be walked to insure that the potential recovery from any holding that “the ‘ordinary observer’ analysis is not limited to those design patent litigation is sufficient to warrant institution of a lawsuit features visible during only one phase or portion of the normal use in the first place. Otherwise, the cost of seeking a design patent may lifetime of an accused product.... Instead, the comparison must not be worth the now lower reward. extend to all ornamental features visible during normal use of the product.”16 Infringement Standard The Keystone and Contessa Food Products cases have motivated A design patent is infringed if the following test is met: practitioners to be very careful about what is included in their design [I]f, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the Thomas J. Daly is a partner in Lewis Roca Rothgerber Christie’s Intellectual same, if the resemblance is such as to deceive such an observer, Property practice group in Los Angeles. A litigator, he focuses on strategies inducing him to purchase one supposing it to be the other, to obtain and protect patents and trademarks. Katherine Quigley is an the first one patented is infringed by the other.”7 associate in Lewis Roca Rothgerber Christie’s Intellectual Property practice In applying this test, all ornamental features as illustrated in the group where she specializes in intellectual property litigation and patent figures of the design patent must be considered.8 Thus, patent prac- prosecution.

10 Los Angeles Lawyer April 2017 patents, lest they narrow the scope of the cles suitable for the use of man” and question of what qualifies as an article of design in a way that exculpates potential “the articles so made.” Stor month 589; manufacture, it declined to set forth a new infringers. To this end, for multicomponent see also American Her itage Dictionary, test to determine what portion of a product devices, practitioners either depict only the at 1070 (“[t]he act, craft, or process of (or if the entire product itself) is considered portion of a product they are claiming or manufacturing products, especially on to be the “article of manufacture.” The Court use dashed lines to designate the portion of a large scale” or “[a] product that is simply remanded the Samsung v. Apple case the product, which is provided for context manufactured”). An article of manu- to the lower courts and stated that the Federal but not included in the claimed design. Apple facture, then, is simply a thing made Circuit could address this and any other followed the latter of these practices by depict- ing everything in dashed lines save the top “surface” of its smartphone in U.S. Design Patent No. 618,677 (the “D’677 Patent”), one of the three Apple patents at issue in the Samsung v. Apple case. The other two Apple patents at issue were likewise limited to a top portion of an electronic device, with U.S. Design Patent No. Figure 1 of the 593,087 (the “D’087 Patent”) covering “a D’677 Patent rectangular front face with rounded corners and a raised rim,” and U.S. Design Patent No. 604,305 (the “D’305 Patent”) covering “a grid of 16 colorful icons on a black screen.”17 At trial, a jury found that Samsung’s accused smartphones infringed all three of these design patents and Apple was awarded $399 million for the entire profits of Sam- sung’s smartphone sales.18 On appeal to the Federal Circuit, Samsung argued that these Figure 1 of the damages should be limited because, pursuant D’087 Patent to Section 289 of the Patent Act, damages for design patent infringement are limited to the “total profits” for the “article of manu- facture to which [a patented] design or col- Figure 1 of the orable imitation has been applied.”19 Sam - D’305 Patent sung argued that the relevant “article[s] of manufacture” were the front face or screen of the smartphone rather than the entire smartphone, and thus the damages must be by hand or machine. remaining issues if needed.27 However, the limited to the profits attributable to those So understood, the term “article of Court noted that the United States had pro- portions. The Federal Circuit, however, re- manufacture” is broad enough to en - posed a test in its amicus brief. The proposal jected this argument and affirmed the large compass both a product sold to a con- suggests a case-specific, factual determination damages award. 20 The Federal Circuit rea- sumer as well as a component of that that takes into account which characterization soned that such a limit was not required product.23 of “article of manufacture” would “appro- because “[t]he innards of Samsung’s smart- The Court found this broad meaning to priately compensate (rather than over-com- phones were not sold separately from their be consistent with both the legislative history pensate) the patentee for the contribution of shells as distinct articles of manufacture to and other statutory interpretations of the the patented design to the value of the ordinary purchasers.”21 term. For example, Section 171(a) of the infringer’s finished product.”28 The United The Supreme Court overruled the Federal Patent Act, which makes “new, original and States suggested several factors that should Circuit on this point. The Court focused on ornamental design[s] for an ‘article of man- be considered, including: the term “article of manufacture,” criticizing ufacture’ eligible for design patent protection, 1) the scope of the design claimed in the Federal Circuit’s decision as limiting an has been understood by the Patent Office the patent; “article of manufacture” to include only dis- and courts to extend to components of a 2) the prominence of the design within tinct products sold to consumers.22 The Court multicomponent product.24 the product to determine if the design held that the term is not so narrow: The Supreme Court also pointed out that affects the appearance of the product “Article of manufacture” has a broad an “article of manufacture” in Section 171 as a whole; meaning. An “article” is just “a parti - includes what would be considered a “man- 3) whether the design is conceptually cular thing.” J. Stormonth, A Dic tion - ufacture” within the meaning of Section 101, distinct from the product as a whole; ary of the English Language 53 (1885) which allows a person to obtain a utility and (Stormonth); see also Ameri can Her i - patent on a “process, machine, manufacture, 4) the physical relationship between tage Dictionary, at 101 (“[a]n in divi dual or composition of matter.”25 The term “man- the patented design and the rest of the thing or element of a class; a particular ufacture” in Section 101 has likewise been product, which may reveal if the design object or item”). And “man u facture” construed broadly to include “parts of a adheres only to a component of the means “the conversion of raw materials machine.”26 product.29 by the hand, or by machinery, into arti- While the Supreme Court answered the The United States cites Federal Circuit

Los Angeles Lawyer April 2017 11 precedents in support of the factors,30 and to consider filing multiple design patents. Tray with Shrimp.” the Federal Circuit may look to include some Since design patents are reasonably afford- 11 Contessa, 282 F. 3d at 1379. 12 Id. of these factors in a test for “article of man- able, especially when compared to utility 13 Id. at 1379-80 (citing In re Webb, 916 F. 2d 1553, ufacture” should it choose to enumerate one. patents, practitioners should consider obtain- 1557-58 (Fed. Cir. 1990). However, the question still remains as to what ing both design patents on certain components, 14 Contessa, 282 F. 3d at 1380 (citing KeyStone the exact standard is that patent practitioners increasing the chances of establishing liability, Retaining Wall Sys., Inc. v. Westrock, Inc., 997 F. 2d must meet in order to make sure any design and at the same time obtaining design patents 1444, 1450 (Fed. Cir. 1993)). 15 they patent is able to recover profits on a sig- directed to the entire product. While it may Contessa, 282 F. 3d at 1380. 16 Id. nificant enough portion of a product to make be harder to show infringement of the latter 17 Samsung Elecs. Co., Ltd. et al. v. Apple, Inc., 580 enforcement of the patent worthwhile. comprehensive design patent, if infringement U.S. __, 196 L. Ed. 2d 363, 368 (2016). is found, the degree of apportionment of the 18 Id. Practice Pointers profit damages, if any, should be much less. 19 Apple Inc. v. Samsung Elecs. Co., 786 F. 3d 983, While a more specific damages standard In addition, having both types of patents 1002 (Fed. Cir. 2015), overruled by Samsung, 196 L. Ed. 2d at 368; 35 U.S.C. §289. hopefully is forthcoming, there are strategies available at trial may help further settlement 20 Apple, 786 F. 3d at 1002. patent practitioners can suggest in the mean- because, even if the defendant believes he or 21 Id. time so that clients can best protect their she can avoid the comprehensive design patent, 22 Samsung, 196 L. Ed. 2d at 369. designs. As a starting point, practitioners the threat of liability based on the more nar- 23 Id. at 369-70. 24 should first determine whether the design row design patent will still exist. n Id. at 370 (citing, Ex parte Adams, 84 Off. Gaz. Pat. Office 310, 311 (1898); Application of Zahn, patent seeks to cover the design of a single- 617 F. 2d 261, 268 (C.C.P.A. 1980)). 1 Samsung Elecs. Co., Ltd. et al. v. Apple, Inc., 580 component product (such as a dinner plate) 25 Samsung, 196 L. Ed. 2d at 370 (citing 35 U.S.C. U.S. __, 196 L. Ed. 2d 363, 368 (2016). or the design of a portion of a multicompo- §101). 2 Gorham Co. v. White, 81 U.S. 511, 528 (1871). nent product (such as a kitchen oven). 26 Samsung, 196 L. Ed. 2d at 370 (citing Diamond v. 3 U.S. D618, 677 (“The claimed surface of the electronic Chakrabarty, 447 U. S. 303, 308 (1980)); 1 W. If the design covers even a portion of a device is illustrated....”). ROBINSON, THE LAW OF PATENTS FOR USEFUL INVENTIONS single-component product, apportionment 4 Samsung, 196 L. Ed. 2d at 368. §183 (1890). 5 Id. at 366. should not apply, according to Samsung v. 27 Id. 6 Id. at 371. Apple,31 and the client can seek design patent 28 Brief for the United States as Amicus Curiae Sup - 7 Gorham, 81 U.S. at 528. protection without the worry of a reduced porting Neither Party, filed June 8, 2016 in Samsung 8 KeyStone Retaining Wall Sys., Inc. v. Westrock, Inc., Elecs. Co., Ltd. et al. v. Apple, Inc., Case No. 15-777, damages standard. However, if the design 997 F. 2d 1444, 1450 (Fed. Cir. 1993). 27. only covers a portion or component of a 9 Contessa Food Products, Inc. v. Conagra, Inc., 282 29 Id. at 27-29. F. 3d 1370 (Fed. Cir. 2002). multicomponent product, Samsung v. Apple 30 Id. 10 U.S. Design Patent No. 404,612 titled “Serving could apply and the practitioner may want 31 Samsung., 196 L. Ed. 2d at 366.

12 Los Angeles Lawyer April 2017 practice tips BY MELISSA WEINBERGER AND AMANDA TOUCHTON

The Effect of Luis v. United States on Penal Code Section 186.11

BEFORE CERTAIN WHITE COLLAR criminal defendants in California to whether the property has any nexus to criminal activity, and it does are even aware that they have been charged with a crime, prosecutors not require the release of untainted funds needed to hire counsel. can proceed ex parte to secure an order freezing any and all bank, Luis v. United States investment, and retirement accounts and locking down real property. By the time the defendant is arrested, in custody, and brought into In Luis, the defendant was charged with federal healthcare fraud court for arraignment and bail, he or she is likely to be cut off from offenses. The government alleged that the defendant had obtained access to the assets required to hire a lawyer or post bond. The pretrial up to $45 million illegally but had spent almost all of it, leaving just asset restraint provisions of Penal Code Section 186.11 represent one $2 million in assets.11 Hoping to ensure that the defendant’s assets of the most crippling weapons in the prosecution’s arsenal. However, would be available to pay fines and restitution if she were convicted, the government’s virtually unfettered power to freeze innocent as well the government requested a pretrial injunction under Section as tainted assets is constitutionally questionable in light of the U.S. 1345(a)(2) of the U.S. Code.12 This section allows the government Supreme Court’s recent decision in Luis v. United States.1 Specifically, to seek a restraint on property equivalent in value to the proceeds Luis held that under the Sixth Amendment a criminal defendant has of specified health-care related offenses and permits the court to an absolute right to untainted assets needed to hire counsel of choice; freeze three categories of assets: 1) assets “obtained as a result of” Section 186.11 fails to guarantee this constitutional protection. the crime, 2) property “traceable” to the crime, and 3) other “property Known as the “freeze and seize” statute,2 Section 186.11 was of equivalent value.”13 The statute, therefore, implicates assets that “intended ‘to establish a process in which the assets of those alleged are both derived from or traceable to criminal violations and assets to have committed aggravated white collar crime could be frozen at that are untainted and have not been shown to be connected with the time of their arrest to secure the assets in order to pay restitution criminal activity. Notably, Section 1345 only allows assets to be for the crime victims….”3 A proper petition under this statute “allows restrained up to the “equivalent value” of the assets obtained from the trial court to enjoin the defendant against transferring or disposing or traceable to the purported criminal conduct.14 of his or her assets.”4 The government asked the federal district court in Luis to freeze When Section 186.11’s predecessor statute was first introduced all of the defendant’s assets, which the government agreed were in 1995, the bill’s stated purpose was to “set up a procedure for the unconnected with the alleged criminal conduct.15 The defendant freezing and forfeiture of the financial assets of persons alleged to argued that an order that prevented her from using untainted funds have committed white collar crimes in order to obtain restitution for to hire counsel of her choice was a violation of the Sixth Amendment.16 the crime victims, pay the costs of investigation and prosecution of Relying on earlier precedent, the district court found that the defendant those persons, and obtain fines and penalties payable to the counties did not have a Sixth Amendment right to use untainted assets to which have undertaken the prosecution of those criminal defendants.”5 hire counsel, and the Eleventh Circuit agreed.17 Reversing the judgment The proposed bill contemplated that the assets would be subject to of the Eleventh Circuit, the U.S. Supreme Court held that “the forfeiture if the defendant was convicted6 and provided a process for pretrial restraint of legitimate, untainted assets needed to retain the prosecuting agency to move the superior court for “pendente lite counsel of choice violates the Sixth Amendment.”18 The Court based orders to preserve the status quo of the property alleged in the petition its holding on “the nature and importance of the constitutional right of forfeiture.”7 Subsequently, the bill was amended, removing any [to counsel] taken together with the nature of the assets” at issue.19 reference to forfeiture,8 and now, rather than being a forfeiture statute, The Court in Luis first discussed the “fundamental” nature of it solely permits a pretrial “freeze” of assets and a postconviction the Sixth Amendment right to counsel.20 The Court noted that the liquidation to pay restitution and fines. Indeed, the California Supreme right to counsel has been described “as a ‘great engin[e] by which Court has observed that the “principal focus of section 186.11…is an innocent man can make the truth of his innocence visible,’” that to facilitate the payment of restitution by ‘prevent[ing] dissipation or the right has been understood to require that the government provide secreting of assets or property.’”9 counsel for indigent defendants in all but the least serious cases, and Section 186.11’s provision for the pretrial restraint of a defendant’s that the Supreme Court has considered the wrongful deprivation of untainted assets permits the seizure of up to three times the amount the right to counsel as a “‘structural’ error that so ‘affec[ts] the of the alleged loss. It reads, in relevant part: “any asset or property framework within which the trial proceeds’ that courts may not that is in the control of [the defendant], and any asset or property even ask whether the error harmed the defendant.”21 The Court that has been transferred by [the defendant] to a third party, subsequent then reasoned that the fundamental Sixth Amendment right to assis- to the commission of any criminal act alleged pursuant to subdivision tance of counsel outweighs the interests of the government and (a), other than a bona fide purchase, whether found within or outside victims in securing restitution.22 As the Court observed, while the the state, may be preserved by the superior court in order to pay resti- tution and fines.”10 The statute thus allows the potential seizure of all Melissa Weinberger and Amanda Touchton are partners at the criminal of a defendant’s property, inside or outside California, without regard defense firm of Touchton & Weinberger LLP.

Los Angeles Lawyer April 2017 13 interests in obtaining payment of criminal graph (3) prior to making any order to counsel of choice, these interests would forfeiture or a restitution order are important, releasing property for these purposes.30 seem to lie somewhat further from the heart “compared to the right to counsel of choice, Although this provision allows the release of a fair, effective criminal justice system.”35 these interests would seem to lie somewhat of attorney’s fees, it does not require the Thus, the mandate in Section 186.11(f)(4) further from the heart of a fair, effective crim- release of untainted funds when necessary to that requires the court to weigh the needs of inal justice system.”23 hire counsel, and therefore cannot satisfy the the public against the needs of the defendant The Court next focused on the import of standard set forth in Luis. To begin with, the was explicitly rejected by the Supreme Court. the property’s status as either tainted assets release of funds for attorneys can only occur Moreover, the release of attorneys’ fees (proceeds of a crime or property used to after the court has conducted a balancing test under Section 186.11 is permissive; it states facilitate a criminal activity) or untainted and, separately has considered a list of enu- that the court may consider a defendant’s assets (property that is not a result of or merated factors. After the court has under- request for attorney’s fees.36 This language derived from the crime). The Court indicated taken these required analyses, the release of invests the trial court with unfettered discretion that the status of the property is crucial funds remains wholly discretionary. Finally, to decide whether to hold a hearing to release because it determines to whom the property the release of funds can only occur after a funds in the first instance. Under Luis, how- belongs at the time of the freeze.24 When defendant has been charged and presumably ever, a defendant has an absolute right to use property is “tainted,” the government’s right arrested, and, furthermore, is at a critical untainted assets for attorney’s fees.37 “[T]he to the property is said to vest upon commis- stage in the proceedings when he or she needs pretrial restraint of legitimate, un tainted assets sion of the crime, even if title is not perfected the assistance of counsel. It places the onus needed to retain counsel of choice violates until judgment.25 Under this so-called “rela- on the defendant to file the motion for release the Sixth Amendment.”38 Thus, the attorney’s tion-back” doctrine, a pretrial freeze of tainted of funds, which is not practically accomplished fees provision, which makes the release of assets is permissible because the tainted prop- without hiring an attorney. Thus, the very fees discretionary, fails for this reason as well. erty is said to belong to the government or process set forth in Section 186.11 makes it Critically, the process for release of funds the victim rather than the defendant at the effectively impossible for a defendant to seek under Section 186.11 also conflicts with Luis. time of the freeze.26 Conversely, untainted release of attorney’s fees because he is without Pursuant to Section 186.11, the prosecution assets belong to the defendant “pure and funds to hire counsel to seek the release of can apply for a temporary restraining order simple.”27 The distinction is “an important funds he needs to hire counsel. (TRO) or other protective relief “to preserve one, not a technicality.”28 Thus, the govern- The attorney’s fees provision requires the the [defendant’s] property or assets” concurrent ment, even before trial, has a substantial court to make two discrete balancing analyses with filing a complaint charging specified interest in tainted property, which is sufficient prior to releasing any funds for counsel. First, felonies.39 The statute allows the prosecutor to justify a pretrial restraint, but with respect the court shall weigh the needs of the public to seek such orders without prior notice to to untainted property, a defendant can rea- to retain the property against the needs of the defendant.40 Thus, a defendant may be sonably claim that the property is still his or the defendant to a portion of the property. arrested and in custody, facing serious felony hers, “free and clear.”29 Second, the court shall consider the list of charges, and scheduled for arraignment and Ultimately, the Supreme Court answered five factors set forth in paragraph (f)(3) of bail before he or she even receives the docu- the only question in front of it, and limited the statute.31 These factors significantly over- ments relevant to the restraint of his or her the portion of the federal statute that allowed lap with the considerations of the first bal- assets. for a pretrial freeze order on untainted assets ancing test. For example, the first factor— To challenge an asset freeze, a defendant needed to obtain counsel. However, the Court in subsection (A)—is the public interest in must request a hearing. The hearing must be seriously called into question the practice of preserving the property or assets, and the held within 10 days of serving the request freezing any of a defendant’s untainted assets last factor—in subsection (E) —is the public on the prosecuting agency or within two days pretrial. interest in compensating victims and paying upon a showing of good cause.41 At the hear- court-imposed restitution and fines. In short, ing, the court must consider a whole list of Penal Code Section 186.11 After Luis these two conditions require the court to bal- factors prior to making any order releasing Since Section 186.11 allows the pretrial re- ance concerns related to the government and property for the purpose of hiring counsel.42 straint of all of a defendant’s innocent assets, victims with a defendant’s right to counsel Thus, the release of funds for attorney’s up to three times the amount of alleged loss, prior to releasing any funds for counsel. fees may occur only after a complaint has it is broader than Section 1345—the federal These are the same concerns that the been filed—and the defendant, presumably, statute at issue in Luis—in two important Supreme Court held were subsidiary to a has been arrested—and likely after the defen- ways. It allows the government to seize any defendant’s right to counsel.32 The Court in dant has been arraigned. Further, unless the assets up to three times the amount of loss. Luis recognized that on one side is the “Sixth defendant is going to make the motion for On the other hand, unlike Section 1345, Amendment right to assistance of counsel release of funds pro per, the requirement that Section 186.11 permits the court, upon appli- that is a fundamental constituent of due the defendant “request” the hearing and cation of the defendant, to consider release process of law” and on the other side are “request” fees presupposes that the defendant of funds for attorney’s fees as follows: “interests that include the Government’s con- will have counsel in order to request the The court…may consider a defendant’s tingent interest in securing its punishment of funds necessary to hire counsel. The Supreme request for the release of a portion of choice (namely, criminal forfeiture) as well Court was concerned with this very scenario the property affected by this section as the victims’ interest in securing restitu- in Luis: “As far as Luis’ Sixth Amendment in order to pay reasonable legal fees tion.”33 After examining these conflicting right to counsel of choice is concerned, a in connection with the criminal pro- considerations, the Supreme Court clearly restraining order might as well be a forfeiture; ceeding…. The court shall weigh the held that the fundamental Sixth Amendment that is, the restraint itself suffices to completely needs of the public to retain the prop- right to assistance of counsel is more impor- deny this constitutional right.”43 erty against the needs of the defendant tant than the government’s and victims’ inter- Indeed, only with great difficulty could to a portion of the property. The court est in securing forfeiture and restitution.34 a criminal defendant who has not yet had shall consider the factors listed in para- The court found that “compared to the right funds released under Section 186.11(f)(4)

14 Los Angeles Lawyer April 2017 convince private counsel to work, presumably Rep. on SB No. 950, at 4 (1995-1996 Reg. Sess.) as §186.11(f)(3) consist of: “(A) The public interest in pro bono, to identify the complex legal and amended Sept. 7, 1995. preserving the property or assets pendente lite. (B) 4 Green, 125 Cal. App. 4th at p. 372, noting PENAL The difficulty of preserving the property or assets pen- factual issues involved in challenging a Sec- CODE §186.11(f)(1). dente lite where the underlying alleged crimes involve tion 186.11 freeze. Counsel would further be 5 SB No. 950, at 1 (1995-1996 Reg. Sess.) as introduced issues of fraud and moral turpitude. (C) The fact that required to move for and appear at the req- Feb. 23, 1995. the requested relief is being sought by a public prose- uisite hearing all in the hope of eventually 6 Id. at 3. cutor on behalf of alleged victims of white collar 7 receiving what the court concludes are rea- Id. at 5. crimes. (D) The likelihood that substantial public harm 8 See, e.g., SB No. 950 (1995-1996 Reg. Sess.) as has occurred where aggravated white collar crime is sonable fees. Moreover, the attorney would amended April 17, 1995. alleged to have been committed. (E) The significant be required to enter a general appearance 9 People v. Semaan 42 Cal. 4th 79, 86 (2007), citing public interest involved in compensating the victims before he or she even knew whether funds PENAL CODE §186.11(e)(2). of white collar crime and paying court-imposed resti- for attorney’s fees would be released. 10 PENAL CODE §186.11(d)(1). tution and fines.” Because the potential release of attorney’s 11 Luis v. United States, 136 S. Ct. 1083, 1087-88 32 Luis, 136 S. Ct. at 1093. (2016). 33 Id fees under Section 186.11(f)(4) occurs only . 12 Id. at 1088; see also 18 U.S.C. §1345(a)(2). 34 Id. after the defendant has been charged and the 13 18 U.S.C. §§1345(a)(2), (a)(2)(B)(i). 35 Id. assets have been frozen, the process set forth 14 18 U.S.C. §1345(a)(2)(B)(i). 36 PENAL CODE §186.11(f)(4). in the statute appears to unlawfully hinder 15 Luis, 136 S. Ct. at 1088. 37 Luis, 136 S. Ct. at 1088. criminal defendants from obtaining funds to 16 Id. at 1087. 38 Id. 17 39 challenge the TRO, which results in the inabil- Id. at 1088. PENAL CODE §186.11(d)(2. 18 Id. 40 PENAL CODE §186.11(d)(3). ity to hire counsel of choice. In practical respect, 19 Id. 41 PENAL CODE §186.11(f)(2). it also means that a defendant will be unable 20 Id. at 1088-89. 42 PENAL CODE §186.11(f)(4). to retain counsel of choice at the critical time 21 Id. at 1089 (internal citations omitted). 43 Luis, 136 S. Ct. at 1094, citing United States v. of arraignment and bail proceedings.44 22 Id. at 1093. Gonzalez-Lopez, 548 U.S. 140, 147–148 (2006). 23 Id. 44 It is well settled that a defendant in criminal pro- Obstacles to Statutory Challenge 24 Id. at 1090-92. ceedings has a “fundamental constitutional right to 25 See United States v. A Parcel of Land (92 Buena the assistance of counsel at all stages of the proceed- The Supreme Court’s decision in Luis seriously Vista Avenue) 507 U.S. 111, 126 (1993). ings….” (In re Lopez, 2 Cal. 3d 141, 145 (1970), calls into question the constitutionality of the 26 Luis, 136 S. Ct. at 1090, noting Caplin & Drysdale, citing CAL. CONST. art. I, §13; see also People v. Carasi, pretrial restraint provisions in Section 186.11. Chartered v. United States 491 U.S. 617 625-28 (1989). 44 Cal. 4th 1263, 1299 (2008); U.S. CONST. Amend. However, significant strategic and legal con- 27 Luis, 136 S. Ct. at 1090. XI.) As the U.S. Supreme Court has observed, 28 Id. at 1091. “[P]erhaps the most critical period of the proceedings” cerns remain. Initially, mounting an as-applied 29 Id. at 1092. occurs from the time of “arraignment until the begin- constitutional challenge may be difficult if 30 PENAL CODE §186.11(f)(4). ning of…trial.” (Powell v. State of Alabama, 287 U.S. not impossible. First, if counsel has been 31 The factors that are delineated in Penal Code 45, 57 (1932).) retained, the asset restraint presumably has not interfered with the defendant’s ability to hire counsel of his or her choice. Second, if defense counsel secures the release of sufficient ROSS MEDIATION SERVICES funds for legal representation, the defendant’s integrity u commitment u Success as-applied challenge to the asset restraint is further weakened. Third, a defendant may Specialty aReaS not authorize the expenditure of the limited • Real Estate • Business/Commercial funds released for his or her defense on bring- • Mortgage & Lending • Escrow/Title/Agency ing a further challenge to the pretrial restraint. • Trusts & Estates • Workplace Although a facial challenge would avoid • Construction • Multi-Party these issues, courts are less inclined to find • Personal Injury • Professional Liability statutes unconstitutional when no individual ARRY OSS SQ right has been infringed. Moreover, if the B R , E ., MBA challenge is defeated at the trial court level, 818.840.0950 www.ROSSmediation.com additional questions regarding the appropriate method of appealing a final ruling from what is statutorily defined as a “pendant” proceed- ing remain unresolved. Thus, while the holding in Luis calls into question the constitutionality of Section 186.11’s pretrial asset restraint provisions, defense counsel continue to face difficulty getting the issue before the California courts. n

1 Luis v. United States, 136 S. Ct. 1083 (2016). 2 Although the powers that are mandated in Penal Code §186.11 are frequently referred to as “freeze and seize” provisions, they are more accurately described as freeze provisions, because the prosecution does not commonly take custody of the assets but simply prevents them from being accessed and distributed. 3 People v. Green 125 Cal. App. 4th 360, 367 (2004), ci ting S. Rules Comm., Off. of S. Floor Analysis, S.

Los Angeles Lawyer April 2017 15 by JUAN C. BASOMBRIO

NATIONS ONTRIAL

New measures seeking to redress the effects of international terrorism have sparked controversy over the ramifications for U.S. foreign relations

AGAINST SPONSORS OF relations of the United States. However, Congress overrode the veto THE JUSTICE TERRORISM ACT (JASTA)1 because JASTA seeks to ameliorate such concerns by strictly focusing became law on September 28, 2016, after the Senate and House of its application on acts of international terrorism occurring solely Representatives overwhelmingly overrode President Barack Obama’s within the United States, and thus is consistent with current United veto—the only veto override of the Obama presidency. JASTA was States law on foreign sovereign immunity. As a result, JASTA should motivated by congressional interest in affording legal redress to the not be a significant cause for concern to the extent that a foreign families and victims of the 9/11 terrorist attacks. JASTA’s congressional state is not engaged in tortious acts connected to international findings recognize that: terrorism occurring within the United States. The scope of conduct The United States has a vital interest in providing persons that comes within JASTA is limited geographically. and entities injured as a result of terrorist attacks committed Yet, there is a degree of ambiguity in JASTA that leaves room within the United States with full access to the court system for judicial construction that may result in judgments having varied in order to pursue civil claims agaist persons, entities or coun- views on the exact reach and application of JASTA, and could tries that have knowingly or recklessly provided material sup- thereby cause unintended stress on international relations. Therefore, port or resources, directly or indirectly, to the persons or orga- while affording the right of access to courts envisioned by Congress, nizations responsible for their injuries.2 courts will need to be vigilant and apply JASTA in a manner that is Nonetheless, the Obama administration and others expressed concerns consistent with the limiting principles in existing foreign sovereign about potential negative effects that JASTA may have on international immunity law.

Juan C. Basombrio is a partner in the Southern Cali fornia office of Dorsey & Whitney LLP, and was counsel of record for the defendant Austrian state instrumentality in OBB Personenverkehr AG v. Sachs, a case dealing with foreign sovereign immunity law, which he argued to the Supreme Court. HADI FARAHANI

16 Los Angeles Lawyer April 2017

JASTA is an amendment to the Foreign vides the sole basis for obtaining jurisdiction Iran, Sudan and Syria.19 This original ter- Sovereign Immunities Act (FSIA),3 which was over a foreign state in the courts of this coun- rorism exception cannot be invoked against enacted in 1976 to codify international law try” and renders a foreign state “presump- any other foreign states. It has limited appli- on foreign sovereign immunity. Originally, tively immune from the jurisdiction of United cation, and the executive branch has absolute international law considered sovereign states States courts unless one of the Act’s express authority to specify which foreign states are to enjoy absolute immunity from the juris- exceptions to sovereign immunity applies.”10 subject to it. diction of foreign courts. This view rested Thus, courts should not endeavor to craft To broaden the scope of the terrorism on the principle that sovereign states are con- exceptions to foreign sovereign immunity exception, Congress enacted JASTA, which sidered to be equals, and thus their actions that are not expressly set forth in the FSIA takes a different approach. In enacting cannot be judged by the courts of another or attempt to expand the reach of the enu- JASTA, Congress recognized that “interna- sovereign state. However, this view began to merated exceptions. The comprehensive tional terrorism is a serious and deadly prob- erode as sovereign states delved into com- nature of the FSIA provides foreign states lem that threatens the vital interests of the mercial endeavors with citizens of other sov- with a level of predictability regarding what United States.”20 Rather than amending the ereign states. For example, in the 1812 case conduct may open the gates of litigation original terrorism exception (Section 1605A) of Schooner Exchange v. McFaddon,4 Chief against them in the United States. in the FSIA, JASTA introduced a new and Justice John Marshall noted a distinction The FSIA begins with a general grant of separate terrorism exception (Section 1605B). between the public and commercial acts of foreign sovereign immunity to foreign states, The grounds for application of the new a foreign state: except as specifically excepted therein: JASTA international terrorism exception A prince, by acquiring private property Subject to existing international agree- differ from the grounds for application of in a foreign country, may possibly be ments to which the United States is a the original terrorism exception. considered as subjecting that property party at the time of enactment of this The White House and others expressed to the territorial jurisdiction; he may Act a foreign state shall be immune concerns relating to the potential negative be considered as so far laying down from the jurisdiction of the courts of effects that JASTA could have on international the prince, and assuming the character the United States and of the States relations of the United States; mainly, that of a private individual; but this he can- except as provided in sections 1605 JASTA allegedly signaled a radical departure not be presumed to do with respect to 1607 of this chapter.11 from existing law. Although there is some to any portion of that armed force, The plaintiff must overcome this starting justification for those concerns in that JASTA which upholds his crown, and the point that foreign states are immune. Sections has broader application than Section 1605A nation he is entrusted to govern.5 1605 to 1607 set forth the FSIA’s exceptions (which was limited to state sponsors of ter- This evolution in international law resulted to foreign sovereign immunity. FSIA excep- rorism), JASTA is expressly limited to acts in the so-called restrictive theory of foreign tions commonly invoked against foreign of international terrorism occurring within sovereign immunity, first recognized by the states include the express or implicit waiver the United States. To the extent that a foreign United States in the 1952 Tate Letter.6 Under by a foreign state of sovereign immunity in state is not involved in such acts, international the restrictive theory, as articulated in the the United States,12 commercial activities relations between that foreign state and the Tate Letter, foreign sovereign “immunity is carried-on by a foreign state in the United United States should not be negatively confined to suits involving the foreign sov- States or outside of the United States and impacted. JASTA also has been drafted con- ereign’s public acts, and does not extend to having a direct effect in this country,13 non- sistently with the general principles set forth cases arising out of a foreign state’s strictly commercial torts committed by a foreign in the FSIA. commercial acts.”7 The restrictive theory has state in the United States,14 and where a for- No Liability Provision evolved since the Tate Letter, as is now eign state participates in certain international reflected in the FSIA. arbitrations.15 JASTA, like the other exceptions in the FSIA, Prior to the enactment of the FSIA—when is not a liability provision. It deprives a foreign Terrorism Exception a foreign state was sued in the United States— state of sovereign immunity and permits the the State Department filed with the court a Prior to the enactment of JASTA, the FSIA court to exercise subject-matter jurisdiction recommendation regarding whether the for- already contained a more limited terrorism over claims against it. Under the FSIA, “the eign state enjoyed sovereign immunity in the exception to foreign sovereign immunity.16 foreign state [is] liable in the same manner particular case. Indeed, the two expressed This terrorism exception, added in 1996 and and to the same extent as a private individual purposes of the FSIA were to endorse and which remains in effect, allows civil actions under like circumstances.”21 As a result, it codify the restrictive theory of sovereign seeking money damages for personal injury is state law that provides the substantive law immunity, and to transfer primary responsi- or death “caused by an act of torture, extra- of liability on the claim against the non- bility for deciding “claims of foreign states judicial killing, aircraft sabotage, hostage immune foreign state.22 to immunity” from the State Department to taking, or the provision of material support Specifically, JASTA states that a for- the courts.8 But the State Department retained or resources for such an act,” against foreign eign state shall not have foreign sovereign the ability to submit “statements of interest” states that are designated by the State immunity: to the court, expressing its views on the avail- Department to be “state sponsors of terror- [I]n any case in which money damages ability of foreign sovereign immunity in a ism.”17 Thus, the FSIA “stripped immunity are sought against a foreign state for particular case. Although courts usually fol- from a foreign state for claims arising from physical injury to person or property low the government’s views as expressed in particular acts, if those acts were taken at a or death occurring in the United States the statements of interest, the courts are not time when the state was designated as a and caused by—(1) an act of interna- bound to do so. sponsor of terrorism.”18 However, applica- tional terrorism in the United States; Thus, the FSIA establishes the subject- tion of this original terrorism exception is and (2) a tortious act or acts of the matter jurisdiction of federal courts in civil extremely limited because the State foreign state, or of any official, em - actions against foreign states.9 In fact, the Department currently has designated only ployee, or agent of that foreign state Supreme Court has held that the FSIA “pro- three countries as state sponsors of terrorism: while acting within the scope of his

18 Los Angeles Lawyer April 2017 or her office, employment, or agency, of its provisions. concern that the tortious conduct required regardless where the tortious act or A further limitation in JASTA is that the by JASTA could be that of an agency or acts of the foreign state occurred.23 act of international terrorism must have a instrumentality, which expands the reach of JASTA clearly limits the exception to acts of nexus to a “tortious act” of the foreign state, the international terrorism exception beyond international terrorism occurring within the or of a governmental official acting within the acts of the sovereign itself. In other words, United States. This substantial limitation sig- the course and scope of his/her authority, the sovereign can be brought into court on nificantly decreases the potential for negative because JASTA requires that the physical the basis of actions of its agencies and instru- effects on foreign relations, because foreign injury or death be caused both by the act of mentalities, if such actions can be attributed states could not be sued in the United States international terrorism and such tortious to the sovereign. However, that should not on the basis of alleged acts of international conduct. However, JASTA is silent on what be cause for added concern because it reflects terrorism occurring outside of the United standard should be applied to satisfy that existing FSIA law; rather, JASTA limits sub- States. apparent nexus requirement. This may be ject-matter jurisdiction by requiring intent. cause for international concern in that courts Acts of International Terrorism Presumption of Separateness are left with discretion to decide whether Courts also will not be writing on a blank the particular facts connecting the acts of FSIA jurisprudence is rich in the area of the slate with respect to what constitutes an act international terrorism to the alleged tortious attribution of acts of government officials to of international terrorism. JASTA defines the conduct of the foreign state are sufficiently foreign states. It generally holds that there is term “international terrorism” as in Section close or too attenuated. In exercising such a “presumption of separateness” between the 2331 of Title 18 of the United States Code discretion, courts should keep in mind the sovereign and its agencies or instrumentalities. and excludes from that definition any act of doctrine of international comity, given that This means that the actions of the agency or war.24 For its part, Section 2331 defines inter- the Supreme Court has recognized that for- instrumentality are not imputed to the sov- national terrorism to be 1) “violent acts or eign sovereign immunity is “a matter of ereign unless the sovereign treats the agency acts dangerous to human life that are a viola- grace and comity.”28 In other words, the or instrumentality as its alter ego or exercises tion of the criminal laws of the United terrorism exception must be read narrowly, a significant degree of control over it consistent States,”(2) that “appear intended” to “intim- which is consistent with the narrow con- with general corporate law principles found idate or coerce a civilian population,” “influ- struction generally provided to other FSIA in U. S. law.41 Hence, the foreign state is not ence the policy of a government by intimidation exceptions.29 left helpless in this regard. If the foreign state or coercion,” or “affect the conduct of a gov- JASTA also makes the substantive burden respects the separate juridical personality of ernment by mass destruction, assassination, more difficult for the plaintiff by specifying the subject agency or instrumentality, their or kidnapping,” and 3) that “occur primarily that the subject tortious conduct must be acts cannot be imputed to the foreign state outside the territorial jurisdiction of the United more than mere negligence: “A foreign state for purposes of application of the FSIA excep- States, or transcend national boundaries in shall not be subject to the jurisdiction of the tion. Similarly, if a government official acts terms of the means by which they are accom- courts of the United States under subsection outside of the course or scope of his or her plished, the persons they appear intended to (b) on the basis of an omission or a tortious authority, then the actions of that official intimidate or coerce, or the locale in which act or acts that constitute mere negligence.”30 would not be considered to be acts of the their perpetrators operate or seek asylum.”25 While JASTA, like the FSIA more generally, foreign state for purposes of the FSIA deter- This detailed definition of international ter- does not create a cause of action per se, it mination.42 rorism imposes a heavy burden of proof on excludes from the available menu of state A further concern may be the extent to plaintiffs (who under the FSIA normally carry tort law causes of action those based merely which JASTA could be applied to private the ultimate burden of proof), and limits the on negligent conduct. This reflects the intent (nongovernmental) parties, like financial scope of the qualifying terrorist act. of Congress to deny foreign sovereign immu- institutions or other businesses providing In making such determinations, and to nity only in cases where the wrongful acts services to foreign states. Could a nongovern- decrease the potential for friction in inter- of the foreign state were intentional. mental business entity or individual be held national relations while giving effect to the Further consideration must be given to liable under JASTA? The answer is yes, stated congressional intent, courts should the term “foreign state.” Under the FSIA, a because JASTA provides for aiding and abet- focus on the intended geographical limitation foreign state does not include only the sov- ting liability under certain circumstances.43 of JASTA, which would be consistent with ereign state itself, but also “a political sub- In this respect, JASTA is different from the the general manner in which the Supreme division of a foreign state or an agency or rest of the FSIA which mainly concerns itself Court has held that the FSIA must be inter- instrumentality of a foreign state.”31 In turn, with jurisdiction and not substantive law. preted. For example, the Supreme Court has “agency or instrumentality” is also defined.32 However, although the extent of aider and emphatically indicated that “any sort of Under the FSIA, “‘political subdivision’ abettor liability under JASTA will be subject immunity defense made by a foreign sover- includes all governmental units beneath the to judicial construction, if the foreign state eign in an American court must stand on central government. An ‘agency or instru- is immune under the FSIA, the action may the [FSIA’s] text. Or it must fall.”26 Such mentality’ of a foreign state, on the other also be dismissed as to the private party. In construction is in line with the focus of cases hand, is defined as any. . . political subdivision Republic of the Philippines v. Pimentel, the interpreting other exceptions in the FSIA. of a foreign state which is a separate legal Supreme Court held that, under principles For example, the Supreme Court has held person or entity.”33 For example, based on of international comity, an action could not that in tort actions, the FSIA’s commercial existing case law, the tortious acts of a coun- proceed against private parties after dismissal activity exception to foreign sovereign immu- try’s armed forces,34 ministries of internal on foreign sovereign immunity grounds of nity does not apply where the gravamen of security,35 finance ministries,36 embassies,37 the foreign state, because the interests of the the action (that is, the facts upon which the state-owned airlines,38 a state-owned petro- foreign state may be injured if the action action is based) arises outside of the United leum companies,39 or nationalized banks,40 proceeds without it.44 Pimentel has been States.27 The FSIA already contains a built- could be considered acts of their respective applied in a variety of cases including disputes in geographic approach that permeates many sovereigns. Thus, foreign states may raise regarding government procurement bid-

Los Angeles Lawyer April 2017 19 ding,45 contracts for televised transmission dence satisfactory to the court.”54 Thus, a United States courts to seek redress under a of national sporting matches,46 and contracts foreign state will be forced to hire an attorney new exception to the FSIA which is broader for IT services.47 to represent it in court and assert the sovereign than the existing terrorism exception. As The FSIA also contains a shifting burden immunity defense. Nonetheless, when a defen- JASTA’s congressional intent declares, its of proof, which further serves to protect for- dant is a foreign state, a default is especially “purpose” is: eign states. “[A]lthough a party claiming disfavored because “[i]ntolerant adherence [T]o provide civil litigants with the FSIA immunity retains the ultimate burden to default judgments against foreign states broadest possible basis, consistent with of persuasion on immunity, it need only pre- could adversely affect [the United States’] the Constitution of the United States, sent a prima facie case that it is a foreign relations with other nations and undermine to seek relief against persons, entities state; and, if it does, the burden shifts to the the State Department’s continuing efforts to and foreign countries, wherever acting party opposing immunity to present evidence encourage foreign sovereigns generally to and wherever they may be found, that that one of the exceptions to immunity ap - resolve disputes within the United States’ legal have provided material support, directly plies.”48 Hence, in a FSIA-based motion to framework.”55 Some courts have held that or indirectly, to foreign organizations dismiss that challenges the plaintiff’s factual even if a foreign state defaults, the court has or persons that engage in terrorist acts allegations, “Rule 12(b)(6)’s presumption of an independent duty to perform the required against the United States.63 n truthfulness does not attach to [the plaintiff’s] sovereign immunity analysis under the FSIA, allegations” in his or her complaint.49 For and ensure itself that it has subject-matter 1 Justice Against Sponsors of Terrorism Act (JASTA), the case to proceed beyond the pleading stage, jurisdiction.56 Pub. L. No. 114-222, 130 Stat. 852. the plaintiff must support its allegations Further, JASTA contains a provision which 2 Id. §2(a)(7). 3 28 U.S.C. §§1602 et seq. against the foreign state with evidence when allows courts to “stay a proceeding against 4 Schooner Exchange v. McFaddon, 11 U.S. facing a motion to dismiss. Although some a foreign state if the Secretary of State certifies 116 (1812). discovery is permitted to establish jurisdiction that the United States is engaged in good 5 Id. at 145. under the FSIA, the plaintiff seeking discovery faith discussions with the foreign state defen- 6 Letter from Jack B. Tate, Acting Legal Adviser, U.S. bears the burden of establishing the specific dant concerning the resolution of the claims Dep’t of State, to Acting Attorney General Philip B. need of such discovery. The principles of against the foreign state, or any other parties Perlman (May 19, 1952) (reprinted in 26 Dep’t of State Bull. 984–85 (1952), at 1a, 4a-5a). 57 international comity underlying the FSIA as to whom a stay of claims is sought.” 7 Samantar v. Yousuf, 560 U.S. 305, 312 (2010). require the court, when deciding whether or Accordingly, this provision provides the exec- 8 28 U.S.C. §1602. not to allow jurisdictional discovery from a utive branch with significant power to affect 9 Id. §1330(a). foreign state, to balance the plaintiff’s need the outcome of particular JASTA litigation. 10 OBB Personenverkehr, AG v. Sachs, 136 S. Ct., for “discovery to substantiate exceptions to Similarly, the Supreme Court has recognized 390, 394 (2015). 11 28 U.S.C. §1604. statutory foreign sovereign immunity” against that, by enacting the FSIA, Congress did not 12 Id. §1605(a)(1). the need to “protect a sovereign’s or sovereign divest the president of the authority to settle 13 Id. §1605(a)(2). agency’s legitimate claim to immunity from claims against foreign states.58 Thus, even 14 Id. §1605(a)(5). discovery.”50 Discovery is the exception rather after JASTA, the executive branch retains the 15 Id. §1605(a)(6). 16 than the rule. ability to attempt to negotiate a resolution Id. §1605A. 17 Id. In this regard, if a district court denies a with the foreign state. 18 Republic of Iraq v. Beaty, 556 U.S. 848, 851-52 motion to dismiss a complaint under the Retroactive Application (2009). FSIA, the defendant foreign state also has 19 State Sponsors of Terrorism, U.S. Dep’t of State, the right to pursue an interlocutory appeal.51 Finally, although the Supreme Court has held https://www.state.gov/j/ct/list/c14151.htm. This is so because the FSIA provides “immu- that the FSIA has retroactive applica tion,59 20 JASTA, §2(a)(1), 130 Stat. 853. 21 28 U.S.C. §1606; see also H.R. Rep. No. 94-1487, nity from trial and the attendant burdens of Congress limited the retroactive application at 22 (1976) (the legislative history shows that if the litigation, and not just a defense to liability of JASTA to actions “arising out of an injury foreign state, political subdivision, agency or instru- on the merits.”52 The right to an interlocu- to a person, property, or business on or after mentality is not entitled to immunity from jurisdiction, tory appeal provides added protection to September 11, 2001.”60 This temporal limi- liability exists as it would for a private party under the foreign state, because it allows review tation further checks the reach of the inter- like circumstances.). 22 of the district court’s FSIA determination national terrorism exception. See, e.g., Bank of New York v. Yugoimport, 745 F. 3d 599, 609 n.8 (2d Cir. 2014) (“The FSIA operates before trial. In addition, where a court of In sum, courts recognize that “[a] primary as a pass-through, granting federal courts jurisdiction appeals may exercise interlocutory jurisdic- purpose of the FSIA is to make it difficult over otherwise ordinary actions brought against foreign tion over the denial of an FSIA motion to for private litigants to bring foreign govern- states. It provides foreign states and their instrumen- dismiss, the court of appeal also may exercise ments into court, thereby avoiding affronting talities access to federal courts only to ensure uniform pendent jurisdiction over related jurisdic- them.”61 While JASTA has broader subject- application of the doctrine of sovereign immunity.”). 23 28 U.S.C. §1605B(b). tional issues, such as whether dismissal was matter jurisdiction in claims against foreign 24 Id. at §1605B(a). appropriate based on forum non conveniens, states involving acts of international terror- 25 18 U.S.C. § 2331(1). international comity, and other jurisdictional ism occurring in the United States, the “pre- 26 Republic of Argentina v. NML Capital, Ltd., 134 doctrines.53 sumption under FSIA [remains true] that S. Ct. 2250, 2256 (2014). actions taken by foreign states or their instru- 27 OBB Personenverkehr, AG v. Sachs, 136 S. Ct., Default Judgment 390, 396-97 (2015). mentalities are sovereign acts and thus pro- 28 Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. The FSIA permits the entry of a default judg- tected from the exercise of our jurisdiction, 480, 486 (1983). ment against a foreign sovereign, but stipulates unless one of the enumerated exceptions of 29 See, e.g., Rubin v. Islamic Rep. of Iran, 830 F. 3d that “[n]o judgment by default shall be FSIA applies.”62 JASTA does not change this 470, 480 (7th Cir. 2016) (“The FSIA starts with a entered. . . against a foreign state, a political presumption of sovereign immunity or the baseline rule of execution immunity; the exceptions subdivision thereof, or an agency or instru- narrow reading imposed by FSIA jurispru- are few and ‘narrowly drawn.’”); McKesson Corp. v. Islamic Rep. of Iran, 672 F. 3d 1066, 1075 (D.C. Cir. mentality of a foreign state, unless the claimant dence on the application of its enumerated 2012) (“The FSIA established a broad grant of immu- establishes his claim or right to relief by evi- exceptions, but it does provide access to nity for foreign sovereigns that can only be abrogated

20 Los Angeles Lawyer April 2017 by one of the statute’s narrowly drawn exceptions.”). Supp. 2d 1041, 1067-69 (C.D. Cal. 2013). 53 See, e.g., S & Davis Intern., Inc. v. The Republic of 30 28 U.S.C. §1605B(d). 48 Kelly v. Syria Shell Petroleum Dev. B.V., 213 F. 3d Yemen, 218 F. 3d 1292, 1297-98 (11th Cir. 2000). 31 28 U.S.C. §1603(a). 841, 847 (5th Cir. 2000). 54 28 U.S.C. §1608(e). 32 28 U.S.C. §1603(b); see also Int’l Ins. Co. v. Caja 49 Odyssey Marine Exploration, Inc. v. Unidentified, 55 Practical Concepts, Inc. v. Republic of Bolivia, 811 Nacional de Ahorro y Seguro, 293 F. 3d 392, 397 Shipwrecked Vessel, 675 F. Supp. 2d 1126, 1131 (S.D. F. 2d 1543, 1551 n.19 (D.C. Cir. 1987). (7th Cir. 2002) (“A foreign instrumentality is defined Fla. 2009), aff’d 657 F. 3d 1159 (11th Cir. 2011). 56 See, e.g., Weininger v. Castro, 462 F. Supp. 2d 457, by the FSIA as an entity which is a separate legal 50 First City, Texas–Houston, N.A. v. Rafidain Bank, 477 (S.D.N.Y. 2006). person, which is an organ of a foreign state or a major- 150 F. 3d 172, 176 (2d Cir. 1998). 57 Pub. L. No. 114-222, §5, 130 Stat. 852, 854 (2016). ity of whose shares or other ownership interest is 51 See, e.g., Abelesz v. OTP Bank, 692 F. 3d 638, 645 58 Dames & Moore v. Regan, 453 U.S. 654, 684-89 owned by a foreign state, and which is not a citizen (7th Cir. 2012) (“it is well established that an order (1981). of the United States.”). denying sovereign immunity under the FSIA is a col- 59 Republic of Austria v. Altmann, 541 U.S. 677, 697- 33 Magness v. Russian Fed’n, 247 F. 3d 609, 613 n.7 lateral order subject to interlocutory appeal.”). 99 (2004). (5th Cir. 2001). 52 Foremost–McKesson, Inc., et al. v. Islamic Republic 60 Pub. L. No. 114-222, §7, 130 Stat. 852, 855 (2016). 34 Jerez v. Rep. of Cuba, 777 F. Supp. 2d 6, 20 n.24 of Iran, 905 F. 2d 438, 443 (D.C. Cir. 1990); accord 61 USX Corp. v. Adriatic Ins. Co., 345 F. 3d 190, 207 (D.D.C. 2011); Boshnjaku v. Fed. Rep. of Yugoslavia, EM, Ltd. v. Republic of Argentina, 695 F. 3d 201, (3rd Cir. 2003). No. 01 C 4608, 2002 WL 1575067, at *1 (N.D. Ill. 210 (2nd Cir. 2012) (“sovereign immunity protects a 62 Gregorian v. Izvestia, 871 F. 2d 1515, 1528 n.11 July 18, 2002). sovereign from the expense, intrusiveness, and hassle (9th Cir. 1989). 35 Bennett v. Islamic Rep. of Iran, 507 F. Supp. 2d of litigation”). 63 JASTA, §2(b), 130 Stat. 853. 117, 130 (D.D.C. 2007). 36 Bleier v. Bundesrepublik Deutschland, No. 08 C 06254, 2011 WL 4626164, at *5 (N.D. Ill. Sept. 30, 2011). 37 Gomes v. ANGOP, Angola Press Agency, No. 11- CV-0580 DLI JO, 2012 WL 3637453, at *11 (E.D.N.Y. Aug. 22, 2012). 38 Darby v. Compagnie Nationale Air France, 769 F. Supp. 1255, 1265 (S.D.N.Y. 1991). 39 Kensington Intern. Ltd. v. Rep. of Congo, No. 03 CIV. 4578 LAP, 2007 WL 1032269, at *6 (S.D.N.Y. Mar. 30, 2007). 40 Callejo v. Bancomer, S.A., 764 F. 2d 1101, 1106 (5th Cir. 1985). 41 See, e.g., First Nat’l City Bank v. Banco Para El Comercio Exterior De Cuba, 462 U.S. 611, 620-29 (1983) (discussing presumption of separateness and exception to the same); Doe v. Holy See, 557 F. 3d 1066, 1077-79 (9th Cir. 2009) (“We join the D.C. Circuit and the Fifth Circuit in extending Bancec’s analysis to the question whether the actions of a cor- poration may render a foreign sovereign amenable to suit.”); LNC lnvs., Inc. v. Rep. of Nicaragua, 115 F. Supp. 2d 358, 363 (S.D. N.Y. 2000), aff’d, 228 F. 3d 423 (2d Cir. 2000) (“instrumentality loses its separate juridical status and becomes the alter-ego or agent of its parent government when government exercises extensive control over the instrumentality’s daily oper- ations and abuses the corporate form.”). 42 JASTA requires that the tortious act “of any official, employee, or agent of that foreign state” must be com- mitted “while acting within the scope of his or her office, employment, or agency.” 28 U.S.C. §1605B(b)(2). This is also consistent with existing FSIA case law, which generally holds that if the government official acts without actual authority, that activity cannot con- stitute an act by the foreign state. See, e.g., Phaneuf v. Republic of Indonesia, 106 F. 3d 302, 307-08 (9th Cir. 1997). 43 18 U.S.C. §2333(d) (“liability may be asserted as to any person who aids and abets, by knowingly pro- viding substantial assistance, or who conspires with the person who committed such an act of international terrorism.”). 44 Republic of the Philippines v. Pimentel, 553 U.S. 851, 865-66 (2008) (holding that the lower courts “failed to give full effect to sovereign immunity when they held the action could proceed [against the private parties alone] without the Republic and the Com - mission. Giving full effect to sovereign immunity pro- motes the comity interests that have contributed to the development of the immunity doctrine.”). 45 TJGEM LLC v. Republic of Ghana, 26 F. Supp. 3d 1, 12-13 (D.D.C. 2013). 46 GMI, LLC v. Asociacion del Futbol Argentino, No. 13-21494-CIV, 2014 WL 2818663, at *7 (S.D. Fla. June 23, 2014). 47 EduMoz, LLC v. Republic of Mozambique, 968 F.

Los Angeles Lawyer April 2017 21 22 Los Angeles Lawyer April 2017 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE ethics credit. To apply for credit, please follow the instructions on the test answer sheet on page 25.

by John W. Amberg and Jon L. Rewinski 2016 Ethics Roundup Last year attorneys in the state found relief from malpractice claims under statutes regarding one-year tolling limitations and anti-SLAPP provisions

respect for the trine. After conclusion of class litigation chal- IN 2016, rule of law and lenging the validity of certain city taxes, one the civic virtues of duty, honesty, and civility of the plaintiffs’ lawyers served a PRA request. embodied in the California Rules of Pro - An administrative officer released 53 docu- fessional Conduct never seemed more impor- ments, among them three documents that tant. Traveling in Colombia, Los Angeles had been listed on a privilege log during the Superior Court Judge Benny Osorio was res- litigation, and the city moved to recover cued from kidnappers demanding a $33,000 them. Reversing the lower courts, the ransom.1 At home, the State Bar of California Supreme Court held that, like the Evidence was rescued by the California Supreme Court, Code, the PRA protects attorney-client priv- which assessed bar members to fund the State ileged communications absent an intentional Bar’s disciplinary system after the legislature and knowing waiver. adjourned without authorizing 2017 dues.2 In December, a sharply divided Supreme A state audit report found that the state bar’s Court again addressed the attorney-client client security fund, which reimburses victims privilege of a government agency, resulting of attorney dishonesty, was underfunded at in a controversial new approach to privilege the beginning of the year by $16 million and analysis. In Los Angeles County Board of experiencing long delays.3 Supervisors v. Superior Court,6 the American Attorney-Client Privilege John W. Amberg is a partner in the Los Angeles The California Supreme Court twice ad - office of Bryan Cave LLP, and Jon L. Rewinski is a dressed the attorney-client privilege of gov- partner in the Los Angeles office of Locke Lord LLP. ernment agencies under the Public Records They are former chairs, and Amberg is a current Act (PRA).4 In Ardon v. City of Los Angeles,5 member, of LACBA’s Professional Responsibility it held that the city’s inadvertent disclosure and Ethics Committee. Amberg is also a former of documents in response to a PRA request chair, and Rewinski a former member, of the did not waive the protection of the attor- California State Bar’s Committee on Professional ney-client privilege and work product doc- Responsibility and Conduct.

Los Angeles Lawyer April 2017 23 Civil Liberties Union served a PRA request as an additional, nonstatutory element to the may not use information acquired during a seeking invoices from law firms defending Legislature’s definition of a ‘confidential com- previous engagement against a former client.19 the county in nine lawsuits alleging police munication’ is unsupported in law.”13 The Refined in Rule 3-310(E) of the California brutality. The county produced invoices for dissent criticized the majority’s “unconvincing Rules of Professional Conduct, this principle three closed cases with attorney-client and attempt to distinguish” Costco and, “even led to a lawyer’s disqualification in Costello work product information redacted, and, cit- more pernicious. . .its suggestion that the v. Buckley.20 A woman hired her boyfriend’s ing the attorney-client privilege and work protective scope of the privilege somehow brother, a lawyer, to represent her in an ease- product doctrine, declined to produce invoices wanes with the termination of the subject ment dispute. After the case ended and the for six pending cases. On the ACLU’s petition litigation.”14 couple broke up, the woman sued her ex- for writ of mandate, the superior court The opinion may be limited by its facts, boyfriend to collect a $92,000 debt. When ordered the county to produce redacted but its broad language belies such limitation. her ex-lawyer appeared as counsel for his invoices for all nine cases. The court of appeal Focusing on the content of the communica- brother and served requests for admission reversed, concluding the invoices were entirely tion is a new approach to privilege analysis demanding she admit the money had been a privileged. By a 4-3 vote, the supreme court in California and will be particularly chal- gift, she disqualified the lawyer because he reversed. lenging for state court judges, who are pre- had obtained confidential information about The majority opinion, written by Justice cluded by Evidence Code Section 915(a) from her romantic relationship during the easement Mariano-Florentino Cuéllar and joined by ordering an in camera inspection of the mate- dispute. In vain, the defendant argued there Justices Ming W. Chin (who wrote the Ardon rial claimed to be privileged.15 How will a could be no conflict because there was no opinion), Goodwin Liu, and Leondra Kruger, court determine whether information is prop- substantial relationship between the two rep- declined to follow the seminal modern case erly redacted? It remains to be seen. resentations and the information was unnec- on the attorney-client privilege, Costco essary to prove plaintiff’s case. The plaintiff Conflicts of Interests Wholesale v. Superior Court,7 which held did not need to rely on the presumption of the privilege attaches to the transmission of Courts did not hesitate to enforce the duty Rule 3-310(E) that information is material information during the attorney-client rela- of loyalty by disqualifying lawyers with con- if there is a substantial relationship between tionship, and does not depend on the content flicts of interest. Three years into a complex the two engagements because she proved that of the communication. Instead, the majority racketeering case against dozens of defendants her former lawyer possessed confidential focused on the content and purpose of the who allegedly paid kickbacks for referrals, information about her romantic relationship communication and concluded: “In order engaged in illegal fee sharing, and submitted that could be used against her.21 She did not for a communication to be privileged, it must fraudulent bills for reimbursement, District need to show that her ex-lawyer actually be made for the purpose of legal consultation, Judge Andrew J. Guilford disqualified Hue - used material confidential information, only rather than some unrelated or ancillary pur- ston Hennigan LLP from representing the that he could do so.22 pose.”8 Relying on dictum in Concepcion v. plaintiff in State Compensation Insurance In Ontiveros v. Constable,23 Ontiveros, a Amscan Holdings, Inc.9 and federal authority, Fund v. Drobot.16 Concurrently with the minority shareholder in a closely held company, the court found that lawyers’ invoices gen- firm’s representation of SCIF, its partner Brian Omega Electric, Inc., brought direct and deriv- erally are not privileged, but “the information Hennigan represented one of the alleged co- ative claims of mismanagement against the contained within certain invoices may be conspirators, Paul Randall, who pleaded majority shareholder and Omega. He moved within the scope of the privilege. . .[t]o the guilty to mail fraud. Hueston Hennigan had to disqualify the counsel jointly representing extent it is conveyed ‘for the purpose of legal amended SCIF’s complaint and filed a second the defendants because their interests were representation’—perhaps to inform the client civil suit naming more defendants, but, sig- rendered adverse by the derivative claims. The of the nature or amount of work occurring nificantly, did not sue Randall. A defendant defendants contended they had waived any in connection with a pending legal issue.”10 moved to disqualify Hueston Hennigan on conflicts and consented to joint representation, The court added, “[T]here may come a point the ground it represented both the victim, but the trial court ruled disqualification was when this very same information no longer SCIF, and one of the perpetrators of the fraud, automatic. The Fourth District Court of Appeal communicates anything privileged, because Randall. Judge Guilford granted the motion, affirmed the disqualification order as to the it no longer provides any insight into litigation holding Hueston Hennigan had “an actual company’s lawyers. Though Omega was nom- strategy or legal consultation.”11 Therefore, adverse, concurrent representation conflict.”17 inally a defendant, it was in substance the invoices for pending cases may be privileged, The movant was not a current or former plaintiff in the derivative suit. Also, under but invoices for closed cases were no longer client, but had standing because the ethical Rule 3-600(E), an organization’s consent to privileged and should be produced. breach was so severe that it obstructed the dual representation must be given by a con- In a vigorous dissent, Justice Kathryn M. orderly administration of justice. The court stituent other than an individual who also is Werdegar, joined by Chief Justice Tani Cantil- rejected conflict waivers obtained from SCIF to be represented, thus the majority shareholder Sakauye and Justice Carol Corrigan, criticized and Randall, finding them factually and could not consent for Omega.24 However, the the majority’s reasoning. Evidence Code Sec - legally inadequate, and explained: “[T]he appellate court partially reversed the disqual- tion 952 defines a “confidential communi- duty of loyalty is improperly and impermis- ification order, thereby permitting the lawyers cation between a client and lawyer” as “infor- sibly compromised when one firm repre- to continue to represent the majority share- mation transmitted between a client and his sents—at the same time, in the same litigation, holder because the only confidential company or her lawyer in the course of the relationship in the same courthouse—a criminal and his information they possessed came from him, and in confidence … and includes a legal victim. That’s what happened here, and if so the representation posed no threat to their opinion and the advice given by the lawyer the Court had allowed it to continue, loyalty duty of confidentiality to Omega.25 in the course of the relationship.”12 The would have been lost in ways that the client Attorney Discipline word “includes” means privileged commu- would not—and could not—understand until nications are not limited to legal opinions after harm had been done.”18 A Woodland Hills attorney, Marilyn S. Scheer, and advice. “The majority’s decision to add Eighty-five years ago, the California was retained to obtain a modification of her consideration of a communication’s purpose Supreme Court established that an attorney client’s mortgage and accepted $5,500 before

24 Los Angeles Lawyer April 2017 MCLE Test No. 267 MCLE Answer Sheet #267 2016 ETHICS ROUNDUP The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Continuing Legal Education ethics credit by the State Bar of California in the amount of 1 hour. You may take tests from Name back issues online at http://www.lacba.org/mcleselftests. Law Firm/Organization

1. Release of documents pursuant to a Public Records by counsel. Address Act request does not waive the attorney-client privilege, True. absent an intentional and knowing waiver. False. City True. State/Zip 12. False. When a class action establishes a monetary fund E-mail for the benefit of class members, an award of attorney’s Phone 2. For a communication between a lawyer and client fees can be based on a percentage of the fund. to be privileged, it must be made for the purpose of True. State Bar # legal consultation. False. True. INSTRUCTIONS FOR OBTAINING MCLE CREDITS False. 13. Though it is the prevailing party, a suspended 1. Study the MCLE article in this issue. corporation forfeits the right to recover its attorneys’ 2. Answer the test questions opposite by marking 3. Unless waived, attorney-client privileged information fees. the appropriate boxes below. Each question never loses the protection of the privilege. True. has only one answer. Photocopies of this True. False. answer sheet may be submitted; however, this False. form should not be enlarged or reduced. 14. A lawyer’s sexist remarks to opposing counsel 3. Mail the answer sheet and the $20 testing fee 4. A California court generally cannot conduct an in can result in sanctions by the court. ($25 for non-LACBA members) to: camera inspection of a document claimed to be priv- True. Los Angeles Lawyer ileged. False. MCLE Test True. P.O. Box 55020 False. 15. When a lawyer forms a business with a client, an Los Angeles, CA 90055 arbitration clause in the operating agreement does Make checks payable to Los Angeles Lawyer. 5. After a lawyer has represented a client in a lawsuit not automatically govern a malpractice claim arising 4. Within six weeks, Los Angeles Lawyer will for three years, he cannot be disqualified for a conflict out of their attorney-client relationship. return your test with the correct answers, a of interest. True. rationale for the correct answers, and a True. False. certificate verifying the MCLE credit you earned through this self-study activity. False. 16. Trial of a malpractice claim in federal court does 5. For future reference, please retain the MCLE test materials returned to you. 6. A lawyer has a duty to use information obtained not violate the federal policy favoring arbitration if from a former client to aid a current client, so long as the claimant could not afford the arbitration. ANSWERS the former engagement is concluded. True. Mark your answers to the test by checking the True. False. appropriate boxes below. Each question has only False. one answer. 17. The statute of limitations for legal malpractice is 7. In a derivative suit against the corporation and its tolled while the attorney continues to represent the 1. n True n False officers, the defendants’ interests are aligned for pur- client regarding the specific subject matter in which 2. n True n False poses of conflict of interest analysis. the wrongful act or omission occurred. 3. True False True. True. n n False. False. 4. n True n False 5. n True n False 8. 18. Under the Rules of Professional Conduct, an entity’s When a lawyer resigns from an engagement, the 6. n True n False consent to joint representation must be given by a attorney-client relationship does not end until he or 7. n True n False representative who is not also a joint client. she returns the client’s files. True. True. 8. n True n False False. False. 9. n True n False 10. n True n False 9. The state bar’s disciplinary system is unconstitu- 19. E-mail from a lawyer promising to help an investor 11. n True n False tional because judicial review by the California recover losses from the lawyer’s client constitutes Supreme Court is discretionary. protected petitioning activity under the anti-SLAPP 12. n True n False True. statute. 13. n True n False False. True. 14. n True n False False. 15. n True n False 10. An attorneys’ fee arbitration award in favor of the client is nondischargeable in bankruptcy. 20. A law firm sued for defamation cannot raise the 16. n True n False True. “fair report” privilege as a defense unless its press 17. n True n False False. release is completely true and accurate. 18. n True n False True. 19. n True n False 11. An opposing attorney may communicate with False. a public official, even if the official is represented 20. n True n False

Los Angeles Lawyer April 2017 25 any modification.26 The client fired her and payable to any for the benefit of a govern- In Laffitte v. Robert Half International sought return of his money under California’s mental unit, and is not compensation for Inc.,37 the court affirmed the trial court’s mandatory fee arbitration program. The arbi- actual pecuniary loss” and concluded Scheer’s order awarding the plaintiffs’ counsel one- trator found Scheer had violated Civil Code debt was purely compensatory—a fee arbi- third of a $19 million common fund settle- Section 2944.7(a) by receiving advanced fees tration award between the lawyer and her ment in three related wage and hour class for residential mortgage modification services former client. Therefore, the court held “our actions. In a scholarly opinion by Justice and ordered her to refund the fees plus the moral take on Scheer’s conduct does not con- Werdegar analyzing 50 years of fee awards arbitration fee. Scheer made a few payments, trol,” and the debt was dischargeable.33 in class actions, the court joined the over- and then stopped. The presiding arbitrator whelming majority of federal and state courts Communicating with Represented Party brought an action in state bar court, which in holding that when a class action establishes placed Scheer on involuntary inactive status Not often do courts have occasion to analyze a monetary fund for the benefit of class until she repaid the funds. After unsuccessfully Rule 2-210, which precludes a lawyer from members and the trial court in its equitable seeking review by the state bar court review communicating directly or indirectly about powers awards class counsel a fee out of department and the California Supreme the subject of the representation with a party that fund, the court may determine the Court, Scheer sued the state bar in district the lawyer knows to be represented, but amount of a reasonable fee by choosing an court, alleging that the attorney discipline District Court Judge Dean Pregerson did in appropriate percentage of the fund created.38 system violated her First and Fourteenth United States v. County of Los Angeles.34 A The calculation is reasonably easy to perform. Amendment rights. The court dismissed her lawyer representing disabled, mentally ill Incentives between counsel and the class are case, and she appealed. Meanwhile, Scheer inmates challenging a proposed settlement aligned. Also, the percentage better accounts also filed for Chapter 7 bankruptcy, naming between the Department of Justice and the for the contingency risk involved, and it may both the former client and the state bar as County of Los Angeles over inmate discharge encourage early settlement. One may test creditors.27 After the bankruptcy and district procedures was invited to a social gathering the reasonableness of a percentage award by courts ruled against her, she appealed. The at the home of the director of the Los Angeles comparing it to a hypothetical lodestar award. result was two Ninth Circuit decisions. County Health Agency. The lawyer disclosed If there is no common fund and the counsel In Scheer v. Kelly,28 Scheer argued her his representation to the host, who started for prevailing plaintiffs have a statutory or rights were violated because she was not pro- talking about the case and expressed support contractual right to recover fees from the vided a meaningful judicial review in the fee for the disabled inmates. The lawyer noticed defendant, the court must still use the lodestar dispute with her client and the state bar’s dis- the host’s deposition. Denying the county’s approach.39 The Laffitte court left for another ciplinary procedures were unconstitutional. disqualification motion, Judge Pregerson con- day whether a percentage fee can be applied The Ninth Circuit rejected her arguments. The cluded that the lawyer did not breach Rule when there is no conventional common fund Rooker-Feldman doctrine barred Scheer’s de 2-100 because the host was a “public officer” to pay class member claims and class counsel facto appeal of the California Supreme Court’s within the meaning of Rule 2-100(c)(1). Rule a reasonable fee as determined by a court, denial of her petition for review.29 Her claims, 2-100 does not prohibit a lawyer from com- or when a settlement fund allows un claimed based on the California Constitution, had municating with a public officer, even if the money to revert to the defendant or a third been rejected by the Cali fornia Supreme Court officer is represented by counsel. party.40 in In re Rose.30 The First Amendment protects In Stetson v. Grissom41 and Stanger v. Getting Paid the right of access to courts for bona fide China Electric Motor, Inc.,42 the Ninth Cir- claims, but no case creates a freestanding right How to calculate fee awards for prevailing cuit also addressed fee awards following com- to have a state court hear a dispute in the plaintiffs in class actions has been a source mon fund settlements of class actions. In absence of some asserted cause of action. of confusion since the California Supreme Stetson, the providers of bar review courses Scheer’s due process claim failed because she Court’s 1977 decision in Serrano v. Priest,35 agreed to pay $9.5 million to members of the was afforded notice, a hearing, a written deci- which recognized a court’s equitable authority plaintiff class. Class counsel sought $1.9 mil- sion, and an opportunity for judicial review. to award attorneys’ fees under a private attor- lion in fees (20 percent), but District Court That the supreme court’s review is discretionary ney general theory. In dicta, Serrano remarked Judge Manuel L. Real awarded $585,000 does not violate due process. California’s reg- that “[t]he starting point in every fee award, based on a lodestar approach.43 In Stanger, ulation of lawyers does not violate equal pro- once it is recognized that the court’s role in defendants globally settled investors’ claims tection because the “historically unique role equity is to provide just compensation for for violations of the Securities Act of 1933 of lawyers” allows the state to treat them dif- the attorney, must be a calculation of the for $3.78 million. Class counsel sought ferently from other professions. “California’s attorney’s services in terms of the time he $944,583 (25 percent), but Judge Real award- decision to regulate lawyers principally via a has expended on the case” and “[a]nchoring ed $466,038 based on a lodestar approach.44 judicially supervised administrative body the analysis to this concept is the only way As noted in Laffitte, under federal common attached to the State Bar of California, the of approaching the problem that can claim law, in the absence of statutory or contractual organization of all state-licensed lawyers, is objectivity, a claim which is obviously vital fee-shifting provision, the district court has rational and so constitutional.”31 to the prestige of the bar and the courts.”36 equitable authority to award reasonable fees Alas, the Ninth Circuit’s endorsement of Some courts thereafter concluded that all when class counsel has recovered a common the constitutionality of the disciplinary system attorneys’ fees awards in class actions had fund. A district court can use a lodestar ap- did not translate into justice for the client. to be based on a lodestar approach—i.e., proach or a percentage approach. The Ninth In her bankruptcy, Scheer demanded rein- hours reasonably spent on a matter multiplied Circuit vacated both awards, however, holding statement of her law license on the ground by reasonable hourly rates (the lodestar)— that Judge Real did not adequately explain her debt was dischargeable. In In re Marilyn adjusted up or down for quality of work, his reasons for reducing the lodestar.45 The S. Scheer,32 the Ninth Circuit considered 11 and complexity of issues, results obtained, large disparity between the requested fees and USC Section 523(a) (7), which states a debt and risk, as opposed to a simple percentage awarded fees required a specific articulation is excepted from discharge “to the extent of recovery. In 2016, the California Supreme of the court’s reasoning, which was missing. such debt is for a fine, penalty, or forfeiture Court addressed the confusion. When fees are authorized by statute, the

26 Los Angeles Lawyer April 2017 trial court should rigorously comply with fornia Supreme Court approved a two-year arbitration under the operating agreement. statutory requirements. In Ramos v. Garcia,46 suspension for a plaintiffs’ lawyer who, in The superior court ordered the parties to the Fourth District Court of Appeal reversed one client matter, sent the opposing counsel arbitrate and entered judgment on the sub- an attorneys’ fees award to a defendant who a settlement agreement purportedly signed sequent award in the lawyer’s favor. The prevailed at trial against the plaintiff’s claims by his mother when she had already died. In Second District Court of Appeal held the for unpaid overtime, minimum wages, and another client matter, an Americans with trial court had erred by compelling arbitra- other employment compensation. Labor Code Disabilities Act case, the lawyer told the op - tion. In a thorough analysis, Justice Elwood Section 218.5 permits a prevailing plaintiff posing counsel and represented in summary Lui compared language from arbitration “employee” or a prevailing defendant “em - judgment papers that his client had visited clauses in other cases—all available to Downs ployer” to recover fees on an action brought the defendant’s restaurant when, in fact, it when drafting the operating agreement—and for nonpayment of wages. The statute did not was the lawyer who had done so. concluded from the language used that the apply to one defendant because, although he “[D]on’t raise your voice at me. It’s not parties had intended their arbitration clause prevailed, he was not a defendant employer becoming of a woman.” A defense lawyer to apply to a very limited range of contro- but merely a coworker. In Sagonowsky v. making this sexist comment to opposing versies. Rice’s claims for malpractice, breach Kekoa,47 the First District Court of Appeal counsel during a deposition drew the wrath of fiduciary duty, and rescission did not “arise affirmed an award under Family Code Section of U.S. Magistrate Judge Paul Grewal. The out of” the operating agreement because they 271 of almost $90,000 to an ex-husband for court granted the plaintiff’s discovery motion, were based on violations of duties created fees incurred because his ex-wife’s “unscrup - awarded fees and costs, and ordered the by the attorney-client relationship that pre- ulous,” “relentless[,] and culpable” conduct offending lawyer to make a monetary dona- ceded the parties’ decision to go into business frustrated the parties’ settlement. An additional tion to the Women’s Lawyers Association of together.59 They were not subject to arbitra- $680,000 sought by the ex-husband was Los Angeles.54 Quoting a report from the tion, and the appellate court reversed the rejected because it was untethered to his fees, American Bar Association, Magistrate Judge judgment and order compelling arbitration.60 and not authorized by Section 271.48 Finally, Grewal noted that such comments signify In Tillman v. Tillman,61 widow Renee in City of San Diego v. San Diegans for Open discrimination that “contributes to [women’s] Tillman won $8 million in a wrongful death Government,49 the Fourth District Court of underrepresentation in the legal field . . . tar- suit after her husband was killed but ran out Appeal reversed the trial court’s award of fees nishes the image of the entire legal profession of money during the court-ordered arbitration to the prevailing defendant, a nonprofit cor- and disgraces our system of justice.”55 of her malpractice claim against her former poration, because when it filed its answer, the In a suit against JPMorgan Chase Bank, lawyers, who failed to join all heirs in the corporation was suspended for having failed attorney Douglas James Crawford brought suit. District Judge Virginia A. Phillips stayed to pay past due corporate taxes, and therefore a stun gun and pepper spray to a deposition Tillman’s malpractice suit and enforced the lacked capacity to appear in the lawsuit. and threatened to use them if opposing coun- arbitration clause in the retainer agreement. sel “got out of hand.” He also made con- When the plaintiff could not pay, the arbi- Mistakes and Bad Acts temptuous comments to the trial judge, who trator terminated the arbitration, and the Lawyers who misrepresent facts to a court responded with terminating sanctions. lawyers moved to dismiss her suit. Tillman or opposing party can face monetary sanc- Crawford called the appellate justices who proved the dissipation of her funds through tions, disqualification, civil liability, and dis- affirmed “corrupt …Granddads of Anarchy” legal fees, debts, educational expenses, pay- cipline. In Arroyo v. TP-Link USA Corp.,50 for their “fecal stained opinion.”56 The appel- ments to family members, vehicle purchases, an out-of-state plaintiffs’ lawyer filed a pro late court fined Crawford $1,000 and the home improvements, and investment and hac vice application to represent a putative state bar stripped him of his law license. gambling losses, but the court dismissed, class in federal court in Los Angeles supported believing the Federal Arbitration Act deprived Arbitration by an affidavit swearing that one of his firm’s it of authority to hear claims subject to the associates, a lawyer licensed in California, Courts declined to compel arbitration of mal- arbitration agreement. The Ninth Circuit maintained an office in the Central District practice claims in two cases. In Rice v. reversed and remanded. It concluded that and would serve as local counsel. In fact, it Downs,57 an arbitration clause was construed the arbitration, though terminated without was a “virtual law office” and the “local against the lawyer who drafted it. In 2003, any award, “has been had in accordance counsel” lived in Chicago and had no plans William Rice and his lawyer Gary P. Downs with the terms of the [arbitration] agree- to move to the Central District.51 Judge Percy formed a limited liability company and went ment.”62 Tillman’s failure to comply with Anderson denied the pro hac vice application, into the subsidized housing business. Downs the court’s order compelling arbitration was disqualified the firm from serving as class acted as lawyer for the company and its mem- “not culpable” and did not merit the harsh counsel, and ordered it to pay $5,260 to bers, drafting the operating agreement, which penalty of dismissal.63 The court reasoned defense counsel. provided: “[A]ny controversy be tween the that remand did not violate federal policy In Garmon v. County of Los Angeles,52 parties arising out of this Agree ment shall favoring arbitration because Tillman was the Ninth Circuit held that a Los Angeles be submitted to the American Arbitration unable to pay rather than choosing not to deputy district attorney, who discredited a Association for arbitration in Los Angeles, pay. A district court has a duty to decide mother’s testimony during her son’s murder California.”58 The lawyer allegedly never cases before it, and allowing Tillman’s case trial by using the mother’s confidential med- advised his clients regarding conflicts of inter- to proceed was the only way her claims would ical records, was not entitled to absolute est and did not comply with Rule 3-300 gov- be adjudicated.64 prosecutorial immunity in the mother’s sub- erning business transactions between lawyers Statutes of Limitation sequent lawsuit for civil rights violations. and their clients. Although prohibited by the The deputy district attorney had obtained operating agreement, Downs was paid by Legal malpractice claims are subject to a one- the subpoena duces tecum for the medical the company for legal services. In 2013, Rice year statute of limitations under Business records by falsely swearing that the mother sued Downs and his firm Nixon Peabody for and Professions Code Section 340.6. Sub - was the murder victim. malpractice, breach of fiduciary duty, and section (a)(2) provides the limitations period In In the Matter of Hubbard,53 the Cali - breach of contract. Downs moved to compel is tolled during the time “[t]he attorney con-

Los Angeles Lawyer April 2017 27 tinues to represent the plaintiff regarding the 8, 2012, dooming the malpractice suit filed alleging that he stipulated to hire Justice specific subject matter in the alleged wrongful on November 14, 2013, six days too late.72 Sonenshine as a private judge in his marital act or omission occurred.” In Kelly v. Orr,65 dissolution case based on false representa - SLAPP Suits a daughter seized control of the assets of a tions in her website biography concerning family trust, displacing the designated suc- The anti-SLAPP statute, Code of Civil Pro - her business experience in two ventures and cessor trustee, and—advised by lawyers at cedure Section 425.16, and the litigation her founding of an equity fund supporting DLA Piper LLP—refused to relinquish control privilege, Civil Code Section 47, can provide women-owned and -led businesses.78 The despite repeated demands from January 2012 a means to prevail for lawyers sued by non- website neglected to explain that the two to March 2013, when she resigned. In clients with respect to litigation matters. ventures faced unfavorable accusations— February 2014, the new trustee sued the pre- In Karnazes v. Ares,73 an attorney was including class action litigation alleging decessor trustee’s lawyers for malpractice. sued for misrepresenting in a series of prelit- fraud—and that the equity fund had never The lawyers’ demurrer was sustained on the igation e-mails that he would assist the plain- raised any equity capital. The alleged omis- grounds there was no privity between them tiff to recover losses on investments the plain- sions constituted commercial speech exempted and the new trustee, and the suit was time- tiff had placed through the attorney’s client. from an anti-SLAPP motion under Code of barred because the new trustee discovered The trial court granted the attorney’s motion Civil Procedure Section 425.17(c). the lawyers’ professional negligence in 2012 to strike under the anti-SLAPP statute because Rules of Professional Conduct and could have sued then. The Fourth District the claims were based on protected petitioning Court of Appeal reversed. As a matter of activity—which includes assisting a client in The second Commission for the Revision of public policy, a trustee steps into the shoes adjudicating disputes in the courts—and the the Rules of Professional Conduct, chaired of his predecessor and succeeds to all of his plaintiff could not demonstrate a probability by Justice Lee Edmon, held public meetings powers, including the power to bring mal- of prevailing on the merits because the e- and published draft rules for public comment practice claims against the predecessor’s attor- mail correspondence was inadmissible under on a pace to meet its March 31, 2017 deadline neys.66 The lawyers continued to represent the litigation privilege. for submission of the proposed rules to the the predecessor trustee until she resigned in By the skin of its teeth, the defendant law California Supreme Court.79 n 2013, and therefore, the limitations period firm in J-M Manufacturing Co., Inc. v. Phillips was tolled. The lawsuit, filed within one year, & Cohen, LLP74 also successfully invoked 1 Kidnapped LA County judge is rescued by police in was timely.67 the anti-SLAPP statute to defeat a claim by Colombia, L.A. DAILY J., Nov. 22, 2016. 2 In re Attorney Discipline System, Slip Op. S237081 Time ran out on a malpractice action in its client’s litigation adversary, which sued (En Banc) (Nov. 17, 2016). Gotek Energy, Inc. v. SoCal IP Law Group, the law firm for defamation and trade libel 3 California State Auditor Report 2015-047, The State LLP.68 After patent lawyers at SoCal IP Law after the firm issued a celebratory press release Bar of California, Calif. State Auditor 24, 27 (May Group admitted to their client Gotek Energy, about a phase-one jury verdict against the 2016), available at https://www.bsa.ca.gov. Inc. that they negligently had failed to file company. The headline proclaimed that J-M 4 GOV’T CODE §6250 et seq. 5 foreign patent applications, Gotek announced Manufacturing “faces billions in damages Ardon v. City of Los Angeles, 62 Cal. 4th 1176 (2016). it was making a malpractice claim. SoCal after jury finds J-M liable for making and 6 Los Angeles County Bd. of Supervisors v. Superior responded by e-mail on November 7, 2012, selling faulty water system pipes,” which was Court, 2 Cal. 5th 282 (2016). stating the firm’s attorney-client relationship not technically true.75 The jury found that 7 Costco Wholesale Corp. v. Superior Court, 47 Cal. with Gotek was “terminated forthwith, and J-M Manu facturing falsely certified that all 4th 725 (2009). 8 we no longer represent [it] with regard to of its pipes met certain strength and durability Los Angeles County, 2 Cal. 5th at 297. 9 Concepcion v. Amscan Holdings, Inc., 223 Cal. App. 69 any matters.” The firm asked where the standards, not that the pipes were faulty. The 4th 1309 (2014). client’s files should be sent. In a letter on litigation privilege protects “fair and true” 10 Los Angeles County, 2 Cal. 5th at 297. November 8, Gotek instructed the lawyers reports of official proceedings. Rejecting the 11 Id. at 298. to transfer its files to a new firm. The letter fair report privilege, the trial court denied 12 Id. at 301; see also EVID. CODE §952. 13 concluded: “[Client] sincerely appreciates the the law firm’s motion to strike. A divided Id. at 301. 14 Id. at 304. services provided by [firm].”70 SoCal sent panel of the Second District Court of Appeal 15 See, e.g., DP Pham, LLC v. Cheadle, 246 Cal. App. the files to the new counsel on November reversed, concluding that the law firm “may 4th 653 (2016). The Fourth District Court of Appeal 15. Three hundred sixty-four days later, on be guilty of self-promotion and puffery,” but reversed and remanded an order denying a motion to Nov ember 14, 2013, Gotek filed suit against its press release “falls comfortably within disqualify a lawyer who possessed two confidential SoCal for malpractice. The Superior Court the permissible degree of flexibility and license attorney-client letters belonging to the opposing party because the trial court reviewed the letters to determine granted summary judgment for the lawyers afforded communications to the media con- whether they were privileged. Under federal common 76 and dismissed the lawsuit, based on the one- cerning judicial proceedings” —even though law courts routinely review in camera materials claimed year statute. The Second District Court of this typically is a question of fact for the to be privileged to rule on the claim of privilege. See, Appeal affirmed, rejecting Gotek’s argument jury.77 Given the ubiquity of sensational, e.g., Loop A1 Labs, Inc. v. Gatti, No. 15-cv-00798- that SoCal continued to provide legal services exaggerated press releases, perhaps it is fair, HSG(DMR), 2016 WL 730211 (N.D. Cal. Feb. 24, until its files were transferred to the new albeit sad, to say that a reasonable reader 2016). 16 State Comp. Ins. Fund v. Drobot, 192 F. Supp. 3d lawyers, tolling the statute. Transfer of the would not take away from the press release 1080 (C.D. Ca. 2016). files was a ministerial act, not evidence of that J-M Manufacturing had sold defective 17 Id. at 1090. an ongoing mutual relationship. Gotek’s belief pipes. In dissent, Judge Stanley Blumenfeld, 18 Id. at 1084. that the lawyers were providing legal services sitting by designation, said that a jury should 19 Wutchumna Water Co. v. Bailey, 216 Cal. 564, by transferring the files was unreasonable as decide whether the press release was fair and 571 (1932). 20 71 Costello v. Buckley, 245 Cal. App. 4th 748 (2016). a matter of law. The representation ended true. Regardless, lawyers should be more 21 Id. at 755-56. when the client consented to SoCal’s express careful with press releases. 22 Id. at 756. withdrawal and requested delivery of its files The anti-SLAPP statute did not shield 23 Ontiveros v. Constable, 245 Cal. App. 4th 686 to new counsel. Therefore, the one-year JAMS and retired Justice Sheila Prell Sonen - (2016). statute began to run no later than November shine from a lawsuit by a venture capitalist 24 Id. at 698-99.

28 Los Angeles Lawyer April 2017 25 Id. at 699-700. 26 Scheer v. Kelly, 817 F. 3d 1183 (9th Cir. 2016). 27 In re Marilyn S. Scheer, 819 F. 3d 1206 (9th Cir. 2016). 28 Scheer, 817 F. 3d at 1185. 29 Id. at 1186. 30 In re Rose, 22 Cal. 4th 430, 436 (2000). 31 Scheer, 817 F. 3d at 1189. 32 In re Marilyn S. Scheer, 819 F. 3d at 1206. 33 Id. at 1212. 34 U.S. v. County of Los Angeles, No. CV 15-05903 DDP (JEMx), 2016 WL 4059712 (C.D. Cal. July 27, 2016). 35 Serrano v. Priest, 20 Cal. 3d 25 (1977). 36 Id. at 48 n.23. 37 Laffitte v. Robert Half Int’l Inc., 1 Cal. 5th 480 (2016). 38 Laffitte, 1 Cal. 5th at 503. 39 See id. at 497-500. 40 Id. at 503. 41 Stetson v. Grissom, 821 F. 3d 1157 (9th Cir. 2016). 42 Stanger v. China Elec. Motor, Inc., 812 F. 3d 734 (9th Cir. 2016). 43 Stetson, 821 F. 3d at 1160. 44 Stanger, 812 F. 3d at 739. 45 Id.; Stetson, 821 F. 3d at 1157, 1165-66. 46 Ramos v. Garcia, 248 Cal. App. 4th 778 (2016). 47 Sagonowsky v. Kekoa, 6 Cal. App. 5th 1142 (2016). 48 Id. at 1155. 49 City of San Diego v. San Diegans for Open Gov’t, 3 Cal. App. 5th 568 (2016). 50 Arroyo v. TP-Link USA Corp., No. CV 16-1044 PA (KKx), (U.S Dist. Ct., C.D. Cal. Apr. 19, 2016) (Civil Minutes - General, Doc. 145 Page ID #2). 51 Id. at page ID#2523. 52 Garmon v. County of Los Angeles, 828 F. 3d 837 (9th Cir. 2016). 53 In the Matter of Lynn Hubbard III, Cal. State Bar Ct., Review Dept. Nos. 11-O-14081, 13-J-11204, 13- O-17118 nonpublic op. (Aug. 4, 2014), recommended discipline imposed by Cal. Supreme Ct., Nov. 29, 2016, S237296. 54 Claypole v. County of Monterey, No. 14-cv-02730- BLF, 2016 WL 145557 (N.D. Cal. Jan. 12, 2016). 55 Id. at *5. 56 In re Douglas James Crawford, Cal. Bar J. Dis - ciplinary Summary (Sept. 23, 2016), available at http: //members.calbar.ca.gov/fal/Member/Detail/20224. 57 Rice v. Downs, 247 Cal. App. 4th 1213 (2016). 58 Id. at 1218. 59 Id. at 1229-31. 60 Id. at 1234. 61 Tillman v. Tillman, 825 F. 3d 1069 (9th Cir. 2016). 62 Id. at 1074. 63 Id. at 1075-76. 64 Id. at 1076. 65 Kelly v. Orr, 243 Cal. App. 4th 940 (2016). 66 Id. at 946-47. 67 Id. at 950-51. 68 Gotek Energy, Inc. v. SoCal IP Law Group, LLP, 3 Cal. App. 5th 1240 (2016). 69 Id. at 1244. 70 Id. 71 Id. at 1247-48. 72 Id. 73 Karnazes v. Ares, 244 Cal. App. 4th 344 (2016). 74 J-M Mfg. Co., Inc. v. Phillips & Cohen LLP, 247 Cal. App. 4th 87 (2016). 75 Id. at 93. 76 Id. at 105. 77 Id. at 98-99. 78 JAMS, Inc. v. Superior Court, 1 Cal. App. 5th 984 (2016). 79 Second Commission for the Revision of the Rules of Professional Conduct, State Bar of Calif., available at http://ethics.calbar.ca.gov.

Los Angeles Lawyer April 2017 29 by Susannah Keagle SKINin theGAME The 15-percent capital contribution rule, so challenging to banks, is a key element in discussion of regulatory reform

the 2008 financial crisis, reg- (human error or fraud within the organization); AFTER ulators mandated that U.S. fi - market risk (loss on the investments made by the n ancial institutions keep “more skin in the game” bank); and systemic risk (collapse of an entire mar- by imposing greater capital reserve requirements. ket or financial system as opposed to one entity). As that crisis revealed, not enough banks had suf- The calculation of required capital reserves is ficient assets to remain solvent. The U.S. Congress intended to address these risks. responded with the Troubled Asset Relief Plan— Regulating Financial Institutions the largest bailout of the U.S. banking industry in history. New regulations were implemented to Banks may be either federally chartered or state increase both the quality and the quantity of capital chartered institutions, and all are subject to frag- reserves held by financial institutions.1 mented and overlapping supervision. The primary Capital reserves are the financial assets set aside federal regulators are the Federal Deposit Insurance by banks to absorb unexpected financial losses and Corporation, the Federal Reserve Board, and the are a cornerstone of financial regulation. The Office of the Comptroller of the Currency (collec- amount that must be held in these reserves depends tively, the Agencies). State chartered banks are reg- on the riskiness of a bank’s activities. The funda- ulated by the regulatory agencies of the state in mental liability is the bank’s obligation to repay which they are chartered. Credit unions are super- its customers for amounts on deposit. These deposits vised by the National Credit Union Administration. are volatile, unsecured debt, and banks are highly However, state chartered banks and credit unions leveraged (i.e., they have significantly more debt are also subject to oversight by one or more of the than equity). This high degree of leverage incentivizes Agencies. banks to boost shareholder returns by making In 1974, the central bank governors of the G10 riskier investments with their deposits. countries2 founded the Basel Com mittee on Banking Identifying types of risk and quantifying potential Supervision (the Basel Committee).3 The Basel losses is no simple task, and regulators have iden- Committee is a forum for member countries, includ- tified several types of risk inherent in the banking ing the United States, to establish best practices in industry: credit risk (the risk of financial loss if a banking oversight that will increase the stability 4

borrower fails to repay the bank); operational risk of the global banking system. The Basel Com - KEN CORRAL

Susannah Keagle is a senior associate in the finance group of Alston & Bird in Los Angeles.

30 Los Angeles Lawyer April 2017 mittee’s recommendations are only guide - owned by the bank).11 The second ratio re - value when the development is expected to lines and have no regulatory authority until quires the ratio of tier 1 capital to risk- be completed; however, that value excludes they are adopted by a member nation. Within weighted assets to be more than 6 percent. income generated by the property. The “as the U.S., the Agencies were mandated by the The numerator of this ratio may include non- stabilized” value is the ex pected value once Dodd-Frank Wall Street Reform and Con- cumulative perpetual preferred stock and the property achieves stabilized occupancy— sumer Protection Act5 (the Dodd-Frank Act) qualifying minority interests, in addition to a value that includes projected cash flow to adopt and maintain comprehensive risk- the common equity. from leases based on a comparison of similar based capital requirements for banks, bank The third ratio is the bank’s total capital properties. Finally, borrowers are contrac- holding companies, and significant nonbank to risk-weighted assets, which must exceed tually obligated to keep this capital contri- financial institutions.6 8 percent. The numerator includes tier 2 cap- bution in that entity over the life of that pro- In 1988, the Basel Committee and then ital (i.e., cumulative, perpetual preferred ject. The “life of the project” ends when the Agencies adopted risk-based capital stan- stock, trust preferred securities, subordinated the project is sold, the loan is converted to dards that sorted bank assets into four types debt and qualifying minority interests). permanent financing, or the loan is paid off according to risk. Each type was assigned its The fourth ratio is the leverage ratio, in full.15 Although the term of a construction own risk weight. An asset’s risk weight deter- which is the bank’s tier 1 capital divided by loan often extends past issuance of a certi- mines the amount of capital that a bank must its average total consolidated assets. This ficate of occupancy—either in the initial loan set aside in reserves for that asset. This was ratio does not require weighting of assets for term or due to the exercise of extension op - intended to force riskier institutions to main- risks and must equal or exceed 4 percent.12 tions—the issuance of that certificate may tain higher capital levels by categorizing their A fifth ratio, which only applies to institutions not mark the end of the HVCRE categoriza- assets according to risk.7 The initial Capital with consolidated assets greater than $250 tion, even when it signals a significant reduc- Accord (known as Basel I), required banks billion or balance sheet foreign exposures tion in risk to the lender. to maintain a minimum ratio of capital to greater than $10 billion, requires the ratio Fifteen Percent Capital Rule risk-weighted assets of 8 percent.8 Over of tier 1 capital to its total leverage exposure time—and as subsequent financial crises to exceed 3 percent.13 Banks struggle to determine what may be revealed the shortcomings of these regula- counted toward the developer’s 15-percent HVCRE Loans tions—this framework has been revised. In capital contribution. The Agencies have been 2010, the most recent iteration (Basel III) One of the highest categories of risk weight clear that proceeds of a loan from the bank was adopted and the Agencies responded by is given to high volatility commerical real that is financing the project do not count promulgating regulations which significantly estate, or loans. All loans financing the acqui- toward the 15 percent contributed capital altered the risk weighting and classification sition, development or construction of com- threshold.16 Also, unrelated real estate may of certain real estate loans. mercial real estate that are not permanent not be pledged as collateral and counted Current U.S. capital adequacy require- loans are considered HVCRE loans unless toward the 15-percent capital contribution, ments adopted by the Agencies impose four— the project meets one of four exemptions. even if that collateral is unencumbered. The and in some cases five—ratios quantifying The first three exemptions apply to loans capital must be cash or unencumbered readily credit risks. Three ratios require a bank to secured by one-to-four family residential marketable assets.17 Purchasers’ deposits on assign risk weights to its assets based on dif- properties, loans for projects that qualify as units in a condominium project are also ferent categories of exposure. For example, investments in community development, and excluded.18 The purchase price for the land cash and gold bullion have a risk weight of loans secured by agricultural land. The final constituting the project may be included, but zero percent; investments in government- exemption applies to projects that meet cer- any appreciation in land value due to the sponsored enterprises such as Fannie Mae tain loan-to-value (LTV) requirements. passage of time or land use entitlements are and Freddie Mac have a risk weight of 20 Specifically, this exemption requires borrowers excluded. percent; first lien residential mortgages have to contribute cash to the project equaling at For example, if a property purchased for a risk weight of 50 percent; corporate bonds least 15 percent of the real estate’s appraised $100,000 has a value of $250,000 at the and loans have a risk weight of 100 percent; “as completed” value. time of the loan, the borrower may only and high volatility commercial real estate The 15-percent capital contribution rule include $100,000 in its capital contribution. (HVCRE) loans have a risk weight of 150 is intended to ensure that developers have In contrast, a borrower who purchases the percent.9 In calculating its total risk-weighted “skin in the game.” At the same time, this property for $250,000 may include the whole assets, a bank must include not only various exemption is the most challenging for banks amount. This seems an unfair result, partic- classes of equity, but its on-balance sheet to interpret. Projects falling under this ex - ularly since the appreciated value of the land exposures, over-the-counter derivative con- emption must meet LTV ratios determined is included in the “as completed” appraised tracts and each off-balance sheet commitment, by property type. LTV is a lending risk assess- value of the land, as used in the required trade and transaction-related contingency, ment that represents the amount of the loan LTV ratios.19 guarantee, repo-style transaction, financial as a percentage of the total appraised value Initially, some lenders allowed borrowers standby letter of credit, forward agreement, of the property. For example, a loan of to contribute additional capital as necessary and other similar transaction.10 $75,000,000 secured by a property with an to maintain the 15-percent capital require- The first ratio requires the ratio of com- appraised value of $100,000,000 has an ment. This was especially important because mon equity tier 1 capital to the risk-weighted LTV of 75 percent. Under the HVCRE the rule governing classification of HVCRE assets to be at least 4.5 percent. Common requirements, the LTV ratio must be 65 per- loans was not prospective. It applied to all equity tier 1 capital includes paid-in common cent for raw land, 75 percent for land devel- outstanding loans, even if they were already stock and related surplus, retained earnings, opment, 80 percent for commercial, multi- closed on the date that the rule went into unrealized gains and losses on available-for- family and other nonresidential property, effect. However, the rule was subsequently sale securities, and common equity minority and 85 percent for one-to-four family clarified to prohibit post-closing contribu- interests (common equity issued by a con- dwellings and improved land.14 A property’s tions. Any contribution of cash or land must solidated subsidiary of a bank that is not “as completed” value is the projected market be contributed to the project prior to the

32 Los Angeles Lawyer April 2017 lender’s initial advance of funds.20 ital contribution, they are also prohibited HVCRE whether or not the exemptions to The Agencies have stated that funding from making any capital distributions. This HVCRE are met, which is a conservative from a second bank for a project may not is not limited to a distribution of the initial approach adopted by highly capitalized, large be considered as a capital contribution. For 15-percent capital contribution; the rule also institutions. example, if Bank A has a first mortgage prohibits the distribution of any capital inter- Banks that interpret the exemption re - secured by the real estate of the project and nally generated during the life of the con- quirements more loosely may have a com- Bank B has a second mortgage on the same struction project, even amounts that exceed petitive advantage. These banks may also real estate collateral, Bank B’s funding must the 15-percent capital contribution.25 This steer their commercial real estate lending not be considered cash contributed by the disadvantages borrowers who may be able toward only prime developments in top-tier borrower.21 to generate cash flow prior to conversion or markets at a favorable cost in order to capture Cash in the form of grants from nonprofit refinancing of the HVCRE loan. or maintain a valued relationship with more organizations, municipalities, state agencies The LTV ratio must be calculated at loan valued customers. Strong sponsors with qual- and federal agencies also may not be con- closing. However, for some projects, an ity projects in top-tier markets can still access sidered as a capital contribution from the updated appraisal or valuation of the property construction financing on favorable terms. borrower. While these third-party grants after loan origination would make this ratio If the construction lending is less profitable, increase the capital invested in the project, exceed the maximum supervisory require- or even unprofitable, the bank may be driven they do not affect the borrower’s level of ment. Unfortunately, the lender may not by the desire to maintain a lending relation- investment and, therefore, do not reflect the declassify a loan as HVCRE, even though ship with borrowers who bring other business borrower’s economic interest in the project.22 the risk has been reduced and the need for to the bank. Out-of-pocket development expenses that increased capital has been removed. The loan Any competitive advantage comes at the are paid by the borrower may be included must remain an HVCRE exposure until it cost of maintaining higher reserves for a in the contributed capital, including “soft converts to permanent financing.26 nonexempt loan, even if the additional cost costs” that contribute to the completion and Given the ambiguities in the rule, some is difficult to quantify. The bank may benefit value of the project. These soft costs may banks—those with larger capital reserves and from internalizing the cost of the higher cap- include interest, developer fees, leasing ex - greater regulatory scrutiny—have decided to ital reserves rather than passing them along penses, brokerage commissions, management categorize all construction loans as HVCRE to the borrower in the rates and fees. Other fees, engineering costs, architectural fees, and loans and calculate their capital reserves banks—often regional banks—rely more permit fees if the costs are reasonable in com- accordingly. In some cases, this has limited heavily on compliance with the exemptions parison with the cost of similar services from the amount of capital allocated to projects to escape classification as HVCRE and thus third parties and are related directly to the classified as HVCRE, leaving the lenders to the higher reserve requirements. This can project.23 reserve that capital for its most favored cus- mean that sponsors of high quality develop- One category that remains unclear is tomers. Other banks strive to make construc- ments in more regional markets—even when whether mezzanine debt or preferred equity tion loans that satisfy the exemptions in the just as credit-worthy—bear the increased may be counted toward the borrower’s capital HVCRE classification to avoid the additional costs. Some projects may not be viable at contribution. A mezzanine loan is not made capital reserves. higher interest rates and with the added bur- to the borrower; rather, it is made to an entity den of the HVCRE requirements, limiting Effect on the Market that owns the borrower, directly or indirectly. the supply of construction lending and, there- The collateral for the mezzanine loan is an The cost to borrowers of construction financ- fore, new construction projects. This may be ownership interest in the borrower, and the ing has increased since the implementation hindering economic development in smaller, borrower receives the funds as an equity con- of these regulations. That increase in cost regional markets where a boost to the econ- tribution, not debt. A preferred equity invest- may reflect a number of factors in addition omy may be most beneficial and steering the ment gives the investor a preferred return to the increased cost of higher reserves for best prices and terms to already highly cap- from the borrower. HVCRE loans. Higher risks in a maturing italized borrowers who do not need any assis- The Mortgage Bankers Association (MBA) real estate cycle may also be constraining the tance to compete. While the HVCRE rules has recommended that a preferred equity availability of construction lending.27 These were intended to encourage financial insti- investment (PEI) categorized as part of the increased costs may in some instances require tutions to manage risk responsibly, they may capital contribution have the following fea- borrowers to bring in more equity, thus low- be acting as a brake on development in mar- tures: 1) that the PEI be subject to approval ering returns. kets where such development could be most by the senior lender; 2) that there be common The different ways in which banks inter- beneficial to the economy. equity in the capital stack in addition to the pret the HVCRE rules may also be skewing Nonbank Construction Lending preferred; 3) that no debt-like features be the cost of construction lending and placing included such as the issuance of a note, cure some borrowers at a competitive disadvantage Another unintended consequence of the Basel rights or a senior loan purchase option, no in regional markets where high quality com- III guidelines is the flight to nonbank lenders. absolute right of payment and no guarantees mercial real estate development may be eco- To avoid HVCRE exemption requirements, or other credit support; 4) that the redemption nomically beneficial to communities. Some borrowers may pursue construction financing date not be earlier than the later of the matu- banks have interpreted the contributed capital with lenders who fall outside these regulations rity date of the senior loan and the completion rule to permit distribution of internally gen- and avoid the increased capital requirements, and stabilization of the project; and 5) that erated cash so long as the borrower maintains such as insurance companies and debt funds. the consequence of non-payment under the the 15-percent equity contributed before the Debt fund financing is expensive but may current pay provisions (i.e., the investment loan was made. This is inconsistent with the offer more favorable terms, including lower return) is not a default but simply the accrual rule and the available supervisory guidance equity contribution requirements. This unin- of unpaid amounts.24 and contributes to misconceptions about the tended consequence potentially may create In addition to the hurdles that borrowers contributed capital rule. Other banks report economic instability that the capital require- must overcome to satisfy the 15-percent cap- most or all of their construction loans as ments strive to avoid. Banks do not want to

Los Angeles Lawyer April 2017 33 own properties and so they have an incentive to work with borrowers if problems arise in order to avoid foreclosure. Some nonbank lenders have the capacity and expertise to own and manage property, including con- struction projects, which increases the risk of foreclosure and creates instability in the real estate markets. Regulatory Reform Efforts The MBA and Commercial Real Estate Fi - nance Council (CREFC) are two industry groups at the forefront of advocating the clarification and improvement of the Basel III requirements. In their communications with the Agencies, both groups have argued for changes to the HVCRE rules. Among those recommendations are that borrowers be permitted to distribute capital generated by the project in excess of the 15-percent capital contribution. The MBA argues that while keeping “skin in the game” may be useful, the current regulations are too blunt an instrument, creating unnecessary opera- tional obstacles during construction of a pro- ject. They argue that a borrower should at FEE DISPUTE SERVICES least be permitted to make interest payments, principal payments, and payments for devel- opment fees and other development expenses. The MBA also advocates for the recognition of the appreciated land value, rather than only the purchase price, in the calculation of the 15-percent capital contribution. They note that the appreciated land value is in - Mandatory Fee Arbitration: cluded in the “as-completed” value in an Subject to Business and Professions Code appraisal. To rely on it for one part of the sections 6200-6206. calculation but not another is inconsistent.28 CREFC has echoed these concerns and ex- Voluntary Fee Arbitration: pressed frustration that the Agencies have 29 Not subject to BPCs. not yet clarified these points. Regulatory Uncertainty Law Firm Mediation: The future regulatory environment is uncer- Internal disputes involving partners, associates, staff tain. The Basel Committee’s proposals to attorneys, and support staff, including firm name improve the current regulations (known as disputes, firm to firm, dissolution, experts, sanction Basel IV) reject the risk-sensitive approach liability, expenses, and other issues. in favor of prescriptive mandates.30 Others advocate for increased capital reserves, includ- ing Neel Kashkari, president of the Federal Contact ACMAS today: Reserve Bank of Minneapolis and former Republican Treasury Department official. (213) 896-6426, [email protected], Kashkari’s proposal would require banks LACBA.org/ACMAS with more than $250 billion in assets to hold common equity to 23.5 percent of risk- weighted assets, a far higher ratio than the 31 Interested in becoming a fee dispute arbitrator 4.5 percent currently required. or mediator for LACBA? Contact ACMAS for details. While the new administration has voiced an aversion to regulation in general, no con- sistent, detailed policy has been presented. A service of the Los Angeles President Donald Trump’s statements on bank County Bar Association regulations have been contradictory. As a candidate, he supported reinstating the Glass- Steagall Act (enacted as part of the New Deal to separate deposit banks from investment

34 Los Angeles Lawyer April 2017 banks) as a part of the official Republican 11 Regulatory Capital Rules: Regulatory Capital, 25 Id., FAQ #15. Party platform, which could lead to the break- Implementation of Basel III, Capital Adequacy, 26 Id., FAQ #14. Transition Provisions, Prompt Corrective Action, 27 Gregg Loubier, HVCRE Regs Curtailing Con- up of the big banks.32 Remarks by Steve Standardized Approach for Risk-Weighted Assets, struction Lending Market, REAL ESTATE FINANCE & Bannon, White House chief strategist under Market Discipline and Disclosure Requirements, INVESTMENT (Dec. 19, 2016). President Trump, are consistent with the phi- Advanced Approaches Risk-Based Capital Rule and 28 Mortgage Bankers Ass’n’s letter addressed to the losophy of Glass-Steagall, and Bannon has Market Risk Capital Rule: Final Rule, 78 Fed. Reg. Comptroller of the Currency, the Bd. of Governors of repeatedly criticized the government’s re- 62018, 62173 (Oct. 11, 2013). the Fed. Reserve and the Fed. Deposit Ins. Corp., 3 12 sponse to the 2008 financial crisis as inade- MCCOY, supra note 1, at §6.03[2][a]. (Mar. 21, 2016). 13 Depository institutions and depository institution 29 Commercial Real Estate Finance Council letter 33 quate. However, candidate Trump also holding companies with consolidated total year-end addressed to the Comptroller of the Currency, the Bd. advocated eliminating regulations he claimed assets of less than $250 billion and consolidated total of Governors of the Fed. Reserve and the Fed. Deposit are holding banks back from lending, though on-balance sheet foreign exposures of less than $10 Ins. Corp., 7 (Nov. 18, 2016). the specifics were never clear.34 billion may use this standardized approach. Others 30 Id. 31 On February 3, 2017, President Trump must use an advanced approach that allows banks to Shayndi Raice and Adam Creighton, Fed’s Neel use their own estimates of risk. MCCOY, supra note Kashkari Rolls Out Blueprint for Ending “Too Big signed an executive order directing the Treas - 1, at §6.03[2][b]. To Fail”Banks, WALL ST. J., Nov. 16, 2016. ury Secretary to examine existing financial 14 12 C.F.R. pt. 34, subpart D; 12 C.F.R. pt. 160, sub- 32 Aaron Kline, The Future of Financial Reform under 35 regulations. Though it never mentions parts A and B; 12 C.F.R. pt. 208, app. C. President Trump, BLOOMBERG GOV’T, Nov. 15, 2016, the Dodd-Frank Act, this order directs the 15 High Volatility Commercial Real Estate (HVCRE) available at: https://about.bgov.com/blog/future-finan- Treasury Secretary to submit a report to the Exposures, Frequently Asked Questions on the cial-reform-trump/. Regulatory Capital Rule, Office of the Comptroller of 33 Gabriel T. Rubin, Stephen Bannon in 2014 Slammed president within 120 days identifying laws the Currency, Bd. of Governors of the Fed. Reserve Bank Bailouts, Lack of Wall Street Prosecutions, WALL and regulations that inhibit federal regulation Sys., Fed. Deposit Ins. Corp., FAQ #17 (Mar. 31, 2015). ST. J, Nov. 16, 2016; Stephen J. Lubben, Trump’s of the financial system in ways that are incon- 16 Id., FAQ #16. Presidency Raises Questions on the Future of Wall sistent with the administration’s principles. 17 Id., FAQ #3. St. Regulation, N.Y. TIMES, Nov. 14, 2016. The principles identified in the order are to 18 Id., FAQ #4. 34 Aaron Kline, The Future of Financial Reform under 19 prevent taxpayer-funded bailouts, foster eco- Mortgage Bankers Ass’n’s follow-up letter addressed President Trump, BLOOMBERG GOVERNMENT, Nov. 15, to the Comptroller of the Currency, the Bd. of 2016, available at: https://about.bgov.com/blog/future- nomic growth and vibrant financial markets Governors of the Fed. Reserve and the Fed. Deposit financial-reform-trump/. by addressing systemic risk and market fail- Ins. Corp., 5 (Apr. 1, 2015) [hereinafter Follow-up 35 Exec. Order No. 13772, 82 Fed. Reg. Feb. 3, 2017. ures, make regulation more efficient, and letter]. 36 Id. rationalize the federal financial regulatory 20 Id., FAQ #1. 37 Ben Protess, Republicans’ Paths to Unraveling the 21 framework, among others. 36 Id., FAQ #5. Dodd-Frank Act, N.Y. TIMES, Jan. 30, 2017. 22 Id., FAQ #11. 38 Ben Protess and Julie Hirschfeld Davis, Trump Sweeping regulatory change that would 23 Id., FAQ #8. Moves to Roll Back Obama-Era Financial Regulations, upend current capital requirements may not 24 Follow-up letter, supra note 19, at 4. N.Y. TIMES, Feb.3, 2017. come quickly. Repeal of the Dodd-Frank Act requires congressional action, and no current legislative proposals have sufficient support.37 Once new federal legislation is enacted, the Agencies must then formally propose new rules and seek public comment.38 A new Comptroller of the Currency will be ap - pointed by President Trump and confirmed by the Senate this spring, and the president will also fill a vacancy for the Federal Reserve Governor of Supervision and Regulation. Though these appointees must enforce exist- ing laws and regulations, they may bring a lighter hand to the task. n

1 PATRICIA A. MCCOY, BANKING LAW MANUAL, §6.03 [hereinafter MCCOY]. 2 The G10 countries are Belgium, Canada, France, Italy, Japan, the Netherlands, the United Kingdom, the United States, Germany, Sweden and Switzerland. 3 Bank for International Settlements, A Brief History of the Basel Committee, available at http://www .bis.org/bcbs/history.htm (last viewed Mar. 4, 2017) [herein after Brief History]. 4 Sarah V. J. Spyksma, Real Estate Finance in the Era of Basel III 1 (2015) available at http://files.ali-cle.org /thumbs/datastorage/skoob/articles/BKAC1510%20 TAB06-Spyksma-Final%20Basel%20III-08112015 _thumb.pdf. 5 Dodd-Frank Wall Street Reform and Consumer Protection Act, 12 U.S.C. §§5301 et seq. 6 78 Fed. Reg. 62018 (October 11, 2013). 7 MCCOY, supra note 1, at §6.03. 8 Brief History, supra note 3, at 3. 9 MCCOY, supra note 1, at §6.03[2][a]. 10 Id.

Los Angeles Lawyer April 2017 35 The LOS ANGELESSemiannual LAWYER Guide to Expert Witnesses

ACCIDENT ANALYSIS/RECONSTRUCTION kerage, appraisal, escrow, and title insurance. experience: Federal and Superior Courts. Ability to pay liti- gation damages. See display ad on page 39. 4X FOReNSic eNGiNeeRiNG cORNeRStONe ReSeaRcH laBORatORieS, iNc. 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- FUlcRUM iNQUiRy 2005, (213) 553-2500, fax (213) 553-2699. Website: 888 South Figueroa Street, Suite 2000, Los Angeles, 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) www.cornerstone.com. Contact George G. Strong, Jr., CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: 450-8500, fax (714) 450-8599, e-mail: phil@4Xforensic Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, [email protected]. Website: www.fulcrum.com. .com. Website: www.4Xforensic.com. Contact Phil Van Carlyn Irwin, Pierrick Morel, or Ashish Pradhan. For Contact David Nolte. Our professionals are experienced Herle. 4X Forensic Engineering Laboratories is a full-service more than 25 years, Cornerstone Research staff have pro- CPAs, MBAs, ASAs, CFAs, affiliated professors, and indus- forensic engineering laboratory. We provide expert witness vided economic and financial analysis in all phases of com- try specialists. Our analysis and research combined with and analytical and testing services in the following areas: mercial litigation and regulatory proceedings. We work with unique presentation techniques have resulted in an fires and explosions: electrical and gas product defect a broad network of testifying experts, including prominent unequaled record of successful court cases and client investigations, thermal and fire modeling and laboratory faculty and industry practitioners, in a distinctive collabora- recoveries. Our expertise encompasses damages analysis, testing; water loss: materials, corrosion, and failure analysis tion. The experts with whom we work bring the specialized loss profit studies, business and intangible asset valuations, of plumbing products; failure analysis: metallurgy, product expertise required to meet the demands of each assign- fraud investigations, statistics, forensic economic analysis, testing, and computerized stress analysis; accident recon- ment. Our areas of specialization include intellectual prop- royalty audits, strategic and market assessments, competi- struction: automotive, trucks, construction equipment, and erty, antitrust, securities, entertainment, real estate, financial tive surveys, analysis of computerized data, injury and premises liability. See display ad on page 44. institutions, and general business litigation. employment damages, and a wide range of other financial WilliaM KUNZMaN, pe advisory services. Degrees/licenses: CPAs, CFAs, ASAs, eQUalS & Kita llp 1111 Town and Country #34, Orange, CA 92868, PhDs, and MBAs in accounting, finance, economics, and 404 South Figueroa Street, Suite 520-B, The Bonaventure, (714) 904-2821, e-mail: [email protected]. Website: related subjects. See display ad on back cover. Los Angeles, CA 90071, (213) 627-7130, fax (310) 373- www.traffic-engineer.com. Contact William Kunzman, 7851, e-mail: [email protected], Rkita@equalskita GROBSteiN teeple llp PE. Traffic expert witness since 1979, both defense and .com. Website: www.equalskita.com. Apple App: Forensic 6300 Canoga Avenue, Suite 1500 West, Woodland Hills, plaintiff. Auto, pedestrian, bicycle, and motorcycle acci- Accounting. Forensic accounting, wrongful termination and CA 91367, e-mail: [email protected]. Website: dents. Largest plaintiff verdicts: 1) $12,200,000 in pedes- loss of earnings. Economic damages, lost profits, breach of www.gtfas.com. Grobstein Teeple provides specialized trian accident case against Caltrans, 2) $10,300,000 in contract, claims and damages. Expert witness testimony, consulting in the areas of forensic accounting, economic case against Los Angeles Unified School District. Largest Moore-Marsden. Government contracts, FAR, CFR, CAS damages, litigation consulting, business valuation, fraud settlement: $2,000,000 solo vehicle accident case against issues. Qui tam and false claims. Divorce valuation. Trial investigation, insolvency and restructuring, and forensic Caltrans. Best defense verdicts: 1) $0 while defending Cal- technology. Complex financial issues arise in small and trans and opposition sought $16,000,000. 2) $0 defending large cases. Our team of professionals and case adminis- City of Long Beach and opposition sought $15,000,000. trators apply high-level technical capabilities and thoughtful Before becoming expert witness, employed by Los Angeles approaches to your case. A partner is actively involved in County Road Department, Riverside County Road Depart- each case with a well-trained team to ensure the most ment, City of Irvine, and Federal Highway Administration. effective and efficient approach to problem solving. Our Knowledge of governmental agency procedures, design, team comes from one of the largest national accounting geometrics, signs, traffic controls, maintenance, and and consulting firms in the country. We provide the same pedestrian protection barriers. Hundreds of cases. Under- skills and capabilities as a larger firm, but with greater flexi- graduate work—UCLA, graduate work—Yale University. bility, superior client care, better efficiency, and lower costs. caRl SHeRiFF, pe, FOReNSic eNGiNeeR See display ad on page 43. 10153½ Riverside Drive, Suite 365, Toluca Lake, CA GURSey | ScHNeiDeR llp 91602, (818) 766-9259, fax (818) 908-9301, e-mail: 1888 Century Park East, Suite 900, Los Angeles, CA [email protected]. Contact Carl Sheriff, PE, forensic 90067, (310) 552-0960, fax (310) 557-3468, e-mail: engineer. Degrees in law and engineering. Licensed safety [email protected] or [email protected]. Website: www engineer, general contractor, real estate broker, and certi- .gursey.com. Contact Naz Afshar or Gary Krausz. fied building and playground inspector. Licensed truck dri- Forensic accounting and litigation support services in the ver. Consulting and expert testimony on premises liability, areas of marital dissolution, civil litigation, business valuation product defects, and traffic accidents. Construction and and appraisal, goodwill, business disputes, malpractice, tax industrial accidents. Building and OSHA code compliance. matters, bankruptcy, damage and cost-profit assessments, Slip, trip, and falls. Human factors. Safety evaluation. Com- insurance claims, court accounting, tracing, and entertain- puterized analysis and exhibits. Free initial file review. 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Krycler, Ervin, Taubman, and Kaminsky is a full- sultants, economists, accountants, insurance underwrit- service accounting firm serving the legal community for ers/brokers. Specialties include: lending customs, prac- more than 25 years. See display ad on page 53. tices, policies in all types of lending (real estate, subprime, DiaNa G. leSGaRt, cpa, cFe, cVa, cFF, business/commercial, construction, consumer/credit card), aN accOUNtaNcy cORp. banking operations/admi nis tration, trusts and investments, 22024 Lassen Street, Suite 106, Chatsworth, CA 91311, economic analysis and valuations/damages assessment, (818) 886-7140, fax (818) 886-7146, e-mail: Lesgart3 insurance claims, coverages and bad faith, real estate bro- @msn.com. Contact Diana G. Lesgart, CPA, CFE,

36 Los Angeles Lawyer April 2017

CVA, CFF. Specialized accounting and litigation support businesses, and wrongful termination. See display ad on marital dissolution. See display ad on page 47. services in the areas of family law litigation, including tracing page 51. KRycleR, eRViN, taUBMaN, of separate and community property assets, pension plan ZiVetZ, ScHWaRtZ & SaltSMaN, cpaS aND KaMiNSKy tracing, forensic accounting, business valuations, goodwill 11900 West Olympic Boulevard, Suite 650, Los Angeles, calculation, expert testimony, cash available for support, 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Moore-Marsden calculations, fraud investigations, real 91403, (818) 995-1040, fax (818) 995-4124. Website: Website: www.zsscpa.com. Contact Lester J. Schwartz, estate analysis, community property balance sheet. Over www.ketkcpa.com. Contact Michael J. Krycler. CPA/CFF, DABFE, DABFA, Michael D. 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She holds national and Califor- Website: www.aeforensics.com. Contact Steve Norris, dent. Specialties: forensic business analysis and account- nia specific certification—Senior Professional in Human AIA, PE, GE, HG, CEG, CASp, LEED. Architect, engineer, ing, lost profits, economic damages, expert testimony, dis- Resource (SPHR-CA), certified mediator, and consulting contractor, standard of care expert. Retained over 200 covery assistance, business valuations, corporate recovery, since 1992. times, deposed over 100 times, and testified in trial over 20 financial analysis, and modeling. Member of major profes- times. Waterproofing, water intrusion, building envelope, sional organizations, experience across a broad spectrum APPRAISAL & VALUATION zoning setbacks, concrete performance, path of travel, of industries and business issues. Degrees/licenses: CPA, structural analysis, earthquake-fire damage, and plan analy- CVA, CFE, ABV, PhD-Economics. See display ad on FUlcRUM iNQUiRy sis. Landslides, retaining wall failure, settlement, flooding, page 43. 888 South Figueroa Street, Suite 2000, Los Angeles, grading, septic, expansive soils, mud flows, pavement dis- CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: tress, ground water evaluation, and slope analysis. Cost SMitH DicKSON, aN accOUNtaNcy [email protected]. Website: www.fulcrum.com. estimates, construction management, delay analysis, and cORpORatiON Contact David Nolte. Our professionals are experienced contracts. Serving all California, Hawaii, and Oklahoma. 18100 Von Karman Avenue, Suite 420, Irvine, CA CPAs, MBAs, ASAs, CFAs, affiliated professors, and indus- See display ad on page 47. 92612, (949) 553-1020, fax (949) 553-0249, e-mail: try specialists. Our analysis and research combined with eDWaRD K. taKaHaSKi aRcHitectURal [email protected]: www unique presentation techniques have resulted in an cORpORatiON .smithdickson.com. Contact Deborah Dickson, CPA. unequaled record of successful court cases and client 538 Casuda Canyon Drive, Monterey Park, CA 91754- CPA 25+ years, testifying 15+ years, forensic accounting recoveries. Our expertise encompasses damages analysis, 2102, (323) 980-8000, fax (323) 980-8008, e-mail: and litigation support. Superior Litigation Support services loss profit studies, business and intangible asset valuations, [email protected]. Contact Edward K. Takahaski, since 1995. The professionals at Smith Dickson clearly, fraud investigations, statistics, forensic economic analysis, FAIS, FACIA, CCS. Consultant on architects’ standard of independently, and accurately analyze financial information, royalty audits, strategic and market assessments, competi- reasonable care, litigation support assignments, and con- calculate damages, evaluate claims, prepare expert reports tive surveys, analysis of computerized data, injury and struction industry inter-relationships; provide research ser- and render expert testimony. Thousands of hours of foren- employment damages, and a wide range of other financial vices on construction technology, serve as technical sic accounting, deposition and trial experience. Damage advisory services. Degrees/licenses: CPAs, CFAs, ASAs, experts, and act as mediators and arbitrators. Former neu- calculations; lost profits; forensic accounting; expert testi- PhDs, and MBAs in accounting, finance, economics, and tral of AAA Large Complex Case Panel. In the past 34 mony; intellectual property; fraud and embezzlement; real related subjects. See display ad on back cover. estate; trust and estate bene ficiary disputes, tax contro- years, involved in over 750 litigation assignments for resi- versy; business valuations; and business dissolution. GURSey | ScHNeiDeR llp dential (single family, apartments, condominiums), commer- 1888 Century Park East, Suite 900, Los Angeles, CA cial, recreational, religious, institutional, and educational WHite, ZUcKeRMaN, WaRSaVSKy, 90067, (310) 552-0960, fax (310) 557-3468, e-mail: facilities (K-12, universities). lUNa & HUNt [email protected]. Website: www.gursey.com. 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA Contact Stephan Wasserman. Gursey | Schneider is an ATTORNEY FEE DISPUTE 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, accounting firm specializing in forensic accounting, litigation 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) 219- support services, business valuation, and appraisal services O’cONNOR aND aSSOciateS 9095, e-mail: [email protected]. Website: www.wzwlh for a variety of purposes, including marital dissolution, gift 201 Mission Street, Suite 710, San Francisco, CA 94105, .com. Contact Barbara Luna. Expert witness testimony and estate planning, eminent domain, goodwill loss, busi- (415) 693-9960, fax (415) 692-6357, e-mail: admin for complex litigation involving damage analyses of lost ness disputes, malpractice, tax matters, bankruptcy, dam- @joclaw.com. Website: www.joclaw.com. Contact John profits, unjust enrichment, reasonable royalties, lost earn- age and cost-profit assessments, insurance claims, and D. O’Connor. Attorney John O’Connor provides both liti- ings, lost value of business, forensic accounting, fraud entertainment industry litigation. Gursey | Schneider has gation and expert consultancy services in a broad range of investigation, investigative analysis of liability, and marital over 38 years of experience as expert witnesses in litigation attorney fee issues, including disputes over appropriate dissolution, and tax planning and preparation. Excellent support. See display ad on page 45. billing rates, litigation efficiency, task assignment and communicators with extensive testimony experience. Prior staffing, litigation success and prevailing party determina- Big Four accountants. Specialties include accounting, HiGGiNS, MaRcUS & lOVett, iNc. tion, and litigation skill. His work in this regard has been breach of contract, breach of fiduciary duty, business inter- 800 South Figueroa Street, Suite 710, Los Angeles, CA widely lauded by clients, lawyers, courts, and arbitrators. ruption, business dissolution, construction defects, delays, 90017, (213) 617-7775, fax (213) 617-8372, e-mail: info See display ad on page 39. and cost overruns, fraud, insurance bad faith, intellectual @hmlinc.com. Contact Mark C. Higgins, ASA. The firm property (including trademark, patent, and copyright has over 30 years of litigation support and expert testimony ATTORNEY MALPRACTICE experience in matters involving business valuation, eco- infringement, and trade secrets), malpractice, marital disso- JOel MaRK lution, personal injury, product liability, real estate, securi- nomic damages, intellectual property, loss of business goodwill, and lost profits. Areas of practice include business 919 Box Canyon Trail, Palm Desert, CA 92211 (760) 200- ties, tax planning and preparation, IRS audit defense, trac- 4554, fax (760) 772-6665, e-mail: [email protected]. ing, unfair advertising, unfair competition, valuation of disputes, eminent domain, bankruptcy, and corporate and

38 Los Angeles Lawyer April 2017 Consulting/expert witness experience: Eighty-five plus assignments in attorney fee disputes; attorney ethics, attor- ney malpractice (litigation). Specialties include business liti- gation, intellectual property, commercial law, professional liability, and banking. Previous position/appointments: California State Bar Committee on Mandatory Fee Arbitra- tion, California State Bar Committee on Professional Responsibility and Conduct; appointed expert consultant by the Los Angeles County Superior Court, State Bar MFA Presiding Arbitrator (2009-2012); State Bar of California Special Deputy Trial Counsel for Disciplinary Matters (2010- present). Membership in professional societies: LACBA, Ventura County Bar Association; State Bar of California. Degrees/license: UC Berkeley (AB, 1969), UC Berkeley: Hastings College of Law (JD, 1972); Admitted California 1972, Colorado, 1994. BANKING aDViSORS/eXpeRtS @ McS aSSOciateS 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: experts @mcsassociates.com. Website: www.mcsassociates .com. Contact Norman Katz,managing partner. Nationally recognized banking, finance, insurance, and real estate consulting group (established 1973). Experienced liti- gation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance under- writers/brokers. Specialties include: lending customs, prac- tices, 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 bro- kerage, appraisal, escrow, and title insurance. BANKRUPTCY cBiZ & MayeR HOFFMaN MccaNN pc 10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: [email protected], [email protected], lmoutonriff @cbiz.com. Website: www.MHM-PC.com, www.CBIZ .com. Contact Coral Hansen, Steve Franklin and Lorna Mouton Riff. CBIZ & Mayer Hoffman McCann PC specializes in fraud investigations, forensic accounting, business litigation, commercial damage and lost profits computations, business valuation and appraisal, transac- tional due diligence, family limited partnerships, business interruption, and family law. We provide experienced expert testimony and tax controversy representation. FUlcRUM iNQUiRy 888 South Figueroa Street, Suite 2000, Los Angeles, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: [email protected]. Website: www.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and indus- try 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, loss profit studies, business and intangible asset valuations, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, competi- tive surveys, analysis of computerized data, injury and employment damages, and a wide range of other financial advisory services. Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, finance, economics, and related subjects. See display ad on back cover. BANKRUPTCY/TAX aDViSORS/eXpeRtS @ McS aSSOciateS 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: experts @mcsassociates.com. Website: www.mcsassociates .com. Contact Norman Katz, managing partner. Nationally recognized banking, finance, insurance, and real estate consulting group (established 1973). Experienced liti- gation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance under-

Los Angeles Lawyer April 2017 39 writers/brokers. Specialties include: lending customs, prac- litigation, commercial damage and lost profits computa- ments, insurance claims, and entertainment industry litiga- tices, policies in all types of lending (real estate, subprime, tions, business valuation and appraisal, transactional due tion. Gursey | Schneider has over 38 years of experience as business/commercial, construction, consumer/credit card), diligence, family limited partnerships, business interruption, expert witnesses in litigation support. See display ad on banking operations/administration, trusts and investments, and family law. We provide experienced expert testimony page 45. economic analysis and valuations/damages assessment, and tax controversy representation. HayNie & cOMpaNy, cpaS insurance claims, coverages and bad faith, real estate bro- cMM, llp 4910 Campus Drive, Newport Beach, CA 92660-2119, kerage, appraisal, escrow, and title insurance. With offices in Woodland Hills and El Segundo (818) 986- (949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson BIOMECHANICS/RECONSTRUCTION/ 5070, fax (818) 986-5034, e-mail: [email protected]. @hayniecpa.com. Website: www.hayniecpa.com. Website: www.cmmcpas.com. Contact Stuart Allen. Contact Steven C. Gabrielson. Consulting and expert HUMAN FACTORS Specialties: consultants who provide extensive experience, witness testimony in a variety of practice areas: commercial iNStitUte OF RiSK & SaFety aNalySeS litigation support, and expert testimony regarding forensic damages, ownership disputes, economic analysis, busi- KeNNetH a. SOlOMON, pH.D., p.e., accountants, fraud investigations, economic damages, ness valuation, lost profits analysis, fraud/forensic investiga- pOSt pH.D., cHieF ScieNtiSt business valuations, family law, bankruptcy, and reorgani- tions, taxation, personal injury, wrongful termination, and zation. Degrees/licenses: CPAs, CFEs, MBAs. See display professional liability. 5324 Canoga Avenue, Woodland Hills, CA 91364, (818) ad on page 49. 348-1133, fax (818) 348-4484, e-mail: kennethsolomon HiGGiNS, MaRcUS & lOVett, iNc. @mac.com. Website: www.irsa.us. Specialized forensic cORNeRStONe ReSeaRcH 800 South Figueroa Street, Suite 710, Los Angeles, CA staff, broad range of consulting and expert testimony, 46 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- 90017, (213) 617-7775, fax (213) 617-8372, e-mail: info years of courtroom experience for Dr. Solomon, combined 2005, (213) 553-2500, fax (213) 553-2699. Website: @hmlinc.com. Contact Mark C. Higgins, ASA. The firm courtroom experience for company 220 person years. www.cornerstone.com. Contact George G. Strong, Jr., has over 30 years of litigation support and expert testimony Accident reconstruction, biomechanics, human factors, Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, experience in matters involving business valuation, eco- safety, accident prevention, adequacy of warnings, com- Carlyn Irwin, Pierrick Morel, or Ashish Pradhan. For nomic damages, intellectual property, loss of business puter animation and simulations, 3D scanning, construction more than 25 years, Cornerstone Research staff have pro- goodwill, and lost profits. Areas of practice include business defect, criminal defense, criminal prosecution, premises, vided economic and financial analysis in all phases of com- disputes, eminent domain, bankruptcy, and corporate and product integrity, product liability, product testing, warn- mercial litigation and regulatory proceedings. We work with marital dissolution. See display ad on page 47. ings, and lost income calculations. Auto, bicycle, bus, chair, a broad network of testifying experts, including prominent RGl FOReNSicS elevator, escalator, forklift, gate, ladder, machinery, motor- faculty and industry practitioners, in a distinctive collabora- Los Angeles Office: 800 South Figueroa Street, Suite 980, cycle, press, recreational equipment, rollercoaster, slip/trip tion. The experts with whom we work bring the specialized Los Angeles, CA 90017, (213) 996-0900. Contact Alan and fall, stairs, swimming pool, and truck. Litigation and expertise required to meet the demands of each assign- Lurie, [email protected], Rich Holstrom, [email protected]. claims, defense/plaintiff, educational seminars, and media- ment. Our areas of specialization include intellectual prop- Orange County Office: 625 City Drive South, Suite 290, tion and arbitration services. erty, antitrust, securities, entertainment, real estate, financial Orange, CA 92868, (714) 740-2100. Contact Hank institutions, and general business litigation. BOATING Kahrs, [email protected]. San Diego Office: 11440 W. FUlcRUM iNQUiRy Bernardo Court, Suite 300, San Diego, CA 92127, (619) captaiN tOM caRNey 888 South Figueroa Street, Suite 2000, Los Angeles, 236-0377. Contact Rich Holstrom, rholstrom@rgl 980 Orma Drive, San Diego, CA 92106, (619) 417-6766, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: .com. RGL Forensics is an international firm of forensic fax (619) 225-8141, e-mail: [email protected]. Website: [email protected]. Website: www.fulcrum.com. financial experts exclusively dedicated to damage analysis, www.sandiegoyachtdelivery.com. Contact Tom Carney. Contact David Nolte. Our professionals are experienced fraud investigation, and valuation. Serving the legal, insur- Experienced consultant and expert witness in the marine CPAs, MBAs, ASAs, CFAs, affiliated professors, and indus- ance, and business communities for more than 30 years, industry representing plaintiff or defendant, testimony for try specialists. Our analysis and research combined with the firm is unique in its ability to combine investigative recreational or commercial boats, power and sail, accident unique presentation techniques have resulted in an accounting, businessvaluation, fraud, and forensic technol- reconstruction, damage analysis, collision causes, rules of unequaled record of successful court cases and client ogy expertise. For attorneys, we discover and define finan- the road, insurance investigation, fraud, proper seaman- recoveries. Our expertise encompasses damages analysis, cial value in transactions and civil and criminal disputes, and ship, navigation, marine propulsion, mechanical and electri- loss profit studies, business and intangible asset valuations, when necessary provide expert witness testimony in court cal systems on vessels, proper boat handling, liability analy- fraud investigations, statistics, forensic economic analysis, and arbitration proceedings. For more information about sis and weather analysis. Degrees/license: BA, Captain, royalty audits, strategic and market assessments, competi- RGL, please visit www.rgl.com. U.S. Merchant Marine, 5,000 tons—all oceans, any waters. tive surveys, analysis of computerized data, injury and ScHUlZe HayNeS lOeVeNGUtH & cO. employment damages, and a wide range of other financial 660 South Figueroa Street, Suite 1280, Los Angeles, BUSINESS APPRAISAL/VALUATION advisory services. Degrees/licenses: CPAs, CFAs, ASAs, CA 90017, (213) 627-8280, fax (213) 627-8301, PhDs, and MBAs in accounting, finance, economics, and aDViSORS/eXpeRtS @ McS aSSOciateS e-mail: [email protected]. Website: www related subjects. See display ad on back cover. 18881 Von Karman, Suite 1175, Irvine, CA 92612, .schulzehaynes.com. Contact Karl J. Schulze, presi- (949) 263-8700, fax (949) 263-0770, e-mail: experts GROBSteiN teeple llp dent. Specialties: forensic business analysis and account- @mcsassociates.com. Website:www.mcsassociates 6300 Canoga Avenue, Suite 1500 West, Woodland Hills, ing, lost profits, economic damages, expert testimony, dis- .com. Contact Norman Katz, managing partner. CA 91367, e-mail: [email protected]. Website: covery assistance, business valuations, corporate recovery, Nationally recognized banking, finance, insurance, and real www.gtfas.com. Grobstein Teeple provides specialized financial analysis, and modeling. Member of major profes- estate consulting group (established 1973). Experienced liti- consulting in the areas of forensic accounting, economic sional organizations, experience across a broad spectrum gation consultants/experts include senior bankers, lenders, damages, litigation consulting, business valuation, fraud of industries and business issues. Degrees/licenses: CPA, consultants, economists, accountants, insurance under- investigation, insolvency and restructuring, and forensic CVA, CFE, ABV, PhD-Economics. See display ad on writers/brokers. Specialties include: lending customs, prac- technology. Complex financial issues arise in small and page 43. tices, policies in all types of lending (real estate, subprime, large cases. Our team of professionals and case adminis- WHite, ZUcKeRMaN, WaRSaVSKy, business/commercial, construction, consumer/credit card), trators apply high-level technical capabilities and thoughtful lUNa & HUNt banking operations/administration, trusts and investments, approaches to your case. A partner is actively involved in economic analysis and valuations/damages assessment, each case with a well-trained team to ensure the most 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA insurance claims, coverages and bad faith, real estate bro- effective and efficient approach to problem solving. Our 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, kerage, appraisal, escrow, and title insurance. team comes from one of the largest national accounting 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) 219- and consulting firms in the country. We provide the same 9095, e-mail: [email protected]. Website: www.wzwlh BRiaN leWiS & cOMpaNy skills and capabilities as a larger firm, but with greater flexi- .com. Contact Barbara Luna. Expert witness testimony 10900 Wilshire Boulevard, Suite 610, Los Angeles, CA bility, superior client care, better efficiency, and lower costs. for complex litigation involving damage analyses of lost 90024, (310) 475-5676, fax (310) 475-5268, e-mail: brian See display ad on page 43. profits, unjust enrichment, reasonable royalties, lost earn- @brianlewis-cpa.com. Contact Brian Lewis, CPA, CVA. ings, lost value of business, forensic accounting, fraud Forensic accounting, business valuations, cash spendable GURSey | ScHNeiDeR llp investigation, investigative analysis of liability, and marital reports, estate, trust, and income tax services. 1888 Century Park East, Suite 900, Los Angeles, CA dissolution, and tax planning and preparation. Excellent 90067, (310) 552-0960, fax (310) 557-3468, e-mail: Web- communicators with extensive testimony experience. Prior cBiZ & MayeR HOFFMaN MccaNN pc site: www.gursey.com. Contact Stephan Wasserman. Big Four accountants. Specialties include accounting, 10474 Santa Monica Boulevard, Suite 200, Los Angeles, Gursey | Schneider is an accounting firm specializing in breach of contract, breach of fiduciary duty, business inter- CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: forensic accounting, litigation support services, business ruption, business dissolution, co nstruction defects, delays, [email protected], [email protected], lmoutonriff@cbiz valuation, and appraisal services for a variety of purposes, and cost overruns, fraud, insurance bad faith, intellectual .com. Website: www.MHM-PC.com, www.CBIZ.com. including marital dissolution, gift and estate planning, emi- property (including trademark, patent, and copyright Contact Coral Hansen, Steve Franklin and Lorna nent domain, goodwill loss, business disputes, malpractice, infringement, and trade secrets), malpractice, marital disso- Mouton Riff. CBIZ & Mayr Hoffman McCann PC special- tax matters, bankruptcy, damage and cost-profit assess- lution, personal injury, product liability, real estate, securi- izes in fraud investigations, forensic accounting, business

40 Los Angeles Lawyer April 2017 • Rigorous standards • Tailored service • Prompt turnaround • Free initial consultations • Free resume book • Reasonable rates L O C A L O F F I C E Pro/Consul Inc. 1945 Palo Verde Avenue, Suite 200 Long Beach, CA 90815-3443 (562) 799-0116 • Fax (562) 799-8821 Hours of Operation: 6 a.m. - 6 p.m. [email protected] • ExpertInfo.com ties, tax planning and preparation, IRS audit defense, trac- try specialists. Our analysis and research combined with ing, unfair advertising, unfair competition, valuation of busi- unique presentation techniques have resulted in an nesses, and wrongful termination. See display ad on unequaled record of successful court cases and client page 51. recoveries. Our expertise encompasses damages analysis, loss profit studies, business and intangible asset valuations, ZiVetZ, ScHWaRtZ & SaltSMaN, cpaS fraud investigations, statistics, forensic economic analysis, 11900 West Olympic Boulevard, Suite 650, Los Angeles, royalty audits, strategic and market assessments, competi- CA 90064-1046, (310) 826-1040, fax (310) 826-1065. tive surveys, analysis of computerized data, injury and Website: www.zsscpa.com. Contact Lester J. Schwartz, employment damages, and a wide range of other financial CPA/CFF, DABFE, DABFA, Michael D. Saltsman, advisory services. Degrees/licenses: CPAs, CFAs, ASAs, CPA, MBA, Lynda R. Schauer, CPA, CVA, CGMA, PhDs, and MBAs in accounting, finance, economics, and David L. Bass, CPA, David Dichner, CPA, ABV, Sandy related subjects. See display ad on back cover. Green, CPA, Silva Hakobyan, CPA. Accounting experts in forensic accounting, tax issues, business valuations, and Setec iNVeStiGatiONS appraisals, marital dissolutions, eminent domain, insurance 8391 Beverly Boulevard, Suite 167, Los Angeles, CA losses, business interruption, goodwill, economic analysis, 90036, (800) 748-5440, fax (323) 939-5481, e-mail: investigative auditing, loss of earning, commercial dam- [email protected]. Website: www ages, and lost profits. Expert witness testimony prepara- .setecinvestigations.com. Contact Todd Stefan. Setec tion, settlement negotiations, and consultations. See dis- Investigations offers unparalleled expertise in computer play ad on page 53. forensics and enterprise investigations providing personal- ized, case-specific forensic analysis and litigation support CIVIL ENGINEERING services for law firms and corporations. Setec Investigations possesses the necessary combination of technical exper- DiVeRSiFieD eNGiNeeRiNG tise, understanding of the legal system, and specialized 31157 Lobo Vista Road, Agoura, CA 91301, (818) 489- tools and processes enabling the discovery, collection, 4400. Website: www.diversifiedengineeringinc.com. investigation, and production of electronic information for Contact L. Peter Petrovsky. Peter Petrovsky, PE pro- investigating and handling computer-related crimes or mis- vided services as a consultant and an expert witness in use. Our expertise includes computer forensics, electronic applied civil and mechanical engineering science, building, discovery, litigation support, and expert witness testimony. infrastructure, and earthwork contracting. My strength is to successfully combine engineering and applied mechanics COMPUTERS/INFORMATION SCIENCES with the field experience and contracting skills. My shirt- sleeve approach to problem solving gives me the ability to cOSGROVe cOMpUteR SySteMS, iNc. distill complex technical issues to palatable presentation. 7411 Earldom Avenue, Playa del Rey, CA 90293, I assisted counsel on cases in California, New York, Indi- (310) 823-9448, fax (310) 821-4021, e-mail: jcosgrove ana, Pennsylvania, Hawaii, Kentucky, and Nevada. See @computer.org. Website: www.cosgrovecomputer.com. display ad on page 46. Contact John Cosgrove. John Cosgrove, PE, has over 50 years of experience in computer systems and has been CIVIL LITIGATION a self-employed, consulting software engineer since 1970. He was a part-time lecturer in the UCLA School of Engi- GURSey | ScHNeiDeR llp neering and LMU graduate schools. He provided an invited 1888 Century Park East, Suite 900, Los Angeles, CA article, “Software Engineering and Litigation,” for the Ency- 90067, (310) 552-0960, fax (310) 557-3468, e-mail: gk clopedia of Software Engineering. He is a Certified Forensic @gursey.com. Website: www.gursey.com. Contact Gary Consultant (CFC), holds the CDP, is a member of ACM, Krausz. Gursey | Schneider specializes in forensic ACFEI, FEWA, a life senior member of IEEE Computer Soci- accounting and litigation support services in the areas of ety, NSPE, a Fellow of the National Academy of Forensic civil litigation, business disputes, bankruptcy, damage and Engineers (an affiliate of NSPE), and a professional engineer cost-profit insurance claims, court accountings, fraud in California. Formal education includes a BSEE from Loyola investigations, accounting malpractice, intellectual property, University (now LMU) and a master of engineering from construction, government accounting, and entertainment UCLA. He currently serves as past president of the UCLA litigation. Gursey | Schneider has over 38 years of experi- Engineering Alumni Association. ence as expert witnesses in accounting related matters. See display ad on page 45. CONSTRUCTION COMPOSITE & FIBERGLASS MATERIALS DiVeRSiFieD eNGiNeeRiNG 31157 Lobo Vista Road, Agoura, CA 91301, (818) KaRS’ aDVaNceD MateRialS, iNc. 489-4400. Website: www.diversifiedengineeringinc.com. Testing and Research Labs, 2528 West Woodland Drive, Contact L. Peter Petrovsky. Peter Petrovsky, PE pro- Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- vided services as a consultant and an expert witness in 7169, e-mail: [email protected]. Website: www.karslab applied civil and mechanical engineering science, building, .com. Contact Dr. Ramesh Kar, Dr. Naresh Kar, Dr. infrastructure, and earthwork contracting. My strength is to Nikhil Kar. Southern California’s premier materials successfully combine engineering and applied mechanics /mechanical/metallurgical/structural/ forensics laboratory. with the field experience and contracting skills. My shirt- Registered professional engineers with 30+ years inmetal- sleeve approach to problem solving gives me the ability to lurgical/forensic/structural/mechanical failure analysis. distill complex technical issues to t palatable presentation. I Experienced with automotive, bicycles, tires, fire, paint, assisted counsel on cases in California, New York, Indiana, plumbing, corrosion, and structural failures. We work on Pennsylvania, Hawaii, Kentucky, and Nevada. See display both plaintiff and defendant cases. Complete in-house ad on page 46. capabilities for tests. Extensive deposition and courtroom experience (civil and criminal investigations). Principals are eDWaRD K. taKaHaSKi aRcHitectURal Fellows of American Society for Metals and Fellows, Ameri- cORpORatiON can College of Forensic Examiners. See display ad on 538 Casuda Canyon Drive, Monterey Park, CA 91754- page 57. 2102, (323) 980-8000, fax (323) 980-8008, e-mail: [email protected]. Contact Edward K. Takahaski, COMPUTER FORENSICS FAIS, FACIA, CCS. Consultant on architects’ standard of reasonable care, litigation support assignments, and con- FUlcRUM iNQUiRy struction industry inter-relationships; provide research ser- 888 South Figueroa Street, Suite 2000, Los Angeles, vices on construction technology, serve as technical CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: experts, and act as mediators and arbitrators. Former neu- [email protected]. Website: www.fulcrum.com. tral of AAA Large Complex Case Panel. In the past 34 Contact David Nolte. Our professionals are experienced years, involved in over 750 litigation assignments for resi- CPAs, MBAs, ASAs, CFAs, affiliated professors, and indus- dential, (single family, apartments, condominiums), com-

42 Los Angeles Lawyer April 2017 mercial, recreational, religious, institutional and educational facilities (K-12, universities). KGa, iNc. 1409 Glenneyre Street, Suite A, Laguna Beach, CA 92651, (949) 497-6000, fax (949) 494-4893, e-mail: Kurtg@kgainc .com. Website: www.kgainc.com. Contact Kurt Grosz. Construction and environmental consultants since 1991. Licensed engineers and contractors. ICC building, plumb- ing, mechanical, concrete, and accessibility inspectors. Certified professional estimators. Trial experts, arbitrators, and insurance appraisers/umpires. MpGROUp 1202 Greenacre Avenue, West Hollywood, CA 90046- 5708, (323) 874-8973, fax (323) 874-8948, e-mail: [email protected]. Website: www.mpgroup.com. Contact Michael S. Poles, GC, CM, RCI, DABFET, ACFE. MPGroup is a Los Angeles County based collabora- tion of architects, engineers, contractors, and other con- struction technical experts skilled in the design, manage- ment, and construction of buildings for human occupancy. We are a team of courtroom tested senior forensic expert witnesses in support of legal counsel. We are experience with construction issues ranging from safety to construction defects for all types of construction projects. Please visit our website for complete information: www.mpgroup.com. CORPORATE INVESTIGATIONS FUlcRUM iNQUiRy 888 South Figueroa Street, Suite 2000, Los Angeles, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: [email protected]. Website:www.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and indus- try 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, loss profit studies, business and intangible asset valuations, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, competi- tive surveys, analysis of computerized data, injury and employment damages, and a wide range of other financial advisory services. Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, finance, economics, and related subjects. See display ad on back cover. WHite, ZUcKeRMaN, WaRSaVSKy, lUNa & HUNt 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) 219- 9095, e-mail: [email protected]. Website: www.wzwlh .com. Contact Barbara Luna. Expert witness testimony for complex litigation involving damage analyses of lost profits, unjust enrichment, reasonable royalties, lost earn- ings, 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 inter- ruption, 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 disso- lution, personal injury, product liability, real estate, securi- ties, tax planning and preparation, IRS audit defense, trac- ing, unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on page 51. CORPORATE RECOVERY cBiZ & MayeR HOFFMaN MccaNN pc 10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: [email protected], [email protected], lmoutonriff @cbiz.com. Website: www.MHM-PC.com, www.CBIZ. com. Contact Coral Hansen, Steve Franklin and Lorna

Los Angeles Lawyer April 2017 43 Mouton Riff. CBIZ & Mayer Hoffman McCann PC special- violations of the Fair Credit Reporting Act (FCRA), as well as tional due diligence, family limited partnerships, business izes in fraud investigations, forensic accounting, business industry standards of dispute resolution process and review interruption, and family law. We provide experienced expert litigation, commercial damage and lost profits computa- of residential mortgage loan documents. Unfair debt collec- testimony and tax controversy representation. tions, business valuation and appraisal, transactional due tions (FDCPA), evaluate testimony, and developing ques- diligence, family limited partnerships, business interruption, tions for deposition and trial. Since 2010 he has been DENTIST and family law. We provide experienced expert testimony involved in over 80 cases testifying at depositions over 15 and tax controversy representation. times, as well as been qualified and testified in both federal RicHaRD BeNVeNiSte, DDS, MSD and state courts. 19231 Victory Boulevard, Suite 256, Reseda, CA 91335, CREDIT DAMAGES EXPERT (818) 881-7337, fax (818) 881-6183, e-mail: yourgums CREDITORS’ RIGHTS @gmail.com. Website: www.yourgums.com. Contact eaSy cReDit RelieF, iNc. Richard Benveniste, DDS, MSD. Previous three-term 2625 Townsgate Road, Suite 330, Westlake Village, cBiZ & MayeR HOFFMaN MccaNN pc officer of State Dental Board of California, having ruled on CA 91361, (805) 267-1118, fax (805) 267-1101, 10474 Santa Monica Boulevard, Suite 200, Los Angeles, all phases of dental practice. Practicing as an expert, con- e-mail: [email protected]. Website: www CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: sultant, evaluator and teacher in the treatment of TMJ, per- .creditdamagesexpert.com. Contact Doug Minor. [email protected], [email protected], lmoutonriff sonal injury (PI), lien cases, and dental injury. Multiple distin- Credit damages expert witness/consultant with over 30 @cbiz.com. Website: www.MHM-PC.com, www.CBIZ guished service citations from California State Department years of experience. He has passed the required examina- .com. Contact Coral Hansen, Steve Franklin and of Consumer Affairs. Provider of continuing education tion to receive from the CDIA a Fair Credit Reporting Act Lorna Mouton Riff. CBIZ & Mayer Hoffman McCann PC courses on oral diagnosis, oral medicine, treatment modali- Certification and can help with credit report evaluation specializes in fraud investigations, forensic accounting, ties, TMJ diagnosis and therapy. Multiple long-term profes- preparing credit damages report, modern credit scoring business litigation, commercial damage and lost profits sional organization memberships. Degrees/licenses: Doctor and reporting codes, types of credit damages, assessing computations, business valuation and appraisal, transac- of Dental Surgery, (DDS); Master of Science in Dentistry (MSD). DEVELOPMENT tHe SiMMONS GROUp, iNc. 507 Brentwood Dr., P.O. Box 786, Lake Arrowhead, CA 92352, (310) 439-4119, fax (310) 300-3020,� e-mail: [email protected]. Website: www .simmonsgroupconsulting.com. Contact Philip Simmons, Esq. Decades of executive land use, development, and real estate law expertise provides a unique combination of skills providing expert witness issues analysis, case preparation, and testimony. Over 30 years of experience in corporate and mixed-use real estate and development operations, specializing in all aspects of land acquisition, major project entitlement, project design, development, finance, market- ing, and disposition. In-depth expertise in complex negotia- tions, reviewing and implementing ordinances, drafting agreements, structuring compliance, and directing teams of consultants and outside counsel. ECONOMIC ANALYSIS cBiZ & MayeR HOFFMaN MccaNN pc 10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: [email protected], [email protected], moutonriff@cbiz. com. Website: www.MHM-PC.com, www.CBIZ.com. Contact Coral Hansen, Steve Franklin and Lorna Mouton Riff. CBIZ & Mayer Hoffman McCann PC special- izes in fraud investigations, forensic accounting, business litigation, commercial damage and lost profits computa- tions, business valuation and appraisal, transactional due diligence, family limited partnerships, business interruption, and family law. We provide experienced expert testimony and tax controversy representation. ECONOMIC DAMAGES aDViSORS/eXpeRtS @ McS aSSOciateS 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: experts @mcsassociates.com. Website: www.mcsassociates .com. Contact Norman Katz, managing partner. Nation- I EXPERT WITNESS CLAIMS CONSULTANT ally recognized banking, finance, insurance, and real estate consulting group (established 1973). Experienced litigation — Over 45 Years Experience as a Claims Adjuster — consultants/experts include senior bankers, lenders, con- LICENSED IN THREE STATES AND QUALIFIED IN STATE AND FEDERAL COURTS sultants, economists, accountants, insurance underwrit- ers/brokers. Specialties include: lending customs, prac- EXPERT IN GOOD FAITH/BAD FAITH, STANDARDS AND PRACTICES tices, policies in all types of lending (real estate, subprime, and standard in the industry. Specialties in property/casualty construction defect, business/commercial, construction, consumer/credit card), fire/water, uninsured/un d eri nsured motorist, warehouse and cargo claims. Failure banking operations/�administration, trusts and investments, EXPERIENCE to defend and/or indemnify. Litigation support, case review and evaluation claim economic analysis and valuations/damages assessment, consultation, coverage review and valuations. Appraisal, Arbitration and Claims insurance claims, coverages and bad faith, real estate bro- — kerage, appraisal, escrow, and title insurance. INTEGRITY Rep. at MSC & MMC. Contact Gene Evans at E. L. Evans Associates cBiZ & MayeR HOFFMaN MccaNN pc — 10474 Santa Monica Boulevard, Suite 200, Los Angeles, HONESTY Tel 310.559.4005 • Fax 310.559.4236 • E-mail [email protected] CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: [email protected], [email protected], lmoutonriff 9854 NATIONAL BOULEVARD, SUITE #225, LOS ANGELES CA 90034 @cbiz.com. Website: www.MHM-PC.com,www.CBIZ.com.

44 Los Angeles Lawyer April 2017 Contact Coral Hansen, Steve Franklin and Lorna cORpORate ScieNceS, iNc. audits, strategic and market assessments, competitive sur- Mouton Riff. CBIZ & Mayer Hoffman McCann PC special- 3215 East Foothill Boulevard, Pasadena, CA 91107, (626) veys, analysis of computerized data, injury and employment izes in fraud investigations, forensic accounting, business 440-7200, fax: (626) 440-1800, e-mail: jsdantoni@hotmail damages, and a wide range of other financial advisory ser- litigation, commercial damage and lost profits computa- .com. Website: www.corporatesciences.com. Contact Dr. vices. Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and tions, business valuation and appraisal, transactional due Joseph S. D’Antoni, Managing Principal. Corporate MBAs in accounting, finance, economics, and related sub- diligence, family limited partnerships, business interruption, Sciences, Inc., provides over 40 years of financial analysis jects. See display ad on back cover. and family law. We provide experienced expert testimony and expert testimony in all types of commercial litigation. GROBSteiN teeple llp and tax controversy representation. Extensive experience in a broad range of industries for 6300 Canoga Avenue, Suite 1500 West, Woodland Hills, computing economic damages, lost profits, valuation and cHRiStOpOUlOS ecONOMicS CA 91367, e-mail: [email protected]. Website: appraisal, fraud, breach of contract, partnership disputes, cONSUltiNG GROUp www.gtfas.com. Grobstein Teeple provides specialized and bankruptcy-related matters. Professionals also serve 575 Anton Boulevard, Suite 300, Costa Mesa, CA consulting in the areas of forensic accounting, economic as mediators, arbitrators, special masters, and third-party 92626, (714) 442-8561, fax (714) 586-5940, e-mail: expert damages, litigation consulting, business valuation, fraud administrators as well as consulting and testifying experts. @econconsulting.com. Website: www.econconsulting.com. investigation, insolvency and restructuring, and forensic Contact Jim Christopoulos. Jim Christopoulos is well eQUalS & Kita llp technology. Complex financial issues arise in small and versed in the calculation of past and present value future 404 South Figueroa Street, Suite 520-B, The Bonaventure, large cases. Our team of professionals and case adminis- economic damages for all matters such as employment liti- Los Angeles, CA 90071, (213) 627-7130, fax (310) 373- trators apply high-level technical capabilities and thoughtful gation, business litigation, wrongful death, and personal 7851, e-mail: [email protected], Rkita@equalskita approaches to your case. A partner is actively involved in injury, including the calculation of future medical care costs. .com. Website: www.equalskita.com. Apple App: Forensic each case with a well-trained team to ensure the most We provide credible testimony and produce clear summary Accounting. Forensic accounting, wrongful termination and effective and efficient approach to problem solving. Our reports of relevant conclusions. loss of earnings. Economic damages, lost profits, breach of team comes from one of the largest national accounting and consulting firms in the country. We provide the same cORNeRStONe ReSeaRcH contract, claims and damages. Expert witness testimony, Moore-Marsden. Government contracts, FAR, CFR, CAS skills and capabilities as a larger firm, but with greater flexi- 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- issues. Qui tam and false claims. Divorce valuation. Trial bility, superior client care, better efficiency, and lower costs. 2005, (213) 553-2500, fax (213) 553-2699. Website: www experience: Federal and Superior Courts. Ability to pay liti- See display ad on page 43. .cornerstone.com. Contact George G. Strong, Jr., gation damages. See display ad on page 39. Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, GURSey | ScHNeiDeR llp Carlyn Irwin, Pierrick Morel, or Ashish Pradhan. For FUlcRUM iNQUiRy 1888 Century Park East, Suite 900, Los Angeles, CA more than 25 years, Cornerstone Research staff have pro- 888 South Figueroa Street, Suite 2000, Los Angeles, CA 90067, (310) 552-0960, fax (310) 557-3468, e-mail: vided economic and financial analysis in all phases of com- 90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte [email protected]. Website: www.gursey.com. Contact mercial litigation and regulatory proceedings. We work with @fulcrum.com. Website: www.fulcrum.com. Contact Gary Krausz. Gursey | Schneider specializes in forensic a broad network of testifying experts, including prominent David Nolte. Our professionals are experienced CPAs, accounting and litigation support services in the areas of faculty and industry practitioners, in a distinctive collabora- MBAs, ASAs, CFAs, affiliated professors, and industry spe- civil litigation, business disputes, bankruptcy, damage and tion. The experts with whom we work bring the specialized cialists. Our analysis and research combined with unique cost-profit insurance claims, court accountings, fraud expertise required to meet the demands of each assign- presentation techniques have resulted in an unequaled investigations, accounting malpractice, intellectual property, ment. Our areas of specialization include intellectual prop- record of successful court cases and client recoveries. Our construction, government accounting, and entertainment erty, antitrust, securities, entertainment, real estate, financial expertise encompasses damages analysis, loss profit stud- litigation. Gursey | Schneider has over 38 years of experi- institutions, and general business litigation. ies, business and intangible asset valuations, fraud investi- ence as expert witnesses in accounting related matters. gations, statistics, forensic economic analysis, royalty See display ad on page 45.

Los Angeles Lawyer April 2017 45 Civil & Mechanical Engineering HiGGiNS, MaRcUS & lOVett, iNc. value, partnership interest and closely held share value, fair 800 South Figueroa Street, Suite 710, Los Angeles, CA compensation, lender liability, and reorganization plan feasi- Expert Witness 90017, (213) 617-7775, fax (213) 617-8372, e-mail: info bility. Professional staff of five with advanced degrees and @hmlinc.com. Contact Mark C. Higgins, ASA. The firm training in real estate, finance, urban planning, and • Accident Investigations has over 30 years of litigation support and expert testimony accounting. See display ad on page 49. • Civil Engineering experience in matters involving business valuation, eco- WHite, ZUcKeRMaN, WaRSaVSKy, nomic damages, intellectual property, loss of business • Materials Issues and lUNa & HUNt goodwill, and lost profits. Areas of practice include business Failure Analysis 15490 Ventura Boulevard, Suite 300, Sherman Oaks, disputes, eminent domain, bankruptcy, and corporate and CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park • Mechanical Engineering marital dissolution. See display ad on page 47. and Mechanical Design Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax MicHael D. ROSeN, cpa, pHD, aBV (949) 219-9095, e-mail: [email protected]. Website: • Environmental Assessment 3780 Kilroy Airport Way, Suite 200, Long Beach, CA www.wzwlh.com. Contact Barbara Luna. Expert witness Peter Petrovsky P.E. specializes in the technical and 90806, (562) 256-7052, fax (562) 256-7001, e-mail: testimony for complex litigation involving damage analyses factual evidence foundation development of cases. [email protected]. Website: www.mrosencpa.com. of lost profits, unjust enrichment, reasonable royalties, lost Hands on, shirt-sleeve, field investigation and data Contact Michael D. Rosen. We are litigation consultants, earnings, lost value of business, forensic accounting, fraud acquisition. Testing and analysis. Trial preparation forensic accountants, expert witnesses. Our mission is to investigation, investigative analysis of liability, and marital case analysis, deposition review and expert summary, tell the financial story that underlies every business litigation dissolution, and tax planning and preparation. Excellent evidence presentation, consulting, report writing, matter and to convey that story in a clear and concise man- communicators with extensive testimony experience. Prior court exhibits, static and computer depictions, con- ner to the trier of fact. Our findings allow a realistic assess- Big Four accountants. Specialties include accounting, struction and engineering contract analysis, accident ment of the case and support settlement efforts. Our work breach of contract, breach of fiduciary duty, business inter- reconstruction, interpretation of administrative is designed to render conclusive opinions and to withstand ruption, business dissolution, construction defects, delays, regulations for design and development, Earthquake cross-examination. We specialize in business damages (lost and cost overruns, fraud, insurance bad faith, intellectual Damage Assessment and Remediation, Construction profits and loss in value), personal damages (lost earnings), property (including trademark, patent, and copyright job site safety in fire prevention and personnel pro- and business valuation. infringement, and trade secrets), malpractice, marital disso- tection, etc. lution, personal injury, product liability, real estate, securi- RSM US llp ties, tax planning and preparation, IRS audit defense, trac- Peter provides civil, mechanical engineering, as well 515 South Flower Street, 41st Floor, Los Angeles, CA ing, unfair advertising, unfair competition, valuation of as, general, engineering, earthwork and paving and 90071, (213) 330-4605, e-mail: patrick.chylinski@rsmus businesses, and wrongful termination. See display ad on hazardous waste contracting in one package for the .com.Website: www.rsmus.com.Contact Patrick Chylin- page 51. use of clients. ski. RSM US LLP is the fifth largest accounting and con- sulting firm in the United States. Our litigation consulting ZiVetZ, ScHWaRtZ & SaltSMaN, cpaS “I will take whatever steps necessary to address any and financial forensics practice focuses on assisting coun- 11900 West Olympic Boulevard, Suite 650, Los Angeles, foreseeable issues in the case in order to inform clients sel and clients in the areas of business and commercial liti- CA 90064-1046, (310) 826-1040, fax (310) 826-1065. and prevent surprises at depositions and at trial.” gation, forensic analysis, fraud investigations, contract Website: www.zsscpa.com. Contact Lester J. Schwartz, compliance, and royalty inspection matters. We have CPA/CFF, DABFE, DABFA, Michael D. Saltsman, Call Peter today at 818.489.4400 extensive experience in the areas of damages, lost profits, CPA, MBA, Lynda R. Schauer, CPA, CVA, CGMA, or email him at [email protected] and forensic analysis as they relate to contract, post-clos- David L. Bass, CPA, David Dichner, CPA, ABV, Sandy ing, real estate, and fee disputes. Our experts have experi- Green, CPA, Silva Hakobyan, CPA. Accounting experts ence testifying at deposition, arbitration, and at trial in state in forensic accounting, tax issues, business valuations, and and federal courts. Degrees/Licenses: CPAs, MBAs, JDs, appraisals, marital dissolutions, eminent domain, insurance CFEs, CVAs, ASAs, CFFs. See display ad on page 44. losses, business interruption, goodwill, economic analysis, investigative auditing, loss of earning, commercial dam- ScHUlZe HayNeS lOeVeNGUtH & cO. ages, and lost profits. Expert witness testimony prepara- 660 South Figueroa Street, Suite 1280, Los Angeles, tion, settlement negotiations, and consultations. See CA 90017, (213) 627-8280, fax (213) 627-8301, display ad on page 53. e-mail: [email protected]. Website: www .schulzehaynes.com. Contact Karl J. Schulze, ECONOMICS president. Specialties: forensic business analysis and accounting, lost profits, economic damages, expert testi- aDViSORS/eXpeRtS @ McS aSSOciateS mony, discovery assistance, business valuations, corporate 18881 Von Karman, Suite 1175, Irvine, CA 92612, recovery, financial analysis, and modeling. Member of major (949) 263-8700, fax (949) 263-0770, e-mail: experts professional organizations, experience across a broad @mcsassociates.com. Website: www.mcsassociates.com. spectrum of industries and business issues. Degrees/ Contact Norman Katz, managing partner. Nationally licenses: CPA, CVA, CFE, ABV, PhD-Economics. See recognized banking, finance, insurance, and real estate display ad on page 43. consulting group (established 1973). Experienced litigation consultants/experts include senior bankers, lenders, con- SMitH DicKSON, aN accOUNtaNcy sultants, economists, accountants, insurance underwrit- cORpORatiON ers/brokers. Specialties include: lending customs, prac- 18100 Von Karman Avenue, Suite 420, Irvine, CA tices, policies in all types of lending (real estate, subprime, 92612, (949) 553-1020, fax (949) 553-0249, e-mail: business/commercial, construction, consumer/credit card), [email protected]: www banking operations/�administration, trusts and investments, .smithdickson.com. Contact Deborah Dickson, CPA. economic analysis and valuations/damages assessment, CPA 25+ years, testifying 15+ years, forensic accounting insurance claims, coverages and bad faith, real estate bro- and litigation support. Superior Litigation Support services kerage, appraisal, escrow, and title insurance. since 1995. The professionals at Smith Dickson clearly, independently, and accurately analyze financial information, cMM, llp calculate damages, evaluate claims, prepare expert reports With Offices In Woodland Hills And El Segundo, (818) and render expert testimony. Thousands of hours of foren- 986-5070, Fax (818) 986-5034, e-mail: Sallen@Cmmcpas sic accounting, deposition and trial experience. Damage .com. Website: www.cmmcpas.com. Contact Stuart calculations; lost profits; forensic accounting; expert testi- Allen. Specialties: consultants who provide extensive expe- mony; intellectual property; fraud & embezzlement; real rience, litigation support, and expert testimony regarding estate; trust & estate bene ficiary disputes, tax controversy; forensic accountants, fraud investigations, economic dam- business valuations; business dissolution. ages, business valuations, family law, bankruptcy, and reor- ganization. Degrees/Licenses: CPAs, CFEs, MBAs. See WaRONZOF aSSOciateS, iNc. display ad on page 49. 400 Continental Boulevard, Sixth Floor, El Segundo, CA 90245, (310) 322-7744, fax (424) 285-5380. Website: FUlcRUM iNQUiRy www.waronzof.com. Contact Timothy R. Lowe, MAI, 888 South Figueroa Street, Suite 2000, Los Angeles, CRE. Waronzof provides real estate and land use litigation CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: support services including economic damages, lost profits, [email protected]. Website: www.fulcrum.com. financial feasibility, lease dispute, property value, enterprise Contact David Nolte. Our professionals are experienced

46 Los Angeles Lawyer April 2017 CPAs, MBAs, ASAs, CFAs, affiliated professors, and indus- try specialists. Our analysis and research combined with unique presentation techniques have resulted in an unequaled record of successful court cases and client A & E FORENSICS recoveries. Our expertise encompasses damages analysis, loss profit studies, business and intangible asset valuations, Steven B. Norris, AIA, PE, GE, CEG, GBC, CASp fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, competi- 2121 Monel Road San Marcos, CA 92069 (877) 839-7302 tive surveys, analysis of computerized data, injury and employment damages, and a wide range of other financial ■ ARCHITECTURE ■ C O N S T RUCTION ■ ADA advisory services. Degrees/�licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, finance, economics, and related subjects. See display ad on back cover. ■ GEOTECHNICAL ■ CIVIL ■ STRUCTURAL ELDER ABUSE ENGINEERING ENGINEERING ENGINEERING HaMptON HealtH, ltD™ JOHN H. FUlleRtON, MD, MRO, cMD, cFp, Facp, www.aeforensics.com aGSF, FaaHpM 1700 California Street, Suite 470, San Francisco, CA 94109, (415) 460-5532, fax (415) 376-5820, e-mail: [email protected]. Website: hamptonhealthltd.com. Contact Minoo Parsa. Services available: Board Certified in Internal Medicine, Geriatrics, Hospice, Palliative Medicine, Addiction Medicine, and Home Health; Licensed Medical Review Officer. Expertise: Medicare fraud cases for the government, toxicology/DUI, elder abuse including criminal defense of lay caregivers accused of homicide of demented relatives during end-of-life phase. Hospital, ambulatory/out- patient, PI, medical malpractice, and LTC. Medical/hospice directorships. Testified over 200 times and reviewed more than 1,500 cases, including Medicare audits for the govern- ment. See display ad on page 53. ELECTRONIC DISCOVERY Setec iNVeStiGatiONS 8391 Beverly Boulevard, Suite 167, Los Angeles, CA 90036, (800) 748-5440, fax (323) 939-5481, e-mail: [email protected]. Website: www .setecinvestigations.com. Contact Todd Stefan. Setec Investigations offers unparalleled expertise in computer forensics and enterprise investigations providing personal- ized, case-specific forensic analysis and litigation support services for law firms and corporations. Setec Investigations possesses the necessary combination of technical exper- tise, understanding of the legal system, and specialized tools and processes enabling the discovery, collection, investigation, and production of electronic information for investigating and handling computer-related crimes or mis- use. Our expertise includes computer forensics, electronic discovery, litigation support, and expert witness testimony. EMPLOYMENT/DISCRIMINATION/ HARASSMENT/RETALIATION HRM cONSUltiNG, iNc. 2050 Gateway Place, Suite 100-177, San Jose, CA 95110, (209)728-8905, fax (209) 728-8970, e-mail: bdelima @hrmconsulting.com. Website: www.hrmconsulting.com. Contact Beth Brascugli De Lima, MBA, SPHR—CA. Expert witness Beth De Lima, has testified for both plaintiff and defense in the following areas: human resources stan- dards of care, employment ADA accommodation, FEHA, Confidence At The Courthouse. FMLA, CFRA, ADA� & EEOC violations. Wrongful termina- tion, performance management, discrimination, sexual Business litigation is increasingly complex. That is why we believe valuation harassment, exempt analysis, labor market assessment, issues must be addressed with the same meticulous care and vocational evaluations. She holds national and Califor- as legal issues. Analysis must be clear. Opinions must be nia� specific certification—Senior Professional in Human Resource (SPHR-CA), certified mediator, and consulting defensible. Expert testimony must be thorough and since 1992. articulate. HML has extensive trial experience and can provide legal counsel with a powerful resource for expert ENGINEER/TRAFFIC testimony and litigation support. WilliaM KUNZMaN, pe 1111 Town and Country #34, Orange, CA 92868, (714) For More Information Call 213-617-7775 904-2821, e-mail: [email protected]. Website: www.traffic-engineer.com. Contact William Kunzman, Or visit us on the web at www.hmlinc.com PE. Traffic expert witness since 1979, both defense and • • • plaintiff. Auto, pedestrian, bicycle, and motorcycle acci- BUSINESS VALUATION LOSS OF GOODWILL ECONOMIC DAMAGES LOST PROFITS dents. Largest plaintiff verdicts: 1) $12,200,000 in pedes-

Los Angeles Lawyer April 2017 47 trian accident case against Caltrans, 2) $10,300,000 in echnical engineering consulting firm specializing in investi- writers/brokers. Specialties include: lending customs, prac- case against Los Angeles Unified School District. Largest gation, design, arbitration, and expert witness testimony tices, policies in all types of lending (real estate, subprime, settlement: $2,000,000 solo vehicle accident case against with offices in Los Gatos, Thousand Oaks, and San business/commercial, construction, consumer/credit card), Caltrans. Best defense verdicts: 1) $0 while defending Cal- Andreas, California. Earth movement (settlement, soil banking operations/�administration, trusts and investments, trans and opposition sought $16,000,000. 2) $0 defending creep, landslides, tunneling and expansive soil), foundation economic analysis and valuations/damages assessment, City of Long Beach and opposition sought $15,000,000. distress (movement and cracking of structures), drainage insurance claims, coverages and bad faith, real estate bro- Before becoming expert witness, employed by Los Angeles and grading issues (seepage through slabs, moisture intru- kerage, appraisal, escrow, and title insurance. County Road Department, Riverside County Road Depart- sion, nuisance water, and ponding water in crawlspace), ment, City of Irvine, and Federal Highway Administration. pavement and slab distress (cracking and separating), EXPERT REFERRAL SERVICE Knowledge of governmental agency procedures, design, retaining walls (movement, cracking, and failures), pipelines, geometrics, signs, traffic controls, maintenance, and flooding and hydrology, design and construction deficien- pRO/cONSUl pedestrian protection barriers. Hundreds of cases. Under- cies, aerial photo analysis; expert testimony at 87+ trials tecHNical aND MeDical eXpeRtS graduate work—UCLA, graduate work—Yale University. (municipal, superior, and federal), 230+ depositions, 250+ 1945 Palo Verde Avenue, Suite 200, Long Beach, CA settlement conferences in California, Nevada, Hawaii, and 90815, (800) 392-1119, fax (562) 799-8821, e-mail: ENGINEERING Michigan. [email protected]: www.expertinfo.com. Con- tact Jesse De La Torre. Right expert right away! We are 4X FOReNSic eNGiNeeRiNG ENTERTAINMENT LITIGATION listed and recommended by the A.M. Best Company. We laBORatORieS, iNc. welcome your rush cases! 15,000 medical and technical 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) tUlip MeDia ltD. experts in over 3,000 fields, many in the Southern California 450-8500, fax (714) 450-8599, e-mail: phil@4Xforensic 212 26th Street, Suite 158, Santa Monica, CA 90402, (310) area. Pro/Consul always strives to provide the best experts .com. Website: www.4Xforensic.com. Contact Phil Van 451-7735, fax (310) 395-2006, e-mail: [email protected]. at a reasonable cost, including medical doctors for IME’s, Herle. 4X Forensic Engineering Laboratories is a full-service Website: www.tulipmedia.net. Contact Todd P. Leavitt. biomechanical engineers, accident reconstruction, electrical forensic engineering laboratory. We provide expert witness Extensive experience in areas of film, television, digital engineers, fire cause and origin, neuropsychology, account- and analytical and testing services in the following areas: media, home entertainment. High profile cases have ing and economics, materials and metallurgy, engineering, fires and explosions: electrical and gas product defect included lost earnings, profit participation, merchandising plastics, appraisal and valuation, construction, human fac- investigations, thermal and fire modeling and laboratory and licensing revenue, breach of implied contract, agency tors, insurance, lighting, marine, mechanical, medical billing, testing; water loss: materials, corrosion, and failure analysis commission industry custom and usage, reality/non roof, safety, security, SOC, toxicology, MDs, RNs, etc. Free of plumbing products; failure analysis: metallurgy, product scripted production, domestic and international distribu- resume binder. See display ad on page 41. testing, and computerized stress analysis; accident recon- tions. Former chief operating officer of NBC Studios, and taSa (a DiViSiON OF tHe taSa struction: automotive, trucks, construction equipment, and president of the Television Academy. GROUp, iNc.) premises liability. See display ad on page 44. ENVIRONMENTAL Providing Outstanding Local, National and Global Experts a & e FOReNSicS in ALL Categories. Plaintiff/Defense. Civil/Criminal. 2121 Montiel Road, San Marcos, CA 92069, (877) 839- ScS eNGiNeeRS Contact Deborah Morris. (800) 523-2319, fax (800) 329- 7302, fax (760) 480-7477, e-mail: steve@aeforensics 3900 Kilroy Airport Way, Suite 100, Long Beach, CA 8272, e-mail: [email protected]. Website: www. .com. Website: www.aeforensics.com. Contact Steve 90806, (562) 426-9544, fax (562) 427-0805, e-mail: jnuno TASAnet.com. Since 1956, TASA has been your source for Norris, AIA, PE, GE, HG, CEG, CASp, LEED. Architect, @scsengineers.com. Website: www.scsengineers.com. a variety of superior quality, independent testifying and con- engineer, contractor, standard of care expert. Retained Contact Julio Nuno, VP. SCS provides expert witness sulting experts. We offer more than 11,000 diverse cate- over 200 times, deposed over 100 times, and testified in services related to environmental studies and engineering, gories of expertise and hard-to-find specialties in technol- trial over 20 times. Waterproofing, water intrusion, building water resources, solid waste and air quality and industrial ogy, business, the arts, and sciences, including 1,000+ envelope, zoning setbacks, concrete performance, path of hygiene and safety services. We are a 46-year old consult- medical areas through our sister company, TASAmed. Our travel, structural analysis, earthquake-fire damage, and plan ing firm with 68 offices across the US and nearly 800 experienced referral advisors target your criteria and con- analysis. Landslides, retaining wall failure, settlement, flood- employees. Our Long Beach office has more than 30 pro- nect you with the experts available to discuss your case. ing, grading, septic, expansive soils, mud flows, pavement fessional engineers, scientists, and subject matter experts There is no charge for our services until you engage or des- distress, ground water evaluation, and slope analysis. Cost available on short notice to serve asbestos, lead-based ignate an expert witness we refer. Visit our website to estimates, construction management, delay analysis, and paint, and other specialty areas requiring expert witness search expert profiles by expertise key word, order due dili- contracts. Serving all California, Hawaii, and Oklahoma. services. gence research reports on your expert witness or opposing See display ad on page 47. tHe ReyNOlDS GROUp counsel’s, request an expert through our online form, and eXpONeNt P.O. Box 1996, Tustin, CA 92781-1996, (714) 730-5397, check out our e-Discovery Solutions. Explore the Knowl- 5401 McConnell Avenue, Los Angeles, CA 90066, (310) fax (714)730-6476, e-mail: edreynolds@reynolds-group edge Center to read expert-authored articles and view 754-2700, fax (310) 754-2799, e-mail: reza@exponent .com. Website: www.reynolds-group.com. Contact Ed archived webinars. While on our website, you can register .com. Website: www.exponent.com. Contact Ali Reza. Reynolds, RCE, Principal. An environmental consulting, for upcoming webinars and sign up to receive our elec- Specialties: fires and explosions, metallurgy and mechanical contracting firm. Expertise: environmental contamination, tronic newsletters. Save $175 (admin fee) on your first engineering, structural and geotechnical, accident recon- assessment, remediation, reasonable value of construction, expert witness designation with Promo Code: LA417. Be struction and analysis, human factors, risk and reliability standard of care, and related financial matters. Degrees in sure to check out our insert and display ad in this issue! assessment, toxicology and human health, biomechanics, Civil Engineering: USC (BS), University of Houston (MS), please see our insert in this issue and display ad on electrical and semiconductors, aviation, materials science, (MBA) Harvard. California Registered Civil Engineer, page 36. HVAC, energy consulting, construction defect, scheduling, Licensed A, B, HAZ California Contractor. Adjunct Faculty environmental remediation, water quality and policy. Member USC Viterbi School of Engineering Department of UNiteD StateS paNel OF Civil and Environmental Engineering. pROFeSSiONal eXpeRtS ScS eNGiNeeRS Website: www.usaexperts.com. Free. Fast. Effective. 3900 Kilroy Airport Way, Suite 100, Long Beach, CA ENVIRONMENTAL ENGINEER Find your next specialist on USAExperts.com. surgical sub- 90806, (562) 426-9544, fax (562) 427-0805, e-mail: specialties, addiction and pain management, other medical [email protected]. Website: www.scsengineers WZi iNc. (eNViRONMeNtal eNGiNeeRS) specialties, engineering, acupuncture, MBAs, college pro- �.com. Contact Julio Nuno, VP. SCS provides expert wit- 1717 28th Street, Bakersfield, CA 93301, (661) 326-1112, fessors, psychiatry, psychology, CPAs, holistic medicine, ness services related to environmental studies and engi- fax (661) 326-6480, e-mail: [email protected]. Web site: physical therapy, dentistry, podiatry and many more. If you neering, water resources, solid waste and air quality and www.wziinc.com. Contact Mary Jane Wilson. BS, are looking for a physician, specialist in emergency medi- industrial hygiene and safety services. We are a 46-year old petroleum engineering environmental assessor REPA cine/urgent care with listed expertise in proper assessment consulting firm with 68 offices across the US and nearly 450065. Specialties include regulatory compliance, and screening in, or near Los Angeles, it will take you 4 800 employees. Our Long Beach office has more than 30 petroleum, and power generation. clicks (~8 seconds) to find Dr. B. Sedarati M.D., co-founder professional engineers, scientists, and subject matter of Vital Urgent Care and a member of Urgent Care Associa- experts available on short notice to serve asbestos, lead- ESCROW tion for America’s Education Committee. See display ad based paint, and other specialty areas requiring expert wit- on page 42. ness services. aDViSORS/eXpeRtS @ McS aSSOciateS 18881 Von Karman, Suite 1175, Irvine, CA 92612, EXPERT WITNESS ENGINEERING/GEOTECHNICAL (949) 263-8700, fax (949) 263-0770, e-mail: experts @mcsassociates.com. Website: www.mcsassociates aMFS MeDical eXpeRtS NatiONWiDe cOttON, SHiReS aND aSSOciateS, iNc. .com. Contact Norman Katz, managing partner. 6425 Christie Avenue, Suite 260, Emeryville, CA 94608, Southern California branch, serving greater So. Cal. area, Nationally recognized banking, finance, insurance, and real (800) 275-8903. Website: www.AMFS.com. Welcome to (805) 375-1050, fax (805) 375-1059, e-mail: mphipps@cot- estate consulting group (established 1973). Experienced liti- AMFS where our in-house staff of attorneys and physicians tonshires.com. Website: www.cottonshires.com. Contact gation consultants/experts include senior bankers, lenders, are on-call to discuss your most important medical legal Michael Phipps or Patrick O. Shires. Full service geot- consultants, economists, accountants, insurance under- matters, advise you as to their merit, and locate/engage the

48 Los Angeles Lawyer April 2017 best and most suitable specialists to serve as expert wit- nesses and advisors. Based in California, AMFS has a 25- REAL ESTATE DISPUTE CONSULTING year history as the trusted medical expert partner to thou- sands of law firms across the country and over 15,000 physicians, surgeons, nurses, and related experts located WARONZOF ASSOCIATES in every U.S. jurisdiction. Please call Dan Sandman, Esq., at Timothy R. Lowe, MAI, CRE, FRICS (800) 275-8903 to discuss your matter alongside one of our medical directors for a candid assessment and lightning- fast expert placement. AMFS: world class medical special- •economic damages •lease disputes ists in over 5,000 areas of expertise. See display ad on page 46. •fair compensation •land use disputes FAILURE ANALYSIS •property valuation •partnership interest value •lost profits •reorganization plan feasibility 4X FOReNSic eNGiNeeRiNG laBORatORieS, iNc. Waronzof Associates, Incorporated 310.322.7744 T 424.285.5380 F 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) 400 Continental Boulevard, Sixth Floor [email protected] 450-8500, fax (714) 450-8599, e-mail: phil@4Xforensic El Segundo, CA 90245 www.waronzof.com .com. Website: www.4Xforensic.com. Contact Phil Van Herle. 4X Forensic Engineering Laboratories is a full-service forensic engineering laboratory. We provide expert witness and analytical and testing services in the following areas: fires and explosions: electrical and gas product defect investigations, thermal and fire modeling and laboratory FORENSIC PATHOLOGY AND TOXICOLOGY testing; water loss: materials, corrosion, and failure analysis of plumbing products; failure analysis: metallurgy, product BURR HARTMAN, DO, PHD | BURR HARTMAN CONSULTING testing, and computerized stress analysis; accident recon- Forensic pathologist with PhD in chemistry. Board struction: automotive, trucks, construction equipment, and certified in anatomic, clinical and forensic pathology. premises liability. See display ad on page 44. Practice provides services for Tulare Regional Medical Center, coroner’s KaRS’ aDVaNceD MateRialS, iNc. pathology for three sheriff-coroner departments, and consultation for Mineral Testing and Research Labs, 2528 West Woodland Drive, King Toxicology Laboratory. Broad-based scientific background and long- Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- standing interest in toxicology. Testified/deposed 100 times in last 4 years. 7169, e-mail: [email protected]. Website: www.karslab Interested in technical and scientific issues encountered and not usually .com. Contact Dr. Ramesh Kar, Dr. Naresh Kar, Dr. encountered in clinical practice. Nikhil Kar. Southern California’s �premier materials/ mechanical/metallurgical/structural/ forensics laboratory. Contact Burr Hartman, DO, PhD TEL 559.686.4000 | FAX 559.686.9432 Registered professional engineers with 30+ years in metal- Burr Hartman Consulting EMAIL [email protected] lurgical/forensic/structural/�mechanical failure analysis. MICROCORRE DX LAB, 890 CHERRY STREET, TULARE, CALIFORNIA 93274 Experienced with automotive, bicycles, tires, fire, paint, plumbing, corrosion, and structural failures. We work on both plaintiff and defendant cases. Complete in-house capabilities for tests. Extensive deposition and courtroom experience (civil and criminal investigations). Principals are Fellows of American Society for Metals and Fellows, Ameri- can �College of Forensic Examiners. See display ad on page 57. FAMILY LAW BRiaN leWiS & cOMpaNy 10900 Wilshire Boulevard, Suite 610, Los Angeles, CA 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 services. cBiZ & MayeR HOFFMaN MccaNN pc 10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: [email protected], [email protected], lmoutonriff@cbiz .com. Website: www.MHM-PC.com, www.CBIZ.com. Contact Coral Hansen, Steve Franklin and Lorna Mouton Riff. CBIZ & Mayer Hoffman McCann PC special- izes in fraud investigations, forensic accounting, business litigation, commercial damage and lost profits computa- tions, business valuation and appraisal, transactional due diligence, family limited partnerships, business interruption, and family law. We provide experienced expert testimony and tax controversy representation. cMM, llp With offices in Woodland Hills and El Segundo (818) 986- 5070, fax (818) 986-5034, e-mail: [email protected]. Website: www.cmmcpas.com. Contact Stuart Allen. Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, and reorgani- zation. Degrees/licenses: CPAs, CFEs, MBAs. See display ad on page 47.

Los Angeles Lawyer April 2017 49 GURSey | ScHNeiDeR llp property (including trademark, patent, and copyright FUlcRUM iNQUiRy 1888 Century Park East, Suite 900, Los Angeles, CA infringement, and trade secrets), malpractice, marital disso- 888 South Figueroa Street, Suite 2000, Los Angeles, 90067, (310) 552-0960, fax (310) 557-3468, 20355 lution, personal injury, product liability, real estate, securi- CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: Hawthorne Boulevard, First Floor, Torrance, CA 90503, ties, tax planning and preparation, IRS audit defense, trac- [email protected]. Website: www.fulcrum.com. (310) 370-6122, fax (310) 370-6188, 2211 Michelson Drive, ing, unfair advertising, unfair competition, valuation of Contact David Nolte. Our professionals are experienced Suite 830, Irvine, CA 92612, (949) 265-9900, fax (949) 265- businesses, and wrongful termination. See display ad on CPAs, MBAs, ASAs, CFAs, affiliated professors, and indus- 9901, 50 California Street, Suite 1320, San Francisco, CA page 51. try specialists. Our analysis and research combined with 94111, (415)855-8400, fax (415) 855-8410, e-mail: tinaf ZiVetZ, ScHWaRtZ & SaltSMaN, cpaS unique presentation techniques have resulted in an @gursey.com or [email protected]. Website: www unequaled record of successful court cases and client 11900 West Olympic Boulevard, Suite 650, Los Angeles, .gursey.com. Contact Tina Fujisaki or Kristen L. recoveries. Our expertise encompasses damages analysis, CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Gillespie. Forensic accounting and litigation support ser- loss profit studies, business and intangible asset valuations, Website: www.zsscpa.com. Contact Lester J. Schwartz, vices in all areas relating to marital dissolution, including fraud investigations, statistics, forensic economic analysis, CPA/CFF, DABFE, DABFA, Michael D. Saltsman, business valuation, tracing and apportionment of real prop- royalty audits, strategic and market assessments, competi- CPA, MBA, Lynda R. Schauer, CPA, CVA, CGMA, erty and assets, net spendable evaluations, determination tive surveys, analysis of computerized data, injury and David L. Bass, CPA, David Dichner, CPA, ABV, Sandy of gross cash flow available for support and analysis of employment damages, and a wide range of other financial Green, CPA, Silva Hakobyan, CPA. Accounting experts reimbursement claims and marital standards of living. advisory services. Degrees/�licenses: CPAs, CFAs, ASAs, in forensic accounting, tax issues, business valuations, and See display ad on page 45. PhDs, and MBAs in accounting, finance, economics, and appraisals, marital dissolutions, eminent domain, insurance related subjects. See display ad on back cover. HayNie & cOMpaNy, cpaS losses, business interruption, goodwill, economic analysis, 4910 Campus Drive, Newport Beach, CA 92660-2119, investigative auditing, loss of earning, commercial dam- HayNie & cOMpaNy, cpaS (949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson ages, and lost profits. Expert witness testimony prepara- 4910 Campus Drive, Newport Beach, CA 92660-2119, @hayniecpa.com. Website: www.hayniecpa.com. Contact tion, settlement negotiations, and consultations. See dis- (949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson Steven C. Gabrielson. Consulting and expert witness tes- play ad on page 53. @hayniecpa.com. Website: www.hayniecpa.com. Contact timony in a variety of practice areas: commercial damages, Steven C. Gabrielson. Consulting and expert witness tes- ownership disputes, economic analysis, business valua- FEES & ETHICS timony in a variety of practice areas: commercial damages, tion, lost profits analysis, fraud/forensic investigations, tax- JOel MaRK ownership disputes, economic analysis, business valua- ation, personal injury, wrongful termination, and profes- tion, lost profits analysis, fraud/forensic investigations, tax- 919 Box Canyon Trail, Palm Desert, CA 92211 (760) 200- sional liability. ation, personal injury, wrongful termination, and profes- 4554, fax (760) 772-6665, e-mail: [email protected]. sional liability. KRycleR, eRViN, taUBMaN, aND Consulting/expert witness experience: Eighty-five plus KaMiNSKy assignments in attorney fee disputes; attorney ethics, attor- FINANCIAL STATEMENTS ANALYSIS 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA ney malpractice (litigation). Specialties include business 91403, (818) 995-1040, fax (818) 995-4124. Website: litigation, intellectual property, commercial law, professional cBiZ & MayeR HOFFMaN MccaNN pc www.ketkcpa.com. Contact Michael J. Krycler. Litiga- liability, and banking. Previous position/appointments: Cali- 10474 Santa Monica Boulevard, Suite 200, Los Angeles, tion support, including forensic accounting, business fornia State Bar Committee on Mandatory Fee Arbitration, CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: appraisals, family law accounting, business and profes- California State Bar Committee on Professional Responsi- [email protected], [email protected], lmoutonriff@cbiz sional valuations, damages, fraud investigations, and lost bility and Conduct; appointed expert consultant by the Los .com. Website: www.MHM-PC.com, www.CBIZ.com. earnings. Krycler, Ervin, Taubman, and Kaminsky is a full- Angeles County Superior Court, State Bar MFA Presiding Contact Coral Hansen, Steve Franklin and Lorna service accounting firm serving the legal community for Arbitrator (2009-2012); State Bar of California Special Mouton Riff. CBIZ & Mayer Hoffman McCann PC special- more than 25 years. See display ad on page 53. Deputy Trial Counsel for Disciplinary Matters (2010-pre- izes in fraud investigations, forensic accounting, business sent). Membership in professional societies: LACBA, Ven- litigation, commercial damage and lost profits computa- paMela WaX-SeMUS, cFe WS tura County Bar Association; State Bar of California. tions, business valuation and appraisal, transactional due eNteRpRiSeS Degrees/license: UC Berkeley (AB, 1969), UC Berkeley: diligence, family limited partnerships, business interruption, 107 North Reino Road, #402, Newbury Park, CA 91320, Hastings College of Law (JD, 1972); Admitted California and family law. We provide experienced expert testimony (805) 499-3035, fax (805) 498-0468,e-mail: pamela 1972, Colorado, 1994. and tax controversy representation. @tracingqueen.net.Website: www.tracingqueen.net. Contact Pamela Wax-Semus, CFE. I am experienced in FINANCIAL FIRE/EXPLOSIONS most areas of litigation support services with a particular emphasis in tracing of assets, real property allocation, stock aDViSORS/eXpeRtS @ McS aSSOciateS 4X FOReNSic eNGiNeeRiNG option analysis, reimbursements and related allocation 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) laBORatORieS, iNc. issues. I have vast experience not only in marital dissolution 263-8700, fax (949) 263-0770, e-mail: experts@mcsasso- 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) matters. My expertise extends to trust and probate ciates.com. Website: www.mcsassociates.com. Contact 450-8500, fax (714) 450-8599, e-mail: phi�l@4Xforensic accountings, fraud, and other litigation-related matters. Norman Katz, managing partner. Nationally recognized .com. Website: www.4Xforensic.com. Contact Phil Van banking, finance, insurance, and real estate consulting NiGRO KaRliN SeGal & FelDSteiN, llp Herle. 4X Forensic Engineering Laboratories is a full-service group (established 1973). Experienced litigation consul- forensic engineering laboratory. We provide expert witness 10960 Wilshire Boulevard, 5th Floor, Los Angeles, CA tants/experts include senior bankers, lenders, consultants, and analytical and testing services in the following areas: 90024, (310) 229-5161, fax (310) 229-4430, e-mail: economists, accountants, insurance underwriters/brokers. fires and explosions: electrical and gas product defect [email protected]. Website: www.nksfb.com. Con- Specialties include: lending customs, practices, policies in investigations, thermal and fire modeling and laboratory tact Irwin Nachimson. I specialize in forensic accounting all types of lending (real estate, subprime, business/com- testing; water loss: materials, corrosion, and failure analysis and litigation support projects. Our expertise includes con- mercial, construction, consumer/credit card), banking oper- of plumbing products; failure analysis: metallurgy, product tract dispute, fraud, family law, insolvency, music, and ations/administration, trusts and investments, economic testing, and computerized stress analysis; accident recon- expert testimony. I have over 25 years of experience and analysis and valuations/damages assessment, insurance struction: automotive, trucks, construction equipment, and our entire department of 60 accountants is devoted exclu- claims, coverages and bad faith, real estate brokerage, premises liability. See display ad on page 44. sively to forensic projects. appraisal, escrow, and title insurance. WHite, ZUcKeRMaN, WaRSaVSKy, cORNeRStONe ReSeaRcH FOOD SAFETY/HACCP lUNa & HUNt 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- FOOD SaFety aND Haccp cOMpliaNce 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA 2005, (213) 553-2500, fax (213) 553-2699. Website: 20938 De Mina Street, Woodland Hills, CA 91364, (818) 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, www.cornerstone.com. Contact George G. Strong, Jr., 703-7147, e-mail: [email protected]. Website: www 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) 219- Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, .foodsafetycoach.com. Contact Jeff Nelken, BS, MA. 9095, e-mail: [email protected]. Website: www.wzwlh Carlyn Irwin, Pierrick Morel, or Ashish Pradhan. For Forensic food safety expert knowledgeable in both food .com. Contact Barbara Luna. Expert witness testimony more than 25 years, Cornerstone Research staff have pro- safety, accident prevention and hazard analysis critical con- for complex litigation involving damage analyses of lost vided economic and financial analysis in all phases of com- trol point program development. Specializes in expert wit- profits, unjust enrichment, reasonable royalties, lost earn- mercial litigation and regulatory proceedings. We work with ness testimony and litigation consultant in matters regard- ings, lost value of business, forensic accounting, fraud a broad network of testifying experts, including prominent ing food safety, Q.A., standards of performance, HACCP, investigation, investigative analysis of liability, and marital faculty and industry practitioners, in a distinctive collabora- crisis management, food-borne illness, burns, foreign dissolution, and tax planning and preparation. Excellent tion. The experts with whom we work bring the specialized object, accidents, health department representation, food communicators with extensive testimony experience. Prior expertise required to meet the demands of each assign- spoilage, allergy, intentional contamination and customer Big Four accountants. Specialties include accounting, ment. Our areas of specialization include intellectual prop- complaints. Performs inspections, vendor audits, training breach of contract, breach of fiduciary duty, business inter- erty, antitrust, securities, entertainment, real estate, financial and public speaking. Hands-on food safety consultant for ruption, business dissolution, construction defects, delays, institutions, and general business litigation. restaurants, manufacturers, distributors, country clubs, and cost overruns, fraud, insurance bad faith, intellectual

50 Los Angeles Lawyer April 2017 schools, nursing homes, and casinos. NRA SERVSAFE and civil cases. Past chair of California Society of CPAs’ businesses, and wrongful termination. See display ad on certified instructor. Thirty years of food and hospitality expe- Family Law Section and business valuation instructor for page 51. rience. Registered as a food handler provider with the Los California CPA Education Foundation. Services include Angeles County Health Department. Provider # 015. Foren- business valuations, income available for support, tracing FORENSIC ANALYSIS sic food safety expert. Food safety expert for CBS, NBC, separate property, litigation consulting, real estate litigation, Inside Edition, and CNN. Free consultation for law firms and mediation, fraud investigations, damage calculation, and BRiaN leWiS & cOMpaNy insurance companies. other forensic accounting work. 10900 Wilshire Boulevard, Suite 610, Los Angeles, CA 90024, (310) 475-5676, fax (310) 475-5268, e-mail: brian FORENSIC ACCOUNTING paMela WaX-SeMUS, cFe WS @brianlewis-cpa.com. Contact Brian Lewis, CPA, CVA. eNteRpRiSeS Forensic accounting, business valuations, cash spendable cBiZ & MayeR HOFFMaN MccaNN pc 107 North Reino Road, #402, Newbury Park, CA 91320, reports, estate, trust, and income tax services. 10474 Santa Monica Boulevard, Suite 200, Los Angeles, (805) 499-3035, fax (805) 498-0468, e-mail: pamela RSM US llp CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: @tracingqueen.net.Website: www.tracingqueen.net. 515 South Flower Street, 41st Floor, Los Angeles, CA [email protected], [email protected], lmoutonriff Contact Pamela Wax-Semus, CFE. I am experienced in 90071, (213) 330-4605, e-mail: patrick.chylinski@rsmus @cbiz.com. Website: www.MHM-PC.com,www.CBIZ.com. most areas of litigation support services with a particular .com.Website: www.rsmus.com. Contact Patrick Contact Coral Hansen, Steve Franklin and Lorna emphasis in tracing of assets, real property allocation, stock Chylinski. RSM US LLP is the fifth largest accounting and Mouton Riff. CBIZ & Mayer Hoffman McCann PC special- option analysis, reimbursements and related allocation consulting firm in the United States. Our litigation consulting izes in fraud investigations, forensic accounting, business issues. I have vast experience not only in marital dissolution and financial forensics practice focuses on assisting coun- litigation, commercial damage and lost profits computa- matters. My expertise extends to trust and probate sel and clients in the areas of business and commercial liti- tions, business valuation and appraisal, transactional due accountings, fraud, and other litigation-related matters. gation, forensic analysis, fraud investigations, contract diligence, family limited partnerships, business interruption, RGl FOReNSicS compliance, and royalty inspection matters. We have and family law. We provide experienced expert testimony Los Angeles Office: 800 South Figueroa Street, Suite 980, extensive experience in the areas of damages, lost profits, and tax controversy representation. Los Angeles, CA 90017, (213) 996-0900. Contact Alan and forensic analysis as they relate to contract, post-clos- cORNeRStONe ReSeaRcH Lurie, [email protected], Rich Holstrom, [email protected]. ing, real estate, and fee disputes. Our experts have experi- 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- Orange County Office: 625 City Drive South, Suite 290, ence testifying at deposition, arbitration, and at trial in state 2005, (213) 553-2500, fax (213) 553-2699. Website: Orange, CA 92868, (714) 740-2100. Contact Hank and federal courts. Degrees/Licenses: CPAs, MBAs, JDs, www.cornerstone.com. Contact George G. Strong, Jr., Kahrs, [email protected]. San Diego Office: 11440 W CFEs, CVAs, ASAs, CFFs. See display ad on page 44. Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, Bernardo Court, Suite 300, San Diego, CA 92127, (619) Carlyn Irwin, Pierrick Morel, or Ashish Pradhan. For 236-0377. Contact Rich Holstrom, [email protected]. FORENSIC PATHOLOGY & TOXICOLOGY more than 25 years, Cornerstone Research staff have pro- RGL Forensics is an international firm of forensic financial vided economic and financial analysis in all phases of com- experts exclusively dedicated to damage analysis, fraud BURR HaRtMaN, DO, pHD mercial litigation and regulatory proceedings. We work with investigation, and valuation. Serving the legal, insurance, BURR HaRtMaN cONSUltiNG a broad network of testifying experts, including prominent and business communities for more than 30 years, the firm 36587 Hwy 190/P.O. Box 726, Springville, CA 93265, (559) faculty and industry practitioners, in a distinctive collabora- is unique in its ability to combine investigative accounting, 539-5265, email: [email protected]. Contact Burr tion. The experts with whom we work bring the specialized business valuation, fraud, and forensic technology exper- Hartman, DO, PhD. Forensic pathologist with PhD in expertise required to meet the demands of each assign- tise. For attorneys, we discover and define financial value in chemistry. Board certified in anatomic, clinical and forensic ment. Our areas of specialization include intellectual prop- transactions and civil and criminal disputes, and when nec- pathology. Consultant for Microcorre DX Lab, Tulare, CA erty, antitrust, securities, entertainment, real estate, financial essary provide expert witness testimony in court and arbi- which provides services for Tulare Regional Med Center, institutions, and general business litigation. tration proceedings. For more information about RGL, coroner’s pathology for three sheriff-coroner departments please visit www.rgl.com. and consultation for Mineral King Toxicology Laboratory. FUlcRUM iNQUiRy Broad-based scientific background and longstanding inter- 888 South Figueroa Street, Suite 2000, Los Angeles, CA SMitH DicKSON, aN accOUNtaNcy est in toxicology. Testified/deposed 50 times in last 4 yrs. 90017, (213) 787-4100, fax (213) 891-1300, e-mail: cORpORatiON Interested in technical and scientific issues encountered [email protected]. Website: www.fulcrum.com. Con- 18100 Von Karman Avenue, Suite 420, Irvine, CA 92612, and not usually encountered in clinical practice. See dis- tact David Nolte. Our professionals are experienced (949) 553-1020, fax (949) 553-0249, e-mail: debbie.dick- play ad on page 49. CPAs, MBAs, ASAs, CFAs, affiliated professors, and indus- [email protected]: www.smithdickson.com. try specialists. Our analysis and research combined with Contact Deborah Dickson, CPA. CPA 25+ years, testify- FRAUD INVESTIGATORS unique presentation techniques have resulted in an ing 15+ years, forensic accounting and litigation support. unequaled record of successful court cases and client Superior Litigation Support services since 1995. The pro- cBiZ & MayeR HOFFMaN MccaNN pc recoveries. Our expertise encompasses damages analysis, fessionals at Smith Dickson clearly, independently, and 10474 Santa Monica Boulevard, Suite 200, Los Angeles, loss profit studies, business and intangible asset valuations, accurately analyze financial information, calculate damages, CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: fraud investigations, statistics, forensic economic analysis, evaluate claims, prepare expert reports and render expert [email protected], [email protected], lmoutonriff royalty audits, strategic and market assessments, competi- testimony. Thousands of hours of forensic accounting, @cbiz.com. Website: www.MHM-PC.com, www.CBIZ tive surveys, analysis of computerized data, injury and deposition and trial experience. Damage calculations; lost .com. Contact Coral Hansen, Steve Franklin and employment damages, and a wide range of other financial profits; forensic accounting; expert testimony; intellectual Lorna Mouton Riff. CBIZ & Mayer Hoffman McCann PC advisory services. Degrees/licenses: CPAs, CFAs, ASAs, property; fraud & embezzlement; real estate; trust & estate specializes in fraud investigations, forensic accounting, PhDs, and MBAs in accounting, finance, economics, and bene ficiary disputes, tax controversy; business valuations; business litigation, commercial damage and lost profits related subjects. See display ad on back cover. business dissolution. computations, business valuation and appraisal, transac- tional due diligence, family limited partnerships, business GURSey | ScHNeiDeR llp WHite, ZUcKeRMaN, WaRSaVSKy, interruption, and family law. We provide experienced expert 1888 Century Park East, Suite 900, Los Angeles, CA lUNa & HUNt testimony and tax controversy representation. 90067, (310) 552-0960, fax (310) 557-3468, e-mail: tinaf 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA @gursey.com or [email protected]. Website: www 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, GEOTECHNICAL ENGINEERING .gursey.com. Contact Tina Fujisaki or Kristen L. Gille- 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) 219- spie.Gursey | Schneider specializes in forensic accounting 9095, e-mail: [email protected]. Website: www.wzwlh a & e FOReNSicS and litigation support services in the areas of civil litigation, .com. Contact Barbara Luna. Expert witness testimony 2121 Montiel Road, San Marcos, CA 92069, (877) 839- business disputes, bankruptcy, damage and cost-profit for complex litigation involving damage analyses of lost 7302, fax (760) 480-7477, e-mail: steve@aeforensics insurance claims, court accountings, fraud investigations, profits, unjust enrichment, reasonable royalties, lost earn- com. Website: www.aeforensics.com. Contact Steve accounting malpractice, intellectual property, construction, ings, lost value of business, forensic accounting, fraud Norris, AIA, PE, GE, HG, CEG, CASp, LEED. Architect, government accounting, and entertainment litigation. investigation, investigative analysis of liability, and marital engineer, contractor, standard of care expert. Retained Gursey | Schneider has over 38 years of experience as dissolution, and tax planning and preparation. Excellent over 200 times, deposed over 100 times, and testified in expert witnesses in accounting related matters. See See communicators with extensive testimony experience. Prior trial over 20 times. Waterproofing, water intrusion, building display ad on page 45. Big Four accountants. Specialties include accounting, envelope, zoning setbacks, concrete performance, path of breach of contract, breach of fiduciary duty, business inter- travel, structural analysis, earthquake-fire damage, and plan HaRGRaVe & HaRGRaVe, aN ruption, business dissolution, construction defects, delays, analysis. Landslides, retaining wall failure, settlement, flood- accOUNtaNcy cORpORatiON and cost overruns, fraud, insurance bad faith, intellectual ing, grading, septic, expansive soils, mud flows, pavement 12121 Wilshire Boulevard, Suite 700, Los Angeles, CA property (including trademark, patent, and copyright distress, ground water evaluation, and slope analysis. Cost 90025, (310) 576-1090, e-mail: terry@hargraveandhar- infringement, and trade secrets), malpractice, marital disso- estimates, construction management, delay analysis, and grave.com. Website: www.hargraveandhargrave.com. lution, personal injury, product liability, real estate, securi- contracts. Serving all California, Hawaii, and Oklahoma. Contact Terry M. Hargrave, CPA/ABV/CFF, CFE. Forensic ties, tax planning and preparation, IRS audit defense, trac- See display ad on page 47. accounting and business valuation services for family law ing, unfair advertising, unfair competition, valuation of

52 Los Angeles Lawyer April 2017 GERIATRICS HaMptON HealtH, ltD™ JOHN H. FUlleRtON, MD, MRO, cMD, cFp, Facp, aGSF, FaaHpM 1700 California Street, Suite 470, San Francisco, CA 94109, (415) 460-5532, fax (415) 376-5820, e-mail: [email protected]. Website: hamptonhealthltd .com. Contact Minoo Parsa. Services available: Board Certified in Internal Medicine, Geriatrics, Hospice, Palliative Medicine, Addiction Medicine, and Home Health; Licensed Medical Review Officer. Expertise: Medicare fraud cases for the government, toxicology/DUI, elder abuse including criminal defense of lay caregivers accused of homicide of demented relatives during end-of-life phase. Hospital, ambulatory/outpatient, PI, medical malpractice, and LTC. Medical/hospice directorships. Testified over 200 times and reviewed more than 1,500 cases, including Medicare audits for the government. See display ad on page 53. GOLF MicHael S. JOHNStONe, aia 15 Southern Fairway Court, Etowah Valley, NC 28729, (828) 891-7990, e-mail: [email protected]. Web- site: www.johnstonearch.com. Contact Michael S. John- stone, AIA. Golf course architect, expert witness and forensic study including: wrongful death, drowning, serious injury, errant balls, golf cart accidents & rollover, golf course design, safety, construction defects, irrigation damage, nets and barriers, property damage, slip and fall, premises liabil- ity. Golf courses, clubhouses, driving ranges, cart paths, neighboring property, and parking lots. 40 years architec- ture and construction management experience. 150+ acci- dent investigations completed across the United States including: court testimony, deposition, site inspection, reports, graphic presentation, construction analysis, and replacement cost estimates. HOSPICE/PALLIATIVE MEDICINE HaMptON HealtH, ltD™ JOHN H. FUlleRtON, MD, MRO, cMD, cFp, Facp, aGSF, FaaHpM 1700 California Street, Suite 470, San Francisco, CA 94109, (415) 460-5532, fax (415) 376-5820, e-mail: [email protected]. Website: hamptonhealthltd. com. Contact Minoo Parsa. Services available: Board Certified in Internal Medicine, Geriatrics, Hospice, Palliative Medicine, Addiction Medicine, and Home Health; Licensed Medical Review Officer. Expertise: Medicare fraud cases for the government, toxicology/DUI, elder abuse including criminal defense of lay caregivers accused of homicide of demented relatives during end-of-life phase. Hospital, ambulatory/outpatient, PI, medical malpractice, and LTC. Medical/hospice directorships. Testified over 200 times and reviewed more than 1,500 cases, including Medicare audits for the government. See display ad on page 53. INSURANCE aDViSORS/eXpeRtS @ McS aSSOciateS 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: experts @mcsassociates.com. Website: www.mcsassociates.com. Contact Norman Katz, managing partner. Nationally recognized banking, finance, insurance, and real estate consulting group (established 1973). Experienced litigation consultants/experts include senior bankers, lenders, con- sultants, economists, accountants, insurance underwrit- ers/brokers. Specialties include: lending customs, prac- tices, 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 bro- kerage, appraisal, escrow, and title insurance. e. l. eVaNS aSSOciateS 9854 National Boulevard, Suite 225, Los Angeles, CA 90034, (310) 559-4005, fax (310) 559-4236, e-mail: [email protected]. Contact Gene Evans. Good

Los Angeles Lawyer April 2017 53 faith/bad faith. Over 45 years’ experience claims adjuster. industry leader in intellectual property valuation, expert wit- lution, personal injury, product liability, real estate, securi- Standards and practices in the industry, litigation support, ness services, monetization assistance, licensing strategies ties, tax planning and preparation, IRS audit defense, trac- claims consultation, case review and evaluation, property and more for the last 25 years. Our experts use real-world ing, unfair advertising, unfair competition, valuation of busi- /casualty claims, construction claims, uninsured/under - evidence and marketing criteria to help our intellectual nesses, and wrongful termination. See display ad on insured motorist claims, general liability, fire/water/mold property clients reach their goal sooner. We are dedicated page 51. claims, damage assessment, professional liability claims, to assisting our clients in maximizing the value of their intel- INTERNAL MEDICINE appraisal under policy, arbitration, duty to defend, advertis- lectual property and intangible asset portfolios, while simul- ing claims, coverage applications, and suspected fraud taneously minimizing risk and uncertainty. HaMptON HealtH, ltD™ claims. CV available on request. See display ad on cORNeRStONe ReSeaRcH JOHN H. FUlleRtON, MD, MRO, cMD, page 44. 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- cFp, Facp, aGSF, FaaHpM MitcHell l. latHROp 2005, (213) 553-2500, fax (213) 553-2699. Website: 1700 California Street, Suite 470, San Francisco, CA 401 B Street, Suite 1200, San Diego, CA 92101-4295, www.cornerstone.com. Contact George G. Strong, Jr., 94109, (415) 460-5532, fax (415) 376-5820, e-mail: (619) 955-5951, fax (619) 566-4034, e-mail: llathrop Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, [email protected]. Website: hamptonhealthltd @earthlink.net. ebsite:www.LathropADR.com. Contact Carlyn Irwin, Pierrick Morel, or Ashish Pradhan. For .com. Contact Minoo Parsa. Services available: Board Mitchell L. Lathrop. Expert consulting and testimony in more than 25 years, Cornerstone Research staff have pro- Certified in Internal Medicine, Geriatrics, Hospice, Palliative insurance matters, including claim handling, bad faith, stan- vided economic and financial analysis in all phases of com- Medicine, Addiction Medicine, and Home Health; Licensed dard of care, property and casualty, D&O, primary and mercial litigation and regulatory proceedings. We work with Medical Review Officer. Expertise: Medicare fraud cases for excess, and reinsurance disputes. Also, lawyers’ profes- a broad network of testifying experts, including prominent the government, toxicology/DUI, elder abuse including sional responsibility, and malpractice. Curriculum vitae will faculty and industry practitioners, in a distinctive collabora- criminal defense of lay caregivers accused of homicide of be supplied upon request. Over 45 years of experience. tion. The experts with whom we work bring the specialized demented relatives during end-of-life phase. Hospital, Former Presiding Referee of the State Bar Court. A.M. Best expertise required to meet the demands of each assign- ambulatory/outpatient, PI, medical malpractice, and LTC. recommended expert. ment. Our areas of specialization include intellectual prop- Medical/hospice directorships. Testified over 200 times and erty, antitrust, securities, entertainment, real estate, financial reviewed more than 1,500 cases, including Medicare audits laUNie aSSOciateS, iNc. institutions, and general business litigation. for the government. See display ad on page 53. 2627 Tunnel Ridge Lane, Santa Barbara, CA 93105, (805) 569-9175, fax (805) 687-8597, e-mail: [email protected]. FUlcRUM iNQUiRy INVESTIGATIONS Contact Joseph J. Launie, PhD, CPCU, insurance 888 South Figueroa Street, Suite 2000, Los Angeles,� eDWaRD K. taKaHaSKi aRcHitectURal professor, author, and consultant. Over 30 years of CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: cORpORatiON experience as expert witness in state and federal courts. [email protected]. Website: www.fulcrum.com. 538 Casuda Canyon Drive, Monterey Park, CA 91754- Coauthor of books and articles on underwriting, insurance Contact David Nolte. Our professionals are experienced 2102, (323) 980-8000, fax (323) 980-8008, e-mail: company operations, and punitive damages. Consulting, CPAs, MBAs, ASAs, CFAs, affiliated professors, and indus- [email protected]. Contact Edward K. Takahaski, expert witness on underwriting, company and agency oper- try specialists. Our analysis and research combined with FAIS, FACIA, CCS. Consultant on architects’ standard of ations, and bad faith. unique presentation techniques have resulted in an reasonable care, litigation support assignments, and con- unequaled record of successful court cases and client JaNice a. RaMSay, attORNey struction industry inter-relationships; provide research ser- recoveries. Our expertise encompasses damages analysis, 5 Saros, Irvine, CA 92603, (949) 854-9375, fax (949) vices on construction technology, serve as technical loss profit studies, business and intangible asset valuations, 854-0073, e-mail:[email protected]. Website: www experts, and act as mediators and arbitrators. Former neu- fraud investigations, statistics, forensic economic analysis, .JaniceARamsay.com. Contact Janice A. Ramsay. tral of AAA Large Complex Case Panel. In the past 34 royalty audits, strategic and market assessments, competi- Property insurance consultation and testimony as to the years, involved in over 750 litigation assignments for resi- tive surveys, analysis of computerized data, injury and customs and practices of the insurance industry in handling dential (single family, apartments, condominiums), commer- employment damages, and a wide range of other financial property insurance claims in insurance bad faith cases. cial, recreational, religious, institutional, and educational advisory services. Degrees/licenses: CPAs, CFAs, ASAs, facilities (K-12, universities). ROBeRt HUGHeS aSSOciateS, iNc. PhDs, and MBAs in accounting, finance, economics, and 508 Twilight Trail, Suite 200, Richardson (Dallas), TX 75080, related subjects. See display ad on back cover. LAND USE (972) 980-0088, fax (972) 233-1548, e-mail: joakley SMitH DicKSON, aN accOUNtaNcy tHe SiMMONS GROUp, iNc. @roberthughes.com. Website: ww.roberthughes.com. cORpORatiON Contact John Oakley. Founded in 1979, RHA is an inter- 507 Brentwood Drive, P.O. Box 786, Lake Arrowhead, 18100 Von Karman Avenue, Suite 420, Irvine, CA national insurance and risk management consulting com- CA 92352, (310) 439-4119, fax (310) 300-3020, 92612, (949) 553-1020, fax (949) 553-0249, e-mail: pany based in Dallas. Our consultants’ experience in the e-mail: [email protected]. Website: www [email protected]: www insurance industry allows us to provide highly qualified .simmonsgroupconsulting.com. Contact Philip Simmons, .smithdickson.com. Contact Deborah Dickson, CPA. expert witness and litigation support services. Our expertise Esq. Decades of executive land use, development, and real CPA 25+ years, testifying 15+ years, forensic accounting includes property/casualty insurance, life/health insurance, estate law expertise provides a unique combination of skills and litigation support. Superior Litigation Support services Lloyd’s, London Market Research, claims handling, bad providing expert witness issues analysis, case preparation, since 1995. The professionals at Smith Dickson clearly, faith, insurance coverage, agency management and prac- and testimony. Over 30 years of experience in corporate independently, and accurately analyze financial information, tices, insurance laws and regulations, and marketing prac- and mixed-use real estate and development operations, calculate damages, evaluate claims, prepare expert reports tices, insurance archaeology, and policy interpretation and specializing in all aspects of land acquisition, major project and render expert testimony. Thousands of hours of foren- analysis. entitlement, project design, development, finance, market- sic accounting, deposition and trial experience. Damage ing, and disposition. In-depth expertise in complex negotia- calculations; lost profits; forensic accounting; expert testi- INTEGRITY & OVERSIGHT MONITORING tions, reviewing and implementing ordinances, drafting mony; intellectual property; fraud & embezzlement; real agreements, structuring compliance, and directing teams of estate; trust & estate bene ficiary disputes, tax controversy; cBiZ & MayeR HOFFMaN MccaNN pc consultants and outside counsel. 10474 Santa Monica Boulevard, Suite 200, Los Angeles, business valuations; business dissolution. CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: WHite, ZUcKeRMaN, WaRSaVSKy, LEGAL MALPRACTICE [email protected], [email protected], lmoutonriff@cbiz lUNa & HUNt .com. Website: www.MHM-PC.com, www.CBIZ.com. laWReNce H. JacOBSON, eSQ. 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA Contact Coral Hansen, Steve Franklin and Lorna 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, Mouton Riff. CBIZ & Mayer Hoffman McCann PC special- 90212, (310) 271-0747, fax (310) 271-0757, e-mail: law 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) 219- izes in fraud investigations, forensic accounting, business [email protected]. Website: ww.lawrencejacobson.com. Past 9095, e-mail: [email protected]. Website: www.wzwlh litigation, commercial damage and lost profits computa- president, Beverly Hills Bar Association. Expert witness: .com. Contact Barbara Luna. Expert witness testimony tions, business valuation and appraisal, transactional due lawyer malpractice in business and real estate transactions, for complex litigation involving damage analyses of lost diligence, family limited partnerships, business interruption, fee disputes, standard of care for real estate brokers and profits, unjust enrichment, reasonable royalties, lost earn- and family law. We provide experienced expert testimony mortgage brokers, and real estate document custom and ings, lost value of business, forensic accounting, fraud and tax controversy representation. usage. Practicing real estate and business law in California investigation, investigative analysis of liability, and marital since 1968. See display ad on page 57. INTELLECTUAL PROPERTY dissolution, and tax planning and preparation. Excellent communicators with extensive testimony experience. Prior LITIGATION CONSULTING cONSOR iNtellectUal aSSet Big Four accountants. Specialties include accounting, MaNaGeMeNt breach of contract, breach of fiduciary duty, business inter- NiGRO KaRliN SeGal & FelDSteiN, llp 7342 Girard Avenue, Suite 8, La Jolla, CA 92037, (858) ruption, business dissolution, construction defects, delays, 10960 Wilshire Boulevard, 5th Floor, Los Angeles, CA 454-9091, fax (858) 454-7819, e-mail: [email protected]. and cost overruns, fraud, insurance bad faith, intellectual 90024, (310) 229-5161, fax (310) 229-4430, e-mail: Website: www.consor.com. Contact Weston Anson. property (including trademark, patent, and copyright [email protected]. Website: www.nksfb.com. Consor Intellectual Asset Management has been a global infringement, and trade secrets), malpractice, marital disso- Contact Irwin Nachimson. I specialize in forensic

54 Los Angeles Lawyer April 2017 accounting and litigation support projects. Our expertise MEDICAL (800) 403-1647. Website: www.mrkmedconsultants.com. includes contract dispute, fraud, family law, insolvency, Contact Edward Younger, III, MD, Medical Director. music, and expert testimony. I have over 25 years of experi- aMFS MeDical eXpeRtS NatiONWiDe Board certified in orthopedic surgery. With over 30 consul- ence and our entire department of 60 accountants is 6425 Christie Avenue, Suite 260, Emeryville, CA 94608, tant specialists, MRK provides expert witness services devoted exclusively to forensic projects. (800) 275-8903. Website: www.AMFS.com. Welcome to throughout California. Our consultants are dedicated to AMFS where our in-house staff of attorneys and physicians maintaining the highest standards of objective review and NJp litiGatiON cONSUltiNG are on-call to discuss your most important medical legal analysis of personal injury cases. MRK coordinates the 1970 Broadway #830, Oakland, CA 94612, (510) 832- matters, advise you as to their merit, and locate/�engage scheduling and report process and has physicians available 2583, fax (510) 839-8642. Website: www.njp.com. Con- the best and most suitable specialists to serve as expert to help you determine your expert witness needs. tact Lois Heaney. Jury consulting services including jury witnesses and advisors. Based in California, AMFS has a selection, mock trials and focus groups, survey research, taSaMeD (a DiViSiON OF tHe taSa 25-year history as the trusted medical expert partner to venue evaluation, witness preparation, theme development GROUp, iNc.) thousands of law firms across the country and over 15,000 and case presentation. Expert testimony experience on voir Local, National and Global.Plaintiff/Defense. Civil/Criminal. physicians, surgeons, nurses, and related experts located dire issues, venue and jury composition. More than 40 , (800) 659-8464, fax (800) 850- in every U.S. jurisdiction. Please call Dan Sandman, Esq., at Contact Patricia Keily years of experience in state and federal civil and criminal 8272, e-mail: [email protected]. Website: www (800) 275-8903 to discuss your matter alongside one of our cases. .TASAmed.com. Customized Expert and Consultant Refer- medical directors for a candid assessment and lightning- rals in all Medical Practice Areas! We refer a variety of quality, LOST PROFITS ANAYLSIS fast expert placement. AMFS: world class medical special- independent and experienced medical experts – including ists in over 5,000 areas of expertise. See display ad on hard-to-find specialists – for case merit reviews, testimony at RSM US llp page 46. 515 South Flower Street, 41st Floor, Los Angeles, CA deposition or trial, research, IMEs, and more in 1,000+ med- 90071, (213) 330-4605, e-mail: patrick.chylinski@rsmus HaMptON HealtH, ltD™ JOHN H. ical fields. Our skilled referral advisors offer exceptional per- .com.Website: www.rsmus.com.Contact Patrick FUlleRtON, MD, MRO, cMD, cFp, Facp, sonal service to target your criteria, forward resumes for your Chylinski. RSM US LLP is the fifth largest accounting and aGSF, FaaHpM review and help arrange your initial telephone screening consulting firm in the United States. Our litigation consulting 1700 California Street, Suite 470, San Francisco, CA interviews with experts. There is no charge unless you desig- and financial forensics practice focuses on assisting coun- 94109, (415) 460-5532, fax (415) 376-5820, e-mail: nate or engage an expert we refer. Visit our website and sel and clients in the areas of business and commercial liti- [email protected]. Website: hamptonhealthltd.com. search expert profiles by expertise key word, order due dili- gation, forensic analysis, fraud investigations, contract Contact Minoo Parsa. Services available: Board Certified gence research reports on your expert witness or opposing compliance, and royalty inspection matters. We have in Internal Medicine, Geriatrics, Hospice, Palliative Medicine, counsel’s, request an expert through our online form, and extensive experience in the areas of damages, lost profits, Addiction Medicine, and Home Health; Licensed Medical check out our e-Discovery and Cyber Security Solutions. Call and forensic analysis as they relate to contract, post-clos- Review Officer. Expertise: Medicare fraud cases for the now so that we can start saving you time! Save $175 (admin ing, real estate, and fee disputes. Our experts have experi- government, toxicology/DUI, elder abuse including criminal fee) on your first expert witness designation with Promo ence testifying at deposition, arbitration, and at trial in state defense of lay caregivers accused of homicide of demented Code: LATM417. Be sure to check out our insert and display and federal courts. Degrees/Licenses: CPAs, MBAs, JDs, relatives during end-of-life phase. Hospital, ambulatory/out- ad in this issue! please see our insert in this issue and CFEs, CVAs, ASAs, CFFs. See display ad on page 44. patient, PI, medical malpractice, and LTC. Medical/hospice display ad on page 36. directorships. Testified over 200 times and reviewed more MARKETING than 1,500 cases, including Medicare audits for the govern- MEDICAL LEGAL ment. See display ad on page 53. DR. MicHael a. KaMiNS ROUGHaN & aSSOciateS at liNc, iNc. 6401 Warner Drive, Los Angeles CA 90048, (323) MRK MeDical cONSUltaNtS 114 West Colorado Boulevard, Monrovia, CA 91016, 868-9507, fax (631) 632-9412, email: michael.kamins 6555 Coyle Avenue, Suite 235, Carmichael, CA 95608, (626) 303-6333, fax (626) 303-8080, e-mail: [email protected]. @stonybrook.edu. Services offered include expert survey research/questionnaire design on Lanham act issues of confusion, secondary meaning, and dilution. I have knowl- edge of consumer behavior, marketing strategy, and mar- keting research. I have worked on false advertising cases I EVALUATION and misappropriation of celebrity identity inclusive of cases involving President Trump (Trump University), Jay-Z, the I rock groups “Boston” and “The Doors” as well as Samsung TESTING vs. Apple. MECHANICAL ENGINEERING I TREATMENT 4X FOReNSic eNGiNeeRiNG laBORatORieS, iNc. Dr. Rutchik is one of very few 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) 450-8500, fax (714) 450-8599, e-mail: phil@4Xforensic physicians in the USA board .com. Website: www.4Xforensic.com. Contact Phil Van certified in both Neurology and Herle. 4X Forensic Engineering Laboratories is a full-service Occupational and Environmental forensic engineering laboratory. We provide expert witness and analytical and testing services in the following areas: medicine. fires and explosions: electrical and gas product defect investigations, thermal and fire modeling and laboratory Neurology and testing; water loss: materials, corrosion, and failure analysis Electromyography of plumbing products; failure analysis: metallurgy, product testing, and computerized stress analysis; accident recon- Neurotoxicology struction: automotive, trucks, construction equipment, and premises liability. See display ad on page 44. Occupational/Environmental DiVeRSiFieD eNGiNeeRiNG Medicine 31157 Lobo Vista Road, Agoura, CA 91301, (818) 489- 4400. Website: www.diversifiedengineeringinc.com. Con- Associate Professor UCSF tact L. Peter Petrovsky. Peter Petrovsky, PE provided JONATHAN S. RUTCHIK services as a consultant and an expert witness in applied CA Medical Practice Since 2000 MD, MPH, FAAN, FACOEM civil and mechanical engineering science, building, infra- structure, and earthwork contracting. My strength is to suc- cessfully combine engineering and applied mechanics with TEL 415.381.3133 | FAX 415.381.3131 | E-MAIL [email protected] the field experience and contracting skills. My shirtsleeve approach to problem solving gives me the ability to distill www.neoma.com complex technical issues to t palatable presentation. I 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941 assisted counsel on cases in California, New York, Indiana, Pennsylvania, Hawaii, Kentucky, and Nevada. See display OFFICES IN SAN FRANCISCO, RICHMOND, PETALUMA, SACRAMENTO AND EUREKA/ARCATA ad on page 46.

Los Angeles Lawyer April 2017 55 ContactJanRoughan at ext. 216. Specialties: Roughan the USA who is board certified in both Neurology and experience (civil and criminal investigations). Principals are & Associates at LINC is a case management and medical/ Occupational and Environmental Medicine. An Associate Fellows of American Society for Metals and Fellows, Ameri- legal consulting firm. Services/products offered include: 1) Professor at UCSF, he provides clinical evaluations and can�College of Forensic Examiners. See display ad on expert testimony, 2) Life Care Plan (LCP) Cconstruction treatment, including electromyography, of individuals and page 57. /LCP critique, 3) medical record organization/summariza- populations with suspected neurological illness secondary tion/analysis, 4) medical bill auditing, 5) expert witness iden- to workplace injuries or chemical exposure. Services METALLURGY tification, 6) IME attendance, 7) video services (e.g., day In include medical record and utilization review and consulting life, settlement brief, IME Evaluation, NDT/PT evaluation, to industrial, legal, government, pharmaceutical, and acad- KaRS’ aDVaNceD MateRialS, iNc. etc.), 8) questions for deposition/cross examination, 9) emic institutions on topics such as metals and solvents, Testing and Research Labs, 2528 West Woodland Drive, medical/psychiatric case management. See display ad pesticides, mold exposures, product liability, musicians’ Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- on page 39. injuries, neurological fitness for duty in police, firefighter, 7169, e-mail: [email protected]. Website: www.karslab DOT and safety sensitive positions as well as head injuries .com. Contact Dr. Ramesh Kar, Dr. Naresh Kar, Dr. MEDICAL/DERMATOLOGY and neurological trauma. Offices in SF, Richmond, Nikhil Kar. Southern California’s premier materials/ Petaluma, Sacramento, and Eureka/Arcata. Licensed in mechanical/metallurgical/structural/ forensics laboratory. DaNiel a. GROSS, MD CA, NY, MA, NM and ID. See display ad on page 55. Registered professional engineers with 30+ years in metal- 18364 Clark Street, Tarzana, CA 91356, (818) 345-7122, lurgical/forensic/structural/�mechanical failure analysis. fax (818) 345-7448, e-mail: [email protected]. MEDICAL MALPRACTICE Experienced with automotive, bicycles, tires, fire, paint, Contact Daniel A. Gross, MD. Board certified practicing plumbing, corrosion, and structural failures. We work on dermatologist. Experienced forensic witness and consul- HaMptON HealtH, ltD™ JOHN H. both plaintiff and defendant cases. Complete in-house tant. Comparable experience in plaintiff and defense cases. FUlleRtON, MD, MRO, cMD, cFp, Facp, capabilities for tests. Extensive deposition and courtroom UCLA Medical School, Honorary Clinical Professor. aGSF, FaaHpM experience (civil and criminal investigations). Principals are 1700 California Street, Suite 470, San Francisco, CA Fellows of American Society for Metals and Fellows, Ameri- MEDICAL/NEUROLOGY 94109, (415) 460-5532, fax (415) 376-5820, e-mail: can�College of Forensic Examiners. See display ad on [email protected]. Website: www.Hamptonhealthltd page 57. JONatHaN S. RUtcHiK, MD, MpH, FaaN, .com. Contact Minoo Parsa. Services available: Board FacOeM Certified in Internal Medicine, Geriatrics, Hospice, Palliative METEOROLOGY 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941, Medicine, Addiction Medicine, and Home Health; Licensed aiR, WeatHeR, aND Sea (415) 381-3133, fax (415) 381-3131, e-mail: srutch@neoma Medical Review Officer. Expertise: Medicare fraud cases for cONDitiONS, iNc. .com. Website: www.neoma.com. Jonathan S. Rutchik, the government, toxicology/DUI, elder abuse including MD, MPH, FAAN, FACOEM is one of the few physicians in criminal defense of lay caregivers accused of homicide of P.O. Box 512, Pacific Palisades, CA 90272, (818) 645- the USA who is board certified in both Neurology and demented relatives during end-of-life phase. Hospital, 8632, fax (310) 454-7569, e-mail: [email protected]. Occupational and Environmental Medicine. An associate ambulatory/outpatient, PI, medical malpractice, and LTC. Website: www.weatherman.org. Contact Jay Rosenthal, professor at UCSF, he provides clinical evaluations and Medical/hospice directorships. Testified over 200 times and AMS Certified Consulting Meteorologist (CCM). Expe- treatment, including electromyography, of individuals and reviewed more than 1,500 cases, including Medicare audits rienced and authoritative expert testimony, reports and populations with suspected neurological illness secondary for the government. See display ad on page 53. analyses of wind, rain, storms, fog, ice, lightning, climatic to workplace injuries or chemical exposure. Services conditions, flooding, waves, specialist in wildfires, ice, dust, include medical record and utilization review and consulting MRK MeDical cONSUltaNtS auto/boat/ship/aircraft accident reconstruction, property to industrial, legal, government, pharmaceutical, and acad- 6555 Coyle Avenue, Suite 235, Carmichael, CA 95608, damage, slip and falls, construction, mold issues, homeland emic institutions on topics such as metals and solvents, (800) 403-1647. Website: www.mrkmedconsultant security applications, air pollution, transport, and risk identi- pesticides, mold exposures, product liability, musicians’ s.com. Contact Edward Younger, III, MD, Medical fication. Movie industry applications, cinematography, and injuries, neurological fitness for duty in police, firefighter, Director. Board certified in orthopedic surgery. With over visual effects. Determining unusualness, normalcy, and DOT and safety sensitive positions as well as head injuries 30 consultant specialists, MRK provides expert witness ser- foreseeability. Official data, site visits, clear and convincing and neurological trauma. Offices in SF, Richmond, vices throughout California. Our consultants are dedicated testimony. See display ad on page 42. Petaluma, Sacramento, and Eureka/Arcata. Licensed in to maintaining the highest standards of objective review CA, NY, MA, NM and ID. See display ad on page 55. and analysis of personal injury cases. MRK coordinates the ORTHOPEDIC SURGEON scheduling and report process and has physicians available MEDICAL/NEUROPSYCHOLOGY to help you determine your expert witness needs. MRK MeDical cONSUltaNtS 6555 Coyle Avenue, Suite 235, Carmichael, CA 95608, MRK MeDical cONSUltaNtS METALLURGICAL & CORROSION (800) 403-1647. Website: ww.mrkmedconsultants.com. 6555 Coyle Avenue, Suite 235, Carmichael, CA 95608, ENGINEER Contact Edward Younger, III, MD, Medical Director. (800) 403-1647. Website: ww.mrkmedconsultants.com. Board certified in orthopedic surgery. With over 30 consul- Contact Edward Younger, III, MD, Medical Director. 4X FOReNSic eNGiNeeRiNG tant specialists, MRK provides expert witness services Board certified in orthopedic surgery. With over 30 consul- laBORatORieS, iNc. throughout California. Our consultants are dedicated to tant specialists, MRK provides expert witness services 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) maintaining the highest standards of objective review and throughout California. Our consultants are dedicated to 450-8500, fax (714) 450-8599, e-mail: phil@4Xforensic analysis of personal injury cases. MRK coordinates the maintaining the highest standards of objective review and .com. Website: www.4Xforensic.com. Contact Phil Van scheduling and report process and has physicians available analysis of personal injury cases. MRK coordinates the Herle. 4X Forensic Engineering Laboratories is a full-service to help you determine your expert witness needs. scheduling and report process and has physicians available forensic engineering laboratory. We provide expert witness RicHaRD c. ROSeNBeRG, MD BOaRD to help you determine your expert witness needs. and analytical and testing services in the following areas: ceRtiFieD ORtHOpeDic SURGeRy MEDICAL/PHYSICAL THERAPY fires and explosions: electrical and gas product defect 18370 Burbank Boulevard, #614 Tarzana, CA 91356, investigations, thermal and fire modeling and laboratory tel (818) 996-6800, fax (818) 996-2929, e-mail: DR. JOyce M. caMpBell, pHD, pt, eN testing; water loss: materials, corrosion, and failure analysis [email protected]. Website: www 3336 Winlock Road, Torrance, CA 90505, (310) 539-3143, of plumbing products; failure analysis: metallurgy, product .drrosenberg.com. Orthopedic surgery & sports medicine; e-mail: [email protected]. Over 40 years in physical testing, and computerized stress analysis; accident recon- Experienced in IME, QME, AME evaluations. Medical/legal therapy practice (acute, rehab and outpatient); certified struction: automotive, trucks, construction equipment, and reports and expert testimony. Personal injury and workers’ electroneuromyographer, professor of PT in DPT curricu- premises liability. See display ad on page 44. compensation. Satellite offices in Oxnard and Santa Ana, lum, peer review/expert consultant and witness since 1978 KaRS’ aDVaNceD MateRialS, iNc. California. (both defense and plaintiff). Expertise/research: muscu- Testing and Research Labs, 2528 West Woodland Drive, WilliaM B. StetSON, MD loskeletal, neuromuscular, peripheral and central nervous Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- 191 South Buena Vista Street, Suite 470, Burbank, CA system disorders (CVA, TBI, SCI, CP, MS, peripheral neu- 7169, e-mail: [email protected]. Website: www.karslab. 91505, (818) 848-3030, fax (818) 848-2228, e-mail: ropathy), and clinical applications of electrical stimulation. com. Contact Dr. Ramesh Kar, Dr. Naresh Kar, Dr. [email protected]. Website: www MEDICAL/TOXICOLOGY Nikhil Kar. Southern California’s premier materials/ .sportsmedicinedr.com. Contact W. Stetson, MD. Dr. mechanical/metallurgical/structural/�forensics laboratory. Stetson is fellowship trained in arthroscopic surgery of the JONatHaN S. RUtcHiK, MD, MpH, FaaN, Registered professional engineers with 30+ years in metal- shoulder, knee, elbow, and ankle. He is an associate clinical FacOeM lurgical/forensic/structural/�mechanical failure analysis. professor of orthopedic surgery at the USC Keck School of 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941, Experienced with automotive, bicycles, tires, fire, paint, Medicine. He also has extensive experience in sports medi- (415) 381-3133, fax (415) 381-3131, e-mail: srutch@neoma plumbing, corrosion, and structural failures. We work on cine and orthopedic trauma. .com. Website: www.neoma.com. Jonathan S. Rutchik, both plaintiff and defendant cases. Complete in-house MD, MPH, FAAN, FACOEM is one of the few physicians in capabilities for tests. Extensive deposition and courtroom

56 Los Angeles Lawyer April 2017 PEDIATRIC EXPERT WITNESS MicHael WeiNRaUB, MD, Faap 777 South Figueroa Street, Suite 650, Los Angeles, CA 90017, (213) 335-6512, fax (213) 335-6517, e-mail: [email protected]. Website: www .michaelweinraubmd.com. Contact Dr. Michael Weinraub. Experience in general pediatrics applied to legal matters involving children. Board certified pediatrician. Child abuse and neglect, Munchausen syndrome by proxy, shaken baby syndrome (SBS), lead poisoning, fetal alcohol spectrum disorder (FASD), pediatric malpractice, childhood injury and product liability, developmental disabilities (autism), healthcare of foster children, and adoption /custody evaluation for health supervision concerns. PERSONAL INJURY KGa, iNc. 1409 Glenneyre Street, Suite A, Laguna Beach, CA 92651, (949) 497-6000, fax (949) 494-4893, e-mail: Kurtg@kgainc .com. Website: www.kgainc.com. Contact Kurt Grosz. Construction and environmental consultants since 1991. Licensed engineers and contractors. ICC building, plumb- ing, mechanical, concrete, and accessibility inspectors. Certified professional estimators. Trial experts, arbitrators, and insurance appraisers/umpires. WHite, ZUcKeRMaN, WaRSaVSKy, lUNa & HUNt 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) 219- 9095, e-mail: [email protected]. Website: www.wzwlh .com. Contact Barbara Luna. Expert witness testimony for complex litigation involving damage analyses of lost profits, unjust enrichment, reasonable royalties, lost earn- ings, 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 inter- ruption, 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 disso- lution, personal injury, product liability, real estate, securi- ties, tax planning and preparation, IRS audit defense, trac- ing, unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on page 51. ZiVetZ, ScHWaRtZ & SaltSMaN, cpaS 11900 West Olympic Boulevard, Suite 650, Los Angeles, CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Website: www.zsscpa.com. Contact Lester J. Schwartz, CPA/CFF, DABFE, DABFA, Michael D. Saltsman, CPA, MBA, Lynda R. Schauer, CPA, CVA, CGMA, David L. Bass, CPA, David Dichner, CPA, ABV, Sandy Green, CPA, Silva Hakobyan, CPA. Accounting experts in forensic accounting, tax issues, business valuations, and appraisals, marital dissolutions, eminent domain, insurance losses, business interruption, goodwill, economic analysis, investigative auditing, loss of earning, commercial dam- ages, and lost profits. Expert witness testimony prepara- tion, settlement negotiations, and consultations. See display ad on page 53. PLASTIC & COSMETIC RECONSTRUCTIVE SURGERY BReNt MOelleKeN, MD, FacS. 120 South Spalding Drive, Suite 110, Beverly Hills, CA 90212, (310) 273-1001, fax (310) 205-4881. Website: www.drbrent.com. Contact Penny. IME, deposition, trial, medical record review, plastic and reconstruction surgery, and laser scar services.

Los Angeles Lawyer April 2017 57 PLASTIC SURGERY/BURN SPECIALIST PROBATE & TRUST ACCOUNTING kerage, appraisal, escrow, and title insurance. JeFFRey l. ROSeNBeRG, MD cBiZ & MayeR HOFFMaN MccaNN pc e. ROBeRt MilleR & aSSOciateS pROpeRty MaNaGeMeNt 1245 Wilshire Boulevard, Suite 601, Los Angeles, CA 10474 Santa Monica Boulevard, Suite 200, Los Angeles, 330 Primrose Road, Suite 606, Burlingame, CA 94010, 90017, (213) 977-0257, fax (213) 977-0501, e-mail: CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: (650) 373-0705, fax (650) 373-0709, e-mail: elymiller [email protected]. Website: www.jrosenbergmd [email protected], [email protected], moutonriff@cbiz @hotmail.com. Website: www.erobertmiller.com. Contact .com. Contact Judy. Plastic and reconstructive surgery, .com. Website: www.MHM-PC.com, www.CBIZ.com. E. Robert Miller. Specialties: expert witness in property burn specialist. Diplomate, American Board of Plastic Contact Coral Hansen, Steve Franklin and Lorna management issues for all types of commercial and resi- Surgery. Member, American Burn Association and Ameri- Mouton Riff. CBIZ & Mayer Hoffman McCann PC special- dential real estate. Experience in arbitration, litigation, lease can Society of Plastic Surgeons. izes in fraud investigations, forensic accounting, business terms, personal injury, property damage, security, industry litigation, commercial damage and lost profits computa- standards of care, and due diligence. Retained as an expert PLASTICS tions, business valuation and appraisal, transactional due witness consultant in more than 980 lawsuits. diligence, family limited partnerships, business interruption, KaRS’ aDVaNceD MateRialS, iNc. and family law. We provide experienced expert testimony FORRy laW GROUp; FORRy Realty Testing and Research Labs, 2528 West Woodland Drive, and tax controversy representation. GROUp iNc. Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- 15501 San Fernando Mission Boulevard, Suite 309, Mis- 7169, e-mail: [email protected]. Website: www.karslab PSYCHIATRY sion Hills, CA 91345, (818) 361-1321, fax (818) 365-6522, .com. Contact Dr. Ramesh Kar, Dr. Naresh Kar, Dr. e-mail: [email protected]; [email protected]. Website: Nikhil Kar. Southern California’s premier materials/ MaRia t. lyMBeRiS, MD, iNc. www.forrylaw.com. Contact Craig B. Forry, JD, GRI, mechanical/metallurgical/structural/ forensics laboratory. 1500 Montana Avenue, Suite 201, Santa Monica, CA Realtor. Expert witness/consultant, broker/agent standard Registered professional engineers with 30+ years in metal- 90403, (310) 451-3152, e-mail: [email protected]. of care, escrow, real estate damages, foreclosure, real lurgical/forensic/structural/�mechanical failure analysis. Website: www.lymberis.com. Contact Maria T. estate disclosure, HOA, landlord-tenant, leases, mortgages, Experienced with automotive, bicycles, tires, fire, paint, Lymberis, MD. Clinical Professor of Psychiatry, transactions, residential and commercial, business agent/ plumbing, corrosion, and structural failures. We work on UCLA School of Medicine. Board certified in adult, broker standard of care, and legal malpractice. Available for both plaintiff and defendant cases. Complete in-house child/adolescent psychiatry, expert consultant Medical consultations, depositions, and courtroom testimony. capabilities for tests. Extensive deposition and courtroom Board of California, forensic expert for psychiatric malprac- Degrees/licenses: BA, JD; California attorney for over 32 experience (civil and criminal investigations). Principals are tice, sexual harassment, posttraumatic stress cases, and years. California broker for over 12 years, Realtor; Graduate Fellows of American Society for Metals and Fellows, Ameri- divorce/child custody and psychiatric evaluations for: Realtor Institute. Memberships: National and California can College of Forensic Examiners. See display ad on fitness for duty and competency to stand trial. Association of Realtors; Southland Regional Association of this page 57. PSYCHOLOGY/PSYCHOLOGICAL Realtors; California State Bar; LACBA. PLUMBING ASSESSMENT FORSteR Reality aDViSORS 4X FOReNSic eNGiNeeRiNG 9350 Wilshire Boulevard, Suite 203. Beverly Hills, CA laBORatORieS, iNc. JUDy HO, pHD, aBpp, cFMHe 90212, (424) 284-1800, fax (424) 284-1801, e-mail: [email protected]. Website: www.realtyforensics 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) liceNSeD cliNical pSycHOlOGiSt .com. Contact Eric Forster, MBA, MAFF. Real estate 450-8500, fax (714) 450-8599, e-mail: [email protected]. Tenured Assistant Professor at Pepperdine University; and mortgage fraud, industry standards and practices. Website: www.4Xforensic.com. Contact Phil Van Herle. Diplomate, American Board of Professional Psychology; Commercial damages and loss of profits. Eric Forster has 4X Forensic Engineering Laboratories is a full-service foren- Diplomate, National Board of Forensic Evaluators. Santa served as a special master of the court in a massive mort- sic engineering laboratory. We provide expert witness and Monica Office: 2730 Wilshire Boulevard, Suite 650, Santa gage fraud case and is former chair of the ABA Expert Wit- analytical and testing services in the following areas: fires Monica, CA 90403, Manhattan Beach Office: 1600 Rose- ness subcommittee. and explosions: electrical and gas product defect investiga- crans Avenue, Media Center 4th Floor, Manhattan Beach, tions, thermal and fire modeling and laboratory testing; CA 90266. (310) 745-8887, e-mail: [email protected]. SaMUel K. FReSHMaN, Ba, JD Website: www.drjudyho.com. Dr. Ho provides forensic water loss: materials, corrosion, and failure analysis of 9841 Airport Boulevard, Suite 1010, Los Angeles, CA and neuropsychological evaluations used in legal settings plumbing products; failure analysis: metallurgy, product 90045, (310) 410-2300, fax (310) 410-2919. Contact to document a wide variety of psychologically relevant testing, and computerized stress analysis; accident recon- Samuel K. Freshman. Attorney and real estate broker information, including neuropsychological, IME, and struction: automotive, trucks, construction equipment, and since 1956, banker, professor legal malpractice, arbitration, forensic evaluations for civil & criminal cases including premises liability. See display ad on page 44. brokerage malpractice, leases, syndication, construction, personal injury, fitness for duty, discrimination, sexual property management, finance, due diligence, conflict of assault and trauma, professional licensing disputes, and PODIATRY—FOOT SPECIALIST interest, title insurance, banking, escrow, and development. assessment of psychological state/functioning at time of Expert witness 30-plus years in state and federal courts. SteVeN l. ROSeNBeRG, DpM criminal offense. Dr. Ho is a member of International Neu- Twenty-one published articles, arbitrator and mediator, 2901 Wilshire Boulevard, Suite 110, Santa Monica, CA ropsychological Society and National Academy of Neu- general partner $300,000,000+, shopping centers, apart- 90403, (310) 828-3336, fax (310) 828-0096, e-mail: ropsychology. A list of her retained cases are available ments, and industrial property. JD Stanford (1956). See [email protected]. Website: www.rosenbergstevendpm upon request. She provides expert testimony regarding display ad on page 57. .com. Expert witness, plaintiff and defense, IME, podiatric psychological testing methods, results, and conclusions. surgery, medicine, sports medicine, trauma injuries, and Dr. Ho is a diplomate of two specialty boards, a two-time laWReNce H. JacOBSON, eSQ. pain management. Second opinion reports, x-ray review, recipient of the National Institute of Mental Health National 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA and evaluations. Treating all ages, infants, children and Services Research Award, and the current chair of the 90212, (310) 271-0747, fax (310) 271-0757, e-mail: law adults. Over 35 years of experience. Institutional Review Board at Pepperdine University. She [email protected]. Website: www.lawrencejacobson.com. conducts clinical and community research on mental Past president, Beverly Hills Bar Association. Expert wit- POLYGRAPH health, publishes empirical studies and book chapters, ness: lawyer malpractice in business and real estate trans- and is a frequent invited speaker at various national and actions, fee disputes, standard of care for real estate bro- JacK tRiMaRcO & aSSOciateS local conferences and media outlets. kers and mortgage brokers, and real estate document pOlyGRapH iNc. custom and usage. Practicing real estate and business law 9454 Wilshire Boulevard, 6th Floor, Beverly Hills, CA REAL ESTATE in California since 1968. See display ad on page 57. 90212, (310) 247-2637, e-mail: [email protected]. Website: www.jacktrimarco.com. Contact Jack aDViSORS/eXpeRtS @ McS aSSOciateS MaURice ROBiNSON aND Trimarco. Former manager of the Federal Bureau of Inves- 18881 Von Karman, Suite 1175, Irvine, CA 92612, aSSOciateS llc tigation’s polygraph program in Los Angeles. Former (949) 263-8700, fax (949) 263-0770, e-mail: experts 28 Dover Place, Manhattan Beach, CA 90266, (310) Inspector General Polygraph Program—Department of @mcsassociates.com. Website: www.mcsassociates 640-9656, fax (310) 640-9276, e-mail: maurice Energy. Nationally known and respected polygraph expert. I .com. Contact Norman Katz, managing partner. @mauricerobinson.com. Website: www.mauricerobinson have the credentials you would want when you have a Nationally recognized banking, finance, insurance, and real .com. Contact R. Maurice Robinson, president. Hotel client polygraphed, a case reviewed, or a motion made estate consulting group (established 1973). Experienced liti- and real estate industry business issues, including market, regarding polygraph. My unique background allows me to gation consultants/experts include senior bankers, lenders, economic and financial feasibility, valuation, and disputes bring the highest levels of service and expertise to any poly- consultants, economists, accountants, insurance under- between owner-operator, borrower-lender, and franchisor- graph situation. Current member of the Ethics Committee, writers/brokers. Specialties include: lending customs, prac- franchisee. Fluent in management contracts, license agree- California Association of Polygraph Examiners (CAPE). Hun- tices, policies in all types of lending (real estate, subprime, ments, ground and building leases, partnership and JV dreds of appearances on national TV, including Dr. Phil, business/commercial, construction, consumer/credit card), agreement, concession contracts, development agree- Oprah, Greta, Nancy Grace, O’Reilly Factor, and Hannity banking operations/administration, trusts and investments, ments, and loan docs. Can estimate damages and and Colmes. Degrees/licenses: BS Psychology, Certified economic analysis and valuations/damages assessment, appraise property values under multiple scenarios. Expert APA, AAPP, CAPE, AAFE. See display ad on page 37. insurance claims, coverages and bad faith, real estate bro- witness testimony, litigation strategy, consultation and sup-

58 Los Angeles Lawyer April 2017 port, damage calculations, lost profits analysis, real estate water resources, solid waste and air quality and industrial TOXICOLOGY appraisals, deal structuring, workouts, new development, hygiene and safety services. We are a 46-year old consult- strategic planning, market demand assessment, acquisition ing firm with 68 offices across the US and nearly 800 HaMptON HealtH, ltD™ due diligence, and economic, financial, and investment employees. Our Long Beach office has more than 30 pro- JOHN H. FUlleRtON, MD, MRO, cMD, analysis. fessional engineers, scientists, and subject matter experts cFp, Facp, aGSF, FaaHpM available on short notice to serve asbestos, lead-based RODiNO aSSOciateS 1700 California Street, Suite 470, San Francisco, CA paint, and other specialty areas requiring expert witness 94109, (415) 460-5532, fax (415) 376-5820, e-mail: 11661 San Vicente Boulevard, Suite 306, Los Angeles, services. [email protected]. Website: hamptonhealthltd.com. CA 90049, (310) 459-9474, e-mail: [email protected]. Contact Minoo Parsa. Services available: Board Certi- Website: www.RodinoAssociates.com. Contact Robert J. SECURITIES fied in Internal Medicine, Geriatrics, Hospice, Palliative Rodino, Ph.D. Research, report preparation, deposition, Medicine, Addiction Medicine, and Home Health; court testimony in all major property types, for multi-family cORNeRStONe ReSeaRcH Licensed Medical Review Officer. Expertise: Medicare residential, retail, office and light industrial, acquisition & dis- 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- fraud cases for the government, toxicology/DUI, elder position, development, management, leasing, investment 2005, (213) 553-2500, fax (213) 553-2699. Website: www abuse including criminal defense of lay caregivers analysis, brokerage, and market research. .cornerstone.com. Contact George G. Strong, Jr., Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, accused of homicide of demented relatives during end-of- tHe SiMMONS GROUp, iNc. Carlyn Irwin, Pierrick Morel, or Ashish Pradhan. For life phase. Hospital, ambulatory/outpatient, PI, medical 507 Brentwood Dr., P.O. Box 786, Lake Arrowhead, more than 25 years, Cornerstone Research staff have pro- malpractice, and LTC. Medical/hospice directorships. CA 92352, (310) 439-4119, fax (310) 300-3020, vided economic and financial analysis in all phases of Testified over 200 times and reviewed more than 1,500 e-mail: [email protected]. Website: www commercial litigation and regulatory proceedings. We work cases, including Medicare audits for the government. .simmonsgroupconsulting.com. Contact Philip Simmons, with a broad network of testifying experts, including promi- See display ad on page 53. Esq. Decades of executive land use, development, and real nent faculty and industry practitioners, in a distinctive col- pRiNcetON-SOMeRSet GROUp, iNc. estate law expertise provides a unique combination of skills laboration. The experts with whom we work bring the spe- 4 Carroll Drive, Hillsborough, NJ 08844, (800) 597-8836, providing expert witness issues analysis, case preparation, cialized expertise required to meet the demands of each (908) 369-6890, fax (908) 369-6881. Website: www and testimony. Over 30 years of experience in corporate assignment. Our areas of specialization include intellectual .PrincetonSomerset.com. 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Los Angeles Lawyer April 2017 59 closing argument BY ERWIN CHEMERINSKY

The Constitutionality of Withholding Federal Funds from Sanctuary Cities

PRESIDENT DONALD TRUMP’S THREAT to withhold federal funds “any government entity or official from sending to, or receiving from “sanctuary cities” is unwise and unconstitutional. Ironically, from, the Immigration and Naturalization Service information regard- this type of coercion of local governments violates principles of fed- ing the citizenship or immigration status, lawful or unlawful, of any eralism long advocated by the conservative justices on the Supreme individual.” Court. San Francisco and other cities have brought lawsuits to chal- It is unclear whether and when a sanctuary city is violating Section lenge this executive order and should succeed in having it declared 1373. But assuming that the executive order accomplishes what unconstitutional. President Trump wants, this violates the Tenth Amendment. The A great deal of confusion exists over what it means for a city to Supreme Court has held that it is unconstitutional for Congress to declare itself to be a “sanctuary.” It does not mean that a city will commandeer state and local governments and force them to administer conceal or shelter undocumented immigrants from detection. Thus, federal mandates. it is not the same as when churches and synagogues have claimed For example, in United States v. Printz,1 in 1997, the Supreme to be sanctuaries and attempted to physically protect people from Court declared unconstitutional a provision of the federal Brady law enforcement. Handgun Control Act that required that state and local governments Instead, when a city says that it is being a “sanctuary,” it means do background checks before issuing permits for firearms. The Court, that the city will not be an arm of federal immigration authorities. in an opinion by Justice Antonin Scalia, said that such coercion For example, a sanctuary city will not investigate, arrest, or detain violated principles of federalism and the Tenth Amendment. individuals on the basis of immigration status. The city will provide Congress also may not place similar constraints by putting strings services to all, regardless of immigration status and generally not turn on grants to state and local governments. The Supreme Court has over undocumented individuals to federal immigration authorities. said that these types of strings are constitutional only if the conditions There are compelling reasons for cities to adopt such policies. are clearly stated, relate to the purpose of the program, and are not Victims of crime and witnesses to crime will not come forward to unduly coercive. None of the requirements mentioned by the Court the police if they fear deportation. Indeed, it was for exactly this are met by the Trump executive order. No federal law conditions reason that in 1979 the Los Angeles Police Department adopted federal funds on cities not being able to have sanctuary status. Most Special Order 40, which provides that “Officers shall not initiate federal grants to local governments have nothing to do with immi- police action with the objective of discovering the alien status of a gration. person. Officers shall not arrest nor book persons for [violating] the But most of all, the Trump executive order is impermissibly coer- United States Immigration Code.” cive. In 2013, in National Federation of Independent Businesses v. Public health officials fear that sick people, including those with Sebelius,2 the Supreme Court, in a 7-2 decision, declared unconsti- communicable diseases, will not seek treatment if they fear that it tutional the Medicaid provisions of the Patient Protection and could lead to their deportation. Of course, their untreated commu- Affordable Care Act. These provided that if a state accepted federal nicable diseases can spread to all of us. Education officials worry Medicaid funds, it had to provide coverage for those within 133 that parents will not send their children to school if they think it percent of the federal poverty level. The federal government will might lead to deportation. Educating children, whether documented pay 100 percent of these costs until 2019 and 90 percent thereafter. or undocumented, is a moral obligation and obviously essential for The Court, in an opinion by Chief Justice John Roberts, declared society. this unconstitutional as impermissibly coercing state governments Nonetheless, President Donald Trump issued an executive order in violation of the Tenth Amendment. The Court referred to this as on January 25, 2017, which threatens sanctuary cities with loss of like “a gun to the head” of the states and as “dragooning” them. federal funds. The executive order is titled, “Enhancing Public Safety The Trump executive order does exactly the same thing. in the Interior of the United States.” It declares: “Sanctuary juris- The federal government can use its agencies and agents to enforce dictions across the United States willfully violate Federal law in an federal immigration law however it chooses. But it cannot turn local attempt to shield aliens from removal from the United States. These governments into enforcement arms of the federal government. This jurisdictions have caused immeasurable harm to the American people is exactly what the Trump executive order does. It is misguided as a and to the very fabric of our Republic.” matter of policy and unconstitutional coercion in violation of the The key provision says: “In furtherance of this policy, the Attorney Tenth Amendment. n General and the Secretary, in their discretion and to the extent con- sistent with law, shall ensure that jurisdictions that willfully refuse 1 United States v. Printz, 521 U.S. 898 (1997) to comply with Section 1373 of Title 8 of the U.S. Code (sanctuary 2 National Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012). jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney Erwin Chemerinsky is the dean and Raymond Pryke Professor of First General or the Secretary.” Section 1373 says that no law can prevent Amendment Law at the University of California at Irvine School of Law.

60 Los Angeles Lawyer April 2017